Mises was Right, Part 2: Feulner, Neocons, Heritage, Georgia, Mont Pelerin

by Stephan Kinsella on August 21, 2008

“It turns out, of course, that Mises was right.”
—Robert Heilbroner (1990), “After Communism”, The New Yorker, September 10: 92 (1, 2, 3) ¹

Regarding Paul Craig Roberts’s “I Resign from the Mont Pelerin Society“:

Interesting connected facts:

1. Formerly libertarian Mont Pelerin Society (which lists Hayek, Friedman, “Coase,” and others as “Notable Members”, but not Mises): its Treasurer is one “Edwin Feulner.”

2. Feulner is President of Heritage.

3. In “Saving Georgia,” Heritage Web Memo #2021, and The Russian-Georgian War: A Challenge for the U.S. and the World, on “Ariel Cohen, Ph.D.” buys into the Bush administration’s propaganda that uses “the Russian invasion of Georgia” as an excuse for further American hegemony.

No wonder Hans-Hermann Hoppe founded the Property and Freedom Society to take up the reins that MPS has dropped.

As Guido Hu?lsmann noted in “Ludwig von Mises and the Mt. Pelerin Society. Strategic Lessons” a speech delivered at the inaugural meeting of the PFS in 2006 (summary; program):

As classical liberal economists were usually not employed in institutions of higher learning (the teaching of economic science was not primarily organized within the universities), they built other institutions, from loose networks to political parties. By 1860 governments realized the danger to themselves that the classical economists posed. Their answer was to create their own economists and thus control the market of ideas. This strategy was first applied in Germany with the German Historical School or “Schmollerism” and soon spread to other countries, each with its own specific national feature. John Stuart Mill in Britain for example changed the meaning of liberalism into interventionism, while the Russian government thought that Schmoller was too tame and hired Marxist economists instead.

This trend continued into the 20th century, with Ludwig von Mises being one of the very few setting himself against it. After demolishing the case for socialism and putting the case for radical liberalism, he insisted that no “third way” was possible, as this would invariably lead to a loss of prosperity and in the end, socialism.

In the first half of the 20th century, a number of societies were founded by liberals to counter the trend towards socialism. By 1938, four schools of thought were represented:

Neoliberalism, i.e., practical and theoretical compromise with socialism; F.A. v. Hayek, for whom a small amount of intervention was permissible; Alexander Rüstow, who considered natural hierarchies as necessary for society; and Ludwig v. Mises, who stood for complete laissez faire.

Nine years and one World War later, these groups convened to form the Mont Pèlerin Society (MPS). At the same time, Leonard Read’s FEE in America was publishing leaflets explaining the ideas of Mises and organizing seminars and speeches for Mises and others. These activities were extremely important for spreading Mises’ thoughts, especially to young people. Ralph Raico, George Reisman and Murray N. Rothbard were among those influenced by the FEE papers. Without the FEE, the Chicago School would have totally dominated the field of free market ideology.

Mises was skeptical about the MPS right from the start; he was particularly concerned because of the participation of certain people. In 1947, he stormed out of a meeting, saying: “You’re all a bunch of socialists.”

Today, the MPS, a society of eminent scholars, mainly represents Neoliberalism. Therefore, the PFS could play the role that the MPS was originally designed to play: spreading the uncompromising intellectual radicalism of freedom.

(See also Hu?lsmann, Mises: The Last Knight of Liberalism, pp. 871, 989-90, 1003-10, 1032, et pass.)

This helps place in context the principles for the PFS as announced by Hoppe at its founding in 2006:

The Property and Freedom Society stands for an uncompromising intellectual radicalism: for justly acquired private property, freedom of contract, freedom of association …. It condemns imperialism and militarism and their fomenters, and champions peace. It rejects positivism, relativism, and egalitarianism in any form …. As such it seeks to avoid any association with the policies and proponents of interventionism, which Ludwig von Mises had identified in 1946 as the fatal flaw in the plan of the many earlier and contemporary attempts by intellectuals alarmed by the rising tide of socialism and totalitarianism to found an anti-socialist ideological movement. Mises wrote: “What these frightened intellectuals did not comprehend was that all those measures of government interference with business which they advocated are abortive. … There is no middle way. Either the consumers are supreme or the government.“

***

Re: Capture of Mont Pelerin Society by Neocons

Posted by Stephan Kinsella on August 21, 2008 01:35 PM

Tom, the MPS displays Hayek, Friedman, Coase, and others as “Notable Members”, but scandalously omits Mises. Their excuse for leaving him out is that they list only Nobel winners (though the category is “notable”, not “prize-winning”); but Mises towers above all of them.

Roberts’s article links one of Heritage’s pieces on the “Russian invasion of Georgia” Bush line; others are “Saving Georgia,” Heritage Web Memo #2021, and The Russian-Georgian War: A Challenge for the U.S. and the World, by Ariel Cohen, Ph.D.

Mises was right about socialism (“It turns out, of course, that Mises was right” — Robert Heilbroner, 1990 [1, 2, 3]); and he was right about the PFS. As Guido Hu?lsmann noted in a 2006 speech “Ludwig von Mises and the Mt. Pelerin Society. Strategic Lessons“:

As classical liberal economists were usually not employed in institutions of higher learning (the teaching of economic science was not primarily organized within the universities), they built other institutions, from loose networks to political parties. By 1860 governments realized the danger to themselves that the classical economists posed. Their answer was to create their own economists and thus control the market of ideas. This strategy was first applied in Germany with the German Historical School or “Schmollerism” and soon spread to other countries, each with its own specific national feature. John Stuart Mill in Britain for example changed the meaning of liberalism into interventionism, while the Russian government thought that Schmoller was too tame and hired Marxist economists instead.This trend continued into the 20th century, with Ludwig von Mises being one of the very few setting himself against it. After demolishing the case for socialism and putting the case for radical liberalism, he insisted that no “third way” was possible, as this would invariably lead to a loss of prosperity and in the end, socialism.

In the first half of the 20th century, a number of societies were founded by liberals to counter the trend towards socialism. By 1938, four schools of thought were represented:

Neoliberalism, i.e., practical and theoretical compromise with socialism; F.A. v. Hayek, for whom a small amount of intervention was permissible; Alexander Rüstow, who considered natural hierarchies as necessary for society; and Ludwig v. Mises, who stood for complete laissez faire.

Nine years and one World War later, these groups convened to form the Mont Pèlerin Society (MPS). At the same time, Leonard Read’s FEE in America was publishing leaflets explaining the ideas of Mises and organizing seminars and speeches for Mises and others. These activities were extremely important for spreading Mises’ thoughts, especially to young people. Ralph Raico, George Reisman and Murray N. Rothbard were among those influenced by the FEE papers. Without the FEE, the Chicago School would have totally dominated the field of free market ideology.

Mises was skeptical about the MPS right from the start; he was particularly concerned because of the participation of certain people. In 1947, he stormed out of a meeting, saying: “You’re all a bunch of socialists.”

Today, the MPS, a society of eminent scholars, mainly represents Neoliberalism.

(See also Hu?lsmann, Mises: The Last Knight of Liberalism, pp. 871, 989-90, 1003-10, 1032, et pass.)

Similarly, as Hoppe has observed: Mises identified in 1946 the association with the policies and proponents of interventionism

as the fatal flaw in the plan of the many earlier and contemporary attempts by intellectuals alarmed by the rising tide of socialism and totalitarianism to found an anti-socialist ideological movement. Mises wrote: “What these frightened intellectuals did not comprehend was that all those measures of government interference with business which they advocated are abortive. … There is no middle way. Either the consumers are supreme or the government.“

The Mises quote is from “Observations on Professor Hayek’s Plan,” typewritten memorandum dated 31 December 1946; Grove City Archive: MPS files (unfortunately unpublished).

As Hu?lsmann notes, in this memoradum, Mises

stated that many similar plans to stem the tide of totalitarianism had been pursued in the past several decades—he himself had been involved in some of these projects—and each time the plan failed because these friends of liberty had themselves already been infected by the statist virus: “They did not realize that freedom is inextricably linked with the market economy. They endorsed by and large the critical part of the socialist programs. They were committed to a middle-of-the-road solution, to interventionism.” At the end of the memorandum, he stated his main objection:

The weak point in Professor Hayek’s plan is that it relies upon the cooperation of many men who are known for their endorsement of interventionism. It is necessary to clarify this point before the meeting starts. As I understand the plan, it is not the task of this meeting to discuss anew whether or not a government decree or a union dictate has the power to raise the standard of living of the masses. If somebody wants to discuss these problems, there is no need for him to make a pilgrimage to the Mount Pèlerin. He can find in his neighborhood ample opportunity to do so.

Hu?lsmann, Last Knight, pp. 865-66.

See also Jeremy Waldron, The Right to Private Property (Oxford 1988), p. 9 and n.17: “It is now accepted that a centralized command economy, in which all productive decisions were taken on the basis of the central allocation of scarce resources, would lead, in the conditions of modern industry, to radically inefficient and perhaps catastrophic results.17. 17. For socialist recognition of this point, see e.g. Nove, Economics of Feasible Socialism, and Anderson, On the Tracks of Historical Materialism. Also discussed in Stephan Kinsella, Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023), ch. 13, at n.69. [↩]

{ 5 comments }

Incorporation and the Fourteenth Amendment: The 140 Year Old “Riddle”

by Stephan Kinsella on August 18, 2008

Update: For related posts:

From Mises Blog ; archived comments below:

Incorporation and the Fourteenth Amendment: The 140 Year Old “Riddle”

08/18/2008 Stephan Kinsella

I just came across an interesting article by law professor George C. Thomas, “Thomas on Wildenthal on the 14th Amendment” (discussed on the Legal Theory Blog here).

A bit of background first. The meaning of the Fourteenth Amendment, “ratified” in 1868, has been debated for about 140 years now–and increasingly so in the last 90 or so years as the “Due Process” clause of that Amendment was used as a source of federal power over the states, via the “incorporation doctrine,” under which many of the rights implicit in the first 8 amendments of the Bill of Rights have been “incorporated” into the Due Process clause and thereby “applied” to the states (for discussion and criticism, see here, here, and here).

The standard line among libertarian proponents of the Fourteenth Amendment and its use by the federal courts as a tool to oversee and strike down “unconstitutional” state laws is that the Privileges or Immunities Clause is the proper basis for some sort of incorporation; but that the Supreme Court, in the 1873 Slaughter-House Cases inappropriately eviscerated the P-I clause, preventing its use for applying the Bill of Rights against the states.Thus, when the Court was ready to start incorporating rights against the states, the Court had to contort the Due Process clause to do the job the P-I clause was meant for (using the ridiculous idea that, in addition to “procedural due process”, there is also “substantive due process”–funny, I would have thought due process is, well, procedural). In any event the libertarian “incorporationists” urge that the P-I clause (“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States“) should be “revitalized” to better legitimize expanded federal power over the states (see here, here, and here). But these libertarians accept the basic tenet of the pro-incorporationists, that the Fourteenth Amendment gives the federal government power to regulate and supervise the states with regard to a broad array of rights. They are of the view that “privileges or immunities” refers to a broad set of rights, such as the various fundamental rights express or implied in the Bill of Rights.

But does it? As Thomas notes, there has been a tremendous amount of debate about what “privileges or immunities” means, from Charles Fairman and Raoul Berger, on the anti-incorporation side, to William Crosskey, Michael Kent Curtis, and others (and various libertarian incorporationists) on the pro-incorporation side. What is striking about this article is that Thomas is no radical decentralist libertarian. He is a respected, mainstream law professor and constitutional scholar. In fact, he is personally “convinced that a plausible case can be made that Congress intended incorporation of most of the rights in the first eight amendments.” Despite this, he does not think the case has been made that this is the legal meaning of the Fourteenth Amendment. As he writes, “although many scholars have confidently claimed overwhelming historical evidence for, or against, incorporation, I am not in that camp. The evidence is sketchy, inconclusive, and subject to various plausible interpretations. The riddle will not go away because no one has solved it.”

He gives several persuasive reasons (one of which concerns the Twitchell case, discussed separately below in an appendix) for his view. He basically agrees with pro-incorporationist Bryan Wildenthal that because the states had to ratify the Fourteenth Amendment before it took effect, there has to be “fair notice” to the states “of the intended meaning before ratification binds the states to that meaning.” That is, “One must be satisfied that Congress ‘clearly, publicly, and candidly conveyed to the country’–the entire country, not just the East Coast–its intent to impose the first eight amendments on the states.” But as Thomas notes, even Wildenthal “concedes that evidence of ‘any strong public awareness of nationalizing the entire Bill of Rights’ is ‘vague and scattered.’” Therefore, Thomas himself “remain[s] unsure if there is enough evidence to show a clear communication to the states and the country.”

I’ll discuss below in a bit more detail some of Thomas’s reasons behind his conclusion (or lack of conclusion), which is:

I do not claim that the evidence presented here settles the question. History cannot settle all questions, and I believe the Fourteenth Amendment riddle is one of them. Fairman and Berger do not persuade that history settles the incorporation question in the negative. Crosskey, Curtis, Amar, Wildenthal, and others, do not persuade that history settles the question the other way.

It turns out that the Fourteenth Amendment riddle can be conclusively solved using existing evidence only by a magician’s parlor trick. Writers who claim that history settles the incorporation question … become magicians who distract the reader while they quietly put into place the presumptions that will provide clear proof. Even Wildenthal, whose work I greatly admire, eventually retreats to what is close to a “plain text” presumption. Now unburdened of any agenda, I can expose the trick for what it is. All efforts to solve the Fourteenth Amendment riddle to date have, alas, failed.

I come to my main point. If it is true that, at best, the Fourteenth Amendment does not clearly grant to the feds a host of new powers–and even if there are arguments for it (as Thomas himself leans toward), it is clear that there is no such clear grant–then it does not grant them. Just as we interpret serious agreements strictly, and against the drafter; just as we require formalities and writings for serious matters (such as living wills, sales of real estate, and so on), so a wide grant of power to the central state, in the context of a decentralist Constitution where the states historically jealously guarded their sovereignty, must be clear and expressly written to take effect. In other words, the central state should not be allowed–as a matter of constitutional or libertarian norms–to legitimately shift the balance of power away from the states, and toward itself, by vague and ambiguous wording that it itself drafted.

As Thomas notes,

To accomplish the seismic shift necessary to reverse Barron requires both clarity of expression and a public communication of the change …. The Court in The Slaughter-House Cases said that to read Section 1 broadly would “radically change[] the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people.”

So even if some libertarians would like the Fourteenth Amendment to have clearly incorporated the Bill of Rights–it simply did not do so. Maybe some, like Bingham, wanted it to. But he was unable to get his way. As Thomas explains,

The Thirteenth and Fifteenth Amendments accomplished even more fundamental seismic shifts in other tectonic plates that had undergirded our government, to be sure, but the wording of these amendments is crystal clear. Not so for Section 1 of the Fourteenth. It could have been crystal clear if Bingham had added a simple clause, as follows: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, including those defined in the first eight amendments to the Constitution.”

Lacking that kind of clarity, we need more evidence than just the intent of the drafter. We want to know that the country intended to put Congress and the federal courts in charge of ensuring that the states follow the Bill of Rights.

Alas for the centralists, the evidence is lacking. And wishing does not make it so.

Twitchell

Thomas also discusses an illuminating Supreme Court case, Twitchell v. Commonwealth, decided only a year after the Fourteenth Amendment was ratified. In this case, a Pennsylvania state death case, “Twitchell claimed that Pennsylvania failed to follow the Sixth Amendment command that he be informed of ‘the specific nature of the accusation, so as that he might be enabled to prepare for a defence,’ and that the failure to comply with the Sixth Amendment meant that the warrant for his execution was ‘not a due process of law.’ In a unanimous opinion written by Chief Justice Salmon P. Chase, the Court refused to reach the merits of the appeal because it lacked jurisdiction to hear a case from a state court about the scope of the Fifth and Sixth Amendments.”

Thomas argues that this case is very good evidence that an “incorporationist” meaning of the Fourteenth Amendment was not known at the time of its ratification, for otherwise, this argument would have been raised and addressed here. Quoting a few selections from Thomas here:

We are to believe that the Court knew that the Sixth Amendment was now part of the Fourteenth but refused to connect the dots for the lawyer who based his argument on the wrong Due Process Clause. And then, according to Amar and Wildenthal, the Court affirmed Twitchell’s death sentence because his lawyer forgot to say, “Oh by the way, the Sixth Amendment applies to the states through the Fourteenth.” The sheer inhumanity that this argument entails is reason enough to reject it and conclude, instead, that the Court was not aware of incorporation theory.

… Why did the Court not know about incorporation? Members of the Court had the opportunity to mingle with members of Congress much more then than today. The Court met in the Old Senate Chamber, which was next to the chamber where the Senate debated the Fourteenth Amendment. Four of the Justices roomed at the National Hotel, where four Senators and seven Representatives also roomed.

Would something as visible and important to the future of the country as Section 1 of the Fourteenth Amendment not have come up in informal conversations? If it did, we must assume that the Bingham-Howard view was not widely held, not discussed, or, again, that the Twitchell Court was aware of incorporation and chose not to mention it. If Section 1 was not a topic of informal conversation between justices and congressmen, it is hard to believe that the public discourse was informed by the theory of incorporation.

… The one inference that we can draw from Twitchell with certainty is that Twitchell’s lawyer, William Wheeler Hubbell, did not mention incorporation. … Hubbell argued in 1869 that the Sixth Amendment applied directly to the states, expecting to lose, because he thought he had no good argument. But that necessarily means that he did not understand the Fourteenth Amendment to make the Bill of Rights binding on the states. And if a constitutional theorist who had promoted the concept of incorporation did not share Bingham’s understanding, it is unlikely that the members of the Court would have had even an inkling about what Bingham was attempting to do.

… The truth is that no one on the Twitchell Court understood the Fourteenth Amendment to incorporate the Sixth. The great clarity about incorporation that Amar believes ran, like water, through the halls of Congress did not seep into the Old Senate Chamber. Crosskey concedes this much, noting the “rather shocking, but by no means unique, indication of the inalertness of the men who composed the Court of the period.”

… Amar signals the weakness of his argument here. After dismissing Twitchell as having no significance for the incorporation debate, Amar drops a footnote that begins, “Twitchell is perhaps explicable as an unthinking reflection of the notion that Section 1 would have its main application in the Southern states.” But if the Supreme Court that sat in the same building as Congress indulged “unthinking reflection” that Section 1 did not generally incorporate the Bill of Rights, or was “inalert” to this possibility, how are we to believe that the state legislatures knew of incorporation?

Thomas also notes that:

five states that took action to modify or eliminate their grand jury requirements after the Fourteenth Amendment was ratified. … why would states that already provided grand juries change their laws to flout the Fourteenth Amendment? Wildenthal dismisses these actions as limited to the rather unimportant right of grand juries. Perhaps. But where was the discussion about incorporation?

Amar argues that the evidence of silence shows that “many informed men simply were not thinking carefully about the words of Section One at all.” This concession does not trouble Amar who presses the case for incorporation on the ground that the text and debate in Congress were clear enough. Wildenthal sets a higher bar for himself than does Amar. Wildenthal, appropriately, asks the hard question: did Congress clearly, publicly, and candidly convey its intent to fasten the first eight amendments on the states?

If Congress was conveying that intent, … the message did not get to the Wisconsin Supreme Court; the United States Supreme Court; the lawyers representing Twitchell, Hall, and Rowan; or the legislatures or constitutional conventions in the states that modified or eliminated their grand jury requirements after 1866.

Archived comments:

Comments (8)

greg
Excellent — thanks. I haven’t been convinced that rights were incorporated by the 14th, and your post reinforces that view.As a separate note, I think I also recall a doctrine of “presumed constitutionality,” as the SCOTUS will start with the presumption that a federal statute is presumed to be constitutional in any challenge to it. Can you provide a quick note about that?
Published: August 18, 2008 5:07 PM
greg
I found this, in case anyone is interested:
http://users.law.capital.edu/dmayer/Publications/Liberty%20of%20Contract%20_Revised_.pdf
Published: August 19, 2008 2:24 PM
scineram
Given the indecisiveness of the evidence in either direction the question is why should libertards oppose using it to strike down bad laws?Indeed, why not? It is nonagressive.
Published: August 20, 2008 11:16 AM
scineram
Given the indecisiveness of the evidence in either direction the question is why should libertards oppose using it to strike down bad laws?Indeed, why not? It is nonagressive.
Published: August 20, 2008 11:17 AM
scineram
Given the indecisiveness of the evidence in either direction the question is why should libertards oppose using it to strike down bad laws?Indeed, why not? It is nonagressive.
Published: August 20, 2008 11:17 AM
josh m
I’m also curious as to the answer to scineram’s question (although I don’t think opposing the 14th makes someone a ‘tard’). I hope someone addresses the substance of his question.
Published: August 21, 2008 1:32 AM
greg
Aside from the obvious reason?
Published: August 21, 2008 2:10 PM
josh m
Please just say it. Thanks.
Published: August 22, 2008 7:03 PM

{ 1 comment }

Regret: The Glory of State Law

by Stephan Kinsella on July 31, 2008

From 2008 Mises post; archived comments below.

Regret: The Glory of State Law

Techdirt notes in CAFC Judge Regrets Decisions That Resulted In Software Patents that one of the federal judges on the Court of Appeals for the Federal Circuit admits that he was “troubled by the unintended consequences” of the earlier decisions that resulted in the proliferation of software and business model patents. Well at least he regrets it!

Now libertarian proponents of state legal systems are for some reason optimistic about the ability of state legislature and courts to promulgate just laws. Objectivist attorney Murray Franck, for example, wrote:

Just as the common law evolved to recognize “trespass by barbecue smoke,” it would have evolved to recognize property in the airwaves and in intellectual creations. But even if it could be established somehow that the common law would never have recognized intellectual property rights, this would not be an argument against such rights. The common law often requires legislation to correct it (for example, in recognizing the rights of women). Indeed it is a myth that the common law evolves to reflect, and that legislation always is in conflict with, the requirements of human nature. The same minds that employ induction and deduction to decide a particular case, making common law, can employ those methods to legislate universal laws. ¹

Hayek also believed that case-law might need occasional “correction” by the legislature (see my Legislation and the Discovery of Law in a Free Society, p. 171). Both Franck and Hayek here express confidence that it is possible for the state–via its courts and legislatures–to issue “just” law. Well, I don’t know about that. Here we have a “bad” judicial interpretation of a “bad” legislated statute. Oh, well, I guess they can at least “regret” it.

Update: In the passage above, Franck cites in support Carl Menger’s Investigations into the Methods of the Social Sciences, 1883, pp. 223-224. Franck is correct that Menger’s reasoning here is similar to Franck’s, but Menger, like Franck, is wrong. Menger was brilliant on economics, but not so good here. In the passages latched onto by Franck, Menger goes on about the wonders of planned law–legislation, in “advanced” societies. What a central planning, rationalist mindset. All these Europeans seem to be legal positivists and utopian rationalistic central planner types. I guess they were in thrall to the then-burgeoning “rational” and legislated civil codes of Europe, which were enacted as statutes and which enshrined legislation as the prime source of law (legislative positivism): e.g. the Louisiana and French and other civil codes that started to be promulgated in the early 1800s. (See, on this, Herman, Shael, The Louisiana Civil Code: A European Legacy for the United States (1993), pp. 17–18.

archived comments:

Jonathan Bostwick July 31, 2008 at 10:29 pm

“The common law often requires legislation to correct it (for example, in recognizing the rights of women).”

Interesting choice considering this legislation caused the government to recognize the rights of women.

See Letter on Intellectual Property Rights, IOS Journal (June 1995) .[↩]

{ 3 comments }

Van Dun on Lawyers and the Law

by Stephan Kinsella on July 19, 2008

From Mises blog, July 19 2008. archived comments below.

In Frank Van Dun‘s paper on argumentation ethics, [see “Argumentation Ethics and Liberty: A Concise Guide”] “Argumentation Ethics and the Philosophy of Freedom,” [see Van Dun on Argumentation Ethics; now “Argumentation Ethics and The Philosophy of Freedom”] there is a fascinating discussion about what law and courts and lawyers have become: not justice-seekers, but technical interpreters of artificial rules. Van Dun argues that equality before the law

was a great idea, but of course the powerful, the rulers and their clients, often enough intervened in court proceedings and made a mockery of the independence of the courts of law, replacing them with boards of officials whose main function was (and is) to see to it that their master’s voice is heeded by all. The judges were replaced with “magistrates.” The jurists, whose main concern is the knowledge and application of the principles of justice, were replaced with legists, whose main occupation is to know and apply their masters’ wishes as these are revealed in legal edicts and codes.[27]

Nevertheless, even in this day of rampant legal positivism, the ideals of justice still fashion the way in which those boards and magistrates present themselves to the public at large and to their masters. Unlike bureaucrats and diplomats, the magistrates posing as judges do not claim authority on account of their loyal subservience to their masters, but on account of their “independence” from them. Paying lip service to the ethics of dialogue and argumentation is vitally important for maintaining not only their position in society but also their status as possessors of a science of necessary things. While positivism rules the curriculum in the law schools, telling their students that only “the law” matters and that “the law” is nothing but the set of legal rules, edicts and decisions promulgated by the authorities that other rules in the same set designate as “legal,” the schools never tire of instilling in their students the sense that the implications of positivism do not apply to the magistrates and the advocates they are being trained to become. Like scientists, they should be aware that they are supposed to answer to a calling that transcends loyalty to any social or political regime. Like scientists, they should feel entitled to claim immunity from arbitrary interference, admittedly not as a general human right but as a professional privilege. And like scientists in the Age of Big Politicized Science, they should not have any qualms about serving and assisting the powers that be as long as the latter keep up the pretence of their “independence.”

Albeit in an increasingly emaciated and perverted form, the ethics of argumentation still has a hold on the imagination as the bulwark of civilized co-existence, no matter how obscure the distinction between a scientist and a government expert, or between a judge and a magistrate, has become in public discourse. However, its force is sapped when the point of argumentation in a court no longer is to reveal which actions are justifiable and which are not but merely to determine which party complied with some set of arbitrary politically imposed rules. Then argumentation gives way to a contest in which one “legal mind” tries to outwit his opponent in a game that turns primarily on one’s skills in combining officially recognized legal classifications of facts, legal rules, other legal data such as precedents, and currently fashionable notions into “a strong case.” Similarly, the ethics of argumentation and dialogue loses its grip on the intercourse of scientists if convincing the authorities of the social or political relevance of one’s research becomes a priority.

The argument from argumentation is not a mere academic artifact without any practical significance. It underlies the Western tradition of the philosophy of law and its impressive harvest of principles of substantive and procedural justice, which command respect even after more than a century of systematic “debunking” at the hands of scientistic positivists and others for whom man’s reason counts for nothing and his voice (“vote”) for everything.[28]

[27] For an etymological explication of the distinction between jurists (“ius”) and legists (“lex”), see “The Lawful and The Legal” referred to in note 18 [From note 18: For the argument that “freedom among likes” defines the condition of order (i.e. the law) of the human world, see FRB, and my “The Lawful and the Legal,” Journal des économistes et des études humaines, 1995, VI, 4, p.555–77].

[28] On the distinction between speech (logos, Latin ratio) and voice (phonè), see Aristotle, Politics, I, 2, 1253a9–15.

archived comments

Comments (6)

Bruce Koerber
This was the inevitable consequence of the moral relativity that emerged once the Protestant Reformation movement severed the link with Aristotelian thought and turned ‘justification’ on its head.Another way of understanding what moral relativity meant is to recognize that ‘justice’ became a man-made legislative act with no direct connection to the real source of justice which is God and His laws.
Published: July 20, 2008 6:01 PM
wuzacon
As a lawyer, I agree. The current state of the law is a mockery of the law. No longer is the law knowable, even to lawyers practicing in the specialty or subspecialty. How can voluntary action take place when all transactions are observed ex-post under the minutiae of complex regulations or statutes?Not only that, but procedural rules block the common man from requesting assistance. Taking legal action is so overly expensive that it no longer serves most people. It is no wonder that people in the inner-cities live in a constant state of fear and violence.All in all, the law does not provide recourse because it has been separated from any concept of just principles. The law should be accessible, or at least not needlessly inaccessible, for all members of society; otherwise, it does more harm than good — all in the name of the public good.
Published: July 20, 2008 7:49 PM
Keith
Quote from Bruce Koerber: “… the real source of justice which is God and His laws.”Well, there’s a scientifically defendable position.
Published: July 21, 2008 6:45 AM
Curt Howland
Keith, “Well, there’s a scientifically defendable position.”Without getting into the “science” of the problem, the simple fact is that the “word of the gods” is variable. Which gods? When? What version of what book?This all comes down to yet another datapoint in favor of anarchy. The imposition by a coercive power of any one set of rules may start out OK, but it will always tend to favor the coercive agent.I’m very glad to see someone agree that “the law is unknowable”. It took a government to go from “demonstrate harm” to “a violation of title 15, chapter 1,100,382,118, paragraph 17, item 3.1415926535”.The question for me is not whether or not this empire will fall, but how many people will it take with it.
Published: July 21, 2008 10:20 AM
Bruce Koerber
Dear Keith,I assume that since you read Austrian economics you are familiar with the methodology of subjectivism and so I propose to you that it is no longer possible for you to fall into the empiricist mantra of ‘unscientific.’I assume that you also are familiar with how relatively recent in human history subjectivism became recognized as a perfectly valid scientific methodology for the human sciences. Proof: Still most people in the world are completely ignorant of this fact.We must therefore regard subjectivism as being in its early stages of development. Surely you would agree that one of the characteristics of science is that it advances.Not to argue with you but I have found a way to
scientifically defend the following position: “the real source of justice is God and His laws.” It falls within the scientific application of subjectivism.

You are welcome to critique any of my books. The one that conclusively proves the above statement is “ETHICS of the Divine Economy” published in 2007.
Published: July 21, 2008 2:23 PM
newson
bruce,
i, for one, hope that mises.org gets around to reviewing your book. (not that i’ve read it, though).
Published: July 22, 2008 10:31 AM

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If Even Jefferson Was Bad…

by Stephan Kinsella on July 14, 2008

From the Mises Blog, July 14, 2008:

If Even Jefferson Was Bad…

JULY 14, 2008 Stephan Kinsella

Tom DiLorenzo, in his new book, Hamilton’s Curse: How Jefferson’s Archenemy Betrayed the American Revolution – And What It Means for Americans Today (see his The Founding Father of Constitutional Subversion), shows how Hamilton helped to subvert the superior (and more libertarian) Jeffersonian interpretation of the Constitution. But though Jefferson was clearly better than Hamilton in his ideas and constitutional interpretation (see Jefferson on Nullification; Fourteenth Amendment Resources), he was also a pretty bad president.

In Forrest McDonald great article, The Bill of Rights: Unnecessary and Pernicious, McDonald (pp. 404-405) gives the the example of how Jefferson blatantly violated the 4th and 5th Amendments in enforcing an 1807 embargo. More intriguing to me was the description (p. 407-408) of the Jefferson administration’s blatant trampling of the Constitution during an incident when martial law was declared in the Territory of Louisiana by U.S. General James Wilkinson.

As McDonald recounts,

“A fourth set of circumstances under which the Bill of Rights is apt to be trampled upon arises whenever there is a general sense of emergency, justified or unjustified, local or national. On the local level, the city of New Orleans offers instructive examples. In the winter of 1806-7 Gen. James Wilkinson, commander of the small American army in the Louisiana Territory, asked Territorial Governor William Claiborne to declare martial law, on the ground (which Wilkinson knew to be false) that Aaron Burr was about to invade New Orleans with his rebel band. Claiborne refused, whereupon Wilkinson imposed martial law anyway; and in the name and authority of the United States, he proceeded to crush the Constitution and the Bill of Rights beneath his boot. He arrested without warrants and held incommunicado three of Burr’s associates, and when writs of habeas corpus were obtained in their behalf he had them chained and sent sea to Washington. In addition, he jailed their attorney, the judge, the judge’s closest friend, a newspaper editor, former Senator John Adair, and about sixty other citizens. None was charged with a specific crime, none was allowed his constitutional rights, and a number were transported from the vicinage, where they had a constitutional right to a speedy and public trial, and were shipped in secret to Washington. The president of the United States [Jefferson- SK] approved of these doings, his only reservation being that Wilkinson must stay within the limits, not of the Constitution, but of what public opinion would bear [emphasis added].”

And, of course, there was Jefferson’s ownership of slaves, and the Louisiana Purchase…

Now, granted, McDonald is a Hamilton worshipper, and can be expected to trash Jefferson. But the point is even Jefferson–the author of the Declaration of Independence, the Virginia Statute for Religious Freedom, theKentucky Resolutions–did terrible things as President. It’s awfully difficult for a politician to avoid being a politician, it seems. But as a friend noted, “If even Jefferson is pressured to ignore the Constitution, then the argument for limited government really is absurd.”

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McCosker on Kinsella on Palmer on Hoppe

by Stephan Kinsella on July 1, 2008

Old Karen De Coster blog post:

McCosker on Kinsella on Palmer on Hoppe

Thursday, September 30, 2004

I am posting an what I think to be an interesting email from R.P. McCosker, on the Palmer-Mises/LRC People attacks:

I read with interest Stephan Kinsella’s excellent item on the LRC blog addressing immigration (”Palmer on Hoppe”), rebutting Cato’s Tom Palmer on Hans-Hermann Hoppe’s recent LRC commentary on immigration.

This is yet another instance of ad hominem attacks crisscrossing between Palmer and his paleolibertarian foes. I thought I’d discuss my own encounter with him. [continue reading…]

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Web Poll: Libertarianism and Retribution

by Stephan Kinsella on May 7, 2008

I’ve been discussing the issue of restitution versus retribution with some other libertarians. One of them maintains that force may be used against an aggressor only in self defense, or to compel restitution, but that it is unjust to ever purely punish an aggressor–that it is always disproportionate, and in fact violate’s the aggressor’s rights. I disagree. He also maintains that most libertarians are restitutionists not only in the sense that they prefer or predict a restitution-based justice system (as I do), but they also believe as he does that punishing an aggressor necessarily violates the aggressor’s rights. I do not think proportional punishment violates the aggressor’s rights, nor do I think most libertarians believe this. Participate in the poll below, so we can find out.

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technorarit test

by Stephan Kinsella on January 25, 2008

Technorati Profile

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Centralist, Pro-War Objectivists on Paul

by Stephan Kinsella on December 23, 2007

From LRC Blog

update: Objectivism and War by Neil Parille

Centralist, Pro-War Objectvists on Paul

Posted by Stephan Kinsella on December 23, 2007 09:34 AM

In Ron Paul’s “noninterventionism” fraud, my old friend, Objectivist Robert Bidinotto, concludes: “To paraphrase an old joke, then: Ron Paul is my second choice for President. … My first choice is anybody else.”

Ha ha. But I doubt that would include, say, Lew Rockwell.

Bidinotto’s latest attack on Paul is the cover story by Stephen Green in Bidinotto’s magazine The New Individualist: the “Abominable Dr. Paul,” portrayed as a B movie monster. Oh my. As Roderick Long points out, “doesn’t this mean that the Randians are giving Paul the same treatment that Whittaker Chambers gave Rand? All this story needs is the line “to a gas chamber – go!” to complete the irony.”

Now we can’t tell exactly what Green’s article says about Paul, since it’s DRM’d (odd that the Objectivists would keep their expose of such a “menace” under wraps instead of trying to alert as many people as possible). But Bidinotto’s previous comments and those in his blog entry detail a few of their problems with Paul.

In his mini-essay appended to the blog, “HOW TO JUDGE POLITICAL CANDIDATES,” Bidinotto sets forth a seemingly ad hoc set of criteria that seem to be reverse engineered to demonize Paul. First, he seems to imply that non-intellectual, non-philosophical, unprincipled candidates for office–those who “mainly promote themselves and a haphazard set of only loosely related public policy prescriptions,” “pragmatic careerists like Hillary, Obama, Richardson, Romney, and Giuliani”–actually get a pass. They should be judged by a lower standard, precisely because they don’t have any principles to judge them by. (And remember, by Bidinotto’s “joking” comments above, he’s rather have any of these people–or Nixon or Ford–than Paul.)

But if you actually have principles, integrity, and character, even if you favor individual rights, limited government, and adherence to the Constitution, you are the worst of all–even worse than the execrable Huckabee:

“If consumed, Mike Huckabee’s social conservative porridge would put the GOP flat on its back for a generation. But Ron Paul’s deadly dish would put the Republican Party — and the nation — on life support.”

In other words, according to Bidinotto, you are penalized because you have principles. (Reminds me of Rand’s attack on Kantian idealism.)

What exactly is so bad about Paul, in Bidinotto’s eyes?

“But what of Ron Paul? He is arguably the most philosophical of all the candidates except Kucinich, and thus he must be judged not by his various specific positions and votes, taken in isolation, but by his overall guiding philosophy. That is what he has put at issue, front and center; so that is what I therefore believe we must assess.And that philosophy is a complete mess. In principle, it weds the following: the economics of laissez-faire capitalism (which I emphatically endorse); a religious-based conception of individual rights that leads him to appalling positions on the separation of Church and State, abortion, immigration, and certain other social issues; and, most dangerous of all, a platonic, utopian notion of “noninterventionism” in foreign policy: a view derived directly from his philosophical misunderstanding of the implications of individual rights, which would render America completely vulnerable to its enemies, destroy the security infrastructure at the foundation of international trade, and thus impoverish the nation.”

It is clear that the primary objection of Objectivists to Paul is his foreign policy views and non-interventionism. The other criticisms do not seem to be very coherent or really what bugs the Randians (indeed, Bidinotto admits as much: “If Paul had chosen to showcase and emphasize only domestic and economic issues, where his views and arguments are much better, I might be far less harsh toward his candidacy. But Paul has chosen to make foreign policy, where his views are completely irrational, the centerpiece of his campaign.”). What one wonders here is why an Objectivist–even one who is anti-noninterventionist–thinks someone other than Paul will be able to really “intervene” as the Objectivists think we should; clearly, this is not a reasonable expectation–so even those who are pro-interventionist ought to realize that there’s no Great Randian Intervener on the menu, and at least settle for lower taxes and increased individual liberty as as consolation prize.

And as noted, the other issues Bidinotto dashes off are not really what bugs Randians; it’s foreign policy. I haven’t heard Paul drone on about some “religious-based conception of individual rights”, any more than, say that of the Founders whom the Randians admire. Paul speaks of individual rights and individual liberty; he speaks of the right of people to engage in behaviors he does not personally condone or engage in, such as prostitution or drugs. What supporter of individual rights could find fault in that?

What are his “appalling positions on the separation of Church and State, abortion, immigration”? On the first two, I assume Bidinotto is referring to Paul’s federalism–his view that the Constitution does not authorize the federal government to regulate these matters. On this he is right. Bidinotto speaks of Paul’s “utopian” notion of noninterventionism. But it is Objectivism that has long held a utopian view of the federal government: that is is (or at least, can be–remember Judge Narraganssett?)–a benign protector of individual rights, and that it ought to have central control and “final say” of all legal disputes. The idea of decentralism and federalism, of having fifty state policies, strikes Objectivists as too untidy; not neat. It’s my impression that many Objectivists have such an obsession with order that they would rather have the Supreme Court give the wrong answer, as long as it was final; better than than the chaos fifty states’ approaches (no wonder they abhor anarchy). The belief that a central state can get it right, and should be given the authority to at least try, is what is utopian, if not obsessive-compulsive, it seems to me.

On abortion, Paul seeks to prevent the federal government from interfering in state laws regarding abortion, effectively overturning Roe v. Wade. Does Bidinotto defend the abomination which is Roe v. Wade? It is a clearly unconstitutional decision and policy. The federal Constitution does not empower the federal government to outlaw state laws that regulate abortion. If Bidinotto wants to oppose Louisiana’s laws on abortion, he is free to do so. But as I recall, even Rand implied that late-term abortion is a type of crime.

And does Paul even want to outlaw abortion? Not that I’m aware of. On his site, he notes that he has never performed an abortion; he has “authored legislation that seeks to define life as beginning at conception, HR 1094?; he has sponsored legislation “which would negate the effect of Roe v Wade by removing the ability of federal courts to interfere with state legislation to protect life”; and he has “authored HR 1095, which prevents federal funds to be used for so-called “population control.”” None of these policies would cause the federal government to outlaw abortion. At most, it would prevent the federal government from illegally exceeding its constitutionally authorized powers by dictating abortion policy to the states.

As for foreign policy: give me Paul’s “non-interventionism” anyday over Randian “nuke ‘em all” warmongering: on this, see the Ayn Rand Institute editorial War, Nuclear Weapons and “Innocents” (9/28/01) (see also Justin Raimondo on this: “Of course, Schwartz and his crowd, notably Rand’s “intellectual heir” Leonard Peikoff, have called for a nuclear first strike against the entire Arab world”); also Lynne Cheney’s Circles Call for Mass Murder (”Dr. Yaron Brook, the executive director of the Ayn Rand Institute … warned that “Islamic totalitarian states pose a severe threat to the security of the United States,” adding that a way to defeat these regimes “is to kill up to hundreds of thousands of their supporters.” This, he said, would “shrink popular support for extremist ideas to a small minority of the population,” instead of the 40% which he claims supports such regimes now”); Peikoff on nukes; Barbara Branden’s The Lepers of Objectivism; Yaron Brook and the ARI; Objectivism Online topic “Can You List Five Reasons We Should NOT nuke Tehran?“; ARI Attacks ‘Just War’ Theory, Advocates Nuclear Option.

***

Feedback:

From an anonymous correspondent:

Great post! I’m an Objectivist who supports Ron Paul. A good point to bring up may be that the Constitution is a contract with our politicians, and for them to go against the terms of that contract is an initiation of force against the American people. Objectivism detests the initiation of force.Ron Paul is personally wrong on abortion, but is wise enough to recognize that if he wants to be President he has no contracted power to mandate it.

Also, Ayn Rand supported Barry Goldwater in 1964. Although his premises (religion) were wrong, she said that was his problem. However, Goldwater was more hawkish than Paul (not so much as Bush though; he thought we should only fight wars we could win immediately), and was pro-abortion.

Update:

Ayn Rand and War: Natural Bedfellows?

Jonathan Bean • Thursday, March 6, 2008

In recent years, many young followers of Ayn Rand track me down and engage in discussions, which I enjoy, even if I find her philosophy abhorrent and illiberal. These young people have read Rand’s novels, but none of her nonfiction, and nothing of her movement. This makes for “interesting” debates on the relationship between liberty and religion and the basis of “morality.” (Like postmodern Leftists, Rand’s followers frequently put many words in “quotation marks.”)

The Iraq war has revealed the sad ignorance of young objectivists. They are often anti-war AND crazy about Rand, even as they write essays for an Ayn Rand Institute (www.aynrand.org) that urges total war and dismisses “just war” as suicidal milquetoast morality. More generally, it has shown the uglier side of the movement and its objective “truths.” The following citations are indicative:

“Objectivist Goose-Stepping”

“While Objectivism’s ethical branch extols a moral code based on rational self-interest, individualism, and happiness according to objective values and virtues, its political branch harbors the ideas of collectivism and statism. Thus, we witness attempts by ARI’s fellows and their supporters to justify actions of people in government by appealing to absurd abstractions such as national “self-interest.” Instead of noticing their essential conflict in these matters, they continue to sanction and promote the coercive behavior of those working for the State—and thereby drop the context of self-interest, individualism, and happiness, in addition to reason and objective reality.

“Instead of strictly denouncing taxation and the welfare/warfare State, and by extension its ridiculous military structure, based on Objectivism’s principles of reason and individualism—and individualism’s historical and societal roots in America—the fellows at ARI utilize the currently hegemonic, neoconned political climate and the psychological aftermath of 9/11….”

“Directly targeting civilians is perfectly legitimate,” Brook said. “If it’s possible to isolate the truly innocent—such as children and freedom fighters—at no military cost, then do so. But insofar as the innocent cannot be isolated … they should be killed without any moral hesitation.”

Brook said that if the use of nuclear and chemical weapons was necessary to stop the insurgency, “then it is morally necessary to do so.”

He argued that ego-rationalism is a better way of fighting the war on terrorism. “This means we go to war whenever, wherever if the rights of our citizens are threatened,” he said.

Tsunami victims? Helping them is disgusting “charity.” Valentine’s Day? Romantic humbug. (Earth to ARI: College campuses celebrate Vagina Day in lieu of Valentine’s Day? WWAD? What Would Ayn Do about delivering a “vagina monologue?” Do we even want to know?

Of course, don’t believe these writers, read it straight from the Objectivists. Or watch UberObjectivist Peikoff on video (WGBH)

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Engineers’ Syndrome

by Stephan Kinsella on October 24, 2007

[From my Webnote series]

Engineers’ Syndrome

Posted by Stephan Kinsella on October 24, 2007 03:20 PM

I’ve noted before my dim view of the way many engineers tend to approach political theorizing. In The Trouble With Libertarian Activism, criticizing one author’s arguments against principle and anarchism, I observed “that many brash young libertarians of the activist flavor who are not all that interested in theory” are “often unfamiliar with the great body of libertarian literature and want to reinvent the wheel from a clean slate”–and that many engineers “take a similar pragmatic, isolated, almost anti-intellectual approach in their views on politics”. I previously suggested that this is because engineers think they are “best and brightest,” and because of the scientism that pervades engineering education, that they mistakenly believes that they can solve social problems by some kind of brute force empirical-practical engineering type solution.

Interestingly, in a column today, computer/tech writer John Dvorak observes:

… Microsoft, once a software company, keeps entering businesses in which it has little or no expertise. Microsoft may be suffering from engineers’ syndrome, something you run into all the time. This is quite amusing, even to engineers, who see it occurring in other engineers but never see it in themselves. … The idea is that once you learn engineering disciplines, you project them onto endeavors other than engineering, since everything you ever do in life is actually some sort of engineering. While there is some modicum of truth to this notion, it’s the leap of faith that pushes the idea into the absurd. What happens with engineers’ syndrome is this: You start believing that since you’re an excellent engineer in one specialty, then you’re a friggin’ genius in everything you do, because it’s all the same, really.

What an excellent observation from Dvorak.

Some related comments from two previous posts:

Yet More Galambos:

This reinforces what I’ve come to think about Galambos: he adopts the monist, scientistic mentality which Mises showed to be flawed. He is like many engineers I’ve known: most are bright, but nowadays uneducated beyond calculus and applied engineering courses; yet they believe that, because they are the “best and brightest” they can solve social problems by some kind of brute force empirical-practical engineering type solution. The result is almost always embarrassing, totally devoid of any familiarity with philosphy or the relevant literature; it is just a step above the long-winded “I’ve-got-the-world-figured-out” diatribes by frustrated truck drivers who also think they have a system to win the lottery. Galambos was brighter and better read than most engineers, but he could not escape the pseudo-science of scientism into which engineers are immersed; he adopted the idea that we should find a “science” of liberty, with “science” used in the conventional, natural-sciences sense. Kind of a weird combination of California surfer-dude “hey-man” mentality combined with Carl Sagan wide-eyed love for (natrual)-science combined with the engineer’s misplaced confidence in his ability to solve all human problems using engineering techniques.

… Writes Tim Swanson): “So true. All of my roommates have been engineers as have most of my friends. Rather than reading any sort of economics text they simply come up with a “plan” utilizing some sort of top-down approach.”

Libertarian Activism–comments:

Re my comments about engineers: some have gotten their back up about it. I have pointed out to them that I am a (former) engineer as well, and know many of them; and while they are preferable to attorneys, and are good in their jobs, and while libertarian engineers are fine by me, I am not talking not about engineers doing engineering. I am talking about their m.o. when they try to develop political views. (and I speak here of non-libertarian engineers; they think you can do-it-yourself and concoct an entire philosophy by brute force; after all, they are smarter than the liberal arts majors, why do they need to waste time reading them?)

Gary Hunt perceptively commented, however:

Good article! I know what you mean about engineers. I am an architect so I work with them on a regular basis. Their thinking is what many architects describe as linear. In other words, “The shortest distance between two points is a straight line”. However, quite frequently the straight line is not the best solution.

I also disagree with Milsted’s contention that sometmes “the economies of scale” justifies the theft for defense, roads ect…. It appears he has not worked in the real world. My experience has been that public works projects cost significantly more than private ones. In fact I know a contractor who bids on many government projects. His method of bidding is to price it as if it were a private job then double the price. He gets a lot of government work.

Another perceptive comment about engineers from Max Schwing (Karlsruhe):

I understand your point of view and it tends to be coherent with mine about engineers in general, because we have been indoctrinated into approaching problems from a rational and planning point of view. Therefore we tend to think that we can solve anything by applying mechanical principles to them, especially when it comes to political problems or societies at large. I think it is best said that engineers would like to “engineer society” (Brave New World – style ?!). However, I also know engineers who are looking beyond this view on society and are also interested in the “human or social arts” (as they are called in Germany).

But to persuade an engineer of it, you have to take the economics way of doing it, because we are largely more open to such arguments, than we are to general philosophical ones. I am studying mechanical engineering, so I am closest to the future engineers in Germany and despite that Germany is a social-democratic country, those young bright students are divided between the two big socialist parties (CDU and SPD).

Somehow, engineers still think of the world and society as a mechanical device. So, we are somehow struck in the 19th century, when it comes to society. But still there is hope to get them to the liberal side.

Update:

Libertarian Activism–comments (archive version; original below):

Libertarian Activism–comments

LRC must be getting ever-more-popular, because I am seeing an increase in the number of replies to my latest LRC piece on libertarian activism.

Most of the replies have been favorable, e.g:

one of many:

As a recovering activist/do-gooder I whole-heartedly thank you for writing this fine article. The brevity and clarity of it will provide me with a far better tool than my normal rambling to explain to others why I now detest all activists, and the harm their unprincipled actions cause.

Thank you for your efforts to share the light of a principled existence.

However, some of the comments I’ve received from activists have been amusing–they illustrate the activist myopia I critique in my article.

Humorously, one lady, with the “VICFA Voice, the monthly publication of the Virginia Independent Consumers and Farmers Association (vicfa.net), an all-volunteer grass-roots group,” wrote me “because of my perception of the lack of willingness of libertarians in general (not the ones in our group) to ACT to change what they oppose.” Ha–did she even read my article? Activists have such myopia they think even anti-activists are activists!One correspondent wrote, “My problem with Anarchocapitalist models is
that they offer no proof that if the proposed enforcement mechanisms actually work,”

My reply:

Again; you activist types can’t help but imposing “what works” as a standard to critique substantive normative assertions. It’s very exasperating that you don’t even seem to be aware there is a difference.

Another wrote me to argue how successful Milsted has been in Libertarian activism. My reply:

Any activist success does not gainsay my points. In fact, to point to them in this context, as you do here, seems to illustrate my point that activist types just can’t separate strategical concerns from questions of truth and right and wrong.

This guy also scolded me for “making blanket judgments” and said that Milsted’s effect has been positive, to which I said:

These are unconnected statements which are set forth as if they are related. First, I don’t know what a “blanket judgment” is or what you mean; or why you oppose them. I am not a California relativist hippie who “doesn’t like labeling, man.” And in any event, whether he is successful strategically, is wholly irrelevant and has nothing to do with your hortation to avoid “blanket judgments.” If you are trying to say some of my comments were too broad or inaccurate, go ahead and explain why.

In response to hims comment that I don’t “like” what I read in Milsted, I replied:

It’s not that I don’t like it; it’s that it is flawed and is arguing for socialistic measures (taxes).

I am a libertarian, not a socialist.

I am also not one of the starry-eyed activist types. that is not my gig. I have seen nothing to show that Milsted offers much on topics that intereset me–rights and legal theory, and the like. That is not to criticize him; we just have different interests. I’m glad he’s had political success; but in the realm of theory, which is what I was criticizing when he ventured, I disagree strongly with his reasoning and method and conclusions. Sorry to label this so plainly.

He told me Milstead is “about trying different things that move us in the right direction to see what works.” I replied:

That empiricist mindset is not surprising; I think it is correlated with the activist types. The principled types tend to have more of an apriori or deductive or normative framework. Anyway, I don’t think of people being “about” things. Not my way of communicating or conceptualizing things.

Then he said “We should move in the direction of privatizing all types of security, but we need to get that concept on the roadmap before we can get closer.” My response:

You activist types speak in terms of what is next; the “roadmap”; etc. Do you not even see how mired your (plural) thinking is in such concepts? There is nothing wrong with activism in general; but be aware of the difference between tactics employed to achieve political goals, and positions on truth and right and rights.

Yes, we need to have priorities and do “certain things first”–like have jobs and normal lives, and not believe there is some altruistic duty to delude oneself into thinking one is “making a diffrence” by devoting a large portion of one’s life, time, and resources to a futile attempt to ever-so-slightly increase the chance that we will have a very small and very temporary decrease in the rate of increase of tyranny, for the benefit largely of our socialist-advocating neighbors who don’t deserve it. If that’s your hobby, fine. In a way, it’s mine, but I realize I’m in it for the fight, for the process; not because I delude myself that liberty is just around the corner.

He also criticized my critique of Milsted because it is “widening the divide” instead of “bridging the gap between theorists and activists”; that I should not “excommunicate” Milsted; my response was:

You see, it is the activist mindset that leads you to judge my substantive comments on the grounds of whether it widens the gap, etc. Are you saying my substantive comments and reasoning are wrong? Or that I should not utter them in public?

BTW I did not excommunicate Milsted; I have no power to do so and I would not anyway. And let’s be clear here: if anyone did anything wrong, it was Milsted, for using his perch to call for institutionalized theft. If you want to get indignant, get indignant at him. He is advocating criminality; I am criticizing him for it. Think about what you are doing: you are blaming the victim; instead of criticizing the statist you are criticizing his libertarian critic!

Saying we “need everyone to man the oars” is such an activist mentality. I tend to think in terms of what I and my family “need”. I am not a sacrificial beast whose life is to be spent in a futile attempt to marginally benefit others. Have we libertarians turned into altruists? Do it if you want; but exhortations like this imply we libertarians have a duty to be activists. We do not. Our only libertarian duty is to avoid endorsing or employing aggression.

Re my comments about engineers: some have gotten their back up about it. I have pointed out to them that I am a (former) engineer as well, and know many of them; and while they are preferable to attorneys, and are good in their jobs, and while libertarian engineers are fine by me, I am not talking not about engineers doing engineering. I am talking about their m.o. when they try to develop political views. (and I speak here of non-libertarian engineers; they think you can do-it-yourself and concoct an entire philosophy by brute force; after all, they are smarter than the liberal arts majors, why do they need to waste time reading them?)

Gary Hunt perceptively commented, however:

Good article! I know what you mean about engineers. I am an architect so I work with them on a regular basis. Their thinking is what many architects describe as linear. In other words, “The shortest distance between two points is a straight line”. However, quite frequently the straight line is not the best solution.

I also disagree with Milsted’s contention that sometmes “the economies of scale” justifies the theft for defense, roads ect…. It appears he has not worked in the real world. My experience has been that public works projects cost significantly more than private ones. In fact I know a contractor who bids on many government projects. His method of bidding is to price it as if it were a private job then double the price. He gets a lot of government work.

Thanks again for the good article.

Another perceptive comment about engineers from Max Schwing (Karlsruhe):

Dear Mr. Kinsella,

I understand your point of view and it tends to be coherent with mine
about engineers in general, because we have been indoctrinated into approaching problems from a rational and planning point of view. Therefore we tend to think that we can solve anything by applying mechanical principles to them, especially when it comes to political problems or societies at large. I think it is best said that engineers would like to “engineer society” (Brave New World – style ?!). However, I also know engineers who are looking beyond this view on society and are also interested in the “human or social arts” (as they are called in Germany).

But to persuade an engineer of it, you have to take the economics way of doing it, because we are largely more open to such arguments, than we are to general philosophical ones. I am studying mechanical engineering, so I am closest to the future engineers in Germany and despite that Germany is a social-democratic country, those young bright students are divided between the two big socialist parties (CDU and SPD).

Somehow, engineers still think of the world and society as a mechanical device. So, we are somehow struck in the 19th century, when it comes to society. But still there is hope to get them to the liberal side.

My buddy Robert Capozzi also has a gadfly-ish blogpost about this here; your boy Milsted replies here.

***

Robert Kaercher replies to Milsted in a separate piece here.

***

Milsted’s further reply, Attack of the Hegelian Anarchists; and some blogposts: A Priori Anarchists; and Kevin Rollins’ post Theory and Consequences; and The Seen and the Unseen; and Capozzi’s You Can’t Get There from Here.

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Pilon on Patents

by Stephan Kinsella on September 28, 2007

From Mises blog

Pilon on Patents

September 28, 2007 12:58 PM by Stephan Kinsella | Other posts by Stephan Kinsella | Comments (7)

I blogged elsewhere the “Palmer on Patents” post below a couple years ago. In the post, I mention a minor scandal back in 2003, when some of Cato’s scholars (Doug Bandow and Michael Krauss) came out in favor of restrictions on free trade based on the notion that reimportation of drugs would allow consumers to avoid some of the monopoly price charged due to the US patent system. Cato’s adjunct scholar (and utilitarian) Richard Epstein has also argued in favor of patents, especially in the field of pharmaceuticals, and on this ground also opposed reimportation. Thus, as I had noted previously, support for intellectual property rights leads once again to the undermining of genuine private property rights, such as the right to trade.

The call for restrictions on free trade caused an outcry in the libertarian community, prompting Ed Crane and Roger Pilon to meekly disavow Bandow’s and Epstein’s protectionism. As I noted previously, it was interesting that this piece apparently endorses “the need for drug patents to encourage R&D”. Once again, I am struck that Pilon could author such words. How could Pilon endorse such a utilitarian, wealth-maximization approach to policy, given his principled, deontological, non-utilitarian, rights-based libertarianism? (as evidenced in his 1979 Georgia Law Review article “Ordering Rights Consistently: Or What We Do and Do Not Have Rights To” and his 1979 University of Chicago Ph.D. dissertation, “A Theory of Rights: Toward Limited Government.”)

Palmer on Patents

Tom Palmer’s recent comments about patents are interesting in view of his previous publications about intellectual property.

First, around 15 years ago, Palmer published two law review articles (Intellectual Property: A Non-Posnerian Law And Economics Approach and Are Patents And Copyrights Morally Justified? The Philosophy Of Property Rights And Ideal Objects) arguing against patent and copyright and also critiquing the wealth-maximization “law and economics” approach of Richard Posner. Note that he opposed patents on principled grounds, and rejected the wealth-maximization approach. E.g., as he noted in the first article (p. 303),

A jurisprudence that claims to be based on “law and economics” but that would constructively assign or rearrange rights as part of a strategy to achieve some pre-determined outcome (maximization of utility or of wealth, for example) overlooks the analogy between the spontaneous order of the market and the spontaneous order of a legal system.

I.e., according to Palmer, Posner’s wealth-maximization framework would lead to the rearranging of property rights to try to maximize wealth. Something he presumably opposes.

Anyhoo, back in 2003 some of Cato’s scholars (Doug Bandow and Michael Krauss) came out in favor of restrictions on free trade based on the notion that reimportation of drugs would allow consumers to avoid some of the monopoly price charged due to the US patent system. Cato’s adjunct scholar (and utilitarian) Richard Epstein has also argued in favor of patents, especially in the field of pharmaceuticals, and on this ground also opposed reimportation. Thus, as I have noted previously, support for intellectual property rights leads once again to the undermining of genuine private property rights, such as the right to trade.

This call for restrictions on free trade caused an outcry in the libertarian community, prompting Ed Crane and Roger Pilon to meekly disavow Bandow’s and Epstein’s protectionism. Interesting, this piece apparently endorses “the need for drug patents to encourage R&D”–this apparent endorsement of a utilitarian, wealth-maximization approach to policy seems to conflict with Pilon’s principled, deontological, non-utilitarian, rights-based libertarianism–as shown in his 1979 Georgia Law Review article “Ordering Rights Consistently: Or What We Do and Do Not Have Rights To” and his 1979 University of Chicago Ph.D. dissertation, “A Theory of Rights: Toward Limited Government.”

In recent posts Palmer appears to bend over backward to soften his previous principled anti-patent stance so that he does not conflict with other pro-patent Catoites–apparently now including Krauss, Bandow, Epstein, Crane, and Pilon. Writes Palmer:

I’ve been critical of the patent system in the past. Mr. Brady has given me a quiz about whether I conform to his vision of right-thought or have drifted further into thought crime[,] as he defines it. I am not a fan of the patent system and think we could generally live well without it. (I’ve posted a few articles on my web site indicating why.) The one exception to that general hostility to patents, as I have suggested elsewhere, is the system of patents for chemicals, notably pharmaceuticals. Because chemical compounds are relatively easy to reverse-engineer and can be successfully marketed independently of their role in a larger product (unlike, say, innovations in jet engine design, which often are only valuable as part of a kind of engine), patents may indeed generate incentives for innovation that greatly improve human welfare. That’s an argument for them. Since the innovation has the characterstics of public goods (costly to exclude and non-rivalrous in consumption, the latter being the relevant feature here), a good profit maximization strategy ought to be price discrimination, by which those who can pay more do so and others pay less.

Re the “public goods comment–note in the “Non-Posnerian” above piece Palmer’s sensible criticisms (pp. 284-85) of the coherence of the very notion of public goods. As for the “suggested elsewhere” comment, he must be referring to this post, where he writes:

Pharmaceuticals and chemicals offer undoubtedly the best cases for patent protection on utilitarian grounds. In my Hamline Law Review article …, p. 301, I quoted from a study by Edwin Mansfield from the American Economic Review in which he pointed out that “patent protection was judged to be essential for the development or introduction of one-third or more of the inventions during 1981-1983 in only 2 industries — pharmaceuticals and chemicals.” That seems not to have changed. The reason is pretty easy to understand: reverse-engineering in the case of chemicals (which broadly includes pharmaceuticals) is quite easy. In the case of pharmaceuticals, at least, R&D costs are very high and would still be high even without some of the very costly efficacy tests imposed by the Food and Drug Administration. Furthermore, the benefits of new pharmaceuticals are enormous. If one were to make a case for patent law, that’s the strongest industry for which to make it.

Palmer has elsewhere rejected the wealth-maximization approach, so what does it matter that pharmaceuticals is the “best case” that can be made under this approach? Why does he say the case of patents for pharmaceuticals is “one exception to” his previous “general hostility to patents,” when this case is utilitarian and wealth-maximization based, an approach he has rejected (and presumably he still maintains that even under the wealth-maximization approach the case fails).

Note how snippy he is to Mark Brady’s questions to him about patents–“Mr. Brady has given me a quiz about whether I conform to his vision of right-thought or have drifted further into thought crime[,] as he defines it.” It is as if Palmer is annoyed that in response to his seemingly pro-patent comments, his previous principled and anti-patent writings are being waved in his face. Given so many of his colleagues’ utilitarian endorsement of patents, is Palmer now embarrassed by his previous opposition to both? Is he trying to say that he is still principled, and anti-patent, but that the dominant pro-patent, utilitarian approach of prominent Catoites is “respectable”–or that he has (sort of?) softened his “hostility” to this approach? It wouldn’t be the first time Palmer’s views have “evolved“.

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