From Mises blog. Archived comments below. See also “Other Top Ten Lists of Libertarian Books”, appended below.

As I noted in that article,

Something about Friedman’s Machinery always bugged me—maybe it was the way he noted that Hazlitt’s Economics in One Lesson is “reputed” to be a good introductory book on economics, but “I have not read it”—as if he does not need to. From someone with degrees only in physics and chemistry, I suppose I would have expected a bit more humility; and his over-reliance on “law and economics” has always made Friedman seem just a tad too much the dilettante and Austro-cynic for my taste.

I remember one other thing I had seen that bolstered this impression: his Blogger profile states: “I am an academic economist who teaches at a law school and has never taken a course for credit in either field.”

And see https://daviddfriedman.blogspot.com/2007/11/civil-immunity-blackstone-and-legal.html: “I am a law professor but not a lawyer.”

Almost like he’s bragging about it. So he’s not a real lawyer or even law professor, he’s not a real economist and to the extent he is he is just logical positivist like his father, running around talking about how “Von Neumann proved” that value is interpersonal and cardinal. ¹ He wrote one influential book, The Machinery of Freedom, which, admittedly, helped me switch from minarchist to anarchist. But I have no reason to think of him as a deep legal or economic expert, or physics expert for that matter.

Top Ten Books of Liberty

Update: My article, The Greatest Libertarian Books, appeared on LewRockwell.com on Monday, August 7, 2006. See discussion here.

***

In my article, I mentioned:

Something about Friedman’s Machinery always bugged me – maybe it was the way he noted that Hazlitt’s Economics in One Lesson is “reputed” to be a good introductory book on economics, but “I have not read it” – as if he does not need to. From someone with degrees only in physics and chemistry, I suppose I would have expected a bit more humility; and his over-reliance on “law and economics” has always made Friedman seem just a tad too much the dilettante and Austro-cynic for my taste.

I remember one other thing I had seen that bolstered this impression: his Blogger profile states: “I am an academic economist who teaches at a law school and has never taken a course for credit in either field.”

***

The September 2006 issue of Liberty has the feature “The Ten Best Libertarian Books”: “Milton Friedman, Lew Rockwell, David Boaz and Liberty’s editors and contributors celebrate ten intellectual achievements that helped to produce the modern libertarian movement.” Yes, Lew Rockwell is in there (with an essay on Mises’s Human Action). Here are the ten:

• Hayek, The Road to Serfdom
• Rand, Atlas Shrugged
• Mises, Human Action
• Milton Friedman, Capitalism and Freedom
• Hayek, The Constitution of Liberty
• Rand, The Fountainhead
• Nozick, Anarchy State and Utopia
• Mises, Socialism
• David Friedman, The Machinery of Freedom
• Isabel Paterson, The God of the Machine

Not a bad list, if a bit predictable. There are some I’d take off, or move to a much lower place, and others I’d include. I would remove both by Hayek: I could not finish either. I found Serfdom obvious and boring, and Constitution just boring. But I’m probably in the minority on this assessment; and Serfdom did have a big influence. I would also take out The Fountainhead; Atlas is enough. And I’d remove Paterson too; again, another one I could not get through. Too many metaphors; too nonrigorous. This is the worst choice for the list, in my view.

A glaring omission from the list is Rothbard. For A New Liberty should be there, if not Ethics of Liberty and Man Economy and State. Also, Hoppe’s A Theory of Socialism and Capitalism should definitely be there.

Other possible candidates for the list? How about The Law by Bastiat? The Tannehills’ The Market for Liberty? Even Bruce Benson’s The Enterprise of Law. And perhaps a couple that are not explicitly libertarian but are very good on the issues of federalism and constitutionalism, such as Kilpatrick’s The Sovereign States or Felix Morley’s Freedom and Federalism.

And there are many more, such as some listed in the bibliographies at LRC–see especially the bibliographies by Hoppe, Gordon, and Rockwell.

So, Misesians–what are your top 10? The Comments Field awaits you!

Archived comments

Archived comments:

Comments (29)

• Chris Pruden

  Someone mentioned it in the previous top-10 books thread, and I’d also have to put The Moon is a Harsh Mistress(Heinlein) on the fiction list.

  Published: August 7, 2006 3:44 PM

• sp3tt

  “Top Ten Libertarian Fiction (not counting Rand)”

  Well, I guess one could include Heinlein and Frank Herbert. Except for those two though, I haven’t heard of much libertarian fiction.

  Published: August 7, 2006 3:44 PM

• Person

  *can’t stop myself*

  *can’t stop myself*

  How about “Top ten profit-earning books by libertarians who reject the validity of copyrights”:

  1) Defending the Undefendable — Walter Block

  2) Democracy — Hans Hoppe (note sure: he’s careful to remain silent on it, and his derivation property rights excludes them)

  3) Chaos Theory — Robert P. Murphy (again, remains silent, but has praised “Against Intellectual Property”)

  4) Studies in Mutualist Political Economy — Kevin Carson.

  5) The Moon is a Harsh Mistress — Robert Heinlein (sp?)

  6) ???

  Stephan, if you have a book, I’ll list it.

  Note: One book on this list isn’t actually good, but I listed it anyway.

  Published: August 7, 2006 4:02 PM

• Stephan Kinsella

  sp3– um, I mention some other libertarian fiction in my article. How can you not have heard of Schulman and Smith?

  Person:

  Interesting. I suppose you are trying to imply some kind of hypocrisy, of something, which is of course ridiculous. This would be akin to telling Clarence Thomas he has no right to object to affirmative action since he “benefitted” from it (a racist assumption, BTW).

  I suppose Block objects to copyright, but not sure where he wrote this. Hoppe does reject copyright, as I do; he told this to me, but not sure he’s written on it.

  Re Murphy: yeah, not 100% sure; but was his book a “best seller”? Carson… he rejects IP? It may be on the grounds that he accepts the idea that it’s property and *therefore* rejects it; while I reject it because I think it is *not* property.

  Where do you get the idea Heinlein was against copyright?

  “Stephan, if you have a book, I’ll list it.”

  Oh, I don’t have any best sellers, though my books all make a profit, e.g. International Investment, Political Risk, and Dispute Resolution: A Practitioner’s Guide; and Digest of Commercial Laws of the World–but I’m just the editor of the latter, not the sole author.

  I may publish a semi-popular book railing against copyight and patent, and I do hope it sells well. Maybe even make the mainstream bookstore shelves and have a mainstream, big publisher.

  “Note: One book on this list isn’t actually good, but I listed it anyway.”

  Which is that, P-dog?

  And how about some real best-sellers, Tom Woods’ Politically Incorrect Guide to History, and Tom DiLorenzo’s Lincoln books–both very big sellers, and I would think both authors are probably anti-copyright (I’m not sure, but they are both smart enough to understand the argument, and honest (that’s why they are paleo-libertarians) so they probably are).

  Published: August 7, 2006 4:13 PM

• John Markley

  For libertarian fiction, I’d include:
  1. John C. Wright’s Golden Age trilogy
  2. Poul Anderson, Mirkheim (Lots of the Technic history stuff, really)
  3. Poul Anderson, Orion Shall Rise
  4. Vernor Vinge, A Deepness in the Sky
  5. James P. Hogan, The Multiplex Man
  6. Robert Heinlein, The Moon is a Harsh Mistress
  7. J. Neil Schulman, Alongside Night

  Published: August 7, 2006 6:10 PM

• Anonymous

  The list of Prometheus Award winners would be a good start in constructing a list of libertarian fiction. Over the past several years, I’ve discovered that the list of nominees each year makes for a pretty good reading list.

  Published: August 7, 2006 8:50 PM

• Scott Fields

  James P. Hogan has strayed away from mainstream libertarianism, though he still has written some of the best Sci-Fi or political thriller libertarian books out there.

  Voyage to Yesteryear

  The Mirror Maze

  Some other notable authors and their respective works would be the following:

  H. Beam Piper – Lone Star Planet

  F. Paul Wilson – (The LaNague Trilogy)

  L. Neal Smith – EVERY BOOK HE HAS WRITTEN!

  Published: August 7, 2006 9:22 PM

• Radical Sceptic

  ‘Top Ten Libertarian Books You Have Never Heard Of’

  Well the one that should be right at the top of that list is ‘Escape from Leviathan’ by J.C. Lester. A work of extreme anarcho-libertarian political philosophy. Provides a pure theory of liberty and property rights that manages to avoid all the errors inherent in Rothbard, Narveson, Hoppe, David Friedman etc. This is the book that Nozick would have written if only he had been a bit brighter and better read.

  This book, published by Macmillan in 2000, is woefully neglected. Libertarian scholars who endlessly work themselves into confusion about natural rights, consequentialism and other supposed justifications for liberty and property would do well to read and study this brilliant and liberating solution.

  Published: August 8, 2006 10:28 AM

• Person

  Stephan:

  Re Murphy: yeah, not 100% sure; but was his book a “best seller”? … I don’t have any best sellers,

  Where did I say “best seller”? I believe the term I used was “profit-making”, i.e. such that monetary proceeds of the book exceeded monetary production costs. (for the picky: I’m using the accounting, not economic sense of profit) I thought you were going to start reading my posts. 🙁

  And for anyone who’s watching: Block et. al could have turned off their IP rights in their books or otherwise not made it artificially hard to get, Clarence Thomas could not have turned off affirmative action. (And the assertion that he benefitted is wrong, anyway.)

  Published: August 8, 2006 10:46 AM

• Stephan Kinsella

  Person:

  Why not come out and directly and clearly say what you mean, rather than leaving it between the lines. Are you saying that anti-copyright people are *substantively incorrect* — *because* they have published books that profit? What exactly is your argument? Are you saying we are “hypocrites”? If so, make the argument, and explain its relevance.

  “And for anyone who’s watching: Block et. al could have turned off their IP rights in their books or otherwise not made it artificially hard to get,”

  HOw do you “turn off” IP rights? Please tell me. Second, are you saying that if a publisher of the works in question somehow did disclaim copyright, that means the book would not have sold or made a profit? What exactly is your point?

  Are you saying that an author can just instruct the publisher to disclaim copyright protection? Surely you are aware that this is ridiculous. If any author told his publisher he insists on removal of copyright protection, the publisher would say, “No thanks, we’ll pass on the project.” So waht you are saying (I guess?) is that any author who opposes IP has to sabatoge any publication opportunity by any legitimate publisher, and only self-publish for free on the Internet? I.e., are you saying that copyright opponents, because we are NOT getting our way (because there ARE copyright law), have to not only put up with bad law, but shut up too? Whereas, the copyright advocates who ARE getting their way–getting to have laws that force others to go along with their desires–get to have this AND they have the right to talk about it? How convenient.

  Published: August 8, 2006 11:27 AM

• Person

  Stephan:

  What exactly is your argument? Are you saying we are “hypocrites”?

  Yes. Yes, you are a hypocrite. You claim it is morally wrong to stop someone for ordering his property in a particular non-aggressive manner, yet threaten others with physical force for choosing to do so. Your actions contradict your stated preference. And it doesn’t matter that you delegate this to another, blah blah blah. (“you” here refers to those on the list I made above)

  HOw do you “turn off” IP rights? Please tell me.

  An IP attorney is asking me this??? When do I get to charge your rates? How about:

  “This work is in the public domain.” or “Author grants permission to copy this work at will.”?

  Are you saying that an author can just instruct the publisher to disclaim copyright protection?

  Yes.

  Surely you are aware that this is ridiculous. If any author told his publisher he insists on removal of copyright protection, the publisher would say, “No thanks, we’ll pass on the project.”

  Er, yeah, for a typical book contract. That’s … kinda the point.

  So waht you are saying (I guess?) is that any author who opposes IP has to sabatoge any publication opportunity by any legitimate publisher, and only self-publish for free on the Internet?

  That does not follow. Be creative for a minute here. You could set up some contract in which they can charge whatever they want, market the book, not assert copyright, and then you pay them any amount below $X that they fail to earn through selling the book. That way, you’re essentially paying them to market the book, while they take a chance on being able ot make additional profit. You could also simply pay a printer to make the copies and then pay a bookstore to hold it, and then sell it at a low enough price as to make it affordable, while also encouraging people to download it for free.

  Yes, adhering to principles (i.e., refraining from what you believe to be aggression) can make it more difficult to get your word out. But — that’s just the utilitarian in you complaining.

  I accept your apology for adding “best-selling” to my post.

  Published: August 8, 2006 11:46 AM

• Paul Edwards

  Radical Sceptic,

  There’s even a book review on ‘Escape from Leviathan’ here:

  http://www.mises.org/journals/jls/17_4/17_4_4.pdf

  Published: August 8, 2006 11:47 AM

• Stephan Kinsella

  Person:

  “Yes. Yes, you are a hypocrite.”

  So? What if this were true? How does this fact imply my claim that copyright is unjustified, is incorrect? Stick to substance.

  “You claim it is morally wrong to stop someone for ordering his property in a particular non-aggressive manner,”

  Did I say it was “morally wrong”? Where?

  “yet threaten others with physical force for choosing to do so. Your actions contradict your stated preference.”

  Not so; but even if it did, so what? So what?

  “How do you “turn off” IP rights? Please tell me.

  An IP attorney is asking me this??? When do I get to charge your rates? How about:

  “This work is in the public domain.” or “Author grants permission to copy this work at will.”?”

  Doesn’t do it. (I think the EFF or open source movements disucss how difficult it is to dedicate a copyight to the public domain) NEXT.

  “‘So waht you are saying (I guess?) is that any author who opposes IP has to sabatoge any publication opportunity by any legitimate publisher, and only self-publish for free on the Internet?

  “That does not follow. Be creative for a minute here. You could set up some contract in which they can charge whatever they want, market the book, not assert copyright, and then you pay them any amount below $X that they fail to earn through selling the book. That way, you’re essentially paying them to market the book, while they take a chance on being able ot make additional profit.”

  This is idiotic. THe wordl does not work this way. It’s take it or leave it. Period.

  “You could also simply pay a printer to make the copies and then pay a bookstore to hold it, and then sell it at a low enough price as to make it affordable, while also encouraging people to download it for free.”

  Right. I could do lots of things to be a martyr, for the sake primarily of a bunch of ingrates who don’t desrve it. No thanks.

  “Yes, adhering to principles (i.e., refraining from what you believe to be aggression) can make it more difficult to get your word out. But — that’s just the utilitarian in you complaining.”

  NO; it’s the face without pain or fear or guilt. I didn’t make this unjust world, and I’ll be damned if I’ll accept the moral obligation to harm myself above and beyond the amount already foisted on me by you statists.

  “I accept your apology for adding “best-selling” to my post.”

  Dude you have got to relax.

  Published: August 8, 2006 12:03 PM

• Person

  Er… WHAT?

  Stephan Kinsella, is it the real Stephan Kinsella who’s actually using your account in your last post? When you disavow your theory of property — claiming you never said it was morally wrong to stop someone from arranging his property in a non-aggressive manner, when you make bizarre Rand allusions in a criticism of intellectual property, when you complain about taking up the moral obligation not to aggress against others, I have to make reasonably sure I’m speaking to that Stephan Kinsella before trying to sort through your latest.

  Published: August 8, 2006 12:14 PM

• Stephan Kinsella

  Person: “When you disavow your theory of property — claiming you never said it was morally wrong to stop someone from arranging his property in a non-aggressive manner,”

  I speak precisely. Where did I say it is *morally wrong*? Show me.

  “when you make bizarre Rand allusions in a criticism of intellectual property,”

  What?

  Published: August 8, 2006 12:16 PM

• Person

  Stephan:

  I speak precisely.

  Prove it.

  Where did I say it is *morally wrong*?

  Where did you say what was morally wrong?

  Show me.

  Show you what?

  What?

  Huh?

  ***

  See, I can play your game too.

  Published: August 8, 2006 12:22 PM

• Stephan Kinsella

  Person: re morally wrong: you are misstating my views. I speak of rights and justification.

  Published: August 8, 2006 12:33 PM

• Person

  Stephan: no, you don’t.

  Feeling it yet?

  Published: August 8, 2006 12:36 PM

• David J. Heinrich

  Person’s argument seems not to be that Kinsella’s argument against IP is wrong, but rather that Kinsella is a hypocrite. Presumeably, Person accepts Kinsella’s argument against IP. On that assumption, here’s a brief analysis…

  (1) Free people don’t accept responsibility for situation’s they didn’t create. It is not the fault of Stephan Kinsella that we live in a State-run world, where the ideal libertarian way of profiting from books isn’t available as a viable option.

  (2) You’re argument wouldn’t allow libertarians to use public roads. Come on, this is ridiculous.

  (3) Here’s what Stephan is doing: he gets money from a publisher to provide them with a book. They then pay him money later on in the form of a certain percentage of the proceeds they make from selling the book. The fact that they copyright the book is irrelevant; the interaction between them and Kinsella is non-aggressive.

  That said, I’m not so sure I agree with Kinsella completely on what he refers to as “intellectual property”. Certainly, contracts are only binding on those who agree to them, and that places practical problems on copyrights, but it hardly means they’re illegitimate in a narrowly defined sense. Furthermore, I argue that “No tresspassing” signs are valid, as would be Walter Block’s hypothetical “Killing Park” (where you put signs on the entrance to a park saying it’s a free shooting range, and anything and anyone on it is a potential target). Thus, I don’t see why you can’t place a copyright notice on the page of every book; thus, anyone opening it would know that it was covered by copyright contract, and that as a contingency of them reading it, they can’t copy it (at least not for redistribution).

  This is very similar to Kinsella’s argument for limited liability; anyone doing business with a corporation knows that the “Inc” or “Corp” or whatever it is means that they only have claim to the company’s assets — asset’s under the control of the corporation — and not to any of the assets of the shareholders (that is, shareholders cannot lose more than their initial value invested). I don’t see why the same doesn’t apply to copyright.

  There are also restaurants that don’t have prices listed on the food; yet, it’s presumed that you have to pay for it, at least what would be considered a reasonable amount, given the quality and quantity of foods (e.g., $12 for a hamburger would be reasonable; $1000 wouldn’t).

  Published: August 8, 2006 12:40 PM

• Angry Person

  Hijacking my name — that’s a new low.

  Published: August 8, 2006 1:00 PM

• Person

  Person:

  “Stephan: no, you don’t.

  Feeling it yet?”

  Now now, if you don’t stop being silly, I’ll stop deigning to give you the pleasure of my replies. Kindly warning.

  Second, re the other “Person” post, I deleted it and warned the poster.

  Heinrich:
  “Person’s argument seems not to be that Kinsella’s argument against IP is wrong, but rather that Kinsella is a hypocrite. Presumeably, Person accepts Kinsella’s argument against IP.”

  Ha ha ha ha. Got him. Seriously, now, PErson, the point is: stick to substance. Drop the hypocrite talk unless you can tie it to some *substantive* point.

  “(1) Free people don’t accept responsibility for situation’s they didn’t create. It is not the fault of Stephan Kinsella that we live in a State-run world, where the ideal libertarian way of profiting from books isn’t available as a viable option.”

  Yes; I’ve also written on this: The Morality of Acquiring and Enforcing Patents, and Letter to an Anonymous Patent Attorney, avialable here.

  “(3) Here’s what Stephan is doing: he gets money from a publisher to provide them with a book. They then pay him money later on in the form of a certain percentage of the proceeds they make from selling the book. The fact that they copyright the book is irrelevant; the interaction between them and Kinsella is non-aggressive.”

  And actually, they don’t copyright the book. The copyight is automatic. You have a copyright in your message to me you just wrote. I write a book. A publisher prints it and sells copies to customers. They pay; the publisher pays me. Everyone is happy. No one is coerced. Who is being harmed? Some pirate publisher down the road who “coudl” publish a pirate copy if there were no copyright law? But it’s not our fault there are copyight law. And do we have some affirmative duty to “get rid of” a right the law bestows on us, even though it’s very difficult and costly to do it? It’s just ridiculous, this whole infantile idea.

  “I don’t see why you can’t place a copyright notice on the page of every book; thus, anyone opening it would know that it was covered by copyright contract, and that as a contingency of them reading it, they can’t copy it (at least not for redistribution).”

  Because first, at most, this gets you the right-to-reproduce. But this is only one part of the copyright bundle. For example how would you get the derivative right? No way. And without this, copryright is much less valuable.

  Moreover, again, even if you could imply an agreement between the third party and the author, by virtue of the third party’s holding the page or seeing the notice, suppose the third party goes ahead and reprints it on the internet (sand notice). HOw are FOURTH parties supposed to be bound?

  Finally, this argument presupposes that information is property. I deal with this at length elsewhere.

  “This is very similar to Kinsella’s argument for limited liability; anyone doing business with a corporation knows that the “Inc” or “Corp” or whatever it is means that they only have claim to the company’s assets — asset’s under the control of the corporation — and not to any of the assets of the shareholders (that is, shareholders cannot lose more than their initial value invested). I don’t see why the same doesn’t apply to copyright.”

  Because in the corporate context the second party’s awareness of the corporation’s status is relevant in answering what he *consented to* when dealing with the corporation. This argument does not presuppose that info is a rivalrous resource.

  Published: August 8, 2006 1:23 PM

• David J. Heinrich

  Stephan,

  “the point is: stick to substance. Drop the hypocrite talk unless you can tie it to some *substantive* point.”

  I think Person’s point is that making profit off of copyrighted books is wrong. I think this is an incorrect argument. When directed as a charge of hypocrisy against you, it isn’t substantitive; however, when generalized (as I have stated it), it seems to be a relevant issue.

  “And actually, they don’t copyright the book. The copyight is automatic. You have a copyright in your message to me you just wrote. I write a book. A publisher prints it and sells copies to customers. They pay; the publisher pays me. Everyone is happy. No one is coerced. Who is being harmed? Some pirate publisher down the road who “coudl” publish a pirate copy if there were no copyright law? But it’s not our fault there are copyight law. And do we have some affirmative duty to “get rid of” a right the law bestows on us, even though it’s very difficult and costly to do it? It’s just ridiculous, this whole infantile idea.”

  I agree with this in it’s entirety. And thanks for the legal correction. We certainly don’t have any affirmative duty to “get rid of” our copyrights — irrelevant of the expense — because such would violate the non-aggression axiom (all positive duties not voluntarily accepted violate the NAA).

  “at most, this [placing a copyright notice on every page] gets you the right-to-reproduce. But this is only one part of the copyright bundle. For example how would you get the derivative right? No way. And without this, copryright is much less valuable.”

  That’s a good point. However, I’m not sure why you couldn’t just say, in addition to “copyrighted” also that you have the right to make sequels (or 2nd, 3rd, etc editions) that could be reasonably considered “derivatives”.

  Moreover, again, even if you could imply an agreement between the third party and the author, by virtue of the third party’s holding the page or seeing the notice, suppose the third party goes ahead and reprints it on the internet (sans notice). How are FOURTH parties supposed to be bound?

  They most certainly wouldn’t be in that case. However, the person putting it online would be. At the very least, this measure is a measure that would make it more likely that the person viewing the book would be aware of, and hence consented to, the copyright / derivative-right notice.

  Finally, this argument presupposes that information is property. I deal with this at length elsewhere.

  I don’t see why you have to think information is property to have this argument. There’s no reason why you can’t sell something — e.g., a book — with only certain use-rights.

  I think that two consenting parties can make whatever kind of contract they want to — so-long as it doesn’t violate the rights of anyone else — and that performance of that contract can be enforced. I know that you disagree with this position (e.g., your argument against life-long servitude contracts), but I accept Block’s argument that you can, indeed, sell yourself into slavery. This is just a specific instance of enforcing performance.

  It seems to me, then, that if you think it is legitimate to enforce performance of a contract, then you can legitimately contractually create something resembling (although not as powerful as) what we today know as “copyright”. If you don’t think it is legitimate to enforce performance, then such is not possible.

  Published: August 8, 2006 1:58 PM

• Stephan Kinsella

  Heinrich maneuver:

  >I think Person’s point is that making profit off of copyrighted books is wrong.

  Actually I don’t think so. I think he is in favor of IP. Maybe he think’s it’s wrong for ME to make profit since I oppose IP–but this is also wrong.

  >I think this is an incorrect argument. When directed as a charge of hypocrisy against you, it isn’t substantitive; however, when generalized (as I have stated it), it seems to be a relevant issue.

  Yes; but he is not against IP. He is against me being against IP.

  “That’s a good point. However, I’m not sure why you couldn’t just say, in addition to “copyrighted” also that you have the right to make sequels (or 2nd, 3rd, etc editions) that could be reasonably considered “derivatives”.”

  Because you are trying to bind third parties to some complex agreement, and this requires an actual agreement, not just a stamp on a book page.

  >They most certainly wouldn’t be in that case. However, the person putting it online would be.

  But if you agree with me here, then you have lost. Once you find some third parties who are free to disregard the copyright, the copyright is gone.

  > At the very least, this measure is a measure that would make it more likely that the person viewing the book would be aware of, and hence consented to, the copyright / derivative-right notice.

  I disagree anyway with the use of notice to bind third parties. Even if I find a book on a park bench that was set down by its purchaser, i am not bound by a notice. Suppose you walk around town with a large sign on your head: “Notice: I reserve the right to remember what color shirt I’m wearing.” Why does that notice “bind” third parties who see you?

  “I don’t see why you have to think information is property to have this argument. There’s no reason why you can’t sell something — e.g., a book — with only certain use-rights.”

  I disagree. You can have co-ownership of a book with someone. Sure. And that can limit the purchaser’s right to do things with it. But it does not imply that this private arrangement afects third parties. It’s very similar to the way trade secrets work. A and B agree that B will not divulge any of A’s secrets. If he does so, he can be sued for damage. Suppose one of Coca-Cola’s employees publishes the formula for coke tomorrow on the internet. Yes Coke can sue him. But can they stop other cola companies from using this recipe now? No.

  The only way to justfiy stopping people from using this info is to say the info is property owned by coke.

  >I think that two consenting parties can make whatever kind of contract they want to — so-long as it doesn’t violate the rights of anyone else — and that performance of that contract can be enforced. I know that you disagree with this position (e.g., your argument against life-long servitude contracts), but I accept Block’s argument that you can, indeed, sell yourself into slavery.

  Yes, but even if you can, it does not affect third parties who become aware of the information–wehther it be a trade secret, a word-pattern (book), or recipe or machiene design (patent-invention).

  > This is just a specific instance of enforcing performance.

  No. To have patent and copyright you have to have specific performance of third parties. Not just of the parties to the contract.

  >It seems to me, then, that if you think it is legitimate to enforce performance of a contract, then you can legitimately contractually create something resembling (although not as powerful as) what we today know as “copyright”.

  I realy doubt it.

  Published: August 8, 2006 2:19 PM

• Manuel Lora

  “Suppose you walk around town with a large sign on your head: “Notice: I reserve the right to remember what color shirt I’m wearing.” Why does that notice “bind” third parties who see you?”

  This is a good point that has recently come under fire when it comes to software agreements that supposedly bind you. The problem, in my view, is that the agreement comes after you purchase the product and have opened it and are about to install it. Normally this is not a problem with ordinary products like furtinure or electronics, but stores (most likely due to government and software company pressure) will not allow you to return software that has been opened, even if you tell them that you didn’t agree to the EULA since it was impossible for you to see what it was.

  You HAVE TO open the box and start installing before you agree. Granted, I guess you could go to a web page and read it, but then you’d have to have that option before you buy it (at the store, etc). That doesn’t seem to be happening.

  Published: August 8, 2006 2:40 PM

• David J. Heinrich

  Stephan,

  LOL @ “Heinrich maneuver”.

  It seems our disagreement is over two things: (1) Enforcing performance of a contract; (2) Implicit contract.

  A corporation’s “Inc” symbol implies an implicit contract, that anyone doing business with them only has claim to the assets of the corporation. Property owners can post signs on their property specifying acceptable behaviour. Why can’t someone do the same for books that they sell to others, with a copyright notice on every page? On Halloween, can we not leave a bowl of candy outside our houses, and write a sign saying, “only 1 [or 2] candy-bars per tricker-treater”? At the Mises Unviersity, for their copier machines, they have a sign requesting 5 cents per copy, with a cup next to the copier machine — isn’t this legitimate? (Sure, enforcement is on the honour system, but that has little to do with whether or not the contract is valid). So, why not the same for physical books? Books are, after all, physical things that are undoubtedly property. The person just walking by in the park, after all, has no right to open up a book to begin with — it’s someone’s private property!

  I think that implicit, or one-party stated contracts for use of a physical resource, are perfectly valid. No-one has to open up a book they find in the park or in someone’s house. If they do, I think written indications within the book can place limits on what they can do subsequently. This is different from me walking down the street, yelling, “Anyone listening to my talk has to give me $5,” because people can’t avoid listening to my talk. Likewise, it is different from me going up to someone’s house and re-painting it, then demanding payment (because, as repainting it, I stated my payment terms). I do not think the kind of contract I suggest puts the onus on the accepting party to affirmatively reject the contract, in the same way that the prior examples do.

  However, even if you don’t think putting a notice at the bottom of every book-page will do it, there seem to be other ways to accomplish the same thing. Firstly, let’s recognize that hardly no-one has to worry about anyone typing up their book and putting it online. This is not a practical concern. Concerns include using a photo-copier, or scanning the book into a computer and then having some software translate it. It seems to me that such could be prevented by agreement with the producers of photocopiers, document-scanning devices, and document-scanning (and OCR) software. Furthermore, I think that contractual terms with defense agencies could also take care of this.

  PS: Also note, I’m arguing for something that is somewhat weaker than “copyright” as we know it today. Absent agreements with protection agencies — whereby those who accept their terms are also bound — you couldn’t enforce performance on 3rd parties who didn’t agree to the contract.

  Published: August 8, 2006 3:51 PM

• nskinsella

  David,

  “It seems our disagreement is over two things: (1) Enforcing performance of a contract; (2) Implicit contract.”

  Well. I will accept arguend the right to compel performance; and I grant that there can be implicit agreements.

  >A corporation’s “Inc” symbol implies an implicit contract, that anyone doing business with them only has claim to the assets of the corporation.

  Well, I would say, that the use of “inc” makes it clear what the parties consented to. It is a contexual clue. It makes it clear that the lender (say) knew that he had security and recourse only to the corporation’s assets, not those of the shareholders. So there is simply no (conditional) title transfer from shareholder-to-lender. The “Inc” is just one way of making this clear.

  > Property owners can post signs on their property specifying acceptable behaviour.

  And this is a slightly different matter. The owner of property has a right to decide who uses it. He can keep people out, or let them use it, or let them use it for limited times for limited purposes. The sign helps make it clear what consent (permission) he is extending.

  Notice: in both cases, the person “bound” by the notice or sign, is bound *because they enter a contract* with the other person. The property-owner has a right to refuse to deal with the second party; he witholds this consent until and unless teh second party agrees to certain terms.

  >Why can’t someone do the same for books that they sell to others, with a copyright notice on every page? On Halloween, can we not leave a bowl of candy outside our houses, and write a sign saying, “only 1 [or 2] candy-bars per tricker-treater”?

  Well, let’s be clear about this. Halloween: you can. It is your property. You are giving people implicit and limited permission (license) to enter your property, and to take candy. You are permitting them to take only part of your candy not all of it. If they take more than this, they are stealing.

  But this does not apply to a notice on a page. It only works if the ideas on teh page are property. That is why I keep saying IP even by contract presupposes the ideas are property. If some book purchaser posts his copy on the internet, or leaves it on a park bench, I don’t *need anyone’s permission* to read it! It’s just lying there, as if it’s abandoned. The reason conditions above work is they are a condition of giving you something you don’t already have. In this case, the book-finder does not need any permission.

  > At the Mises Unviersity, for their copier machines, they have a sign requesting 5 cents per copy, with a cup next to the copier machine — isn’t this legitimate?

  Yes. It’s conditioning use of the copier in a certain way. But Mises I. alreayd owns the copyier, and has a right to prevent you from using it.

  Even many attorneys don’t realize this but the entire concept of license (permission) *depends on the licensor having the right to exclude*. The concept of a license *means that* you are *granting permission* to someone to do something they otherwise would not have the ability or right to do.

  Likewise, you cannot say that the notice on teh page of a book binds the finder, unless you first say that the book owner *has a right to deny you the right to copy the information* or read the book–whcih is question begging. If I see a book on teh ground, for all i know it may be lost or abandoned. No one has a right to stop me from picking it up, or reading it. Since they don’t, they can’t condition my reading it on agreeing to certain conditions.

  I suppose you could argue that it would be common knowlege that book publishers retain ownership of books and do not consent to anyone (even a stranger finding it) reading it UNLESS he aggrees to copyright-like-terms first. But the problem with this is several. First, it’s way too much a stretch. And second, many books do not have a copyright (the author would not care). How could I find out, without first reading it; by then, I hve the idea, before I agreed to any terms. Third, even if you could bind the third party finder of the book, this only works *because the physical book is owned* by the publisher still; but *not the information*. So if someone does publish the WRODS in a new book, or on the Internet, then fourth parties reading this cannot at all ever be bound, unless you say the property right is *in the information*. Which is wrong, and questionbegging.

  >So, why not the same for physical books? Books are, after all, physical things that are undoubtedly property. The person just walking by in the park, after all, has no right to open up a book to begin with — it’s someone’s private property!

  How do you know? Maybe it’s abandoned. Maybe it’s left there by a proselytizer. Maybe the author is seeding them like those Christian comics on your windshield. Or maybe the owner would not mind if you browsed it, much like people sometiems borrow each others’ newspapers?

  >I think that implicit, or one-party stated contracts for use of a physical resource, are perfectly valid.

  Only, in this case, if you say that my opening and viewing a lost book is *necessarily* trespass. But it is not. Books are not special; they are just objects. Are you saying that if things are lost or abandoned, no one else ever has the right to use them?

  >No-one has to open up a book they find in the park or in someone’s house. If they do, I think written indications within the book can place limits on what they can do subsequently.

  Perhaps. Even if so, however, as i said, “fourth parties” who merely see *the information* are not bound.

  >This is different from me walking down the street, yelling, “Anyone listening to my talk has to give me $5,” because people can’t avoid listening to my talk.

  Can anoyone today avoid knowing who Mickey Mouse is, or Superman, or the plot of Star Wars, or Romeo and Juliet? This is common konwledge. Yet people are restricted from acing on this knowledge by copyight law.

  >Concerns include using a photo-copier, or scanning the book into a computer and then having some software translate it. It seems to me that such could be prevented by agreement with the producers of photocopiers, document-scanning devices, and document-scanning (and OCR) software. Furthermore, I think that contractual terms with defense agencies could also take care of this.

  Maybe. But once it leaks out, like a trade secret, it’s destroyed. Even if it was leaked in violation of rights.

  >PS: Also note, I’m arguing for something that is somewhat weaker than “copyright” as we know it today.

  I bleieve that what you are arguing for, really, is nothing more than trade secret law. And that this cannot be used to generate a simalacrum of copyright.

  Published: August 8, 2006 4:17 PM

• Curt Howland

  Radical Sceptic, I just looked up Escape From Leviathan. $80? Ouch! Not that I expect my local library is going to have a copy, but that’s the only way I’m going to read it.

  That’s with a 20% discount on Amazon, too. Maybe there’s a used copy on abebooks…

   

  Published: August 11, 2006 2:28 PM

• M E Hoffer

  CH,

  There’s an eBay seller offering the book for U$D 25 +S&H

  http://cgi.ebay.com/Escape-from-Leviathan-by-J-C-Lester-2000_W0QQitemZ250005999374QQihZ015QQcategoryZ378QQcmdZViewItem

  http://www.google.com/search?q=%22Escape+from+Leviathan%22&hl=en&lr=&start=10&sa=N

  Published: August 11, 2006 10:02 PM

• Cy

  Fe Fi FOE Comes (novel) by William C. Samples

  nom on www.goodreads.com for Libertarian Fiction, Best ScFi, Best Book

  sales at Amazon other book stores

  Published: January 19, 2009 12:37 AM

1. Money Prices Not a Measure of Value; Richard Epstein’s Takings Theory of the State; KOL237 | Intellectual Nonsense: Fallacious Arguments for IP—Part 2 (Libertopia 2012); Against Intellectual Property After Twenty Years: Looking Back and Looking Forward, n.35. [↩]

see C.P. Snow’s “The Two Cultures” and Misesian Dualism

I hate it when I send someone an email with attached files, and they send the same ones back to me when they reply. I understand some email systems, like Lotus Notes, often have default settings that for some reason attach files when when you reply–why, I have no idea, as there is almost never a reason to do this. It is so annoying.

Related:

• Stephan Kinsella, Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023)
• Kinsella et al., The Universal Principles of Liberty (Aug. 14, 2025)

I was a libertarian anarchist decades before I ever heard of Stephan Kinsella. But still, you helped to clarify the principles in my mind. I regard you as the clearest, most consistent, and best proponent and explainer of libertarianism.

— Jim (@JimeeLiberty) August 21, 2025

From the Mises Blog, July 31, 2006

Archive comments below

Hoppe and Intellectual Property: On Standing on the Shoulders of Giants

TAGS Monopoly and CompetitionPhilosophy and Methodology

Archive comments:

Comments (14)

• Geoffrey Allan Plauche
• My major problem with Hoppe’s argumentation ethics is that, unlike the Rothbard passage cited in the beginning of the post above, it operates on a sort of Kantian realist philosophical foundation and without a broader moral framework while attempting to provide the entire backbone of a political theory. Rothbard’s account of discussion and life takes place within the context of a broader ethical framework, namely a teleological and neo-Aristotelian/Thomist one. The philosophical foundations matter. I think Hoppe’s argumentation ethics may have some merit, but only if fitted within a neo-Aristotelian philosophy and ethical and political theory.

• Published: July 31, 2006 8:29 AM

• Geoffrey Allan Plauche
• Notice, also, that Objectivists can make a similar performative contradiction argument. (I can’t recall if Rand does explicitly, although she probably argued something like this at some point.) The fundamental alternative for man is the choice between life and death. Once you’ve chosen life, and the fact that your still alive and acting to further your life demonstrates that you’ve so chosen, then you are obligated to live your life according to Objectivism. To do otherwise is a performative contradiction. This is because a human life is one that is rational and Objectivist ethics is the most rational of ethics and most conducive toward living a human life.(Not that I endorse such an Objectivist argument, by the way; I disagree with the Objectivists who think that the choice to live is pre-moral.)

• Published: July 31, 2006 9:17 AM

• Stephan Kinsella
• Plauche:Your critique that Hoppe’s argument “operates” on the wrong “foundation” and does not have the proper, broad “moral framework” just seems too vague, general, and loosey-goosey to respond to. All I gather from this is, “I like Rothbard better than Hoppe.”Re Objectivism: Um, sure:
  

  “[A]s Rand maintains, all ‘oughts’ are hypothetical, based on valuing one’s life ….”The point is not that one has to be alive in order to act to achieve anything. The point is that being pro-life is what makes end states qualify as values. Only choosing to hold one’s life as a value gives one the stake in one’s actions that is required for the whole issue of evaluation to arise ….

  Contrary to biological determinism, one does not have to pursue any goals or proclaim anything to be of value. But contrary to subjectivism, if one does, the action or proclamation logically depends on implicitly accepting one’s life as one’s ultimate value….

  The issue of justifying choices arises only in the context of having already chosen to live. The choice to live is not extra-moral, but pre-moral; it is a precondition of all moral evaluation.

   

   

   

  Harry Binswanger, Life-Based Teleology and the Foundations of Ethics, The Monist 84, 99-100 (1992). As Ayn Rand states:

  Life or death is man’s only fundamental alternative. To live is his basic act of choice. If he chooses to live, a rational ethics will tell him what principles of action are required to implement his choice. If he does not choose to live, nature will take its course.

  Ayn Rand, Causality Versus Duty, in Philosophy: Who Needs It 95, 99 (Signet 1984).

  See also the Wikipedia entry on Objectivism:

  Central to Objectivist ethics is the concept of “value.” Rand defines value as “that which one acts to gain and/or keep.” At the most fundamental level, the pursuit of values arises out of need; specifically, the need to determine what an individual should pursue in order to maintain his life if he so chooses to live. Rand does not hold that values are “intrinsic” — that there are values an individual must pursue regardless of his wishes. And, she does not hold that they are “subjective” — that there are values that should be pursued because an individual says they should be pursued. Rather, she believes that values are “objective.” By this she means that there are values that should be pursued if one chooses to value his life. For example, food would be an objective value; in other words, it would be “objectively” true that food is required for survival. For Rand, all moral imperatives are hypothetical. There are no “categorical imperatives” as in Kantianism which an individual must perform regardless of his desires. In Objectivism, imperatives are conditioned on an individual choosing to value his life. They do not exist for an individual unless he makes this choice. Rand says, morality is a “code of values accepted by choice.” According to Leonard Peikoff, Rand holds that “man needs [morality] for one reason only: he needs it in order to survive. Moral laws, in this view, are principles that define how to nourish and sustain human life; they are no more than this and no less.”[12] Objectivism does not say there is moral requirement to choose to value life. As Allan Gotthelf points out, for Rand, “Morality rests on a fundamental, pre-moral choice.”[13]

   

• Published: July 31, 2006 9:48 AM

• Paul Edwards
• “All I gather from this is, “I like Rothbard better than Hoppe.””And on the question of Hoppe’s thesis, even Rothbard liked Hoppe better than Rothbard.Funny that.

• Published: July 31, 2006 11:44 AM

• Person
• Stephan, if I post in this thread, will you delete all of my posts in this thread once I back you into a corner and/or follow your posting style? I just want to make sure I’m not wasting my time first. Thanks.

• Published: July 31, 2006 12:29 PM

• Stephan Kinsella
• Person, just keep it intelligent and civil; on point, and serious. If you veer from these standards I’ll delete you. If you don’t, I wont. ‘kay?BTW: since you believe in IP–I hereby claim a logoright in my “posting style”, and forbid you to “use” it. Use your own posting style, please.

• Published: July 31, 2006 12:42 PM

• quasibill
• Question from someone who admittedly hasn’t read the source material thoroughly, so a mere reference to where the answer can be found is all that I require:How does Hoppe (or Kinsella, or whoever supports the argumentation ethics) respond to the likely Georgist (or even strict Lockean) extension of the theory? Specifically, how can you draw the line prior to the space (and therefore the ground) you occupy, at least to the extent that you must, somewhere, have that space, in order for the doctrine to be universally applicable?

• Published: July 31, 2006 1:14 PM

• Curt Howland
• Wow. And all I want is an ice-cream cone. Guess we all have to start somewhere.

• Published: July 31, 2006 2:25 PM

• Paul Edwards
• quasibill,Do you mind re-phrasing that question?

• Published: July 31, 2006 2:55 PM

• quasibill
• Paul,I don’t mind re-phrasing it, I’m just not sure I can 🙂 My problem is, as I noted, little familiarity with the source material. Furthermore, I’m asking a question from a perspective I don’t necessarily share. However, it seems to me that if you posit that you require self-ownership to engage in an honest debate (if you’ll permit that admittedly not totally accurate paraphrase), you also, by current limitations, require ownership of a given space on planet earth – at least somewhere. In other words, you require the existence of some place that you can exist where you are allowed to make your argument. If all habitable (in the most basic sense of surviving outside of several hours) land on Earth is currently owned, and in a hypo, all owners claim that you cannot advocate the right to bear arms on their property, is there a contradiction under Hoppe’s theory for the person who has just attained majority and owns no property?I’m not sure if I’ve even asked the question properly this way, but it’s at least a start. The fundamental question I’m trying to get at involves the Georgist or strict Lockean concern over real property.

• Published: July 31, 2006 3:10 PM

• Stephan Kinsella
• Quasibill, have you seen my elaboration on Hoppe in my Defending Argumentation Ethics? It’s available at www.stephankinsella.com/publications.

• Published: July 31, 2006 4:56 PM

• Paul Edwards
• Quasibill,“I don’t mind re-phrasing it, I’m just not sure I can 🙂 My problem is, as I noted, little familiarity with the source material. Furthermore, I’m asking a question from a perspective I don’t necessarily share.�?That’s cool, i get you. And I think you’ll find it a very worth-while thing to investigate at some point. I found it to be pretty mind bending to work it all through and took me several iterations to get it well enough so I felt I could comfortably argue it.“However, it seems to me that if you posit that you require self-ownership to engage in an honest debate (if you’ll permit that admittedly not totally accurate paraphrase),�?

  Or more precisely that from a praxeological analysis of the act of argumentation, i.e. the purpose of argumentation, to truly debate, one presupposes both listener and proposition maker are self-owners.

  “you also, by current limitations, require ownership of a given space on planet earth – at least somewhere. In other words, you require the existence of some place that you can exist where you are allowed to make your argument.�?

  You presuppose this right to stand and right to exclusive control over your body (right to yourself) while in the act of argumentation. “Presuppose�? is the key word. The word cannot be over emphasized and in fact, to me it seems, so much confusion over Hoppe’s thesis arises from overlooking the importance of the term. What it means is that regardless of one’s true circumstances, whether one is about to be murdered for stating the wrong premise, the wrong reasoning or wrong conclusion from the listener’s perspective, as one makes this argument that may ultimately end his life, one necessarily and regardless, still presupposes that while he makes the argument, he has a right to his body, his standing space, and his survival. It follows not from observing true empirical circumstances, but rather from what it necessarily implies to truly perform the human act of argumentation. Its praxeologically deduced.

  “If all habitable (in the most basic sense of surviving outside of several hours) land on Earth is currently owned, and in a hypo, all owners claim that you cannot advocate the right to bear arms on their property, is there a contradiction under Hoppe’s theory for the person who has just attained majority and owns no property?

  “I’m not sure if I’ve even asked the question properly this way, but it’s at least a start. The fundamental question I’m trying to get at involves the Georgist or strict Lockean concern over real property.�?

  Instead of taking my swing at it, I’ll just cut and paste Hoppe’s answer to what seems to me to be a similar question at http://www.hanshoppe.com/publications/econ-ethics-appx.pdf titled “FOUR CRITICAL REPLIES�?.

  “…What about newcomers in this situation, who own nothing but their physical bodies?
  Cannot the homesteaders restrict access to their property for these newcomers and would this not be intolerable? I fail to see why. (Empirically, of course, the problem does not exist: if it were not for governments’ restricting access to unowned land, there would still be plenty of empty land around!) These newcomers come into existence somewhere – normally one would think as children born to parents who are owners or renters of land (if they came from Mars, and no one wanted them here, so what?; they assumed a risk in coming, and if they now have to return, tough luck!). If the parents do not provide for the newcomers, they are free to search the world over for employers, sellers, or charitable contributors – and a society ruled by the homesteading ethic would be, as Conway admits, the most prosperous one possible! If they still could not find anyone willing to employ, support, or trade with them, why not ask “What’s wrong with them?” instead of Conway’s feeling sorry for them? Apparently they must be intolerably unpleasant fellows and had better shape up, or they deserve no other treatment. Such, in fact, would be my own intuitive reaction.�?

  Does that answer address the essence of your question?

• Published: July 31, 2006 5:19 PM

• quasibill
• Stephan,I’ve seen it, but, as yet, I haven’t had a chance to sit down and really give it the time required for a meaningful read. It’s on my list. I was just hoping to “shortcut” to the one issue that seems to jump out at me. Alas, it appears that I’ll have to do it the old fashioned way!Paul,That quote from Hoppe, while informative, doesn’t really address my issue. I’m going to have to do some more reading, apparently, before I can make sense of the fundamental uneasiness I’m feeling right now.

  My last crack before deciding to just do it the right way and RTFAs is this:

  Does Hoppe claim that his ethic extends to ownership beyond the arguer’s body? If so, how are the lines drawn? I have no problem with the theory as far as self-ownership is concerned. However, I think that moving beyond self-ownership into ownership of other objects brings another value into play, whereupon the possibility of a conflict (in theory, if not in actual practice) arises – I agree that the land monopoly I posit is highly unlikely to arise in reality. However, it is possible, in which case self-ownership conflicts fundamentally with land ownership, and the “proper” resolution of the conflict depends on a balancing test, and not deductive reasoning. And as a result, the extension beyond self-ownership can’t be universally true, as it wouldn’t be true in a possible (though unlikely, I agree with Hoppe’s quote) circumstance.

  Like I said, no need to reply if I haven’t made myself any clearer – I need to read the source material anyway.

• Published: August 1, 2006 7:48 AM

• Stephan Kinsella
• Quasibill, here is an excerpt from my paper summarizing HHH’s argument:
  

  The universalization principle filters out many possible norms, but many possible, mutually incompatible, and nonlibertarian candidates remain (“anyone who drinks alcohol will be punished”).

   

  “However, there are other positive norms implied in argumentation aside from the universalization principle. In order to recognize them, it is only necessary to call three interrelated facts to attention. First, that argumentation is not only a cognitive but also a practical affair. Second, that argumentation, as a form of action, implies the use of the scarce resource of one’s body. And third, that argumentation is a conflict-free way of interacting.” (TSC, p. 132; emphasis added)

  Participants in discourse cannot deny the existence of scarcity (discourse is a form of action, after all, and action implies scarce resources, in one’s body and in external objects) nor the possibility of conflict over these scarce resources. They also value the ability to participate in argument (they are engaging in it, after all) and thus its practical preconditions, namely the ability to actually use scarce resources in order to survive (for argumentation is not possible without survival). And because argumentation/discourse is cooperative, civilized, peaceful activity, and because “justifying means justifying without having to rely on coercion” (TSC, p. 133), participants in discourse necessarily value being able to use scarce resources in a conflict-free way. One adopting a civilized, peaceful stance and trying to justify a norm cannot coherently advocate non-peaceful norms. In fact, the very attempt to justify a resource allocation norm is an attempt to settle conflicts with regard to the use of that resource. Thus, a participant in discourse could never justify the proposition that there is no value to being able to use resources, or that conflict should not be avoided, or that cooperation and peacefulness are bad things. Valuing the avoidance of conflicts also presupposes the value of attempting to find rules that make conflict avoidance possible. I.e., property rules.

  Accordingly, participants in discourse, in particular those seeking to justify proposed norms, implicitly recognize the value and legitimacy of assigning specified property owners to specified scarce resources – for reasons that are universalizable and that make conflict-avoidance possible. However, property rights make conflict avoidance possible by establishing perceivable boundaries to property indicating the property’s borders and who the owner is, and by basing the assignment on universalizable rules that could be accepted as fair by all potential arguers. For this reason, the assignment of property rights has to be based on some objective link between the claimant and a particular resource.

  What all this means is that anyone ever attempting to (argumentatively) justify any norm is already presupposing a host of norms and argumentative rules. The substantive presupposed norms rule out many proposed norms, even if they are universalizable. For example, a rule such as “no one should ever be able to use any scarce resource” could never be justified. It is incompatible with the speaker’s evident value for the ability to use scarce resources, because he has to use (and be able to use) the scarce resource of his body in order to engage in any activity, including argumentation. And he, or someone, had to be able to use other scarce resources such as food, shelter, etc., so that the arguers are alive and able to argue (remember, discourse is a practical affair, and requires the speakers to be alive, to have control of their bodies and their standing room, etc.).

  In addition, a rule specifying that all resources, or even some resources, should have no owner at all, simply does not allocate ownership in the scarce resources at issue, i.e. it does not fulfill its function of conflict-avoidance. Unless property rights are allocated to someone, conflict over each scarce resource is possible; that is the nature of scarcity. (As a practical matter, most such rules also imply that, if a given resource should not be “owned,” then some person or agency is authorized to prevent others from using the thing. In which case the rule is in reality assigning ownership to the agency with control, and would need to be justified. For example, the public forests are said to be “unowned” but the federal government prevents homesteaders from moving in. Clearly here the federal government is asserting ownership. The necessity of justifying this cannot be avoided by the fiction that the property is not owned.)

  There is no way any norm can be justified that does not seek to assign ownership of every scarce resource to particular owners, based on an objective link between the owner and the owned resource. No rule could ever be justified if it refrains from deciding who owns a particular resource, or if it specifies that no one owns a resource. And any justification offered has to be universalizable. The reasons for all these requirements should be clear by now.

  Universalizability has been discussed. Particular owners must be assigned to each and every scarce resource – this is what any theory of property – any ethic – has to do. There must be an objective link between the owner and the resource, so that conflicts can be avoided, and also to comply with universalizability. “Every” scarce resource must be owned by someone, for conflict-avoidance and other reasons given above.

  To this point the case is fairly general, and only establishes the framework for examining various competing norms. The libertarian insistence on objective links between resources and owners, and its particular view of what constitutes such objective links, is what completes the case.

  Then, the following section in the paper shows “that libertarianism is the only theory of rights that satisfies the presuppositions of discourse, because only it advocates assigning ownership by means of objective links between the owner and the property. This link, of course, is first use, or original appropriation. Only the norm assigning ownership in a thing to its first user, or his transferee in title, could fulfill this requirement, or the other presuppositions of argumentation.”

   

   

   

   

   

   

   

• Published: August 1, 2006 8:01 AM

[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:

1. Why fraud is aggressoin
2. Why threats are aggression
3. 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).)

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?

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

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.

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

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.

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.