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Kinsella on Liberty Podcast, Episode 219.
I delivered a talk earlier today for the Houston Property Rights Association (April 28, 2017), “Property: What It Is and Isn’t,” which sets out the framework for how to view property rights in general and then finally turns to intellectual property. The main talk lasted for about the first 30 minutes; the final hour is Q&A. My speech notes (unedited and raw) are below.
Property: What It Is and Isn’t
Stephan Kinsella
Kinsella Law Group, Libertarian Papers, C4SIF.org
Houston Property Rights Association · April 28, 2017
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When a Great Austrian thinker was asked, “What is Best in Life?” He answered: “To crush your enemies, to see them driven before you, and to hear the lamentations of their women.”
- Okay, that was Arnold Scharzenegger as Conan.
- This recognizes that conflict always possible in human life
- There are only so many “things” to go around, and if multiple people want it, they can fight violently over it.
- There can be conflict, precisely because we do not live in a world of superabundance.
- Garden of Eden etc.
- we live in a world where conflict is possible
- Another way to put this: we live in a world of scarce resources
- Better called “rivalrous”
Let’s turn to the ideas of another great Austrian thinker, Ludwig von Mises
- Praxeology: the logic of human action
- Structure of human action
- Humans use knowledge about the world to select, control and employ scarce resources (means of action) to change the future—to achieve ends
- Notice two crucial ingredients to successful human action: knowledge, and scarce resources/means.
- This is true of Crusoe alone on his island
- It is also true of man in society
In society there is another way to handle the problem of scarce resources
- Instead of conflict, we can develop usage or ownership rules, to permit scarce resources to be used peacefully, productively, cooperatively, and without conflict
- This is the origin and basis of “property”.
- Alone, a man wants to use a thing: he uses it: he controls it, possesses it.
- In society, there could be two people who want the same thing, but because it is scarce only one can use it.
- Usage rules emerge that specify an owner of a given contestable resource.
- We call this system “property rights”
- We sometimes call the objects themselves “property”
- That chair is my property
- When you use a resource to change the world, in addition to your hands, your body, it becomes an extension of yourself.
- It becomes identified with the user. “Part of” the user. We might say it is a feature, or characteristic, or an aspect, of the user—or a “property” of the user.
- My gun, my knife, my fishing net, are how I control the world. I rely on them as I rely on my hands and my eyes.
- Thus we refer to owned objects as “a property of” the owner.
- we say he has a “proprietary interest in” the object, he is the proprietor, the owner. He has a property right in that resource.
- Notice earlier: can say these resources are “characteristics” or “features” or properties of a person’s identity.
- It would be odd to say “that chair is my characteristic” or “my feature”.
- Yet we are used to saying “that chair is my property”
- but what we mean is: a given person is the owner of that resource. A given person has a property right in that resource.
A system of property rights, or law, emerges, which determines owners of various resources.
- Who has a property right in this thing? Who owns it?
- “Property does not exist because there are laws, but laws exist because there is property.” — FrédéricBastiat
- This is true of all legal and political systems, even socialist
- What distinguishes libertarianism and free market, western systems is our property allocation rules.
- These are:
- self-ownership (body-ownership), plus:
- for scarce resources, three rules:
- Original appropriation (homesteading; Locke)
- Consensual transfer (contract; gift; bequest)
- Rectification (restitution) for tort or crime
- Any other system deviates from these rules and assigns property rights based on some other, non-natural rule.
- Any other rule is a type of theft or taking of property rights, or a form of slavery
- Briefly explain basis for the three rules
Intellectual Property
- Patent and copyright
- “Article I, Section 8of the United States Constitution, empowers the United States Congress: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
- Is IP “property” —is not the right question. That’s like asking “is IP feature? Is IP characteristic?”
- Is it compatible with capitalist property allocation rules?
- Remember distinction between knowledge and resources in human action.
- Explain IP as “negative servitudes” and contrary to capitalist property allocation rules
- Rothbard’s “autistic,” “binary” and “triangular” taxonomy of state intervention
