Post on the LRC blog.
Gay Marriage, LewRockwell.com (Feb. 12, 2004)
On the one hand, I am amazed at the degree of opposition some conservative/libertarian types have to gay marriage. It’ll “weaken marriage”–? Whose? Not mine. Say you’re given a choice: prevent an increase in taxes, or prevent gay marriage from being recognized. Easy choice! (Prevent tax increases, just in case you are on the fence.)
On the other hand, the problem with gay marriage is that it’s just the thin end of the wedge: the gays will use it next to argue that homosexuality should be included in all the antiidiscrimination laws.The whole issue is confused. Part of it is because the leftist minority is disingenuously using this as a tactic to increase gay rights, e.g. to affirmative action, anti-discrimination laws, etc. And partly it’s because people are not clear on the terms of dispute.
For many it comes down to mere semantics. For example, a conservative libertarian friend is opposed to gay marriage. But he admitted, he has no problem with the state enforcing agreements between people–two gays, two sibligs, a rock band–and calling it a civil union. If two people want to form a union whereby they pool their assets and liabilities, have power of attorney over each other in critical medical or death situations, why shouldn’t such agreements be enforced? So my friend’s only problem is if the statute legalizing such agreements refers to the union as “marriage”.
I.e., the objection is just to the label the state happens to use. Thin gruel, it seems to me. My view is agreements should of course be enforced. The labeling of the ontology of the relationships protected by the legal system should be left up to tradition and individuals–to private society. Gays would probably try to have “marriage” ceremonies; the civil union would be one legal result flowing from this. Gays and englightened liberals and other moral relativists would then refer to such gay couples as “married.” They would try to nudge others to do the same–much as ethic jokes have been pushed into the closet and certain official labels like African-American or visually impaired have been foisted on us and others, like black or colored or blind, are frowned upon.
Whether mainstream religions or mainstream (hetero) people would adopt the gays’ denoting of this relationship as “marriage” has nothing to do with law or the public policy debate. I can say I am “married” to my dog. No one is obliged to treat this seriously. Etc. It’s not a legal issue. Nor a political issue. Nor a libertarian issue.
One final comment. Bush wants to constitutionally define marriage as between one man and one woman. But if this is the case, doesn’t it mean bigamy can’t be a crime? After all, bigamy is marriage to multiple partners; but if marriage is only marriage between one man and one woman, bigamy is just impossible, legally. Clearly bigamy is a type of marriage, albeit an illegal one. The definition of marriage is broader than what’s legally permitted. Bigamy is funny (not funny-funny, but strange-funny). It’s not illegal to live with multiple women. Nor to refer to them as your wives. It’s illegal to apply for the official status with multiple wives. You see how the state here subtly equates its dictates with reality.
But presumably, if we “define” marriage as a union of one man and one woman, bigamy would still be regarded as illegal. Yet if two men attempt to marry, it just will be ignored, and treated as a non-event. So the federal attempt to officially “define” marriage has this result: a man (trying to) marry a second woman is illegal; but a man marrying another man is not (because it is not given status). How’s that–the traditionlists penalize heterosexual bigamy more than they do homosexuality. Methinks they are all confused; they should stop relying on the state to define what is or is not marriage; and should drop all causes secondary to that of lowering taxes and spending.
Those Dutch libertarians are a pretty active bunch. They’ve previously translated two of my articles; now there’s one of my What It Means To Be an Anarcho-Capitalist, January 20, 2004, LewRockwell.com. It is Wat het betekent om anarcho-kapitalist te zijn, MeerVrijheid.nl (local copy).
HOLY SH**: MAN WALKS ON F***ING MOON
Neil Armstrong’s Historic First Words on Moon: “Holy Living F***”
Some of my recent LRC and Mises blogposts:
- The Dean Yell
- What’s So Bad About Slavery?
- Gospel Clown
- Recent Liberty
- Anarchy Reigns
- Combo #5
- Res ipsa loquitur (Texas highway mileage sign)
- International Law & Natural Law
- More on Bullying
- Bilateral Investment Treaties: Investors and Property versus the State
- Lannyism (working wife = 3 rent houses)
- Re: Punishing Politicians
- Punishing Politicians
- Sobran on Sandefur
- Re: Sandefur and the War Between the States
- Sandefur on slavery and the civil war
- Ben-Gay
- Yet more on panhandling kids…
- Panhandling Middle-Class Kids
- Working Anarchy
- The Morality of Acquiring and Enforcing Patents
- Re: Bullying
- More on Bullying
- Toward a Theory of Bullying
- Anna Belle (da poodle) ‘n Me
- The Unidirectionality of Conversions
- Poodles Bite
- Breakin’ the Law
- Infinity and the mind
- Things not to say to a first-time mom
- Revisionist Physics
- Cigars, Spirits, Dames, Diversions, and the Right to be Politically Incorrect
- The Suck of Self
- Future of Freedom Fund
- Re: Cato on Drug Reimportation
- Cato Tugs Stray Back Onto the Reservation
- Epstein and Patents
- Protectionist Cato?
- The true story behind “The Now Infamous Tucker Max Charity Auction Debacle” email
- One of the funniest things I’ve ever read
- Honda Ad
- Freakadelic
- Barnett and the Fourteenth Amendment
- The Good Wife’s Guide
- re: Raico Cleans Tom Palmer’s Clock
- Nukes and International Law
- Things My Girlfriend and I Have Argued About
Related:
- The State is not the government; we don’t own property; scarcity doesn’t mean rare; coercion is not aggression
- David Kelley on the Necessity of Government
- An Objectivist IP Argument for Taxation
- Why Should the Government be Limited?
- Ayn Rand Endorses Big Government
- What It Means To Be an Anarcho-Capitalist
- The Irrelevance of the Impossibility of Anarcho-Libertarianism
Note: Updated and revised version included as chap. 3 of Legal Foundations of a Free Society (Houston: Papinian Press, 2023). Below.
“Anarchists oppose the State because it has its very being in such aggression, namely, the expropriation of private property through taxation, the coercive exclusion of other providers of defense services from its territory, and all of the other depredations and coercions that are built upon these twin foci of invasions of individual rights.” Rothbard, Anatomy of the State
***
“What It Means To Be an Anarcho-Capitalist,” LewRockwell.com (Jan. 20, 2004). Reprinted in reprinted in Keith Knight, ed., The Voluntaryist Handbook: A Collection of Essays, Excerpts, and Quotes (2022). Revised version in Legal Foundations of a Free Society (forthcoming 2023).
Related
- Several translations available
- audio version
- See also Kinsella, “The Irrelevance of the Impossibility of Anarcho-Libertarianism,” Mises Economics Blog (Aug. 20, 2009)
From Legal Foundations of a Free Society (Houston: Papinian Press, 2023)
3
What It Means To Be an Anarcho-Capitalist
Originally published at LewRockwell.com (Jan. 20, 2004; https://perma.cc/QAJ6-KHKN); reprinted in Keith Knight, ed., The Voluntaryist Handbook: A Collection of Essays, Excerpts, and Quotes (2022; https://perma.cc/N8UX-4PX4). See also Kinsella, “The Irrelevance of the Impossibility of Anarcho-Libertarianism,” Mises Economics Blog (Aug. 20, 2009).
Butler Shaffer’s recent LRC article, “What is Anarchy?,”[1] prompted discussion on the Reason blog and inspired me to set down a few ideas I’ve also had along these lines.
Libertarian opponents of anarchy are attacking a straw man. Their arguments are usually utilitarian in nature and amount to “but anarchy won’t work” or “we need the (things provided by the) state.” But these attacks are confused at best, if not disingenuous. To be an anarchist does not mean you think anarchy will “work” (whatever that means), nor that you predict it will or “can” be achieved. It is possible to be a pessimistic anarchist, after all. To be an anarchist only means that you believe that aggression is not justified, and that states necessarily employ aggression. And, therefore, that states, and the aggression they necessarily employ, are unjustified. It’s quite simple, really. It’s an ethical view, so no surprise it confuses utilitarians.
Accordingly, anyone who is not an anarchist must maintain either: (a) aggression is justified; or (b) states (in particular, minimal states) do not necessarily employ aggression.
Proposition (b) is plainly false. States always tax their citizens, which is a form of aggression. They always outlaw competing defense agencies, which also amounts to aggression. (Not to mention the countless victimless crime laws that they inevitably, and without a single exception in history, enforce on the populace. Why minarchists think minarchy is even possible boggles the mind.)
As for (a), well, socialists and criminals also feel aggression is justified. This does not make it so. Criminals, socialists, and anti-anarchists have yet to show how aggression—the initiation of force against innocent victims—is justified. No surprise; it is not possible[2] to show this.[3] But criminals don’t feel compelled to justify aggression; why should advocates of the state feel compelled to do so?
Conservative and minarchist-libertarian criticism of anarchy on the grounds that it won’t “work” or is not “practical” is just confused. Anarchists don’t (necessarily) predict anarchy will be achieved—I for one don’t think it will. But that does not mean states are justified.
Consider an analogy. Conservatives and libertarians all agree that private crime (murder, robbery, rape) is unjustified, and “should” not occur. Yet no matter how good most men become, there will always be at least some small element who will resort to crime. Crime will always be with us. Yet we still condemn crime and work to reduce it.
Is it logically possible that there could be no crime? Sure. Everyone could voluntarily choose to respect others’ rights. Then there would be no crime. It’s easy to imagine. But given our experience with human nature and interaction, it is safe to say that there will always be crime. Nevertheless, we still proclaim crime to be evil and unjustified, in the face of the inevitability of its recurrence. So to my claim that crime is immoral, it would just be stupid and/or insincere to reply, “but that’s an impractical view” or “but that won’t work,” “since there will always be crime.” The fact that there will always be crime—that not everyone will voluntarily respect others’ rights—does not mean that it’s “impractical” to oppose it; nor does it mean that crime is justified. It does not mean there is some “flaw” in the proposition that crime is wrong.
Likewise, to my claim that the state and its aggression is unjustified, it is disingenuous and/or confused to reply, “anarchy won’t work” or is “impractical” or “unlikely to ever occur.”[4] The view that the state is unjustified is a normative or ethical position. The fact that not enough people are willing to respect their neighbors’ rights to allow anarchy to emerge, i.e., the fact that enough people (erroneously) support the legitimacy of the state to permit it to exist, does not mean that the state, and its aggression, are justified.[5]
Other utilitarian replies like “but we need a state” do not contradict the claim that states employ aggression and that aggression is unjustified. It simply means that the state-advocate does not mind the initiation of force against innocent victims—i.e., he shares the criminal/socialist mentality. The private criminal thinks his own need is all that matters; he is willing to commit violence to satisfy his needs; to hell with what is right and wrong. The advocate of the state thinks that his opinion that “we” “need” things justifies committing or condoning violence against innocent individuals. It is as plain as that. Whatever this argument is, it is not libertarian. It is not opposed to aggression. It is in favor of something else—making sure certain public “needs” are met, despite the cost—but not peace and cooperation. The criminal, gangster, socialist, welfare-statist, and even minarchist all share this: they are willing to condone naked aggression, for some reason. The details vary, but the result is the same—innocent lives are trampled by physical assault. Some have the stomach for this; others are more civilized—libertarian, one might say—and prefer peace over violent struggle.
As there are criminals and socialists among us, it is no surprise that there is a degree of criminal-mindedness in most people. After all, the state rests upon the tacit consent of the masses, who have erroneously accepted the notion that states are legitimate. But none of that means the criminal enterprises condoned by the masses are justified.
It’s time for libertarians to take a stand. Are you for aggression, or against it?[6]
[Endnotes, adapted from the footnotes; some formatting like italics may be missing]
[1] Butler Shaffer, “What Is Anarchy?,” LewRockwell.com (Jan. 13, 2004).
[2] “Defending Argumentation Ethics” (ch. 7).
[3] “Dialogical Arguments for Libertarian Rights” (ch. 6).
[4] Another point: In my view, we are about as likely to achieve minarchy as we are to achieve anarchy. I.e., both are remote possibilities. What is striking is that almost every criticism of “impracticality” that minarchists hurl at anarchy is also true of minarchy itself. Both are exceedingly unlikely. Both require massive changes in views among millions of people. Both rest on presumptions that most people simply don’t care much about.
[5] Though the case for anarchy does not depend on its likelihood or “feasibility,” any more than the case against private crime depends on there never being any acts of crime, anarchy is clearly possible. There is anarchy among nations, for example. There is also anarchy within government, as pointed out in a seminal and neglected JLS article by Alfred G. Cuzán, which argues that even the government itself is in anarchy, internally—the President does not literally force others in government to obey his commands, after all; they obey them voluntarily, due to a recognized, hierarchical structure. Government’s (political) anarchy is not a good anarchy, but it demonstrates anarchy is possible—indeed, that we never really get out of it. See Alfred G. Cuzán, “Do We Ever Really Get Out of Anarchy?,” J. Libertarian Stud. 3, no. 2 (Summer 1979): 151–58. And Shaffer makes the insightful point that we are in “anarchy” with our neighbors. If most people did not already have the character to voluntarily respect most of their neighbors’ rights, society and civilization would be impossible. Most people are good enough to permit civilization to occur, despite the existence of some degree of public and private crime. It is conceivable that the degree of goodness could rise—due to education or more universal economic prosperity, say—sufficient to make support for the legitimacy of states evaporate. It’s just very unlikely.
[6] For discussion of other aspects of anarchist libertarian theory, see references in “Legislation and the Discovery of Law in a Free Society” (ch. 13), n.25, and others listed in Kinsella, “The Greatest Libertarian Books,” StephanKinsella.com (Aug. 7, 2006) and Hans-Hermann Hoppe, “Anarcho-Capitalism: An Annotated Bibliography,” LewRockwell.com (Dec. 31, 2001).
- In Defense of Evidence: Against the Exclusionary Rule and Against Libertarian Centralism, LewRockwell.com, November 1, 2003;
- A Theory of Contracts: Binding Promises, Title Transfer, and Inalienability, Journal of Libertarian Studies 17:2, Spring 2003
[LRC post from 2003]
Sobran on Sandefur
Posted by Stephan Kinsella on October 23, 2003 03:31 PM
Another followup to the blog debate [appended below] with Sandefur: I had hazarded a guess that Sobran was joking when he said billions of lives are worth expending to save a single slave. In private correspondence with Sobran, he elaborated (reprinted below with permission):
“I was joking — I wasn’t going to let him outbid me in the anti-slavery game. I was prepared to go as high as one billion and seventeen, but he dropped out.
“There has to be a sense of proportion in everything. Ultimately you may have the right to kill to protect your property, but this is a right you might waive now and then. Lincoln never really explained why maintaining Union sovereignty was worth a half-million deaths. Instead he switched to the holy cause of ending slavery and blamed those deaths on God’s wrath. Odd that the Almighty didn’t see fit to punish slavery so severely in other countries.
“I suppose Sandefur could justify similar extremes against, say, monarchy. Why not? He reasons like a man threatening to shoot people for walking on his lawn.
“To me one of the most interesting and neglected aspects of the Civil War is the suppression of dissent in the NORTH. Lincoln really cracked down on those who believed in the right of secession. David Herbert Donald says the period was the worst for civil liberties in US history. An understatement. Lincoln couldn’t afford free discussion. I think he owed his re-election to the silence he imposed, with the help of a lot of the usual thuggish “patriots.” As I say, Jefferson qualified as a traitor on his terms.”
***
Sandefur on slavery and the civil war
In Sandefur and Federal Supremacy I made the point that according to Sandefur’s argument, “slavery is completely irrelevant” to the question of the Civil War, because “[a]ccording to this theory, even if none of the United States had had slavery in 1861, it would still have been a ‘mere criminal conspiracy’ for the South to secede, without permission from Congress.”
Just came across Sandefur’s reply, Half-point for Kinsella. Sandefur quotes the above, and says I am correct. But then he says I only get it half-right, since I omit the second step–of whether a criminal secession is “justified”. Writes Sandefur: “In my view, criminal conspiracies are sometimes justified—that is, when they are acts of legitimate revolution. For instance, the framers signing the Declaration of Independence in 1776 were engaged in a criminal conspiracy, too. But in that case the criminal conspiracy was justified because it was an act of revolution.
“So we have to go to the second question—given that secession was illegal, was it a legitimate act of revolution? At that step, slavery becomes relevant, because it is what shows that the secession of 1861 was not a legitimate revolution.”I find this reply to be slippery and disingenuous. (I emailed Sandefur to give him a chance to correct my understanding of his views, but he has not done so.) According to his theory, whether or not the Southern States had slavery, their act of revolution was not justified. Suppose all the Southern states had abolished slavery and then seceded anyway. Sandefur would maintain that the secession is criminal, unconstitutional, and not justified–because it is not in response to a long train of acts of despotism, tyranny, or abuse by the Union.
So Sandefur is wrong: I understand his argument has a second step. First, you ask if secession is a criminal act (Sandefur says yes); then, you ask if it’s nevertheless a justified act of revolution. Sandefur answers this latter question “no” because there are no grounds for revolution. Why? Because there was not tyranny by the feds, no “long train of abuses.” Anyway, how can a state imposing tyranny (by having slavery) claim to be revolting from tyranny? They don’t have “clean hands”. But even by this logic, slavery just helps to prove that a revolution is not justified; but it is not justified anyway, even if there was not slavery. Why doesn’t he just admit that slavery is irrelevant to his argument?
I think the reason is that he needs the slavery argument in order to justify getting righteous and saying that millions of deaths is justified to stop the horrible scourge of slavery–which sidesteps the truth that, by his argument, if slavery had been abolished in the South already (and the Union as a whole), and the South tried to secede, his legalistic view is still that the Union could use force to stop it the secession, and presumably kill hundreds of thousands of people to stop it–so he endorses all this killing whether or not there is slavery to stop. In other words, it’s all about preserving the state, the government, the Union, at any cost, whether or not there is slavery. Sounds a lot like Abe Lincoln, except that Lincoln said he would keep, or abolish, slavery, as long as it was necessary to preserve the Union.
Moreover, if this is his theory, I cannot see how he thinks the original American secession from Britain was a justified revolution. After all, here we had a revolt of thirteen slave-holding colonies from the non-slave Britain; and it is doubtful that the secession was a justified revolution anyway. As Joe Stromberg wrote me privately, “Actually, on his argument, the American Revolution was entirely unjustified. […] I mean, how high were taxes? Admittedly, there was some concern about Parliament’s claim to ‘bind the colonies in all things’ and their tinkering with the court system, but these dangers were down the road, and would it not be enough to call the revolutionaries ‘paranoid’? Plus, a good many of these anti-British agitators were slave-owners, and not just in the South!”
How Sandefur can support the original US revolution but not that of the South is a puzzle.
As Tom DiLorenzo mentioned to me by email, Sandefur is “merely repeating what Harry Jaffa taught him when he was a Lincoln Fellow at Claremont. The fact is, if your supposed right of secession is subject to the approval of some armed gang, then you really have no such right, ever. I think all the talk about justified and unjustified ‘revolutions’ is semantic gibberish invented by Jaffa. I’ve never run across this in all the reading I’ve done of the founders; the only place I’ve ever seen it is in Harry Jaffa’s writing and in that of his followers like Sandefeur.
“The Union was a voluntary union, just like your marriage. According to the Jaffa and Sandefeur logic, unless your wife abused you severely for years and years (or some arbitrary time determined by Jaffa), she would have the right to kill you if you ever filed for separation, let alone divorce.
“During my debate with Jaffa he was asked repeatedly by members of the audience if there was ever a justification for secession and he said no. Even [a prominent libertarian who is sympathetic to government], who was there, looked befuddled by this. Sandefeur is trying to squirm his way out of the corner you painted him into.”
***
Re: Sandefur and the War Between the States
In response to my recent post about Sandefur’s theory of revolution, Sandefur posts this response on another blog.
He writes: “Unilateral secession is unconstitutional and illegal. The President of the United States is charged with the Constitutional duty to see that the laws are faithfully executed. If people resist him at point of arms—that is to say, if they initiate force—he has the Constitutional authority to use arms to enforce the law, even if that means killing people.”And also: “I will try one more time to be as clear as I possibly can, so that I might not be accused of attempting to avoid anything which I have repeatedly tried to make clear: unilateral secession is unconstitutional and illegal. The President has the Constitutional duty to see that the laws are faithfully executed, and if people resist the execution of the law at point of arms, the President has the lawful duty to use arms to put down that rebellion. This is true regardless of whether slavery is involved or not. Secession might, however, be a legitimate act of revolution, if it were done to preserve freedom against oppression, as was the case in the American Revolution. That, however, was not the case in the Civil War, because the south seceded, not to preserve freedom, but to perpetuate the enslavement of millions of innocents.”
Sandefur has expressed his position very clearly, except for one thing. The real test he seems to use is that even an otherwise illegal secession can be a “legitimate act of revolution” if it is done “to preserve freedom against oppression”. Now, he keeps saying that the reason the Southern secession was notdone “to preserve freedom against oppression”. and therefore not a “legitimate act of revolution”–is that it was done “to perpetuate the enslavement of millions of innocents”. Something done to perpetuate slavery is not aimed at preserving freedom from oppression.
The problem with this is that even if the South had already abolished slavery, still, according to Sandefur, it would not be a legitimate act of revolution. It would just be an illegal act of rebellion, since it would not have been in response to an oppressive government. According to Sandefur, the Revolution of 1776 was a legitimate “act of revolution because it was a response to an initiation of force—that is, it was a defiance of the Parliament’s claim to bind the colonies in all cases whatsoever—the same claim, of course, that was made by the slave power towards the slaves. The Declaration of Independence makes clear the grounds on which revolution is justified—that when a long train of abuses has evinced a design to reduce a people under absolute despotism, it is their right and their duty to throw off such government.”
However, the Union was not “oppressing” the Southern states in this manner, and therefore, even if the South had not had slavery, it could not have legitimately revolted. If it had tried to, Lincoln could have still put them down by force. That is why I say slavery is irrelevant to Sandefur’s view: whether or not the South had slavery, their secession would have been illegal and not a justified revolution; therefore, Lincoln would have been justified in using force to stop the secession, even if it meant lots of people would get killed. Therefore, Sandefur’s view is that it’s worth millions of lives to preserve the Union, whether or not there is slavery.
This is a clear implication of his views. He seems to avoid granting this explicitly, in his blogged response to me, instead changing the question to whether the slaves could have revolted from their masters if they had been oppressed. This evades the question. But in private email with him (which he gave me permission to reproduce), I asked him:
“if I understand your theory correctly, EVEN IF the South did NOT have slavery, it would STILL not be an act of revolution–because unlike the US revolting from Britain, the South didn’t have a reason to revolt, it was not responding to a long train of acts of despotism etc.”
His answer: “That’s right. It would be an initiation of force [by the South].” So, he explicitly admits that whether or not the South had slavery in 1861, their act of secession from the US that atually existed at the time, would have been illegal and NOT a justified act of revolution. How he can continue to maintain that slavery is relevant even to his own theory, I have no idea.
***
A couple of other points. Sandefur writes: “Third, Kinsella writes that I “get[ ] righteous and saying that millions of deaths is justified to stop the horrible scourge of slavery….” Let’s be clear. I responded to a letter to the editor which asked whether it was worth 600,000 deaths to end slavery. The answer, I said, and I still say, is yes. It would have been worth it at a million times that cost. If this is “getting righteous,” well, make the most of it. I would think it was far more embarrassing to “get righteous” by saying that abolishing slavery was not worth “all this killing.””
This is a cheap shot. This subtly implies that people like me are not concerned about slavery or don’t care to abolish it; this is absurd. My view is that the slaves had every right to rise up and kill their masters, or use force to free themselves. I have tried to clarify that Sandefur’s view is that “all this killing” is justified to stop an illegal and unjustified rebellion, NOT to stop slavery.
Writes Sandefur: “I expect this to be my last word on the subject. I have made my point repeatedly clear, and all that I get back from the other side is accusations that I love seeing people killed, and that I’m just a puppet of Harry Jaffa, and so on and so forth.”
Let me be clear again: I didn’t say he loved seeing people killed; I accurately described his view that if people have to be killed in an enforcement action putting down an illegal and unjustified act of secession, then that is acceptable. I have tried to clarify that he believes this in the case of an illegal and unjustified rebellion whether or not there is slavery, to show what I think to be horrible consequences of his theory. But I am not inaccurately describing his views or the consequences of those views.
Nor have I said he is a puppet of Harry Jaffa; I fully believe that Sandefur is an independent thinker who for his own reasons accepts the soundness of (many of) Jaffa’s views. Sandefur’s views are wrong because they are unsound, not because they are based on Jaffa.
Sandefur concludes that we have “proposed no serious analytical answer to the arguments I’ve mustered, and all they do is insist that libertarianism means that if a state wishes to oppress its own people without interference from Washington, it has the sovereign right to do so.”
I could not disagree more strongly. We do not merely make assertions; we have good reasons for believing that the States have a Constitutional right to secede. We may be wrong; Sandefur may disagree; but it is absurd to say we have no serious view on this. Indeed, we have many serious reasons for disagreeing with Sandefur. I am sure Sandefur is well-aware of the vast body of serious thought on why the States have a Constitutional right to secede; anarcho-libertarian and libertarian arguments against the federal government’s right to go to war against the South, etc.
And to conclude–I, for one, do not agree that libertarianism means that if a state wishes to oppress its own people without interference from Washington, it has the sovereign right to do so. Rather, libertarianism means opposition to and distrust of centralized coercive power. And it also means recognizing the value of some of the structural limitations placed on the federal government in the Constitution; and it means recognizing, therefore, that the federal government was never granted the jurisdiction or power to prevent secession, nor were the States Constitutionally prevented from seceding. Sandefur can disagree with this, but that is what I believe, not that states have a “sovereign right” to enslave people. In fact, states do not have the right to enslave people (or more precisely, to enforce and legitimize the practice). Slavery is of course a travesty and individual rights violation. This fact does not, however, mean that the Union has the Constitutional right to invade a seceding state.
***
A final note: Sandefur writes: “I believe it is absolutely worth 600,000 deaths to have freed the slaves, and I believe it would be worth it at ten million times that price. (Joseph Sobran has conceded this point, and has even exceeded my estimate by saying, in print, that he believes it was worth billions of lives to free even a single slave.)”
I cannot speak for Sobran but I suspect he was joking to show the lack of proportion in Sandefur’s willingness to condone the spilling of seemingly unlimited amounts of blood, especially in view of the background that slavery probably would have been peacefully outlawed before long anyway.
As one of the few registered patent attorneys who oppose patents –and on principled, pro-private property, grounds, not for utilitarian or anti-industrialist reasons (in fact, the only other anti-patent registered patent attorney I know of is law professor Michael Davis, 1 who, if memory serves, is a leftist) — I get my share of the “hypocrisy” charge. How can I help companies acquire patents, if I know the patent system is unlibertarian. Is it “immoral” or unlibertarian to patent your invention?A few comments. First, even if I’m hypocritical, it does not mean my argument against IP is wrong. It’s ad hominem.
Second, consider how patents are used. First, one invents something. Then, a patent application describing the invention is prepared and filed with the US Patent Office. Then, two to three years later, the patent office might issue a patent to the inventor. Once he has a patent, it gives the inventor the right to prevent others from making, using, or selling whatever invention is claimed–by filing a lawsuit to stop this, if necessary.
Often, a company–say, a small laser company–will obtain a bunch of patents in this manner. What for? Well, quite often, they sit in the company’s vault. If the company gets sued by a competitor for infringing one of the competitor’s patents, the laser company sifts thru its stack of patents, and if it finds one or two that its competitor might be violating, it countersues. If both the claim and counterclaim have merit, the plaintiff might back down; maybe they’ll settle by cross-licensing to each other. Even if it is immoral to sue someone with your patent, it is not immoral to use patent defensively.
Consider guns–they can be be used both defensively and offensively. Because they have both a legitimate, and illicit, use, it is not per se a threat to own–to have– a gun. Its the same with patents. Merely having a patent is like having a gun: you can use it for a legitimate (e.g., defensive) purpose, or against an innocent defendant.
So is it immoral, or hypocritical, to be a patent attorney, if it is true that the patent system is unlibertarian? It is not immoral to give clients advice about the actual system they exist in. It is not immoral to obtain patents. It is not immoral to give opinions on the whether your client’s products infringe a given patent. It is not immoral to negotiate a license agreement giving your client permission to make its products without being sued for patent infringement.
But what about actually suing another company, without provocation, for infringing one of your client’s patents? It may well be immoral, from the libertarian point of view, to aid and abet a company in suing another company for patent infringement — although I would argue that in most cases, the defendant company’s management and shareholders by and large support the existence of the patent system as well as the federal system that generated it, and that the defendants in effect consented to, or waived their right to complain about, patent infringement lawsuits. (Likewise, I have no problem with taxes in general–taxing Democrats is fine by me. They asked for it. Only problem with it from my perspective is it is giving funds to a dangerous group, but I don’t feel too sorry for the “victims.”)
Incidentally, it is similar for copyright–except that you have a copyright in things you write automatically, by virtue of federal law–there is NO need to register a copyright, or to stamp a copyright notice, on your works, in order to have a copyriht. As soon as you put pen to paper, you have a copyright in your work, whether you register it or not, whether you mark it “©” or not. (Registering it is necessary before you file a lawsuit; and using the notice gives you some damages advantages, but it’s not necessary.) Copyright is a noun, not a verb–you can’t “copyright” something; rather, federal law gives you a copyright in some things. That means all of us already own copyrights, that is have a right to sue others. It is analogous to having a patent–a right to sue. Whether or not, or how, you exercise this right, has libertarian implications; but merely having the right to sue is not a rights violation.
From: The Morality of Acquiring and Enforcing Patents, posted on the LRC blog.
Update: Related posts: The Most Libertarian Patent Work; Advice for Prospective Libertarian Law Students; Are anti-IP patent attorneys hypocrites?; An Anti-Patent Patent Attorney? Oh my Gawd!; A collection of recent blogs about patent hypocrisy and “success” stories.
- RIP; see his article Patent Politics. Here he writes of: “the trump of property, a strategy of defining patents according to property law concepts far removed from debates over the public interest in the issuance of patents…. the foregoing description of patent law as a form of competition regulation, let alone as a form of national industrial policy, is obviously not the conventional one. Organized patent interests (the patent bar, patent proprietors, and their sponsors) do not espouse that view, but instead habitually offer a more cramped description of patent law. One might call that description the trump of property—a strategy to secure the claim that proprietors can exclusively own patents, and to eliminate any argument that the public has a continuing interest in issued patents. That description promotes patents as just another kind of property, but firmly rejects any suggestion that patent law represents either a form of competition regulation or a national industrial policy. With a firm foundation in free market theories, the strong claim that patents are just another form of property implicitly rejects the idea that patent law serves any regulatory function…. “. However: “Many libertarians, practically wedded to the free market system, surprisingly oppose patent rights. One libertarian critique concludes, “We see, then, that a system of property rights in ‘ideal objects’ necessarily requires violation of .other individual property rights, e.g., to use one’s own tangible property as one sees fit. Such a system… subverts the first-occupier rule. IP, at least in the form of patent and copyright, cannot be justified.” Quoting my AIP. For examples of this dishonest tactic, see Richard Epstein on “The Structural Unity of Real and Intellectual Property” (Mises 2006); Yet more disanalogies between copyright and real property; Classifying Patent and Copyright Law as “Property”: So What?. [↩]
Infinity and the mind
Posted by Stephan Kinsella on September 23, 2003 03:26 PM
A fascinating book (but probably not for non-math nerds) that I read many moons ago is Rudy Rucker’s Infinity and the Mind (review). There are actually different types and levels of infinity, and whole mathematics of infinities… pretty mind-blowing stuff.
Even the simple notion of infinity is hard to wrap your mind around. But here is a neat little trick I learned a long time ago, that I’ve never forgotten. A line segment is packed with an infinite number of points, right? Say, a one-inch line segment. You would think that a line segment twice as long has more points in it than the shorter one, right? Maybe… twice as many points? Well, this is wrong, as can be seen in the following diagram: [missing]
If you take the two line segments, L1 and L2, and curve them into concentric circles, then you can see that for every single point on the outer, larger line segment L2, it corresponds to a unique point on the inner line segment L1–the same radius line passes through both. If L2 had more points than L1, you could find at least one point on L2, that does not correspond to a unique point on L1… but you can’t. Every point on L2 connects by the radius line, to a point on L1.
So, the longer line segment L2 does not have “more” points than the shorter segment L1. But it does not have the “same number” of points, either–that’s the thing about infinity. Each segment has an infinite number of points, but this is not a fixed number, so they can’t be the “same”. That is why 2 x infinity = infinity. If infinity was a certain number, then this equation would not be true–but it is.
Recent Comments