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Slavery, Inalienability, Economics, and Ethics

by Stephan Kinsella on October 11, 2005

From Mises Blog, 10/11/2005. Archived comments below.

The following is from an email list discussion regarding the issue of enforceability of voluntary slavery contracts.

XX,

I agree re “valid” and also re the problem with lawyers. But I believe it’s the opposite: most mainstream lawyers usually mean positive law; and when they confuse the two, they are not usually as bad as the layman, who is even worse in confusing positive with natural law. But if you get a libertarian lawyer, he is probably much better able to separate the two realms than the layman or mainstream lawyer. In speaking precisely however his precision is often disregarded by non-libertarians or non-lawyers.

Re valid: yes, it’s a normative term that is sort of fundamental and irreducible, and is tied up with the notion of legitimacy and justifiability (and thus justice and rightness).

Nonetheless: if you view contract as transfer of title then the main criteria are: was the seller the legitimate owner? And, did he adequately manifest his intent to transfer that title to another. It is only if you view contracts as “binding” “agreements” or “binding promises” that you start to really ask all kinds of (mainstreamish) publicy policy oriented questions, like, “should” “we” “give effect to” this “agreement”–should “we” “treat it” as “binding”. But if it’s just A handing over his property to B, then all we do as outsiders is recognize the new ownership status of the thing, and public policy questions become less relevant.

You wrote: “(2) Natural law theorists talk all the time about “the nature of man”, “the nature of things” etc.; just re-read the first chapters of Rothbard’s _The Ethics of Liberty_…”

Yes. And as Hoppe has pointed out, and as I agree,

Agreeing with Rothbard on the possibility of a rational ethic and, more specifically, on the fact that only a libertarian ethic can indeed be morally justified, I want to propose here a different, non-natural-rights approach to establishing these two related claims. It has been a common quarrel with the natural rights position, even by sympathetic readers, that the concept of human nature is far “too diffuse and varied to provide a determinate set of contents of natural law.”

Furthermore, its description of rationality is equally ambiguous in that it does not seem to distinguish between the role of reason in establishing empirical laws of nature on the one hand and normative laws of human conduct on the other.

See Hoppe’s Economics and Ethics of Private Property, at 313 (quoting Gewirth); also A Theory of Socialism and Capitalism, note 7, p. 235.

Or as Hoppe elaborates elsewhere:

The relationship between our approach and a “natural rights” approach can now be described in some detail, too. The natural law or natural rights tradition of philosophic thought holds that universally valid norms can be discerned by means of reason as grounded in the very nature of man. It has been a common quarrel with this position, even on the part of sympathetic readers, that the concept of human nature is far “too diffuse and varied to provide a determinate set of contents of natural law” (A. Gewirth, “Law, Action, and Morality” in: Georgetown Symposium on Ethics. Essays in Honor of H. Veatch (ed. R. Porreco), New York, 1984, p.73). Furthermore, its description of rationality is equally ambiguous in that it does not seem to distinguish between the role of reason in establishing empirical laws of nature on the one hand, and normative laws of human conduct on the other. (Cf., for instance, the discussion in H. Veatch, Human Rights, Baton Rouge, 1985, p. 62-67.)

In recognizing the narrower concept of argumentation (instead of the wider one of human nature) as the necessary starting point in deriving an ethic, and in assigning to moral reasoning the status of a priori reasoning, clearly to be distinguished from the role of reason performed in empirical research, our approach not only claims to avoid these difficulties from the outset, but claims thereby to be at once more straightforward and rigorous. Still, to thus dissociate myself from the natural rights tradition is not to say that I could not agree with its critical assessment of most of contemporary ethical theory; indeed I do agree with H. Veatch’s complementary refutation of all desire (teleological, utilitarian) ethics as well as all duty (deontological) ethics (see Human Rights, Baton Rouge, 1985, Chapter 1). Nor do I claim that it is impossible to interpret my approach as falling in a “rightly conceived” natural rights tradition after all. What I claim, though, is that the following approach is clearly out of line with what the natural rights approach has actually come to be, and that it owes nothing to this tradition as it stands.

A Theory of Socialism and Capitalism, note 7, p. 234-35; see also Economics and Ethics of Private Property, p. 313 n. 15.

XX, you also said:

Now when it is said that “man is born free” my understanding is that this refers to a categorical property of man, since in a somewhat different sense, under actual historical conditions some men were indeed born in slavery… This categorial property is unalienable and therefore it is not meaningless to assert that the impossibility of certain types of contract results from the nature of man…

And here is where I think I cannot follow you, for a few reasons. For one, I just find this language too diffuse and imprecise (at least in this casual, condensed form here) for me to be sure exactly what it means. I don’t think of contracts as being “impossible” as a “result” of the “nature of man”. For example I am not sure what you mean by a contract being “impossible”. As far as I can tell, this has to mean that the transfer of title intended to be accomplished by means of the contract … somehow “has no effect”. I wouldn’t bother to call that ‘impossible” but I guess you could.

I would think of impossibility in a context such as this: X agrees to sell Jupiter to Y, or to make gravity stop functioning, or to give Y a square circle, for a certain price; and X agrees to pay damages to Y if X does not deliver the promised item. The question would arise, when X invariably fails to deliver Jupiter, stop gravity, or make a square circle, does X owe contractual damages to Y? Technically he owes it because of the specified occurrence of the condition (the condition being: failure to deliver). However, I could see a doctrine of contract law developing in a free society that treats such contracts as mere word-games, and non-serious, that is, not evincing a real intent to transfer the item. (but this is really just an empirical or conventioanl question.) In other words, to say a contract is “impossible” simply refers to whether one of the specified performances or conditions is really possible; and the reason we ask this is to determine the full context, so it can be determined whether or not the apparent intent to transfer title is genuine, or just some kind of non-serious wordplay between the parties who never really meant it.

There are a million type of purported “slavery” contracts–or agreements, if you prefer–that you could posit, and I suppose each would have to be analyzed on its own terms to see if it makes sense or is enforceable. From my point of view, an agreement to do something cannot be specifically enforced, precisely because one has no power to sell one’s body. But it is not because there is some “metaphysical impossibility” involved in “alienating one’s will”. As I have repeatedly stated, in my view a real, effective slavery relationship requires only that the master have the right to use force against a recalcitrant slave–despite the slave’s will. And that simply cannot be done by contract, for reasons i’ve given before.

But it has nothing to do with impossibility. It has to do with the nature of ownership: ownership means the right to control, and one’s right to control one’s body is precisely why a slavery contract is not enforceable: at the time the master tries to use force against the slave, the slave can refuse to give consent, because the slave has the right to control his body. Slavery can only be a consequence of the slave’s somehow having lost this right to control. This can be done only if the slave has committed aggression against the master, thereby entitling the master to punish etc. the slave. But “signing a piece of paper” does not commit aggression.

Stephan

Archived comments:Archived comments

Comments (9)

averros
First of all, one needs to be clear about one thing: the body is a material thing, and the soul or consciousness or will (whatever you call it) is not. It is either something supernatural (if dualists are correct, which I personally think unlikely) or a kind of software, some quantity of information constituting a program (which can, in theory, be run on any computer having enough memory and appropriate interpreter).In both interpretations the “soul” and the body are separable. In fact, any work-for-hire involves temporary alienation of employee’s body in order for employer to get a use of its muscle force or “computing time” of its brain and soul. That is what the physical nature of “labour” is, it being a rent on one’s body. Any employer recognizes the fact that one’s body (and brain) are multitasking, and a significant portion of employee’s bodily and mental activities is not made available to employer; and that different people make (because of trained ability, or because of ethics) larger or smaller portions of it available – this is what differentiates “good” worker from “bad” worker.To improve employee performance, all employers use some kind of persuasion – it can be psychological (employing vulnerabilities of human psyche to manipulation by others) or material (adjusting pay to performance). The “violent” persuasion (i.e. physical pain or restraint) is a taboo nowadays, although it merely differs from other kinds of persuasion by a degree, not by a kind – all kinds of persuasion merely manipulate the state of dopamine circuitry in the brain, by different routes. (Physical punishment can be far less damaging or unpleasant than psychological, but it is also can be very bad, and physical rewards, such as tasty food delivered by an employer as a display of appreciation seem to be quite acceptable).
Difference in degree begs a question of who decides what exactly workplace persuasion is acceptable and which isn’t. A consistently libertarian point of view is that it is solely a matter of contractual agreements between employee and employer. It follows that an employer overstepping agreed-upon methods of “employee motivation” is liable to compensate any damage stemming from this overstepping.

There, obviously, are other ways of partial alienation of someone’s body – by selling body parts such as hair, blood, or organs, for example. A reverse process is, of course, purchase and implantation of body parts or prostetic devices. There is really no question that if someone removes a prostesis from his body he can sell it like anything else – but one would be hard pressed to find the qualitative difference between body parts and prosteses which are becoming increasingly close functionally to the “natural” body parts.

Note that the brain functions can be also improved by prostetic devices – the implantable “brain chips” are already a reality.

So… if someone can sell his body by parts or rent it out, why shouldn’t he be able to sell or rent it permanently (meaning, until it wears out and dies)? Obviously, it is kind of hard to imagine that there can be rewards high enough for someone to do that – but people are known to be able to sacrifice their lives for some psychological rewards, so it stands to reason there can be rewards (for example, a knowledge that someone’s family is enjoying better living, etc) which make this kind of trade worthwhile for the “slave”.

In fact, the slavery itself (with attendant feeling of lowered and better defined responsibility, and feeling of being taken care of) can be a powerful psychological reward (which explains both some aspects of BDSM and the seemingly unstoppable desire of populace at large to hoist a State upon themselves). These desires are a part of human nature, so it would be unreasonable to deny their existance and prohibit their satisfaction.

Finally, there’s such thing as performance bonds, which can be set arbitrarily high by the parties involved (there is no way to objectively value employer’s mental distress and loss in case of non-performance, so it must be solely a matter of voluntary agreement) – resulting in either delivery of promised goods or forced extraction of bond payment by the courts, which (in case if the bond amount exceeds worth of performer’s posessions) may result in what amounts to slavery (i.e. forced labour for the benefit of the employer). This creates yet another route to voluntary slavery (i.e. parties making an agreement featuring very high performance bond with an implied understanding that the slave-would-be would not be able or will fail to deliver).

So, no matter how you slice it, a consistent application of libertarian principles and the principle of subjectivity of value does not exclude voluntary slavery or limit methods of persuasion which can be inflicted upon a voluntary slave – as long as they stay within the conditions set forth in the contract (such contracts do exist, in BDSM subculture, specifying things like “no permanent or life-threateing damage during punishments” or “no permanent marks on the skin” – although they are unenforceable under the democratic laws). In fact, inability to sell one self’s to slavery amounts to restriction of his right of ownership of his body.

Now, the involuntary (or “real” slavery) is another matter – but here the case is clear, and I think nobody would argue that it is bad precisely because it involves aggression upon the slave leading to him being deprived of use of his property (i.e. body – which he didn’t agree to sell or rent).

Digression (talking about metaphysical impossibilities):

It would be very interesting to consider implications of technology capable of actually separating functioning consciousness from its original body (it is estimated that computers will reach the necessary capacity to run a full simulation of the brain within 20 years or so – today’s technology is limited to simulating one column in neocortex); the capability to read and record the exact states of neurons is also becoming feasible – the resolution of imaging methods such as MRI is improving fast.

What is the legal status of the computer running a simulation, and able to argue that it feels and claim its rights? Can this simulation own things? What becomes of its right to its body (i.e. a computer which presumeably is already owned by someone)? Obviously, one can make a copy of this simulation, are those different “persons”? How do they divide their posessions? What is the definion of a single personhood, anyway? Do we make slaves of AIs and “uploaded” humans? And if so, can we be justified in doing so (I hope, not)?

I would argue that libertarian law is the only consistent legal system which can be adapted to the existance of non-human (or ex-human) intelligence.

The democratic laws would inherently create confilict by a priori disposessing such creatures – and, conceivably, triggering a war which can result in extinction of biological humans. Given that capabilities of human bodies do not change fast, unlike capabilities of computer hardware – the economic (and, therefore, military) dominance of such intelligence is inevitable (if it can be created at all, which few people in the relevant scientific fields doubt).

Simplarly inevitable are mass protests of neo-luddites who would complain that the new technology is taking away their likelihoods. (In fact, the opposite is true – because of the law of comparative advantage; even if the non-human and ex-human intelligencies are vastly more productive and smart and therefore vastly richer than humans, the trade with them will make humans richer, too).

Now, for now it seems too far away; in fact many of us may live long enough to see it. The notion of “electronic brain” was invented mere 70 years ago. This gives some urgency to getting people to understand that libertarian society is not just something nice to have – we either create a law which allows our peaceful coexistance with superintelligent beings, or be treated as slaves or, worse, as vermin. For a libertarian, there’s nothing to fear from people or beings which are much more capable than himself – as long as they share his ethics.
Published: October 11, 2005 1:32 PM
Stephan Kinsella
“First of all, one needs to be clear about one thing: the body is a material thing, and the soul or consciousness or will (whatever you call it) is not.”Maybe it’s reducible to the body, however, or a mere epiphenomenon of it. In any event, it does not matter–the point is you never “homestead” your body. You have to already have a body to homestead other things; and things have to be unowned to be homesteaded. If you were a free floating soul with an existence independent of any body and the ability to act without a body, and could just swoop down and choose an *unowned* body to inhabit–just as you might pick up a discarded coat and decide to wear it for a while–then I would say body-ownership is analogous to ownership of other things that you appropriate from the state of nature. But so far as we can tell, this is not the case. Your identity or soul, whatever it is, does not roam around, living and acting, and find an unowned body to inhabit. So one’s relationship to and ownership of one’s body is categorically different than one’s ownership of external scarce resources that one homesteads.
Published: October 11, 2005 1:40 PM
averros
Stephan –> …the point is you never “homestead” your
> body…> ownership of one’s body is categorically
> different than one’s ownership of external
> scarce resources

One of the reasons I digressed into futurism is to make explicit that this assumption of categorical difference is invalid. The plausible futurist scenarios serve as gedankenexperiments to test the theory.

Software exists independently from hardware. It is as simple as that. Hardware is scarce, software (information) can be replicated infinitely. *These* are categorically different, not the different kinds of hardware.

In fact, your body is built by your genetic software. There’s nothing of significance is left in it from the original sperm and ovum except for the information.

To build it, you (to be more precise, your genetic program) needed chemicals and energy – supplied by your mother’s body and, after the birth, by the food you were given. So you didn’t homestead your body – you made it from the scarce resources which were given to you by your parents.

Now, modern humans cannot survive not only without their bodies but also without tools they make. For a ethologist or a biologist there’s really no difference between “innards” of an organism and the external contraptions its genes tell it to build (i.e. the nest, the honeycomb, the anthill) – any complex organism modifies its habitat in order to survive and reproduce. The technical term is “the extended phenotype”. Is there really any categorical difference between a hand and an axe? The modern scientific understanding is that there isn’t.

A grown human continues to rebuild his body (which keeps falling apart with alarming speed, BTW) by supplying it with nutrition and shelter – for which he has to trade or homestead resources. So if he finds a berry and eats it a part of it is transformed into some components of his body – so, yes, it can be said that one’s body is partly homesteaded.

If he wants to have children (and people generally do – those whose genetic program is not instsent enough on doing so don’t leave offspring, so the “deficient” genetic program is eliminated) he has to give part of these resources to them so they can develop to the point when they can sustain themselves.

In a sense, at birth you don’t homestead a body – you are given it as a gift.

Now, if we assume that there’s some technology allowing the state of the brain to be recorded and stored – does recreating a body from chemicals (it was already done with viruses, and demonstration of the principle in bacteria is coming) and replicating the anatomy of the brain (check the progress in tissue engineering, including 3-D cell printing on degradable scaffolds) from the stored state information – any different? It merely makes explicit the fact that resources going into building your body were already owned by someone.

I would say that the fact that you were given the resources which became your body _without your consent_ invalidates any claim for compensation for use of these resources by their former owners. They are yours not because you homesteaded them, and not because they are categorically different, but simply because they were imposed on you without your consent by the voluntary act of their original owners, so you have no obligation to return them, meaning that your body is wholly yours.

BTW, this applies to the artificial bodies as well – as soon as someone becomes conscious in the artificial body, the body cannot be taken from him, and he cannot be made a slave just because the body was created from chemicals (or chips and motors, or whatever). Now, if he (in some previous body) made an arrangement to purchase a new body, he is responsible for whatever payment for the serivce he had promised. If there were no such promises and the new body was created on the whim of whoever did it, the newly incarnated person received it as an irrevocable gift. Assuming otherwise would permit creation of an involuntary slave by copying someone’s mental state and embodying it.
Published: October 11, 2005 2:47 PM
averros
Sorry for the numerous typos in this and previous message… I really should spell-check before posting 🙂
Published: October 11, 2005 2:49 PM
van den Hauwe
Stephan, “Rights” are ultimately grounded in “facts”; the “ought” has its foundation in the “is”. That is why it has to do with possibility/impossibility. (“Impossible” means “cannot exist by virtue of the way certain things are, their objective nature…) The ultimate reason why person X has an inalienable right to think and choose and make judgments for himself is that, as a matter of fact, only person X (and nobody else) has the capacity to make these judgments, choices etc.
Published: October 11, 2005 4:53 PM
David White
averros,I refer to long blogs as “globs” and boring or unintelligible globs as “blahglobs.” And though they may strike readers as both, I think your posts qualify as the former but not the latter. Why? Because, whether you call yourself one or not, you are a Singularitarian (e.g., www.singinst.org) who therefore addresses issues like this one from an entirely different perspective. Do the math — www.kurzweilai.net — and it is clear that with another twenty or so doublings of computing power (30 years or so), we will have achieved superhuman intelligence, after which biological humanity will be on the slippery slope to extinction.But fear not. For if the old (originally Latin) aphorism is true (and I for one believe it is), then we are on the verge of a whole new reality:
“There is nothing in nature greater than man. And there is nothing in man greater than mind.”
Published: October 11, 2005 5:16 PM
averros
David — I do not identify myself with the singularitarian group, although I certainly know about them (too much handwaving to my taste and too little specifics – the trend is obvious to anyone with eyes to see but there’s a lot of less than certain steps in between – and it can be derailed or subverted to nightmarish purposes by the statist criminals). So I’d rather talk about bayesian networks and truth maintenance systems than about how magic Moore’s law is going to make computers magically smart.I’m more of a pragmatic mindset, trying to figure out where things are going and how to live through the interesting times. I pretty much came up with libertarian philosophy on my own, just like having extropian ideas long before learning that there’s a name for it (by virtue of growing up in a place well isolated from Western discourse). In fact, my 15 minutes of fame came from applying technology to help to bring down one of the most evil regimes:)It is certainly gratifying to see that the technology on which I spent a significant portion of my life is being used to create and organize the opposition to the collectivist plague.
Published: October 11, 2005 9:33 PM
Stephan Kinsella
Ludwig: “”Rights” are ultimately grounded in “facts”; the “ought” has its foundation in the “is”. That is why it has to do with possibility/impossibility. (“Impossible” means “cannot exist by virtue of the way certain things are, their objective nature…)”Well, “grounded” here has ambiguous meanings… and of course, if you justify rights, or “ground” them, the argument or demonstration will of course take note of facts. That does not mean that norms are derived from pure facts. Perhaps a base norm has to be simply posited or introduced or agreed upon by consensus, to make any headway. This is similar to Rand’s view that all values are based on the choice to live; but the choice to live is therefore necessarily an extra-moral choice.”The ultimate reason why person X has an inalienable right to think and choose and make judgments for himself is that, as a matter of fact, only person X (and nobody else) has the capacity to make these judgments, choices etc.”
As lawyers would say–connect it up. I don’t see at all how the proposition that slavery contracts should not be enforceable follows from this general musing. Look: don’t you agree that criminals can and may be jailed? But couldn’t you say about them, “you can’t jail someone for a crime, because their rights are inalienable–after all, only the criminal has the capacity to make judgements and choices; ‘therefore’ no one else has the ‘right’ to assume control over them in this way” ??
Published: October 12, 2005 1:14 AM
David White
averros,”(too much handwaving to my taste and too little specifics – the trend is obvious to anyone with eyes to see but there’s a lot of less than certain steps in between – and it can be derailed or subverted to nightmarish purposes by the statist criminals).”Kurzweil’s new book goes into a fair amount of detail, but I don’t pretend to be sophisticated enough in these matters to be any more than an interested bystander. I’m with you, however, in being very afraid of how statists will affect matters, and to read what DARPA’s up to (see “Perfecting Humanity” in the May 30 issue of Fortune magazine) is to know why.
Published: October 12, 2005 8:12 AM

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Liberals on Rehnquist: Hypocrite Criminals in our Midst

by Stephan Kinsella on September 19, 2005

A liberal I know sent me this column by Dershowtiz, Telling the Truth about Chief Justice Rehnquist. Here’s an edited version of my reply to him:

***

Well. Rehnquist had his problems. But the problem is the standard liberal analysis of course is that their entire understanding of civil liberties and the Constitution is perverted, dishonest, distorted, and twisted, leaving them no coherent and honest basis to criticize conservatives. On balance I believe Rehnquist and his type–Scalia, Thomas, and on lower courts, people like Alex Kozinski–have a much more honest and sounder view of the Constitution and a judicial philosophy that is more protective of civil liberties than those of leftists such as Dershowitz.

Let me give you an example. Leftists like Dershowitz support the very notion of federal judicial review of state legislation, based on the Fourteenth Amendment, and based on an expansive reading of the Bill of Rights. Moreover they support a broad reading of federal power under the Interstate Commerce Clause.

In fact the IC clause was never meant to be so broad. And in fact the Fourteenth Amendment was never meant to incorporate the bill of rights and apply it against the states. And the extensions of “penumbras of emanations” of the rights in the 4th amendment etc. to yield a right to privacy which includes the right to abortion; and the idea that the death penalty is unconstitutional–are all utterly absurd and dishonest. The fact is that the only way for the federal government to get away with implementing the liberal revolution is to shred the Constitution. For example for the Congress to pass antitrust laws, minimum wage, wage and hour legislation, the Americans with Disabilities Act, etc.–all the darlings of the left–the Court must ignore the original federalist scheme of the Constitution which established a severely limited federal government of enumerated powers. The feds were never granted power to legislate in any of these areas (2); and the Bill of Rights–including the ninth amendment–was meant to emphasize this. So the liberals support the idea of what is effectively a judicial coup d’etat: the Court assuming (a) the sole power to construe the Constitution (which it was never meant to have); (b) exercising this power to disregard the original meaning of the Constitution and to construe the Interstate Commerce clause–basically meant to establish an internal free trade and free movement zone within the US–as a grant of authority to Congress to legislation on whatever it wished, even including telling a farmer he could not grow wheat in his own back yard (the infamous New Deal-era Wickard case) on the basis that if he were permitted to grow his own wheat, he would then not buy as much from other people, some of which would be out of state, thus “affecting” interstate commerce!; and (c) ignoring the limits placed on Congress in the ninth amendment that makes it clear Congress cannot pass such laws.
Of course, the biggest danger to our civil liberties is that of a tyrannical state. The entire Constitution was designed as a straightjacket on the federal government to guard against this. If you advocate judges just ignoring limits placed on them and the fed government, you are in favor of unlimited government. It is insane to endorse federal officials being able to choose which limits on their power they can ignore. But that is what liberals do. Who is the greater threat to civil liberties?

Moreover, in their zeal to abolish any racism at all, any differences between people or recognition thereof in furtherance of their irrational egalitarianism, combined with their yankee/intellectual hatred of the South, they have endorsed blatant misreadings of the Constitution and the Fourteenth Amendment to give federal judges the raw power to tell states what to do–to subject state laws to scrutiny under the bill of rights which was meant only as a limit on the feds. The liberals have turned it on its head: they regularly ignore the limits of the bill of rights when it comes to federal laws–for example they ignore the second amendment and the ninth amendment, which would limit federal firearm regulations and economic regulations such as wage and hour laws; and they have turned the Bill of Rights into a source of power for the feds: they use it for authority to impose busing and desegregation on the states, to strike down state death penalty and abortion and sodomy laws, even though these things are clearly not unconstitutional because the founding generation did not understand such laws (some of which are unlibertarian I grant) to be contrary to the basic rights established in the Constitution.
So here you have liberals who are self-proclaimed advocates of civil liberties supporting lawlessness: disregard by federal officials of the limits placed on them by the Constitution; supporting massing increases in federal power which of course leads to abuse; willingness to have the feds violate property rights; willingness to tolerate the chilling effect on free speech wrought by affirmative action and antidiscrimination laws; and denigrating “commercial free speech” (ads, etc.) and even political speech (PACs, campaign contributions) as not deserving constitutional protection! The liberals do not really care about rights: they do not care about preserving the carefully constructed constitutional system that places limits on the feds to prevent them from violating rights; they do not care about property and economic rights, which are essential to remaining free from government control and being able to exercise personal liberties; they do not care that their egalitarian-based affirmative action and anti-discrimination laws suppress free speech or violate property rights. They do not care if the Constitution “really” permits the feds to pass these laws or the federal judges to do what they want to the states: they only care about results, results in the service of egalitarianism and welfare-socialism. I am 100% serious about this. It is blatantly clear what they have been about for the last 70 or so years. And then they have the gall to call someone like Rehnquist a threat to civil liberties? It is obscene. Rehnquist–for all his faults; and I could tell you many, from my correct, sound, honest, libertarian legal-constitutional perspective–is 10 times better than these lefties are, in terms of supporting the true basis for protection of individual rights and liberties.
It is hard to find a single clear case of an area in which the conservatives are genuinely bad, that the liberals are not just as bad. For instance: drugs and war–I don’t see the liberals advocating drug decriminalization. And I don’t see them being anti-war in a principled way–and the worst wars in US history were started by democrats–Lincoln’s bloody civil war (I count him as a democrat since the democrats embrace him), Wilson and WWI, FDR and WWII, JFK/LBJ in Vietnam. Name one single area the democrats are better than the Republicans? Abortion is just about the only one, and even here, it’s not clear, since even for libertarians abortion is debatable (and liberals adopt dishonest, Constitution-shredding decisions like Roe v. Wade to get their way; and the extreme liberals are not even opposed to grisly, inhumane, late-term abortion). And there are many areas the conservatives are much better than the liberals: economic liberties; decentralization; constitutional theory (original understanding rather than a “living document”); even
personal liberties such as free speech–Rehnquist (and O’Connor) voted against laws against flag burning, while allegedly pro-free-speech liberals like Brennan, Thurgood Marshall, and Blackmun voted to uphold laws jailing people who burned the flag (Texas v. Johnson); and they support commercial free speech, which liberals do not; and they oppose, to some degree, affirmative action, antidiscrimination, and speech codes which undoubtedly give rise to substantial chilling effects and thus infringements of free speech.
I really believe the libertarians are off somewhat when they say conservatives are better on economic liberties, and liberals better on personal liberties. My view is that conservatives are significantly better than liberals on both axes; and libertarians are better still, on both axes. The spectrum I see stretches from principled advocacy of human liberty (libertarianism); next would be principled conservatism, which has flaws; next would be welfarism/liberalism/soft socialism, which is worse than conservatism in almost every way; and next, outright tyranny and totalitarianism.I am sick of the smug, totally out of place self-righteousness of liberals–their disdain for law and for the realities of human nature, their monomaniacal pursuit of the irrational goal of egalitarianism coupled with their utter ignorance of economics and Luddite hatred of industrialism and capitalism–their endorsing communism and socialist regimes which have literally murdered and led to the deaths and impoverishment of quite literally hundreds of millions of innocent people in the 20th century alone–their pretense that they are the sensitive, caring types, when in reality they are dishonest and willing to condone mass suffering and even death in the pursuit of their naive, impossible, faux-utopian dreams. See Thomas Sowell, The Vision of the Anointed: Self-Congratulation As a Basis for Social Policy. What about their belief in religious liberty? How to explain their attack on trivial stuff like a statue of the ten commandments in a courtroom courtyard when they usually turn a blind eye to the overt religious establishments of most other states–e.g., their darling Israel, which, as Charley Reese point out, “In any other country, settlements in which only Jews are allowed to live, connected by roads that non-Jews are forbidden to use, would be cited as an example of discrimination, if not racism. Israel, however, is the grand exception to America’s morality and ethics.”

The conservatives, while not perfect, are better than the liberals in almost every way. Being an evil criminal minded person, as activist liberals are, is one thing; not being aware of this is arguably worse; but advocating criminal ideas while pretending to be holier than thou is adding insult to injury. At least a normal robber does not pretend to be anything other than he is; there is a certain degree of honor and honesty in what he does: he takes risks himself–his victim might shoot him; he does not pretend to be helping his victim; and after he mugs him, he generally flees and leaves him alone (see the similar comments about the highwayman by Lysander Spooner, in No Treason No. VI: The Constitution of No Authority, Section III). The liberal establishes a systematic, ongoing, pernicious type of theft and regulation of others lives; he does not go away; he pretends to be helping his victim; he adopts a self-righteous pose about it; and worse, he wants not only to force people like you and me to be coopted into his system, to obey their laws and regulations, to turn over control of our businesses and even our homes to their decrees, to pay their outrageous, confiscatory taxes–but not even to be able to complain about this, without being accused of racism or bigotry or extremism. Ever heard of Chutzpah?

BTW for a pretty balanced and fascinating account of the Court’s battles, including Rehnquist, the book Closed Chambers by Edward Lazurus–a liberal and former Blackmun clerk–is very good. Lazurus is able, unlike most liberals, to present the conservative/liberal debates on the court from each others’ perspectives–and to show that one interpretation of the Rehnquist revolution was that it was an understandable backlash against decades of extremist liberal judicial activism that itself undermined and distorted the original Constitutional system.

Sorry for venting, but I’ve about had it with self-righteous liberals.

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Austrian Law and Economics

by Stephan Kinsella on September 18, 2005

Adapted from the Mises blog, 9/18/2005 (no archived comments):

Austrian Law and Economics

09/18/2005 Stephan Kinsella

Apropos nothing, I’ve just added a few pieces to my site scanned from my paper files, on the topic of (Austrian) law and economics:

Becker, Joseph, Procrustean Jurisprudence: An Austrian School Economic Critique of the Separation and Regulation of Liberties in the Twentieth Century United States (my annotations)
Crespi, Gregory Scott, Exploring The Complicationist Gambit: An Austrian Approach To The Economic Analysis Of Law
Katz, Avery Wiener, Positivism and the Separation of Law And Economics (my annotations)
Schwartzstein, Linda A., “Austrian Economics and the Current Debate between Critical Legal Studies and Law and Economics” (PDF; my annotations) (in: Symposium: The Future of Law And Economics), 1992
——, An Austrian Economic View of Legal Process
Wonnell, Christopher T., Contract Law and the Austrian School of Economics (my annotations)
Edward Stringham & Mark White, “Economic Analysis of Tort Law: Austrian and Kantian Perspectives“

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Update: See also Josef Šíma, Praxeology as Law & Economics.

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Intellectual Property article in Spanish

by Stephan Kinsella on September 16, 2005

My article Against Intellectual Property has been translated into Spanish.

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The Subjectivist’s Lament

by Stephan Kinsella on September 13, 2005

An old, unpublished short story of mine from long ago–1980s I believe: The Subjectivist’s Lament. Written during a heavier Randian phase. A bit overwrought, but grains of truth.

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Interesting Hurricane Katrina Comments and Links

by Stephan Kinsella on September 7, 2005

An Unnatural Disaster: A Hurricane Exposes the Man-Made Disaster of the Welfare State, Objectivist Robert Tracinski
Katrina and the End of Illusions, Justin Raimondo
Interdictor: Survival of New Orleans Blog, Michael Barnett

A Dismal Reality: It Wasn’t Supposed To Be This Way, Fred Reed

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New Rouge

by Stephan Kinsella on September 6, 2005

As I previously noted on the LewRockwell.com blog, an emerging nickname for Baton Rouge is “New Rouge,” because of the huge number of New Orleans residents moving there in the aftermath of Hurricane Katrina. See, e.g., Capital city struggling with inflow (Sept. 3, 2005, Houston Chronicle). So, Daddy has registered www.newrouge.org and am temporarily pointing it to www.kinsellalaw.com/newrouge.

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Also–as noted here, Houston–currently home of an estimated 150,000 of Katrina evacuees–stands to gain big from the hit felt by New Orleans.

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A Simple Libertarian Argument Against Unrestricted Immigration and Open Borders

by Stephan Kinsella on September 1, 2005

My latest article: A Simple Libertarian Argument Against Unrestricted Immigration and Open Borders, LewRockwell.com, September 1, 2005. The version now on LRC is corrupted; see the version below. See also followup posted on LRC blog (reprinted below).

See links at On “Unowned” State Property, Legal Positivism, Ownership vs. Possession, Immigration, Public Roads, and the Bum in the Library

Update: see On “Unowned” State Property, Legal Positivism, Ownership vs. Possession, Immigration, Public Roads, and the Bum in the Library

Recent twitter:

"I'm talking about rightful ownership under libertarian property rights, not state property law."

Me too. Some libertarians argue that the state property is unowned and therefore that it violates the rights of immigrants for the state not to let them use it. This is just…

— Stephan Kinsella (@NSKinsella) December 7, 2025

A Simple Libertarian Argument Against Unrestricted Immigration and Open Borders

By Stephan Kinsella

September 1, 2005

[LewRockwell.com]

To own means one has the right to control a given resource. Ownership is distinct from mere possession or actual control; it is the right to control. (On the nature of ownership, see Hans-Hermann Hoppe’s A Theory of Socialism and Capitalism, chs. 1, 2, esp. pp. 5—6, 8—18, discussing notions of scarcity, aggression, property, norms, and justification, and ch. 9, esp. pp. 130—145; also links in this post.) ¹

As H.L.A. Hart argued, the question of what the law is, is different from the question of whether a particular law is moral or just. We can distinguish the way things are from the way things should be. Fact and norm, is and ought, are different things. When we speak of the actual state of affairs, we are talking about actual or legal ownership, and the positive, legal right to control a resource.

What I am getting at is that the state does own many resources, even if (as I and other anarcho-libertarians believe) the state has no natural or moral right to own these things. Nonetheless the state does own some resources — roads, ports, buildings and facilities, military bases, etc. We can allow that a road, for example, is actually, or legally, owned by the state, while also recognizing that the “real” owners are the taxpayers or previous expropriated owners of the land who are entitled to it. This poses no conceptual problem: there is no conflict between the proposition that the taxpayers have a moral or natural right to the land, i.e. they should have the (legal) right to control it; and the assertion that the state has the actual positive or legal right to control the land. The state is the legal owner; but this legal ownership is unjustified, because it amounts to continuing trespass by the state against property “really” owned (normatively or morally) by certain victims of the state (e.g., taxpayers or the resource’s previous owners).

The point here is the state does (legally) own resources which are “really” owned by others. As libertarians, we can view this situation as the state holding property on behalf of the real owners, as a sort of uninvited caretaker.

Now my contention is that given the existence of significant public property in a certain country, it is not necessarily unlibertarian for immigration to be restricted by means of usage-rules established on public property by the state-owner.

Consider this case. I live in a small independent city, which has about 10,000 residents. It is very small and dense, and smack-dab in the middle of Houston, which has 4 million people. Our City has a public pool a few blocks from my house. As a resident of the City (and hence a taxpayer) I am entitled to use the pool for a very small fee — say, $2 per visit. Nonresidents — outsiders — may use the pool too, but they pay three times as much: $6 per visit.

Now let’s say that as a libertarian I would rather the pool be privatized, or sold and the proceeds returned to those who have been victimized to found or maintain it — the taxpayers, or residents, of this City. This would be a type of restitution for the crime committed against them. Alternatively, if the land for the pool had been expropriated, the owner ought to be paid restitution. Etc. The point is that given a government theft, taking, or trespass, it is better, other things being equal, for the victims to receive restitution; and more restitution is better than a smaller, insufficient amount.

But restitution need not be made only in dollars. It can be made by providing other value or benefits to the victims. One such benefit to me is the ability to use a nice, uncrowded, local pool for a cheap price. It is arguably better, even more libertarian, for the City to discriminate against outsiders. If it did not, the pool would be overrun by outsiders seeking cheap swimming. It would be virtually worthless to me and most of my fellow residents of the City if there were no rules on entry, or no discrimination against outsiders. The rule set on the usage of this property by its caretaker-owner, the City, is a reasonable one — one that the owner of a private pool might adopt, and also one that generates more restitution for the victims of the City’s aggression, than a less discriminatory rule would.

This example illustrates the general point that when the state assumes ownership of a resource, then it has to establish some rules as to the resource’s usage. This is what it means to own something: to be able to determine how the thing is used. Coming back to immigration, let’s take the case of the federal government as owner-caretaker of an extensive network of public roads and other facilities. If the feds adopted a rule that only citizens and certain invited outsiders are permitted to use these resources, this would in effect radically restrict immigration. Even if private property owners were not prohibited from inviting whomever they wish onto their own property, the guest would have a hard time getting there, or leaving, without using, say, the public roads. So merely prohibiting non-citizens from using public property would be one means of establishing de facto immigration restrictions. It need not literally prohibit private property owners from having illegal immigrants on their property. It need only prevent them from using the roads or ports — which it owns.

It seems to me establishing rules as to how public roads are to be used is not inherently unlibertarian. Even libertarians who say the state has no right to make any rules at all regarding property it possesses — even speed limits etc. — really advocate the following rule: allow anyone to use it, and/or return it to the people. This is a way of using a piece of property. But most libertarians don’t seem to have a principled opposition to the very idea of rule-setting itself. Sure, the state should not own a sports stadium or road, but so long as it does, it is not inherently unlibertarian for the state-owner to promulgate and enforce some rules regarding usage of the resource. A road may have speed limits; a stadium or museum may charge an entrance fee; the sheriff’s office and the courthouse might have locks on the doors preventing anyone but employees from entering.

Advocates of open-borders/unrestricted immigration are simply those who prefer a certain rule of usage be issued by the feds: that anyone at all may use federal roads, ports, etc. Whereas other citizens have a different preference: they prefer that the feds not allow everyone, but only some people. By having the latter rule, obviously, a version of immigration restriction could be established de facto.

Now I am not so far arguing for the latter rule. I am simply noting that it is not necessarily unlibertarian, as the open-borders types want to maintain. They urge that the illegitimate owner-caretaker of public property use it in this way; others want it used another way. We all agree the rule that really should be adopted is: return the property to private hands. Where we differ is on what second-best rule is more libertarian, or more preferred. Is one second-best rule more clearly libertarian than the other? It seems to me that one useful way to compare alternative rules is to examine the restitution that would be provided by various usage-rules. A rule that generates more restitution for more people is, other things being equal, probably preferable to other rules.

In the case of federal highways, for example, most citizens currently get a benefit from being able to use roads. Is it “worth” the cost of being taxed to maintain the roads, or to pay for compensation fees paid to expropriated or bought-out property owners, or the associated liberty violations? No. But given a rights violation, some restitution is better than none. If the feds announced tomorrow that no rules at all applied to the federal highways, the utility of the roads to most people would fall dramatically, meaning that restitution has decreased. The resource would be wasted. If the feds announced tomorrow that no one could use the roads except the military, then again, this would reduce overall restitution. Some more reasonable rule in between would obviously generate a more respectable amount of restitution than either extreme.

Is there an “optimal” rule that leads to “optimal” restitution? Most certainly not. Private property is the only way to objectively and efficiently allocate capital. But some rules are better than others; and one reasonable rule of thumb used to judge the validity of a given usage rule for a publicly owned resource is to ask whether a private owner of a similar resource might adopt a similar rule; or to compare the amount and types of restitution corresponding to alternative usage-rules. And since it is impossible for the state to adopt a rule that perfectly satisfies all citizens — this is one problem with having public property in the first place — then, other things being equal, a rule that is favored by the overwhelming majority may be viewed as providing “more” overall restitution than one that is favored only by a few people.

Given these considerations, it seems obvious to me that, just as my neighborhood pool discriminates against outsiders, and just as a private pool also does this, so the state owner-caretaker of federal property might also establish rules that discriminate against some immigrants. It is obvious that the overwhelming majority of citizens do not want open borders; which means almost every American taxpayer would prefer that public property not be open to everyone. It is also clear that given federal anti-discrimination laws, providing unlimited access to public roads is tantamount to forced integration, has Hoppe has argued (1, 2). This cost is yet another reason why most Americans would prefer not to have public property open to all with no discrimination or restrictions. Given that values are subjective, using property to cater to the subjective preferences of the vast majority would seem to be one way of achieving a more substantial degree of restitution.

What are my own personal preferences? Well, I would prefer the public property be returned as restitution to the victims and the mafia called the state disbanded. Barring that, so long as they hold property rightfully “owned” by me and others to whom the state owes damages/restitution, I would prefer property they own to be used only for peaceful purposes of the type that would exist in the free market (can any libertarian seriously deny that it’s objectively better for the state to build a library or park on public property than an IRS office or chemical weapons factory?). I would prefer rules to be set regarding the usage of these resources so that they are not wasted, and so as to act in a reasonable manner like private owners would, and to maximize restitution. So far, I think my “preferences” are the only libertarian ones possible.

But what actual rules should we prefer? Here I think we start to veer from libertarianism into the realm of personal preference. I would not want the feds to allow any and all comers onto federal property, for the reasons mentioned above — I believe it would reduce the utility of public property, and impose costs (such as forced integration). In any event, even if this were now my own preference, I have to admit 99% of my fellow taxpayers would simply prefer some immigration restrictions, and therefore probably would prefer some kinds of rules of the road that discriminate against outsiders — given this preference, which does not seem per se unlibertarian — it is obvious that far more restitution is made overall if such rules are enacted.

Libertarians who righteously assume that their open borders view is the only principled one can only maintain this stance if they argue that the state should not ever establish any rules on property it asserts ownership of. Once they grant that some rules should be set, then they can not assume that discriminatory rules are automatically unlibertarian; all rules are “discriminatory.” And I do not personally believe it can be convincingly argued that there should be no rules on public property, because this would result in significant costs to citizens who are victimized enough. It cannot be a libertarian requirement to add injury to injury; libertarianism is about vindicating and defending the victim, not about victimizing him further.

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More on Immigration and Open Borders

Stephan Kinsella

11:54 am on September 1, 2005

Re my LRC column A Simple Libertarian Argument Against Unrestricted Immigration and Open Borders, I’ve already received many comments, most, surprisingly, positive. One thoughtful reader writes to tell me he is concerned that the argument could be used to justify all sorts of unlibertarian laws. For example, the State could say citizens can only use the roads if they agree to submit to taxation and narcotics prohibitions.Let me quickly summarize my thesis and then reply to this. My basic idea is that the citizens are the true owners of public property, and should have some say-so over how the state uses that property. Their interests and preferences should be taken into account. This will result in a greater degree of restitution, and thus an overall smaller degree of net harm, to them. Now obviously all their preferences cannot be simultaneously satisfied, but it seems reasonable, other things being equal, for the state to try to use the property in reasonable ways (like a private owner would) so as to result in partial restitution being made the citizens, or as many of them as possible. Obviously a greater degree of restitution (a better use of the property) made to a larger number of citizens is “better” (even from a libertarian standpoint) than a smaller degree of restitution (a more wasteful use of the property) made to fewer citizens. This does not imply there is an “optimal” usage of state property (other than to privatize it) but it does imply some uses are clearly worse than others. And it also implies that not every rule that ends up reducing usage by outsiders (immigrants) is necessary or inherently unlibertarian.

And yes, I share the concerns that this can be abused and it could be used to impose illiberal regulations on us. Gray areas and slippery slopes are a problem, but that is the unavoidable problem accompanying a state-run society. Given such a society, I see no reason we have to throw up our hands and say that any (second-, third-, or fourth-best) rule of property usage is just as good as any other. I threw in a lot of ceteris paribuses in my argument.

Given public ownership of property, which is already an offense, a rights-invasion, is it not libertarian to at least prefer certain public uses (and rules) to others, namely, those rules that don’t further victimize people, and/or that return to them some benefit to partially compensate them for the damage done to them by the public system in the first place?

And is it not sensible then to ask, what would a private owner do? to determine a better public use of property? Sure, this can be limited, and can only go so far, because the state is not a private owner. For example: a private road might not discriminate against outsiders–it might allow immigrants to move on the roads to property of willing participants. But the private road would also charge a fee (which is a way of filtering out some people); and would only take people who had a destination to go to (a willing invitee); and would not be imposing affirmative action and anti-discrimination requirements on citizens, so that its trafficking immigrants would not be a costly action.

And consider this too: whose rights are violated if the state does not permit immigrants onto roads? The immigrant’s rights? How so? This is a resource collectively owned by the citizens of the U.S. Whatever rule “they” adopt, I don’t see how the outsider has a right to complain. So I don’t see that it violates immigrants’ rights to not be permitted to use a U.S. public resource.

So whose rights are violated? arguably, those citizens who want to use the roads to transport immigrants to their own property. These citizens are “part owners” of the road and are unable to have it used in the way they wish. But for every citizen like this, there are 99 others who do not want the roads open to all–because that means dumping tons of immigrants onto public services and having the right to sue for discrimination and having access to everyone’s neighborhood due to the network of public roads. So if the open borders citizen has his way with the property, then 99 of his neighbors have their rights violated, because the road is being used the way 1 guy wants but not the way 99 others prefer. So there is no way to avoid violating someone’s rights, since the property is public and it has to be used one way.

It seems to me it is reasonable to use the property in this case the way 99 prefer, instead of the one prefers.

Now, as I stated in the article, if the state let only the military use the roads, that would harm the citizens by failing to let them use the roads. The state could theoretically enforce all kinds of bad “law”–taxes, drug laws–by saying to citizens: you may use the roads only if you agree to submit to taxes, drug laws. However, notice that this is just a conditional grant of usage of the property. I would not agree that is a good use of it–it’s tantamount to saying only the government can use it. Given that the citizens own it, it’s reasonable to allow the citizens to use it (with orderly rules, like speed limits) instead of to ban them from using it. If you prevent citizens from using it, that is reducing the restitution. So I would say that conditioning a citizen’s right ot use the roads to establish de facto unlibertarian laws is reducing the restitution, and increaseing the state aggression and harm, so I would oppose it. But denying an outsider the right to use the roads is not the same at all.

Bottom line: any libertarian who disagrees with me her must do so on one of two grounds: (a) there are no second-best rules; the state may not impose any rules at all; or (b) there are second-best rules but they require the state not discriminate against outsiders in the rules set on public property.

I reject (a) because it means you can’t prefer a peaceful use (a park or library) over a tyrannical one (IRS office, nuclear weapons facility); and it means you can’t prefer a reasonable use that gives some benefit back to citizens (public roads with reasonable rules and usable by citizens) rather than a wasteful use that provides no restitution (roads with no rules at all; or usable only by the military). And as for (b), the critic would need to set forth a theory of second-best usage of property. I tried to sketch some of these factors: prefer a peaceful to a criminal use; prefer a reasonable use along the lines of what a private owner would do, and taking into account the level and degree of restitution and the preferences of citizens. If someone has a better theory, let’s hear it.

Coda:

Email from a reader:

Stephan:

I’m surprised you’re surprised about all the positive comments on your recent essay. There seems to be a disconnect between people I would consider at the “top” of the libertarian community (academics, writers and political activists) and “rank-and-file” libertarians. Perhaps more people (not necessarily you) realize that the cause of liberty is hampered by the importation of millions of people with no tradition of limited government. These new arrivals (the ones here legally) owe the blessing of US residency not to the locality where they live but to the District of Columbia.

I think the libertarian arguments against immigration can be summarized as follows:

1. Mass immigration is a form of rent-seeking. Employers can increase their margins and off-load the increased infrastructure and various non-monetary costs on others.

2. Government is enforcing compulsory association. “Civil rights” laws and welfare benefits mean that those who do not want immigrants around are forced to abide and pay for them.

3. Government is importing more welfare-warfare state constituents.

4. Government is deliberately changing the native culture over the wishes of its own citizens. Substantively, there is no difference between the US open borders policy and the American Indians de facto open borders policy.

5. Open borders are a tragedy of the commons.

6. Government is inflating citizenship and residency in the US, as it did with college educations. Prior purchasers of these assets now see them devalued.

Few people realize that prior to a Supreme Court ruling in the 1850’s, immigration was a matter for the individual States, where the expense of immigration is actually borne.

Keep up the good work.

Update: The post is The Essence of Libertarianism? “Finders Keepers,” “Better Title,” and Other Possibilities. For more on this issue, and on the nature of ownership, see Stephan Kinsella, Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023), various chapters, e.g. chs. 2, 4, 9, et pass. [↩]

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The Essence of Libertarianism? “Finders Keepers,” “Better Title,” and Other Possibilities

by Stephan Kinsella on August 31, 2005

Update: On the Core Principles of Libertarian Property Rights

Recently I shared with David Gordon my thought that libertarianism can be distilled to a two-word summary: “first possession” (or “finders keepers” or “first user“). All competing theories believe in property rights; socialists, for example, believe the state should own the means of production. The difference between them and us is that we believe the only valid means of acquiring title to property is to appropriate it from the state of nature by being the first user or possessor, or by acquiring it ultimately from such a first possessor.

David pointed out that this principle covers homesteadable, alienable property, but does not cover rights in our bodies. As he said, “If you confine yourself to finders keepers, doesn’t this leave me free to kill you, so long as I don’t take your property?” Well, if we say that “first possession” or homesteading is how we acquire rights in our bodies too, I supppose “first possession” covers body-rights too. One is the first user of one’s body, after all, as emphasized by Hans-Hermann Hoppe in his A Theory of Socialism and Capitalism (pp. 8-14). But do we homestead our bodies in the same way we homestead external, unowned scarce resources? It’s not as if, if I choose not to homestead my body, it remains unowned–as is the case for unowned scarce resources.

But David got me thinking about this, and I think I found another short phrase that also captures the essence of libertarianism, in a somewhat different way. The essence of libertarianism?: “BETTER TITLE” (see, e.g., La. Civ. Code, arts. 531, 532).

This is an expression used in law when two people dispute title to a piece of land. Neither party has to prove “absolute” ownership of the land, “good against the world”; only better title than the other. The “better title” favors the “first possession” rule for homesteadable property. As for rights in one’s body, the person whose body it is has a better claim to control the body than others, because of the natural connection between a person and his body (and, yes, because one is the first user of one’s body, as opposed to the latecomer). Further, if an aggressor does not acknowledge the victim’s special claim to have primary control over “his own” body, then the aggressor has no cause to complain if aggression is used against his body. After all, the aggressor has no special claims to control his body, if the connection between him and his body is not sufficient to support such a claim. Therefore, any aggressor who makes such a claim has to admit the legitimacy of force against him in response to his aggression. This is all the victim needs to prove in order to establish that he has a right against aggression towards his own body. And this shows a person has “better title” to his own body than do others. (For more info on this type of reasoning about rights, see New Rationalist Directions in Libertarian Rights Theory.) [Update: Gordon jokingly suggested a different two-word summary for the essence of libertarian rights: “F*ck you!”]

Yet another possibility: “Conflict Minimization”

And another: Modus vivendi.

Update:

I originally posted this back in July 2002 but have updated it with additional info:

my SoloHQ post on The Problem of Initial Acquisition
my article A Libertarian Theory of Contract, text at note 2, and note 2; and text at note 35.
Defending Argumentation Ethics: Reply to Murphy & Callahan.

Later I will add some of my thoughts on difficulties of homesteading one’s own body (body, baby ownership issues, etc.). [update: see: Objectivists on Positive Parental Obligations and Abortion; How We Come To Own Ourselves]

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A good quote from me

by Stephan Kinsella on August 25, 2005

from this Chronicles thread:

I agree that most people do not want liberty; that is why we do not have it. IMO those who think we can “win” the battle for liberty are just deluding themselves. Why libertarians, who denounce altruism etc., feel as if it’s some moral duty to go around wasting large parts of their life in some campaign for liberty is beyond me–it’s altruistic; it’s futile; it’s a waste of time, since one is at most barely increasing the odds, that we will temporarily and slightly increase liberty, the puny benefit of which falls primarily on those who do not deserve it.

I have spoken. So let it be written, so let it be done (affecting Yul Brenner Pharao pose)

Coda:

In the wake of some emails, let me add a few clarifying commments. I am not saying that it is a waste of time to try to work for liberty. To the contrary. I am saying that one would have to view it as a waste of time, if one really believed the costs of fighting the battle must be justified by the gains achieved–because one must delude oneself into making the equation balance. I just reject the equation. I help fight for liberty because it is the right thing to do. If I strutted around like some libertarians who claim that in their devotion to the struggle for liberty they are “making a difference”–certainly “more of a difference” than people like me who don’t write “influential books” or a daily op-ed column or give speeches to socialist legislators in Arabia–then if I were honest I would have to say, it’s really not worth it. If the justification for spending time and effort and money etc. to fight for liberty is whether or not we are “winning,” then the project is a failure, on those terms. As I noted above, the actions of most of us at most result in a slightly higher chance at barely, and temporarily, increasing liberty–or, more likely, slowing down the rate of increase in government growth–primarily for the benefit of the masses who at root are to blame for the problem in the first place. And honest analysis realizes this.

Freeing oneself from self-delusion is essential for self-honesty and integrity. It also frees one to take principled positions and to avoid making the dishonest and irritating mistake of judging the truth or value of a theory or view by its “strategical” significance.

I cannot count the number of times some irritating jerk libertarian says to me, in response to a theory or normative proposition, “but that is not going to persuade anyone.” They immediately assume that everything is to be judged by strategy, rhetoric, persuasiveness. I see nothing wrong with using such standards when appropriate. For example if I am proposing a method or argument to persuade people, then it is relevant whether the proposed argument or technique is persuasive. But when I assert to a fellow libertarian that we have a right to such and such, or that there is no right to xyz, for such and such reasons–it is just a non sequitur, a category mistake–and usually smarmy disingenuity, IMO–to say BUT that is not “going to persuade people.” Hey dumbass–I never said it was gonna persuade others. These type of libertarians are in my view basically moral skeptics, relativists, and/or utilitarians. They are incapable of discussing anything normative. Moral talk is simply not “useful.” What good, after all, does it to do identify moral truths, if it does not persuade others?

By this logic, there are no rights violations; there is only power. After all, even if libertarian rights could be proved by the Word of God delivered in an engraved envelope–still, an aggressor could disregard it. “Telling” him that he is violating your rights will “do no good.” Yes. So? And so? What is the point of this elementary school observation? This entire mindset is that of the self-proclaimed “pragmatist” who does not want to say there are no rights–after all, it might be “useful” if some people do believe in them–but he does not really believe in them. He, in engineer-like fashion, cares only about “practical” “results.” And I have no problem with this. But I would prefer they be honest. If I say, “there should be no murder,” don’t say “that’s not practical”; it’s not “impractical”; it’s a normative truth. To say the rule against murder is “impractical” is to fail to distinguish between ought and is.

Every 5-15 years you see some libertarians waxing about how we are winning the battle, or that we can win the battle, all we need to do is… As far back as the 1930s etc…. They have to delude themselves and engage in wishful thinking and rah-rah political rally self-delusion (“we can win! we can win the Presidency! This year we will get 100 million votes if we just get our message out there!!!”). They have to delude themselves because they have bought into the idea that the cost of the fight is a worthwhile “investment” in the struggle to “achieve” liberty. They must believe that worth it to fight for liberty, implying they think we have, or can, achieve suffiient “gains” to “outweigh” the “Costs”. This is naive and wide-eyed gullibility, wishful thinking.

Me–I say, be a libertarian activist if you want (of whatever stripe: more academic, like some of us; a blogger; a writer; join a local discussion group; run for office; donate your time or money to something; help promote economic education and literacy; whatever). I am, myself, to a degree. It’s okay to spend effort on a cause one is passionate about. I expend effort reading science fiction, and don’t seek to justify it w/ some made-up phantom tangible gains. Fight for liberty for its own sake. If you fight for it based on the gains, you will soon give up.

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Peculium, and the State as Overlord

by Stephan Kinsella on August 11, 2005

[From my Webnote series]

From a 2005 post on LRC:

Reading Alan Watson’s Roman Law and Comparative Law, I came across this passage, describing the status of slaves in ancient Rome:

A slave could own no property, but from early times it was customary to give the slave a peculium, a fund that he could administer as if it belonged to him. Technically, this sum belonged to the master, but to some extent it was treated as a separate estate with which the master did not interfere except for good reason. [p.40]

It occurred to me that our property and income today is basically merely a peculium (not to be confused with pecunium)–since the state presumes the right to take as much of it as they want, leaving a discretionary amount to us serfs, at their pleasure. Further proof that taxation enslaves.
[continue reading…]

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50 coolest websites

by Stephan Kinsella on August 8, 2005

courtesy of Time Magazine. The web-based video games at orisinal are really cool.

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