StephanKinsella.com

The Limits of Armchair Theorizing: The Case of Threats

by Stephan Kinsella on July 27, 2006

[Update: see also:

On the Non Liquet in Libertarian Theory and Armchair Theorizing
Roman Law and Hypothetical Cases
On Pushing the Button–the problem with magic
The Problem with “Fraud”: Fraud, Threat, and Contract Breach as Types of Aggression (July 17, 2006)
Stalking and Threats as Aggression
Fraud, Restitution, and Retaliation: The Libertarian Approach
Konrad Graf, “Action-Based Jurisprudence: Praxeological Legal Theory in Relation to Economic Theory, Ethics, and Legal Practice,” Libertarian Papers 3, 19 (2011), Part III, “Practice: The Armchair and the Bench”
See also discussion of the flagpole hypo in The Liberty Magazine Polls: 1988, 1999, and 2008: Flagpoles, Parental Obligations, Private Nukes

From the Mises Blog, July 27, 2006:

The Limits of Armchair Theorizing: The case of Threats

A correspondent recently wrote me with a few libertarian puzzles/conundra. An edited version is below:

When are threats of aggression punishable by law? Just how immediate, credible and serious must a threat be if it is to be considered a law violation under the libertarian legal code?

[Note: In The Ethics of Liberty, Rothbard said: “It is important to insist, however, that the threat of aggression be palpable, immediate, and direct; in short, that it be embodied in the initiation of an overt act. Any remote or indirect criterion—any ‘risk’ or ‘threat’—is simply an excuse for invasive action by the supposed ‘defender’ against the alleged ‘threat.'”]

Let us consider each of these three elements in turn: immediate, credible and serious.

1. Immediate

If I say I am going to kill you now, that is more immediate than if I say I am going to kill you in 1 or 10 years. Certainly, in the first case, I am legally entitled to plug you, if I can get a bead on you, before you shoot me. But what about the future threat. Here, I think I am also entitled to take violent action against you. (I think in one of his recent books Randy Barnett takes this position.) [Yes: see page 65 of my review of Barnett’s book, discussing his principle of “extended self-defense”]

Consider the fatwa issued against Salman Rushdie by Islamists, both in the UK where this author was located, and also from several Muslim countries. Should the British Authorities have arrested anyone making this fatwa threat? (Stipulate, arguendo, that the UK govt is legitimate.) Certainly, this was an immediate threat; on that ground alone such arrests would have been justified. Yet, this govt did no such thing.

2. Credible

How credible does the threat have to be, to warrant the use of aggression against the issuer? Suppose I say, “If X shows up in town, I’m gonna strangle him with my bare hands.” I happen to live in Podunk, Montana, and the chances of X showing up are just about nil. Would X, or the forces of law and order, be justified in punishing me for making such a threat. (By the way, what is the proper libertarian punishment for a threat that is not carried out?) Many such threats have been uttered against the President of the U.S. throughout the last few decades, and perhaps even centuries. The govt police take a very negative attitude toward these threats. It is against the law to make such threats (what law?). Are they justified, on libertarian grounds, in adopting this position (again, we stipulate for argument’s sake that the US govt is a legitimate one, and so are those – the FBI – who attempt to uncover such threats and punish those responsible for them.)

3. Serious

When my children were in the orchestra, the conductor wore a t shirt saying, “tune your instrument correctly, or die.” Or if a professor giving an exam writes on the blackboard, “use a fake name or I’ll kill you.” (assume the professor likes to mark exams anonymously.)

These are easy cases. It is patently obvious in both cases that no real threat has been made. Anyone using physical force against the conductor or the professor in these cases wouuld be entirely unjustified. These are jokes.

But then, there are jokes and there are jokes. If A waves a toy pistol at B, a watergun, for example, and B shoots A with a real gun, libertarian law is likely in the extreme to side with B; to hold him innocent of murder. To consider his act one of self defense. There are exceptions here of course. If this is part of a play, or a movie, and A and B are actors. The script calls for A to aim a gun at B, all parties know that A’s “gun” is a fake, and, yet, B kills A. This is downright murder.

Similarly, at a track meet, were someone to kill the man firing the starter’s pistol this would be murder, no matter how realistic this weapon looks. (But suppose someone from Mars did this, in the honest but mistaken belief that the starter was aiming at someone in the stands, and the Martian was just trying to save that innocent person’s life.)

Is this entire train of thought just another example that there are grey areas in the law, continuum problems, which have no real solution?

My reply: See my recent post, The Problem with “Fraud”: Fraud, Threat, and Contract Breach as Types of Aggression. In that post, I tried to briefly summarize my approach to:

Why fraud is aggressoin
Why threats are aggression
Why breach of contract is agggression

I did this because most libertarians just sort of assume these are all types of aggression without knowing exactly why.

Now, re threats, and indeed all these matters, I am leaning toward a view something along these lines. In any real-world attempt to have a libertarian system, to have justice, there will be real, fallible people trying to adjudicate disputes. Juries, judges, whatever. There is a necessarily real-world, and imprecise, and compromising, aspect to justice, of necessecity. I think such decent, libertarian citizens/jurors would attempt to be guided both by more abstract principles of ethics and justice (such as those developed by theorists), and by local custom and established precedents and applications of the more general principles to more concrete situations; and they would also, of course, apply their own intuitive sense of justice and take into account as many contextual factors and nuances as possible, to try to make the best decision.

Given this, I am increasingly suspicious of the ability, or of at least the usefulness, of answering very particular concrete situations solely by armchair reasoning. First, the number of possible questions you can answer is infinite.

Second, even if you answer one, any real-world situation might have a more rich set of relevant facts that means your principle might not apply.

Third, you can never know ahead of time what body of “established” principles will have been built up and relied upon. For example, it seems to me that as a general matter, in any society there is going to be some understanding of tacit or implicit consent–e.g., today, it is not presumed to be trespass for you to knock on my door to ask me an innocuous favor or question. But how can we say ahead of time what customs in this regard will be in effect in any given society, any more than we can say ahead of time how language will develop or various actions will have various commmunicatory aspects (that is, you can imagine a silent sale: a guy buys a cup of cofffee and hands over a dollar for it, with no words being spoken; becuase of social context, the interaction and actions of the parties convey meaning, just as if they spoke in words; etc.).

I addressed some of this in a previous article, Knowledge, Calculation, Conflict, and Law, reviewing a book by Randy Barnett:

Barnett first maintains that there are limits to the ability to deduce specific legal precepts from abstract principles of justice (natural rights), in part because many sets of legal precepts are consistent with the general parameters of the abstract principles of natural rights (pp. 109–11). He argues that a common-law type decentralized legal system, unlike law professors and philosophers, can develop legal precepts because, in such a system, they gradually develop and evolve from the outcomes of thousands of actual cases.

Yet, Barnett does not provide a rigorous argument showing where are the exactlimits of the ability to deduce concrete rules. He evidently feels that the more abstract principles can, for some reason, be established by armchair theorists. If denizens of the ivory tower can do this, why can they not deduce or establish more concrete rules by simply considering more and more contextual facts? In the Roman law system—a somewhat decentralized legal system superior in many ways to the common law—Roman jurists (jurisconsults) helped develop the great body of Roman law by providing opinions on the best way to resolve disputes. These disputes were often purely hypothetical or imaginary cases, in which the jurists asked: “under such and such a possible or conceivable combination of circumstances, what would the law require?”25 It is conceivable that a large part or even all of the legal code existing in a given society can be “deduced” in this fashion, and then these rules applied like precedents to actual controversies as they arise. As a libertarian (and, I confess, a lawyer), I must say that I believe I would be more comfortable living under a set of concrete rules deduced by libertarian philosophers than the (perhaps more concrete) set of rules developed under the actual common law.

Barnett first maintains that there are limits to the ability to deduce specific legal precepts from abstract principles of justice (natural rights), in part because many sets of legal precepts are consistent with the general parameters of the abstract principles of natural rights (pp. 109–11). He argues that a common-law type decentralized legal system, unlike law professors and philosophers, can develop legal precepts because, in such a system, they gradually develop and evolve from the outcomes of thousands of actual cases.

Still, Barnett’s argument in favor of a common-law system makes sense, even to libertarians who favor a deductive approach to rights (Hoppe [A Theory of Socialism and Capitalism] 1989b, p. 131; Rothbard [The Ethics of Liberty] 1998; Kinsella [A Libertarian Theory of Punishment and Rights] 1997, pp. 607–45). Legal rules must be concrete in the sense that the rules must take into account the entire relevant factual context. Since there are an infinite number of factual situations that could exist in interactions between individuals, a process which focuses on actual cases or controversies is likely to produce the most “interesting” or useful rules.26 It probably makes little sense devoting scarce time and resources to developing legal precepts for imaginary or unrealistic scenarios. If nothing else, a common-law type system that develops and refines legal precepts as new cases arise serves as a sort of filter that selects which disputes (i.e., real, commonly-encountered ones) to devote attention to.

Barnett thus makes a convincing case that, in a decentralized legal system such as the English common law (or the early Roman law, the Law Merchant, and even modern arbitral systems)—especially one in which judges or arbitrators attempt to apply fundamental notions of justice to concrete situations—it is reasonable to expect a body of concrete legal concepts and precepts to develop, which are more or less compatible with fundamental notions of justice.27

26 This is analogous to Mises’s method selecting certain empirical assumptions (e.g., assuming there is money instead of barter) to develop “interesting” laws based on the fundamental axioms of praxeology, rather than irrelevant or uninteresting (though not invalid) laws. See Mises ([Ultimate Foundations of Economic Science], 1962, p. 41; [Epistemological Problems of Economics], 1981, pp. 14–16, 30–31, 87–88; [Human Action], 1966, pp. 65–66).

(See also my Punishment and Proportionality article, at note 20 and accompanying text:

“The conduct of individuals can be divided into two types: (1) coercive or aggressive (i.e., actions that are initiations of force) and (2) non-coercive or nonaggressive. This division is purely descriptive, and does not presume that aggression is invalid, immoral or unjustifiable; it only assumes that (at least some) human action can be objectively classified either as aggressive or nonaggressive.20

20 Other divisions could of course be proposed as well, but they do not result in interesting or useful results. For example, one could divide human conduct into jogging and not jogging, but to what end? Although such a division would be valid, it would produce uniteresting results, unlike the aggressive/nonagressive division, which produces relevant results for a theory of punishment, which of necessity concerns the use of force. See [Mises,[Ultimate Foundations of Economic Science], 1962, p. 41; [Epistemological Problems of Economics], pp. 14–16, 30–31, 87–88; [Human Action], 1966, pp. 65–66)] (explaining that experience can be referred to to develop “interesting” laws based on the fundamental axioms of praxeology, rather than irrelevant or uninteresting (though not invalid) laws).)

So, given this, it seems ot me that if we theorists try to answer questions from the armchair, then we are on more solid ground, the more abstract and general are our principles; but the more concrete or detailed we try to make the rules or fact-situations we are judging, the more and more we are making assumptions that might not apply in the real libertarian world. Should we stick to the abstract and general; well I don’t know; I tend to think at the least, when we veer from the more abstract, we ought to have implicit caveats in our determinations–sort of “ceteris paribuses” or other qualifiers. As to threat–in view of what I said above, I am leery of making a hard and fast prediction as to what standards will apply. Just as horse-stealing in the old west might be punishable by execution (since taking a horse might doom someone to die), but nowadays it’s just a more minor property crime, so in some societies I could see the libertarian standards for justice being applied more harshly, with less concern for error; or, less harshly, and with more concern for the possibility of mistake. Etc. With these kidns of qualifiers I can tell you my own intuitions and/or guesses about how I think a typyical reasonable libertarian society would (should?) probably handle these things.

I am not 100% sure that threats have to be “immediate, credible and serious” to count as actionable. Or, how this standard is applied, if it is. I see room for variation in both the standard itself that determines threat; and in how the standard is applied. That said, I see the reason behind these three elements.

I tend to think that a future threat, IF it is very credible, sure, could be acted against. Still, it seems to me that it’s easier to justify, the more immediate it is. I think the threat has to be real, i.e. credible. and remember that in any society resources are scarce, including those of justice and policing; surely such remote or incredible threats would be too low on the radar screen to worry about. As for punishment: I am not sure about this. I tend to think we look at a threat as a sort of “attempted crime”; and punish it based on the crime attempted discounted by the probabiliyt of success. I have a similar view as to negligence. Agreed also, re jokes. But imagine a case where two actors are joking or playing and aiming pretend guns; and some third person stumbles upon the scene and mistakenly thinks he’s in the middle of a gunfight and to defend himself plugs one of the actors. In this case, had the third party known it was a joke he would not have been justified in killing them. But if he does it on accident, is he off the hook? Maybe, if you say the actors caused the third person’s state of confusion etc.

I tend to think these are pretty much continuum problems that are problems of application of abstract or general principles of justice to concrete, fact-bound situations, and therefore difficlt to answer from the armchair once and for all; there may not even be an “objective” right decision in many cases. For this reason I tend to think that just as neighbors build fences on borders, and would not build a house right on the borderbecause of the gray area of ownership at the border; so people would tend to act, and to develop social guides to conduct (rules), that push people away from the gray areas and into the clearer areas. This is all perfectly reasonable. Then, someone who took risks in the gray areas has no one to blame but himself; much like it’s unwise for a woman to walk naked in central park at midnight: she is not to blame, but the inherent riskiness of this behavior tends to dissuade people from doing it.

***

Update: See also Konrad Graf, “Action-Based Jurisprudence: Praxeological Legal Theory in Relation to Economic Theory, Ethics, and Legal Practice,” Libertarian Papers 3, 19 (2011), Part III, “Practice: The Armchair and the Bench”. Fig. 2 is reproduced below.

***

Comments archived from the Mises blog:

Manuel Lora
The key to all this is application. Indeed, while most (all?) civilized societies consider that murder and theft are wrong, I think that even in a libertarian society, there would be debate on the specifics. General principles are fine to explain why such and such things are (or should be) prohibited. But to try to imagine perhaps hundreds of details is just madness. This is why the division of labor (insurance companies, juries, judges, contracts, and other institutions) exist after all –to cope with the specifics and attempt to reach a predictible behavior in their rulings and sentencing so that conflict resolution is efficient and property rights are respected.Asking specific questions, lacking a developed libertarian society, is the same kind of question that socialists (and minarchists) ask when they wonder who will make bread, where, how much and what kind.Like it or not, I think that a libertarian society will develop and evolve a code of law (in ways perhaps similar to the Somali Xeer). Right now, there is no market for law and so detailed questions seems like trying to solve a problem that today is simply intractable.
Published: July 28, 2006 10:01 AM
Roger M
It would be interesting to apply the criteria of immediate, credible and serious to Bush’s decision to invade Iraq. Isn’t the debate over its legitimacy nothing but differences in opinion of how well those criteria apply?
Published: July 28, 2006 10:39 AM
quasibill
Excellent discussion. Truly, it seems quite un-Austrian, and frankly more Rand-like, for people to claim that they can formulate all the proper legal rules that are universally the best. Value and policy judgments come into play the further down the line you go, as necessarily you start having to play one value off of another. Furthermore, not everyone starts with the same justifications, even if they agree on basic philosophy (for example, some people do start from religious assumption in arriving at libertarian policy, while I do not).Roger,Yes, and no. Yes, when you think of the United States Government as a living individual, spending its own rightfully gained resources. No, when you realize that the government coerces people to support its actions whether they agree with them or not. Further, the point at which innocent third parties are knowingly injured in your response to the threat can be a principled deviation from this sort of reasoning.
Published: July 28, 2006 1:50 PM
Dain
Roger, you make a good point. But in the case of Iraq, the level of “clear and present” danger is far less obvious than that of a case of a threat to kill one immediately, or even at some specific date, 5 or 10 years, as Kinsella pointed out. It was mere speculation as to just when Iraq would become a danger.As for bringing along innocents, I think one can make the case, as Walter Block has, that no innocent has the right to “negative homesteading”, that is, to force his dire situation upon others. Someone being held hostage by a suicide bomber on his way into a crowded building has no right to prevent a third party from stopping said suicide bomber, even if it means putting down the innocent hostage. In the case of Iraq, again, the situation is nowhere near as clear cut. Many more innocents, perhaps at the fringes of an area set to be flattened, ala Fallujah, were perhaps not necessary sacrifices. And as quasibill points out, the “defensive” party in this scenario is a thieving state, illegitimate from the outset.
Published: July 29, 2006 1:55 AM
RogerM
Dain, You make some good points, too. I hope libertarians have paid close attention to the current conflict in Lebanon, especially to the way in which Hezbollah has taken to a new level the blatant use of civilians as shields. Over 400 civilians have been reported killed in Lebanon, but we should keep in mind that Hezbollah fighters don’t wear uniforms, so each one killed is listed as a civilian. If we continue to allow them to use civilians as shields, we have effectively surrendered to Islamic fascism.Can you point me to an article by Walter block that discusses “negative homesteading”?
Published: July 29, 2006 9:40 AM
Dain
Roger, I can’t place the exact article right now. Go ahead and Google “Walter Block” with the term “negative homesteading” and see what you get. I think it may have actually been in a lecture from about a year ago, part of his seminar on Libertarianism held at Mises.
Published: July 29, 2006 1:41 PM
Michael Hargett
The problem, as it always is with government, is the notion of a government’s “self,” or sovereignty.Governments are not sovereign bodies; only individuals can be. Of course, individuals can, through their sovereignty, form groups to protect their own self-interests. The formation of a government, however, is an automatic and apparently irreversible trade of individual rights and sovereignty for collective security.Were the United States a proper and contractual organization, each individual citizen would be given an opportunity to either sign a contract with the union, and enjoy the privileges of citizenship or refuse to sign, thus forfeiting the security afforded by such a body, and negotiate to protect himself by another means.Instead, the notion of patriarchal authority means that because my father, grandfather or great-great-great-grandfather chose to ratify the Constitution by course of naturalization or voting that his state join the Union, I am bound by his contractual obligation to serve that union. This negates my natural right to self-ownership and I am born into slavery.The false notion that the United States “provides” or “protects” rights has misled virtually everyone. It does neither. What it provides and protects are powers and authorities.Look at the US Constitution: it outlines the powers and authorities for the various branches of government. The Bill of “Rights” delineates which powers and authorities are reserved to the people and the states.Going further, the Constitution itself abridges an individual’s natural right to life, liberty and property for the sake of the greater good with the fifth amendment’s “eminent domain” clause. By use of that clause, the government of the United States can take “private property… for public use,” so long as it provides “just compensation.”Anybody looking to challenge the constitutionality of the IRS, jury duty or conscription need only to look at that clause and the Founders’ weak language that expands the rights of the government to take a man’s property. Be it income, home, guns or labor, the United States has the power to revoke these and then “compensate” by whatever means are deemed “just” by their own courts.They, of course, compensate by means of “military protection,” public roads, public schools, police, lawmakers, Medicare, Social Security, “environmental protection” and welfare. Under this wide umbrella, the government can plainly state that everybody partakes of the just compensation, thus the Union is automatically entitled to an individual’s property to use as it sees fit.My sovereignty torn asunder, I can now rest assured that my protection from threats will come from whatever actions Uncle Sam sees fit to take. In exchange, I can be called to protect Uncle Sam from his threats, real and imagined, forfeiting my life, after already having surrendered my rights to liberty and property upon “joining” the Union thanks to unfortunate geography of birth.
Published: May 7, 2007 4:36 PM

See also Hoppe’s incidental comments on the limits of armchair theorizing in Hans-Hermann Hoppe on Abortion (2011), at about 4:40 etc.

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Intentional Trespass vs. Unintentional Conduct

by Stephan Kinsella on July 27, 2006

In an email discussion with someone, I made the point that one reason debtor’s prison is impermissible is that failure to repay a loan is not theft, is not a crime, since if the debtor is penniless, there is no property to steal. So I distinguished between taking property without consent, or failure to have money to repay–one distinction is that the former is intentional, whereas the latter is not.

My correspondent said default may seem disanalogous to theft because the person’s inability to pay may not be his fault; but if you adhere to a strict-liability restitution theory, then there can be theft regardless of fault or intention.

My reply: Ah. So you don’t think intent matters. A negligent killing is as culpable as an intentional one? I think you have to have a continuum; this is what would permit you to say mere behavior–a muscle spasm–is not actionable. I am sure you would carve that out. But then you have a discontinuous theory, that seems strange.

His reply was that if the wind blows him onto my property, there is no intent but it’s still trespass, and I can insist he leave (and if he refuses, then that’s the intentional act). He also said that if I have a muscle spasm (not even an action, really, just behavior), and break your vase, then I have to pay. So intent does not matter; there is an obligation to repay (restitution) no matter what.

I wrote, Right. I know this view. I’m skeptical of it. Plus, I’m not quite convinced that just b/c you have the right to eject me that means I committed trespass in getting there. Further–suppose the wind blows me up in the air, onto your ship at sea. I am not 100% sure you have the right to push me off thereby killing me.

He wrote, well, maybe it’s not trespass; but that the reason he can’t kick me off is proportionality concenrs.

My reply:

Yes; but would you say the proportionality concerns are the *same* in the case of someoen who accidentally ends up on your property and someoen who intentionally does? I bet I could come up with cases where you’d say the concerns are different.

And imagine, say, A is thrown on your boat, and B is an intentional trespasser. The boat will sink w 3 people. Surely it’s more just to cast B overboard than A; it is not neutral. Espcially, if B is a kidnapper who *carries* his victim, A, on board.

I think you have to imagine how a libertarian jury would hand the cases. Say, you have a house boat w/ a dinner party. The boat breaks free in a storm. You can’t now “disinvite” your guests, it ti would mean their deaths. Now you can seay that there are all kind of implicit contracts, whatever, but the bottom line, if you kick them off, the (libertarian) jury will likely convict you of murder.

Now suppose some robbers break in while the boat is heading out to sea. You subdue them; then you just cast them over. Is it disproportionate? Maybe. Would a (libertarian) jury be as likely to convict you? Of course not.

You see the implications of this I assume.

Now in the pastI’ve given Walter block the Hulk example, since he thinks (like you, I think) that IF you have the right to use force against someone in self-defense, this implies they are a criminal. But if the Hulk hurls A at B, B might be entitled to swat A aside with a bug club, to avoid getting killed, even if this kills A. But this does not imply A is a criminal, just because it seems “analogous” to the fact that I am entitled to kill a criminal who is trying to attack me. I am entitled to kill the criminal because he is committing a criminal act; B is entitled to kill A for
different reasons. And these differences are not trivial: AFTER a crime, the victim has a right to hunt down and do something to the criminal (punish, restitution, whatever). But after the Hulk hurls A at B, if A and B survive, B is not entitled to hunt down A and try to punish him or get restitution from him.

N’cest pas?

{ 0 comments }

New Israel–digg it

by Stephan Kinsella on July 26, 2006

digg it for me: New Israel”-Move Israel to Utah: a Win-win-win solution?

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apple

by Stephan Kinsella on July 11, 2006

I love Apple, as an idea, but just can’t get around to liking the Mac. I even bought a MacBook the other day for home use, and still, using it feels like using a mouse with my left hand.

Some funny parodies of the Mac-PC commercials: parody ads; and a cartoon.

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Beyond YouTube

by Stephan Kinsella on July 11, 2006

This LightReading article, Video Site Cheat Sheet II, summarizes various video hosting/sharing websites. YouTube and Google Video are not the only ones.

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Objectivists on Fractional Reserves

by Stephan Kinsella on June 12, 2006

My post on NoodleFood is below in case they delete me:

I have learned a great deal about this topic from some debates among Austrians in the RAE and QJAE, e.g. (all available at www.mises.org if no link provided):

Hoppe: How is Fiat Money Possible?-or, The Devolution of Money and Credit
http://www.mises.org/journals/rae/pdf/rae7_2_3.pdf

Rothbard: Aurophobia: or, Free Banking on What Standard? A Review of Gold, Greenbacks, and the Constitution, by Richard H. Timberlake
http://www.mises.org/journals/rae/pdf/rae6_1_4.pdf

Hulsmann: Free Banking and the Free Bankers http://www.mises.org/journals/rae/pdf/rae9_1_1.pdf
also: http://www.mises.org/journals/jls/18_3/18_3_3.pdf

Block: Hayek, Business Cycles, and Fractional Reserve Banking: Continuing the De-Homogenization Process
http://www.mises.org/journals/rae/pdf/rae9_1_3.pdf

and on the other side:
Selgin & White’s In Defense of Fiduciary Media-or, We are Not Devo(lutionists), We are Misesians! http://www.mises.org/journals/rae/pdf/rae9_2_5.pdf

As I mentioned in this thread discussing some Objectivist economic views ( http://blog.mises.org/archives/003091.asp ), unlike Hoppe, Hulsmann, Rothbard, Reisman, et al., I do not see fractional reserve banking as being necessarily *fraudulent*. As I wrote, “If it is disclosed clearly enough, I am not sure I see any fraudulent act being committed. I would need to be persuaded there is a given, concrete person who is a victim of fraud necessarily, due to fractional reserve banking–and a given coherent, precise definition of fraud given.”

That said, I am convinced by the arguments of these writers that fractional reserve banking makes no sense economically and could not work. To me, it is an attempt to get something for nothing; and it makes the mistake of conflating money (and the money supply) with actual wealth (e.g. produced goods). There is a difference between saved money, and invested money. If you want to let 90% of your “deposit” be “loaned out” fine, but then it is really a type of investment, not savings, and cannot be a genuine deposit.

{ 3 comments }

“The” Libertarian View on Gay Marriage

by Stephan Kinsella on June 6, 2006

LewRockwell.com, June 6, 2006

Compared to conservatives and liberals, libertarians tend to have more uniform views on a wide array of issues. This is probably because the libertarian view is more coherent and principled–and more correct–than the more ad hoc and ever evolving views of mainstreamers. There are issues where debate remains–anarchy v. minarchy; abortion; vouchers; immigration–but there is large agreement on a host of key political matters.

Another issue that there seems to breed wide disagreement among libertarians is the issue of gay marriage. This seems like a strange matter to have strong disagreement over. I think the first question is, is there a libertarian view on gay marriage, any more than there is a libertarian view on whether capes are good or Beethoven is evil?It seems to me the only truly libertarian view of gay marriage is some kind of idealized standard–that is, what would be the legal status of gay marriage in a minarchy or anarchy. Arguably, in both, there would be no state sanction of marriage at all. Hetero couples would still “marry” and be regarded as such, but it would be a customary, traditional, or religiously-related union, with civil (e.g. contractual, testamentary, and mandatary) effects. In societies and cultures where homosexuality is not seriously scorned and penalized and is somewhat openly practiced by a minority of the populace, some gay couples would no doubt come to be regarded as “partners” as they are today; and perhaps some would try to call themselves “married” and use some kind of ceremony; whether this type of “marriage” would ever be regarded as “fully legitimate” by society at large, who knows.

In any event, the libertarian can say that “the” libertarian view is that the state should get out of the way and out of the business of decreeing marital status, but it that all he can say?

It seems to me that if we want to opine on the libertarianness of certain gay marriage policies or proposals in today’s semi-state-run world, we need to keep in mind a few more or less clear-cut libertarian principles.

First, if the state is going to be in the business of enforcing and recognizing contracts, estate successions, medical power of attorney, and the like, then if a number of individuals–whether it be, as I’ve noted previously, two gays, two siblings, or a rock band–want to form some kind of civil or contractual union giving them certain succession rights, agency powers, and property/contract power/co-ownership rights, then this contractual regime ought to be recognized and enforced. Those conservatives who believe that even civil unions should be outlawed are just unlibertarian. There is no warrant for the state not recognizing the contractual aspects of any civil union.

Second, it also seems obvious that there is a mixture of motives among advocates of gay marriage. I think two of the primary motivations are (a) to use the power of the state to try to “officially authorize” the “normalcy” and “legitimacy” of homosexuality and homosexual unions, in turn to try to force society at large to see it as normal and acceptable; (b) to take part in various illegitimate welfare rights married couples have access to, like social security; and (c) to legally legitimize homosexuality and gay unions so as to remove one remaining obstacle to including homosexuality as a “protected minority class” who must have affirmative action and anti-discrimination law protection.

All these goals are unlibertarian and illegitimate, in my view. One significant danger, I believe, of the state recognizing gay marriage is the last concern. So long as the state officially is able to discriminate against gays by not letting them be married, it’s difficult for gay advocates to argue that they should be included in anti-discrimination and affirmative action law coverage. After all, sodomy is still illegal in some states, which makes it difficult to argue there is a constitutional right to engage in it or to not be discriminated against because of it.

One other goal for gay marriage is to permit gay couples to easily and efficiently have the contractual aspects of their relationship respected and enforced: so that if one person is sick or incapacitated the other has medical visitation and decision-rights; inheritance rights; property co-ownership rights, and the like. This is about the only goal of the pro-gay marriage types that I think is supportable by libertarians. But for this, we don’t need gay marriage, but only civil unions. My view is that we ought to have civil unions legally recognized, so as to solve the only real, legitimate grip gays have, and to leave the rest exposed as the naked political power grab that they are.

***

In deciding what particular laws or legislation to support or condemn on libertarian grounds, however, we must also take into account various federalism-related issues. I would personally support a state law (or state constitutional amendment, perhaps) that enforced and recognized civil unions. (I would not favor the state’s using the word “marriage” to describe this union, since it adds nothing to the benefits gays are really (libertarianly) entitled to, and threatens to carry out the unlibertarian goals (1)-(3) noted above.)

However, I would not support a federal law recognizing civil unions (except for and to the extent there are federal law aspects to it), or forcing states to do so, for federalist reasons. I would oppose such a law. I would oppose even more strongly a federal law outlawing (at the state level) gay marriage or civil unions. The only federal law I can imagine supporting in this regard would be a law that limits federal judges from interfering with states in this regard.

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Rand and Rights

by Stephan Kinsella on June 2, 2006

Some recent thoughts. I have over the years re-thought the coherence of Rand’s argument on rights. (Re Rand’s epistemology–always thought a lot of it made sense, in common-sense, broad outlines, or when she was critiquing others; OTOH I tend to think she greatly distorted Kant.) Much like I’ve re-thought her argument for patents. Both of them seem sensible at first but the more you think about them the more they don’t hang together.

Re rights I think the problem is you really can’t derive an ought from an is. Her flip comment that what a thing’s nature IS determines what it OUGHT to do is a non-sequitur. You have to have a “moral leap,” in my view; which she in a sense agrees iwht, by saying that all ethics is based on the original (and a-moral!) “choice to live”. In my view, likewise, there is no categorical, natural-law “non-aggression rule.” Rather, I think it is the case that those people who do (for whatever reason, or, yes, “whim”) happen to personally value civilization, peace, cooperation, and who therefore seek to justify proposed uses of interpersonal violence–that the non-aggression rule emerges. And the most consistent among them are libertarians. I.e., rihgts are sort of hypothetical. But tha’ts okay. I think many Randians and other libertarians would be reluctant to admit this b/c they want a “drop dead,” “good for all time” argument. But even if you had such an argument: still, people have free will, and some people would choose to act immorally anyway. So there is no “penalty” for admitting civilized ethics are hypothetical; none at all; they are no “stronger” than categorical or natural law ones; and they are easier to justify–you just appeal to the baseline sense of morality that is already adopted by any fellow participant in civilized discourse. And if they are not such people, they are like animals, outlaws, criminals, which exist even if you had a knock-down argument.

I have some draft material on this which I plan to publish whenever I find time to clean it up.

Interesting post: Re-Evaluating Ayn Rand. Also, Scott Ryan tells me that he deals with some of the non-sequiturs and fallacies of Rand’s defense of individual rights in the last couple chapters of his book, Objectivism and the Corruption of Rationality: A Critique of the Epistemology of Ayn Rand (PDF), which I have not yet read.

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Classic Rock?

by Stephan Kinsella on January 26, 2006

Top 10 Essential Classic Rock Albums–oh really? Not much rock on there–The Who? The Beatles? Rolling Stones? Bob Dylan? The Doors? Soft rock, pop rock, candy rock. Not real rock. Okay, I’ll give ‘im Pink Floyd, Led Zeppelin and even Hendrix, though that’s more proto-rock. Maybe even Jefferson Airplane, and the annoying Clapton. But where is Rush? Van Halen? Even Metallica is real rock at least.

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The Trouble with Libertarian Activism

by Stephan Kinsella on January 26, 2006

The Trouble With Libertarian Activism

By Stephan Kinsella

January 26, 2006

I recently ran across The Need to be Anarchists, by big-L Libertarian Carl Milsted. The piece provides a good illustration of some of the dangers of relying on utilitarian arguments and being overly focused with “strategy” and tactics. And it demonstrates the importance of relying on principle and carefully distinguishing the pursuit and advocacy of truth and rights from activist concerns.

Milsted, who runs the website “Holistic Politics” (res ipsa loquitur), argues that we libertarians are uncomfortable with government because “Taxation is theft”. On the other hand if we “call[] for no government” we are “subject[ed] to ridicule.” So we libertarians face a dilemma: damned if we do, damned if we don’t.

Apparently, being subjected to ridicule is undesirable — perhaps it is not a good way to “get things done.” (See the activist mindset creeping into a question of what our rights are; whether aggression is justified?) So Milsted wants to cut the Gordian knot by abandoning the ridiculous opposition to theft and state, assuming he can find a way to justify it. Here we have the activist or tactical mindset making Milsted look for a way to justify theft: here is where utilitarianism enters the picture. Both activism and utilitarianism push principle to the side as a nagging inconvenience. There is no room for principle in the ultra-pragmatic ever-shifting weighing and balancing of utilitarianism; and activists want results, and now!, damnit, not principles.

Milsted concludes that we have to “allow some theft to enable the minimal state that maximizes liberty.” He bases this conclusion on the idea that if a given act of theft creates enough surplus value to be able to “adequately compensate” the victim, then it’s worth doing and justified — the victim is made whole, and the rest of society is made better off. For example, in the case of national defense, or “country roads,” because of “economies of scale,” government can do these things more cheaply, so that, if

the majority assesses a tax on everyone to spread the burden of supporting the new defense system. This is theft of the minority. However, suppose that the economies of scale are such that this tax is less than half of what people would have had to pay for defense on their own. Now we have theft with adequate compensation.

Aside: I have long noticed that many brash young libertarians of the activist flavor who are not all that interested in theory and What Has Gone Before are — perhaps influenced by Rand? — often unfamiliar with the great body of libertarian literature and want to reinvent the wheel from a clean slate (many engineers, in my experience, take a similar pragmatic, isolated, almost anti-intellectual approach in their views on politics). Now I don’t know if this observation applies to our current author, but he does seem blithely unaware that his stab at theory is nothing more than a rudimentary version of what utilitarian legal theorist Richard Epstein proposed in his book Takings: Private Property and the Power of Eminent Domain.

Anyway, Milsted tries to justify his reasoning by appealing to Rothbard:

In the Bible, a thief was supposed to pay double. Should he do that, he can go free. Murray Rothbard called for the same principle in The Ethics of Liberty. In other words, theft is morally acceptable if all victims are paid back double.

Milsted’s “in other words” does not follow from Rothbard’s reasoning, nor is it correct. Rothbard was merely arguing for a certain standard for restitution after a crime has happened. As should be quite obvious, specifying the standard for damages payable for a crime most certainly does not mean the crime is “morally acceptable.” If it did, this would imply that if someone is trying to take my property I have to let them if they offer me enough money. But this is untrue. The standards for what can be done to stop a crime and what should or may be done after it is too late to stop it are different. If someone tries to take my car, I may use force against them to stop them; I would argue it is justified to kill them, if necessary, to prevent the crime. After the crime is committed, however, killing the criminal won’t prevent it, so, arguably, the only remedy left is some form of restitution. This does not mean that the restitution justifies the crime, however.

In fact, if theft is morally acceptable if enough restitution is paid, the same reasoning would apply to all crimes, including murder, rape, and torture. By this reasoning, if a billionaire can pay your heirs millions of dollars in compensation for torturing you to death against your will, his act of murder is morally acceptable.

Here Milsted perhaps unwittingly takes utilitarianism to a reductio ad absurdum, saving his critics the trouble. As has been pointed out many times, the utilitarian standard would permit, for example, a very desperate rapist to rape a woman of loose morals, since the damage to her is arguably small (by utilitarian standards) and the benefit to him great, providing a net benefit to society; or a rich man to be taxed to support the poor, since the money means so much more to the destitute than to the one rich man. And so on. Utilitarians usually deny the aptness of such reductios, but Milsted here seems to embrace it.

In my view, our author’s argument here demonstrates the perils of thinking in utilitarian terms — you start thinking that an act of crime is okay so long as some people benefit from the crime more than the victim suffers. The focus on individual rights is lost, as is the distinction between victim and aggressor.

In any event, the appeal to utilitarianism is problematic on several fronts. It is, first and foremost, ethically bankrupt because it is an unproven, and indeed, false, assertion that it is justifiable to rob one man if the robbery benefits others. It is also economically incoherent because the subjective and ordinal nature of value makes it impossible even in principle to ever determine whether a given invasive action results in a “net” benefit or “surplus” (see on this Rothbard’s Toward a Reconstruction of Utility and Welfare Economics).

Moreover, even if we assume away the ethical and methodological problems with using a utilitarian standard, it would be completely unworkable in practice, given the corrupt nature of government; and indeed, as with the utilitarian case for intellectual property, those who assert this or that measure is a “net benefit” don’t ever make a serious attempt to show that it really is. Instead, they say, “defense” is “obviously” a public good, and satisfies the test; “roads” are “easy cases”; and so on. They can never tell you in dollar or util terms what the alleged surplus is; they just know there is one. And they never make a serious attempt to take into account all the costs. For example, even if utilitarianism made sense, and even if we assume that national defense and public roads led to surpluses that could be used to compensate the victims (Epstein analogizes this to measures that increase the “size of the pie”), why assume that the state, once given the power to engage in wealth transfers, will restrict itself only to “efficient” takings? Surely there is a real risk — even inevitability — that the state will not restrict itself to the few things it “ought” to be doing.

Additionally, even if the state engages only in “efficient” activities, what about mushrooming costs of these activities? Let’s say national defense benefits citizens more than the taxes to pay for it cost them (and that it would be more expensive to buy defense on the free market). Does this still hold true a decade down the road, when the state decides to use its restless army for imperialist ambitions? Or when the use of the army provokes a war, which leads to the state imposing conscription? And so on.

In other words, utilitarianism is both ethically bankrupt as well as economically incoherent (see pp. 12—15 of this article for further references). It cannot serve to justify theft.

The focus on tactics and strategy also leads to confusion about libertarian principles. Writes our author,

Libertarians have a serious dilemma. Either we make a Machiavelli [sic] trade-off and allow some theft to enable the minimal state that maximizes liberty, or we plunge ahead calling for no government and hope for the best, based on some daring theoretical extrapolations. The former makes us uneasy. The latter subjects us to ridicule. 99+% of the people consider anarchy to be too risky to be attempted.

Not surprisingly for a big-L Libertarian, Milsted’s focus is on strategy, tactics, activism, and rhetoric. Such a focus often leads libertarians to confuse “what persuades people” with “what is true.” We principled libertarians have no problem recognizing the difference between what is right and true, with what is likely and what we can get away with. They are different questions. But strategists have trouble seeing past strategy and “what works”. If a principles-based libertarian says, “public education is unjustified and ought to be abolished,” a typical reply of a tactician-activist is “but that is not practical” or “but that is not going to sell with the average person”. In other words, the activist makes the mistake of confusing what will sell with what is true. But the committed activist too often relegates something that will not sell now, today, as useless, and in effect as untrue — or, more to the point, he adopts the view that what is true does not really matter; only results matter. Sure, both inquiries — what is the best strategy to achieve liberty? what is liberty? — have their own value and roles. But they are not the same.

In Milsted’s case, his activist-tactical approach leads him to mistake the nature of anarchism and libertarianism. To be an anarchist is not to “plunge ahead calling for no government and hope for the best, based on some daring theoretical extrapolations.” Only the activist would think this way, since he thinks in terms of things we advocate and try to achieve. But anarchists per se are not “in favor of” some “alternative system.” That’s not what it means to be an anarcho-capitalist.

Rather, as I have pointed out elsewhere, to be an anarcho-capitalist is simply to recognize (a) aggression is unjustified; and (b) even the minarchist state necessarily commits aggression (and is therefore unjustified). It does not mean one predicts such a situation will occur, or “is workable,” etc. It only means that the anarchist libertarian opposes all forms of aggression: both private aggression committed by criminals, and institutionalized aggression the state is able to perpetrate only because a large percentage of the population erroneously regards it as legitimate.

In other words, if one is not an anarchist, this means one either holds that states do not commit aggression, or maintains that aggression is (in some cases) justified. Admirably, Milsted does not try to evade this. He acknowledges that the state commits aggression. It is theft he is trying to justify, after all. He simply thinks aggression in some cases is justified; such a view is also common among socialists and criminals. As I noted above, his reasons in support of justified aggression are confused. On the one hand, his reasoning seems to be based on a desire to avoid being “subjected to ridicule.” This is obviously not a justification for violent invasion of others’ bodies or property. Certainly not one that will satisfy libertarians who oppose aggression as a matter of principle. His argument also relies on utilitarian reasoning, and rests on the false assumption that a crime can be justified ahead of time by the criminal paying the proper toll. (See also this post by Manuel Lora, critiquing Milsted’s political gradualism and anti-radicalism.)

I don’t say Milsted’s attempt to justify a small bit of aggression is evil or insincere. In fact it’s common and probably sincere. I think he would like to reduce aggression, but he is willing to break some eggs to make an omelet. However, if libertarianism is at root about the opposition to aggression and the desire for peace, harmony, and cooperation — as I believe it ought to be — the proposed normalization of theft simply isn’t libertarian.

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Copernic Desktop Search

by Stephan Kinsella on January 22, 2006

Steve Nipper recommended Copernic to me as an alternative to Google’s Desktop Search. He’s right–it’s fantastic and much better than the dreadful Google Desktop Search.

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Lewis in the Silver Chair

by Stephan Kinsella on January 11, 2006

Another of my favorite C.S. Lewis quotes (partly available here) is from his Narnia book The Silver Chair, when the Emerald Witch has several of the good guys–the Prince; Puddleglum, a Marsh-wiggle; Jill; and Eustace Scrubb–captured underground and under a magical spell. The Witch tries to make them believe there is no Narnia, and no Aslan (the Jesus-figure)–no world above, no sun, no lions.

It did not ablaze much, but a very sweet and drowsy smell came from it. And all through the conversation which followed, that smell grew stronger and filled the room and made it harder to think. Secondly, she took out a musical instrument rather like a mandolin. She began to play it with her fingers — a steady, monotonous thrumming that you didn’t notice after a few minutes. But the less you noticed it, the more it got into your brain and your blood. This also made it hard to think. After she thrummed for a time (and the sweet smell was now strong) she began speaking in a sweet, quiet voice.

“Narnia?” she said. “Narnia? . . . There is no land called Narnia.”

“Yes there is, though, Ma’am,” said Puddleglum. “You see, I happen to have lived there all my life.”

“Indeed,” said the Witch. “Tell me, I pray you, where that country is?”

“Up there,” said Puddleglum, stoutly, pointing overhead. “I – I don’t know exactly where.”

“How?” said the Queen, with a kind, soft, musical laugh. “Is there a country up there among the stones and mortar on the roof?”

“No,” said Puddleglum, struggling a little to get his breath. “It’s in Overworld.”

But the witch’s magic eventually dulls their minds:

“No. I suppose that other world must be all a dream.”

“Yes. It is all a dream,” said the Witch, always thrumming.

“Yes, all a dream,” said Jill.

“There never was such a world,” said the Witch.

“No,” said Jill and Scrubb, “never was such a world.”

“There never was any world but mine,” said the Witch.

“There never was any world but yours,” said they.

She has them almost persuaded that they are dreaming up things–making up the “sun” from lights; “lions” from cats; making up an “Overworld”, when there is only one world, the Witch’s underground world–when Puddleglum shoves his bare foot in a fire, so that the pain helps rouse him from the spell:

The Prince and the two children were standing with their heads hung down, their cheeks flushed, their eyes half closed; the strength all gone from them; the enchantment almost complete. But Puddleglum, desperately gathering all his strength, walked over to the fire. Then he did a very brave thing. He knew it wouldn’t hurt him quite as much as it would hurt a human; for his feet (which were bare) were webbed and hard and cold-blooded like a duck’s. But he knew it would hurt him badly enough; and so it did. With his bare foot he stamped on the fire, grinding a large part of it into ashes on the flat hearth. And three things happened at once.

First, the sweet, heavy smell grew very much less. For though the whole fire had not been put out, a good bit of it had, and what remained smelled very largely of burnt Marsh-wiggle, which is not at all an enchanting smell. This instantly made everyone’s brain far clearer. The Prince and the children held up their heads again and opened their eyes.

Secondly, the Witch, in a loud, terrible voice, utterly different from the sweet tones she had been using up till now, called out, “What are you doing? Dare to touch my fire again, mud-filth, and I’ll turn the blood to fire inside your veins.”

Thirdly, the pain itself made Puddleglum’s head for a moment perfectly clear and he knew exactly what he really thought. There is nothing like a good shock of pain for dissolving certain kinds of magic.

Then Puddleglum says this to the Witch:

“One word, Ma’am” he said coming back from the fire; limping because of the pain. “One word. All you’ve been saying is quite right, I shouldn’t wonder. I’m a chap who always liked to know the worst and then put the best face I can on it. So I won’t deny any of what you said. But there’s one thing more to be said, even so. Suppose we have only dreamed, or made up, all those things – trees and grass and sun and moon and stars and Aslan himself. Suppose we have. Then all I can say is that, in that case, the made-up things seem a good deal more important than the real ones. Suppose this black pit of a kingdom of yours is the only world. Well, it strikes me as a pretty poor one. And that’s a funny thing, when you come to think of it. We’re just babies making up a game, if you’re right. But four babies playing a game can make a play-world which licks your real world hollow. That’s why I’m going to stand by the play-world. I’m on Aslan’s side even if there isn’t any Aslan to lead it. I’m going to live as like a Narnian as I can even if there isn’t any Narnia.

Now this is obviously meant to show how important faith is, among other things. I am not really convinced by it in a theological sense, though it is a good effort. What I like about it is how well it meshes with my view of libertarian ethics, and regular ethics for that matter. I believe there is something to the Humean idea that you can’t derive an ought from an is. All oughts are in a sense hypothetical: based on a choice to be ethical in the first place. The battles over morals are battles between those who have chosen the civilized path, and those who are criminal, animal-like–outlaws. You can’t ask why someone wants to be moral, any more than you can prove that it is moral to choose to live (as Rand argued, the choice to live is amoral; this choice is the foundation of all other morals–so in a sense, Rand’s ethics was hypothetical, as alluded to in Harry Binswanger’s article Life-Based Teleology as the Foundation of Ethics). But the sort of drive or sense of why someone does choose the moral and civilized life, I find expressed and echoed in the Lewis passage above. And either you get it or you don’t.

To me the passage also expresses why God’s existence really cannot matter too much for moral truths; why standards of good and evil are outside God; why the idea that God is a “source” of morals and rights is confused, and just an extension of legal positivism back one level. The legislature cannot by decree make murder evil; nor could God; which is not to impugn God but to declare that some things are objectively evil–are at least, are seen so by those who choose to distinguish between good and evil, by those who prefer peace, cooperation, and civilization, to violence and depradation.

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