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Left Anarchists and Progressive Taxation (Mises, 2008)

Left Anarchists and Progressive Taxation

09/18/2008

I previously criticized [Down with anti-market “anarchists”; Vandanarchists Rejoice!; both below] the anti-market anarchists’ (“vandarchists”) breaking of Macy’s windows (and the apparent defense of this by even some left “market” anarchists).

I was reminded of this when I read Joe Biden’s obscene statements that it’s the patriotic duty of the rich–well, those who make more than $250k a year, I guess–to consent to the imposition of higher progressive income tax (so that the state can “take” their money “and put it back in the pocket of middle-class people”–put it back?). Now I would have thought libertarians are of course opposed not only to taxation, but also–especially–to progressive taxation, since the latter is punitive, redistributionist, etc.

On another thread, I noted that the vandarchists–these anti-market “anarchists,” and perhaps some left anarchists–seem to assume that any “big” corporation is basically part of the state. Roderick Long replied that the problem is the “high degree of statist involvement. But under present conditions the two tend to be correlated.” I accused the vandarchists of believing that any large firm is suspect because it could not exist in a real free market.

Long offered one possible defense of the Macy’s window smashers as follows (I don’t think he necessarily agrees with it):

Maybe they do think that, but in order to think that bigness is suspect, one doesn’t have to believe that bigness couldn’t be achieved under a free market. All one has to believe is that under a system like ours, bigness can’t be achieved without statist involvement. By analogy: there’s no correlation in general between being well-fed and being a rat fink, but among concentration-camp prisoners there probably is.”

Now, while this is an interesting analogy, I don’t think it’s apt. I don’t regard our society as analogous to a concentration camp; indeed, according to Mises’s insightful test that an economy is not socialist if it has a functioning stock market, the economy, hampered and regulated though it is, is essentially free market. But consider the implications of this argument. If leftists think that “bigness can’t be achieved without statist involvement … under a system like ours,” then wouldn’t affluence also be suspect? Anyone who is wealthy presumptively must have cooperated with the state to basically expropriate the workers. Of course, this is the same old leftist tripe–the view that the west got rich by exploiting the third-world countries. But if you have this view of bigness, of corporations, of society, then you would have to regard wealthy individuals are presumptively corrupt and part of the state. And as not entitled to their ill-gotten loot. Thus, progressive taxation would have to be favored, as a way of taking stolen loot from the robber-rich and returning it to the alienated, exploited workers. Vive la revolucion!

Clarification: Several people have commented that just because an economy is not socialist does not mean it is a “free market”. Sure. I could have been a bit more clear. You can have a free market; a regulated free market; and outright socialism. My point above is not affected. Here is Rothbard’s recounting of Mises’s observation:

One time I asked Professor von Mises, the great expert on the economics of socialism, at what point on this spectrum of statism would he designate a country as “socialist” or not. At that time, I wasn’t sure that any definite criterion existed to make that sort of clear-cut judgment.

And so I was pleasantly surprised at the clarity and decisiveness of Mises’s answer. “A stock market,” he answered promptly. “A stock market is crucial to the existence of capitalism and private property. For it means that there is a functioning market in the exchange of private titles to the means of production. There can be no genuine private ownership of capital without a stock market: there can be no true socialism if such a market is allowed to exist.”

I think Mises was right: if there is a functioning stock market, you cannot have true socialism. Now I was using Mises’s point here analogously to Roderick Long’s example of how those who are fat in a concentration camp are probably collaborating with the guards. I would say that the extreme case of a “concentration camp” is analogous to the extreme case of “true socialism.” Since we have a functioning stock market, we do not have true socialism yet. Yes, our market is hampered and regulated; no, it is not totally free. Of course. But it is not such an outright socialist economy that the only way to prosper is to be part of the exploiting class. Rather, in our very productive economy, it is private enterprise that is productive, despite the shackles imposed on it by the state. There may be reason to presume that a successful corporation “plays by the state’s rules”, but not to conclude that it is part of the exploiting class.

Author:

Stephan Kinsella

Stephan Kinsella is an attorney in Houston, director of the Center for the Study of Innovative Freedom, and editor of Libertarian Papers.

Vandanarchists Rejoice!

Re “Greenpeace Property Destruction Verdict“: Hey, what’s the big deal, really? Who’s to say the Greenpeacers really destroyed any legitimate owner’s “private property“?

I.e., we can never know if any property is really legitimate, due to all the “messiness” of the past–so everything is up for grabs! Newsflash: libertarianism does not heart nihilism.

11:42 pm on September 11, 2008

Down with anti-market “anarchists”

There’s a lot of noise being made by the left- and mutualist-libertarian crowd about the arrest of some so-called “anarchists” (scare quotes because anti-market “anarchists” are not real anarchists, i.e. anarcho-libertarians) and seizure by the police of “anarchist” and anarchist literature, including some by mutualist-libertarian Kevin Carson. From what I can gather from various incoherent media and blog descriptions, an “anarchist” group called the RNC Welcoming Committee was going to protest the Republican convention in Minnesota; some market anarchists tried to join up to make some inroads with the commie “anarchists”, and some Ron Paul supporters. For some reason the cops made arrests and seized literature, which included some of Carson’s writings.

This mutualist-libertarian material apparently was found because some market anarchists wanted to participate in the RNC Welcoming Committee march. (See Kevin Carson, public enemyRNC 08: America, support your patriot youth!Market Anarchists at the RNC: Street View.)Yes, the mutualists and left-anarchists have some good insights about how the state has distorted and corrupted the corporate and business world. But anarchists–real anarchists, i.e., anarcho-libertarians–are not opposed to the market and free enterprise, nor even opposed to “corporations” (see my “In Defense of the Corporation“).

Left-anarchism suspicious of the admixture of state and business is one thing; socialist “anarchism” is another. The “Anticapitalist Bloc” pseudo-anarchists are hostile to free markets and private property rights. Take a look at this video, where one of them condones the breaking of a Macy’s window because of her hatred of “capitalism.” [Note: a libertarian friend told me he thinks this woman perhaps meant by “capitalism” merely state-regulation of markets, which we all oppose. I disagree. Listen for yourself. It’s Macy’s, for crying out loud, not Lockheed or even ADM.] And the commie lingo: “The crowd marched down the sidewalk, and in the right lane of the road when no sidewalk was available. Most of the time the marchers chanted ‘We won’t falter we won’t fail! Let our comrades out of jail!’” Comrades! Ick!

These people are just confused socialists. Sure, I’m glad they are anti-war. But unless you are pro-market, pro-private property, you have no basis to oppose the state, for the state is simply the agency of institutionalized aggression against private property rights. To oppose the state is to support property rights, since opposing aggression means opposing the invasion of property. Conversely, those who oppose property rights inevitably support the state or other forms of aggression.

Of course, the so-called RNC 8 should be freed. Of course, the state is the real enemy. But these pseudo-anarchists are not on our side.

Update: Roderick Long got the impression I was saying Kevin Carson is anti-market (I am not familiar with Gillis). Let me clarify: I tried to distinguish between genuine libertarians and anarchists, on the one hand, and the pseudo-anarchists, by using scare quotes. I never meant to imply that the “left” or market anarchists and mutualists are not libertarian. As far as I know they support individual rights and property rights and oppose aggression; and they rightly oppose–as do I–state-business admixtures or distortions that arise from this. We might disagree on the extent of these distortions, and on some of our personal preferences, but so what.

But anyone who runs around breaking storefront windows and treating Macy’s as some kind of evil state agency is not one of us: not a libertarian, not an anarcho-capitalist, not a market anarchist. (Not that I even see anything wrong with trying to make strategic alliances with these socialist anti-state types, or making inroads with them; but they are not us.) I would think, I would hope, I would expect that Carson and Long would agree with me on this. I certainly did not mean to be unfair to or impugn Carson, who is a sincere and intelligent thinker whose work I admire, even where I do not agree.

1:46 am on September 9, 2008

Archived comments:

Comments (26)

  • Brad Spangler
  • Kinsella has apparently only thought this through half-way. No one has to support *any* state policy. All Kinsella has done is notice the contradictions inherent in statism — even “libertarian” statism.
  • Published: September 18, 2008 10:41 AM

  • Richie
  • Unfortunately, most people view the wealthy as sitting around a pool sipping on champagne and eating caviar all day while “exploiting” workers. Most wealthy people are small-business owners. It’s not the “evil” CEOs earning “exorbitant” salaries.
  • Published: September 18, 2008 10:46 AM

  • Inquisitor
  • If you’re writing in French, it’s Revolution, no “c”. Anyway funny blogpost. 🙂
  • Published: September 18, 2008 10:54 AM

  • fundamentalist
  • Stephan: “…an economy is not socialist if it has a functioning stock market…”

    I see the logic in this, but did Mises mean that a stock market is the test of a totally socialist state? It seams that economies are usually mixed and reside on a continuum from absolute capitalist to absolute socialist. States are either mostly socialist or mostly capitalist. I think European countries would be highly offended to be called capitalists because they have stock markets.

    And how does this square with Mises’s two varieties of socialism, the German and the Russian? German socialism allowed private property on paper, but the state controlled all aspects of business. Did Germany under the Kaizer and under Hitler have stock markets?

  • Published: September 18, 2008 11:10 AM

  • August
  • I think government interference in markets tends to increase the size of corporations because government interference represents a cost. So companies grow larger than they would in a free market in order handle this cost most effeciently. Notice this is a blame free observation that in no way justifies leftist-anarchists breaking windows that they wouldn’t own even in a completely state-free environment.

    It is reasonable to see corporations as the children of the state, but it’s possible to have a future in which they are neither punished for, nor perform, the sins of their father.

  • Published: September 18, 2008 11:13 AM

  • Brian Drum
  • Stephan: “…the economy, hampered and regulated though it is, is essentially free market.”

    No, the “hampered and regulated” part is exactly what makes a market essentially unfree. How can a market be both hampered and free at the same time?

    Calling the US economy a ‘free market’ serves only to confuse people. It makes the term meaningless.

  • Published: September 18, 2008 11:31 AM

  • jp
  • Zimbabwe has a functioning stock market. According to Kinsella, Zimbabwe would therefore have a free market. But that would be a pretty silly conclusion to make as we all know that Zimbabwe has one of the most oppressive governments in the world.

    I agree with fundamentalist that differentiation between capitalist/socialist is more about shades of gray than absolutes.

  • Published: September 18, 2008 11:49 AM

  • Richie
  • Brian Drum: “No, the “hampered and regulated” part is exactly what makes a market essentially unfree”

    Exactly. The U.S. market is not “free”.

  • Published: September 18, 2008 12:05 PM

  • Geoffrey Allan Plauche
  • I agree that the US does not currently have a free market. What we have is a regulated market, a mixed economy. A free market is one that is free of, or at least largely free of, government intervention.
  • Published: September 18, 2008 12:13 PM

  • Walt D.
  • I think New York State and New York City are going to find out why progressive taxation is a bad way to raise revenue. This year, they are going to be short all the windfall they get from Wall Street. California is still in trouble from basing their budget on revenues from the dot.com boom going on for ever.
  • Published: September 18, 2008 6:12 PM

  • Walt D.
  • I think New York State and New York City are going to find out why progressive taxation is a bad way to raise revenue. This year, they are going to be short all the windfall they get from Wall Street. California is still in trouble from basing their budget on revenues from the dot.com boom going on for ever.
  • Published: September 18, 2008 6:13 PM

  • Walt D.
  • I think New York State and New York City are going to find out why progressive taxation is a bad way to raise revenue. This year, they are going to be short all the windfall they get from Wall Street. California is still in trouble from basing their budget on revenues from the dot.com boom going on for ever.
  • Published: September 18, 2008 6:13 PM

  • Walt D.
  • I think New York State and New York City are going to find out why progressive taxation is a bad way to raise revenue. This year, they are going to be short all the windfall they get from Wall Street. California is still in trouble from basing their budget on revenues from the dot.com boom going on for ever.
  • Published: September 18, 2008 6:17 PM

  • Walt D.
  • I think New York State and New York City are going to find out why progressive taxation is a bad way to raise revenue. This year, they are going to be short all the windfall they get from Wall Street. California is still in trouble from basing their budget on revenues from the dot.com boom going on for ever.
  • Published: September 18, 2008 6:18 PM

  • nick Gray
  • Walt- I think we got the message!

    Walt- I think we got the message!

    Walt- I think we got the message!

    Walt- I think we got the message!

    Walt- I think we got the message!

    Read the fine print next to the ‘Submit’ button.

    Read the fine print next to the ‘Submit’ button.

    Read the fine print next to the ‘Submit’ button.

    Read the fine print next to the ‘Submit’ button.

    Read the fine print next to the ‘Submit’ button.

  • Published: September 18, 2008 7:53 PM

  • P.M.Lawrence
  • “There can be no genuine private ownership of capital without a stock market”.

    Rubbish. You could easily have a system with no corporations in which capital was owned individually or by partnerships.

  • Published: September 18, 2008 9:52 PM

  • Inquisitor
  • Yep, I believe Mises said capitalism is characterized by a stock market – not necessarily laissez-faire capitalism, though.
  • Published: September 18, 2008 10:22 PM

  • Peter
  • Rubbish. You could easily have a system with no corporations in which capital was owned individually or by partnerships.

    And the owners can’t buy and sell their shares? What kind of “ownership” is that?

  • Published: September 18, 2008 11:20 PM

  • P.M.Lawrence
  • A solen proprietorship can always sell out, and a partner can always sell his stake (usually to people who were already partners). Nothing stops people in this system from having ownership of businesses, and there is nothing necessary about a stock market to make such ownership possible.

    But even if none of that selling up could be done, owners would still be owners.

  • Published: September 19, 2008 1:57 AM

  • Peter
  • If they can sell, a “place” where offers to buy and sell can be made will spring up…and that’s a “stock market”
  • Published: September 19, 2008 6:44 AM

  • Bill
  • Anybody else subscribe to the position that progressive taxation is fair because access to infrastructure is proportional to wealth?

    That is, the wealthy receive more benefit from the government so they should pay more for it. If I can’t afford a car, what good is a road? If I can’t afford stock, what good is the regulation of the stock market that ensures fairness and transparency? Doesn’t a wealthy person benefit more from a police force than someone who has nothing (or very little) to steal?

  • Published: September 19, 2008 11:34 AM

  • P.M.Lawrence
  • Peter wrote ‘If they can sell, a “place” where offers to buy and sell can be made will spring up…and that’s a “stock market”‘.

    No, any more than a place where you can buy and sell fruit is a bread market. A stock market is a market where you can buy and sell stocks, and if business ownership is not corporate, there are no stocks.

    It is also not necessarily true that any such place would spring up, since the businesses wouldn’t necessarily be fungible and/or liquid enough; all sales might need to be too hands on and sui generis. For instance, when a sole proprietor wishes to retire, the most practical way to transfer the business as a going concern is for the owner to take on the buyer as a junior partner for a couple of years or so, then be bought out. This both allows the transfer of specialist skills and business goodwill, and allows the necessary capital to be brought together more conveniently. This also applies to intergenerational transfers, particularly in regard to getting the capital together.

    And, of course, you could still have business ownership even if it were impractical to trade in businesses, just as you can own a house even when the market for house sales has collapsed.

    Try googling for Meir Kohn on mediaeval capital markets (“capital markets before 1600”).

  • Published: September 19, 2008 8:53 PM

  • newson
  • fundamentalist & jp are right.

    fascist germany certainly had a stock market, though hitler purged it of jewish brokers in 1933.

    saddam hussein’s national socialist iraq had a functioning stock market. there was a strong rally just before the 2003 allied invasion.

    cuba has no bourse, north korea likewise. can’t think of any others off the top of my head.

  • Published: September 20, 2008 8:07 AM

  • Rob Biddle
  • It all depends on what is meant by “Capitalism”.

    If the word is used to merely refer to private ownership of capital then you could call a Slave who was allowed to maintain ownership of his shoes a Capitalist.

    The United States represents a Capitalist economy in that way; the Slaves are even allowed to trade their shoes.

    Private ownership of Capital is not the only thing necessary to qualify as a “Free Market”.

  • Published: November 17, 2008 11:34 AM

  • Andy von Guerard
  • Bill,

    In a state a fairer way to tax the rich is through usage fees and a sales tax that way they are directly taxed for what they use and people who don’t use said government serive (or who don’t buy luxery items that would taxed with sales tax) wouldn’t have to pay the tax.

    In a perfect free market system everyone would just pay the fair price for what they use, no more no less. But since the state exists it should at least replicate this idea the best it can, and a progressive income tax does NOT do that.

  • Published: November 25, 2008 2:11 AM

  • Matt
  • What if the state regulates the stock market?
  • Published: November 25, 2008 2:22 AM

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A punk with a mission

From another thread:

Sigh.

Submitted by nskinsella on Wed, 2008-09-17 08:37.

Of course Hoppe is not a homophobe nor bigot; Ghertner has obviously appointed himself high PC commissar and is looking to root out deviations from his state-fostered PC faith. First: in the quote Ghertner uses, Hoppe is talking about “the advocates of alternative, non-family-centered lifestyles such as, for instance, individual hedonism, parasitism, nature-environment worship, homosexuality, or communism”–not homosexuals, but “advocates” thereof. Second, this is arguably a prediction, not a policy Hoppe necessarily personally favors. Third, he’s speaking in stark language here but is obviously talking about tendencies, not ironclad 100% laws–he’s predicting that free societies would tend to shun those who advocate mores and practices that undercut the socio-cultural underpinnings of society. Fourth, the “physically removed from society” part does not imply aggression–a charitable reader would realize this probably only means physical separation–i.e., that societies would tend to shun enemies of society and to segregate with those of their own kind–fellow inhabitants of “society” who appreciate the cultural underpinnings necessary for it. This in no way implies that aggression is permissible, nor that living among homosexuals is problematic. But Ghertner is not a charitable reader. He’s a punk with a mission.

xenophobia

Submitted by nskinsella on Wed, 2008-09-17 09:27.

BTW, not that I have any attachment to the idea, but what is unlibertarian or even immoral about xenophobia? Isn’t it rather natural?

thick and xenophobia

Submitted by nskinsella on Wed, 2008-09-17 10:54.

Well even nasty xenophobia is not unlibertarian per se. But what I mean is, isn’t a degree of xenophobia natural and not even immoral at all, and not even violative of “thick” libertarianism? Even if we “ought” to be tolerant and cosmopolitan, does this imply that there ought to be no attachment whatsoever to “one’s own kind”? (which of course implies a degree of xenophobia). If xenophobia is wrong, then any preference for any individual based on their group memberships is also wrong. E.g., it would be “immoral” and against “thick” libertarian precepts for a black father to prefer his daughter marry a black man (or even for him to prefer that she be heterosexual); or to attend a black church; or for him to join the NAACP, etc. I don’t see that some inter-group preferences are necessarily immoral or illiberal; and they all imply (are correlatives of) a type or degree of xenophobia.

I.e., even if we ought to be “cosmopolitan” and “tolerant” and “individualist,” there is a range. I myself fall on the extreme “tolerant/individualist” range, personally, but *as* a genuinely tolerant liberal I have no gripe with those on the more “collectivist” end of the spectrum–so long as they don’t fall into irrationality, outright collectivism, real racism, and nastiness, rudeness, and intolerance. The real problem with genuine racism is that it’s rude, mean, petty, bad manners, self-destructive and irrational. And this is yet another problem with the princess-and-the-pea silly pinheads like Ghertner–like the boy who cried wolf, they make people skeptical of real claims of bigotry, by promoting the state’s irrational and politically-motivated concepts thereof.

Were we supposed to know that?

Submitted by nskinsella on Wed, 2008-09-17 15:16.

That “Micha” is Jewish? I had no idea–and don’t care. The problem with opposing “mild collectivisms” is they permeate human life. As I noted, I am much less into that stuff than most people–especially more than most religious people. Jews engage in a form of “mild collectivism” and xenophobia, no? I had a Jewish friend tell me, point blank, to my face one time, during lunch–an atheist Jew, mind you, who was nonetheless “kosher”–that one reason for advocating Jews to be kosher was to impose a cost on them to associate with goyem–to reduce the chance of intermarriage and loss of culture etc. Now I found that to be offensive and irrational, … but whatever.

Neither Jewish, nor Gay

Submitted by nskinsella on Wed, 2008-09-17 17:28.

Let’s get that straight, eh?

Hoppe never claimed gays “must be” removed. He said that *advocates* of alternative lifestyles and values contrary to that of a “covenant founded for the purpose of protecting family and kin”–those who “habitually promoting lifestyles incompatible with this goal”–would be physically removed from society (which means ostracism, tendencies, voluntary segregation, not aggression or trespass). Now you may view gays as “habitually promoting lifestyles incompatible with” the goal of “protecting family and kin,” but I, and Hoppe, do not. How intolerant, closed-minded, parochial, and biased of you. Tsk tsk.

Ghertner, can you read?

Submitted by nskinsella on Thu, 2008-09-18 17:22.

Do you have comprehension problems? Or general psychological ones? (as your bizarre castigation of your grandma and your family’s traditions would indicate)

I wrote: “Now you may view gays as “habitually promoting lifestyles incompatible with” the goal of “protecting family and kin,” but I, and Hoppe, do not.”

You: “Then why did he bother mentioning them in his shit list of people who must be physically removed from society?”

Dude, the sentence–ONE sentence you keep taking out of context–was: “They-the advocates of alternative, non-family-centered lifestyles such as, for instance, individual hedonism, parasitism, nature-environment worship, homosexuality, or communism-will have to be physically removed from society, too, if one is to maintain a libertarian order.”

The “such as … homosexuality” modifies “non-family-centered lifestyles.” He is talking about ADVOCATES of such lifestyles, not about those who merely practice such lifestyles. An advocate of a non-family-centered lifestyle seems to be just a way of describing someone openly hostile to the family-centered culture that many people believe must form the core or basis of any functioning society, even a libertarian one. Consider an example: There is nothing wrong with someone choosing to be a confirmed bachelor; say, a priest, or a single man. But such people usually live in a normal society that is constituted by the family-centered structure. Priests don’t run around saying everyone should practice abstinence. They are not hostile to a family-centered order. Likewise, gays are not either. It is those who openly oppose and are hostile to these traditional family-centered norms and institutions and values that would (it is argued) be ostracized and shunned. This argument is not bigoted at all; it is not even advocating it, it is merely an opinion about how libertarian societies would in practical reality be successfully implemented. You don’t have to agree with it, but it is not a bigoted analysis.

As for physically removing–this does not imply trespass or aggression or removing people from their own property. It means to segregate from.

You have issues

Submitted by Stephan Kinsella (not verified) on Mon, 2008-09-22 10:55.

Ghertner, it’s obvious you have a plurality of problems–mental, ethical, psychological, familial. You are just one messed up sad sack star trek geek aren’t you? With some kind of chip on your shoulder for authority and your betters. Hoppe does not say he “hates” those people. Homosexuality is not on the list anyway, but “advocates of”.

“What in the world does it mean to say that homosexuals do not habitually promote homosexuality? Do libertarians not habitually promote libertarianism?”

this is dishonest: libertarianism is a political philosophy. A belief system. Of course libertarians qua libertarians are advocates of it. Homosexuality is a sexual preference or condition. Are priests “advocates of celibacy”? Are heterosexuals “advocates of heterosexuality”? Are mixed-race couples “advocates of mixed-race marriage”? Are pot-smokers “advocates of pot-smoking”? Is a woman who chooses to have an abortion an “advocate of abortion”? Hoppe obviousuly was referring to those who are openly hostile to, who agitate against, the traditional, family-centered morals and institutions that arguably undergird any workable covenant-based libertarian society. Your dishonesty, your insecurity, your hatred of authority and your betters and your desire to petulantly lash out at them is reprehensible. Yes, you have the individual right to go around maligning good people who don’t deserve it. Yes, you can also utter curse words and go get drunk a bar. Enjoying your freedom, kiddie?

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To expect the welfare-warfare state–which taxes, regulates, murders, invades, bombs, hampers, conscripts, lies, imprisons, steals, and invades–which impoverishes us and hampers the economy, which penalizes innocent behavior and wastes trillions of dollars–which imposes antitrust, tort, FDA regulations and penalties on companies–to expect this agency to “create” legitimate property rights or to add “wealth” to the economy–and by setting up a state-run bureaucracy to grant monopolies to “applicants,” under the oversight of the bunch of federal “judges”–is naive and confused beyond belief. It is certainly not a libertarian view.

See also Regret: The Glory of State Law, where I wrote:

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

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

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

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

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

Interesting connected facts:

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

2. Feulner is President of Heritage.

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

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

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

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

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

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

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

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

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

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

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

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

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

***

See also:

Re: Capture of Mont Pelerin Society by Neocons

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

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

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

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

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

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

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

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

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

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

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

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

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

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

As Hu?lsmann notes, in this memoradum, Mises

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

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

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

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

 

From Mises Blog ; archived comments below:

See also:

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

08/18/2008

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

 

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

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

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

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

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

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

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

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

As Thomas notes,

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

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

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

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

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

Twitchell

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

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

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

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

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

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

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

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

Thomas also notes that:

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

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

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

Archived comments:

Comments (8)

  • greg
  • Excellent — thanks. I haven’t been convinced that rights were incorporated by the 14th, and your post reinforces that view.As a separate note, I think I also recall a doctrine of “presumed constitutionality,” as the SCOTUS will start with the presumption that a federal statute is presumed to be constitutional in any challenge to it. Can you provide a quick note about that?
  • Published: August 18, 2008 5:07 PM

  • greg
  • I found this, in case anyone is interested:
    http://users.law.capital.edu/dmayer/Publications/Liberty%20of%20Contract%20_Revised_.pdf
  • Published: August 19, 2008 2:24 PM

  • scineram
  • Given the indecisiveness of the evidence in either direction the question is why should libertards oppose using it to strike down bad laws?Indeed, why not? It is nonagressive.
  • Published: August 20, 2008 11:16 AM

  • scineram
  • Given the indecisiveness of the evidence in either direction the question is why should libertards oppose using it to strike down bad laws?Indeed, why not? It is nonagressive.
  • Published: August 20, 2008 11:17 AM

  • scineram
  • Given the indecisiveness of the evidence in either direction the question is why should libertards oppose using it to strike down bad laws?Indeed, why not? It is nonagressive.
  • Published: August 20, 2008 11:17 AM

  • josh m
  • I’m also curious as to the answer to scineram’s question (although I don’t think opposing the 14th makes someone a ‘tard’). I hope someone addresses the substance of his question.
  • Published: August 21, 2008 1:32 AM

  • greg
  • Aside from the obvious reason?
  • Published: August 21, 2008 2:10 PM

  • josh m
  • Please just say it. Thanks.
  • Published: August 22, 2008 7:03 PM

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Regret: The Glory of State Law

From 2008 Mises post; archived comments below.

Regret: The Glory of State Law

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

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

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

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

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

archived comments:

Jonathan Bostwick July 31, 2008 at 10:29 pm

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

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

  1. See Letter on Intellectual Property Rights, IOS Journal (June 1995) .[]
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Van Dun on Lawyers and the Law

See also Van Dun on Argumentation Ethics and and Federal Judges Aren’t Real Judges, On “Unowned” State Property, Legal Positivism, Ownership vs. Possession,

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

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

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

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

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

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

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

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

archived comments

Comments (6)

  • Bruce Koerber
  • This was the inevitable consequence of the moral relativity that emerged once the Protestant Reformation movement severed the link with Aristotelian thought and turned ‘justification’ on its head.Another way of understanding what moral relativity meant is to recognize that ‘justice’ became a man-made legislative act with no direct connection to the real source of justice which is God and His laws.
  • Published: July 20, 2008 6:01 PM

  • wuzacon
  • As a lawyer, I agree. The current state of the law is a mockery of the law. No longer is the law knowable, even to lawyers practicing in the specialty or subspecialty. How can voluntary action take place when all transactions are observed ex-post under the minutiae of complex regulations or statutes?Not only that, but procedural rules block the common man from requesting assistance. Taking legal action is so overly expensive that it no longer serves most people. It is no wonder that people in the inner-cities live in a constant state of fear and violence.All in all, the law does not provide recourse because it has been separated from any concept of just principles. The law should be accessible, or at least not needlessly inaccessible, for all members of society; otherwise, it does more harm than good — all in the name of the public good.
  • Published: July 20, 2008 7:49 PM

  • Keith
  • Quote from Bruce Koerber: “… the real source of justice which is God and His laws.”Well, there’s a scientifically defendable position.
  • Published: July 21, 2008 6:45 AM

  • Curt Howland
  • Keith, “Well, there’s a scientifically defendable position.”Without getting into the “science” of the problem, the simple fact is that the “word of the gods” is variable. Which gods? When? What version of what book?This all comes down to yet another datapoint in favor of anarchy. The imposition by a coercive power of any one set of rules may start out OK, but it will always tend to favor the coercive agent.I’m very glad to see someone agree that “the law is unknowable”. It took a government to go from “demonstrate harm” to “a violation of title 15, chapter 1,100,382,118, paragraph 17, item 3.1415926535”.The question for me is not whether or not this empire will fall, but how many people will it take with it.
  • Published: July 21, 2008 10:20 AM

  • Bruce Koerber
  • Dear Keith,I assume that since you read Austrian economics you are familiar with the methodology of subjectivism and so I propose to you that it is no longer possible for you to fall into the empiricist mantra of ‘unscientific.’I assume that you also are familiar with how relatively recent in human history subjectivism became recognized as a perfectly valid scientific methodology for the human sciences. Proof: Still most people in the world are completely ignorant of this fact.We must therefore regard subjectivism as being in its early stages of development. Surely you would agree that one of the characteristics of science is that it advances.Not to argue with you but I have found a way to
    scientifically defend the following position: “the real source of justice is God and His laws.” It falls within the scientific application of subjectivism.

    You are welcome to critique any of my books. The one that conclusively proves the above statement is “ETHICS of the Divine Economy” published in 2007.

     

  • Published: July 21, 2008 2:23 PM

  • newson
  • bruce,
    i, for one, hope that mises.org gets around to reviewing your book. (not that i’ve read it, though).
  • Published: July 22, 2008 10:31 AM

 

 

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If Even Jefferson Was Bad…

From the Mises Blog, July 14, 2008:

If Even Jefferson Was Bad…

JULY 14, 2008 

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

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

As McDonald recounts,

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

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

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

 

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McCosker on Kinsella on Palmer on Hoppe

Old Karen De Coster blog post:

McCosker on Kinsella on Palmer on Hoppe

Thursday, September 30, 2004

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

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

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

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Web Poll: Libertarianism and Retribution

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

Libertarianism and Retribution

Does proportionally punishing an aggressor violate his rights?

Yes
No
Maybe/not sure

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technorarit test

Technorati Profile

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Centralist, Pro-War Objectivists on Paul

From LRC Blog

update: Objectivism and War by Neil Parille

Centralist, Pro-War Objectvists on Paul

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

***

Feedback:

From an anonymous correspondent:

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

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

Update:

See also

***

see also

Ayn Rand and War: Natural Bedfellows?

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

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

“Objectivist Goose-Stepping”

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

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

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

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

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

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

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

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