International Law, Libertarian Principles, and the Russia-Ukraine War

[Update: See also Murray Rothbard, “Just War,” in John Denson, ed., The Costs of War:

Much of “classical international law” theory, developed by the Catholic Scholastics, notably the 16th-century Spanish Scholastics such as Vitoria and Suarez, and then the Dutch Protestant Scholastic Grotius and by 18th- and 19th-century jurists, was an explanation of the criteria for a just war. For war, as a grave act of killing, needs to be justified.

… Classical international law … should be brought back as quickly as possible.

And see:

• KOL250 | International Law Through a Libertarian Lens (PFS 2018)
• On the UN, the Birchers, and International Law
• Neocons Hate International Law
• The UN, International Law, and Nuclear Weapons
• Nukes and International Law
• Related discussion in my Facebook post; also this Facebook post
• This Twitter interchange

Update: in this tweet, I respond to Elon Musk’s promoted tweet where Jeffrey “Sachs” explians “How the US Provoked the Invasion of Ukraine.”

From my tweet:

“This is not how international law works. There was no binding international obligation at all from these “promises.” Russia and other states are akin to “sophisticated parties” in large business deals; there are rules for what constitutes a binding treaty under pacta sunt servanda, for what gives rise to an actual binding legal obligation under international law. For example, like Russia’s agreeing to Ukraine’s borders after the USSR fell, and like the USSR’s accession to the UN Charter which makes it illegal to invade another sovereign state. See my article “International Law, Libertarian Principles, and the Russia-Ukraine War” https://stephankinsella.com/2022/04/international-law-libertarian-principles-and-the-russia-ukraine-war/…. Expanding NATO is not a threat to Russia. Even if they pretend to perceive it that way, which I doubt they actually do. They are mostly upset at being treated like the thuggish threat they are and having their expansionist and imperialist ambitions thwarted. That said, am not saying NATO should have expanded and provoked thuggish, irrational Russia; I think NATO should have been disbanded. But let’s not pretend Russia has a valid excuse here. Still, a reasonable solution ought to be reached by negotiation. The US should stand ready to remove all financial support for Ukraine, agree to take Ukraine membership in NATO off the table for X years, get Russia to agree to a neutral zone for the contested territories, agree not to put NATO missiles etc. inside Ukraine, have Russia agree to Ukraine’s attempt to join the EU, and revive the old cooperation between Russia and NATO to reduce tensions (https://en.wikipedia.org/wiki/Euro-Atlantic_Partnership_Council…). The US and its allies could also agree to ease various sanctions on Russia. This could be a win-win for everyone including the mixed populations in Crimea etc.“

Back in 2019 one Mario Demolidor asked me to field some questions. I replied to one of them at length. It was:

1) People often dislike libertarianism because they do not see how a fully contracted private justice system can work. So, I ask, how can we deal in a libertarian society with criminals or suspects who deny justice and make no contracts to elect a judge? How to get them to trial?

I have just been made aware that he later published an edited and rearranged version of my responses at Stateless Justice | By: Stephan Kinsella (March 10, 2020). I reprint his article below in case his is ever lost (this happens all the time), and append after it my original emailed response to him (unedited) for completeness and in case there are any errors or omissions from his version (I have not checked). [continue reading…]

Bob “Werewolf” Wenzel

This libertarian movement of ours has its fair share of drama, crazy stories, eccentric personalities, losers, weirdos, and so on. I’ve been involved since the late 80s, ¹ so have seen my fair share of this bullshit.

I just heard Murray Sabrin, on a fairly recent episode of the Tom Woods podcast (ep. 1988), speak positively about the late Bob Wenzel of “Economic Policy Journal” (sic, as it wasn’t a “journal”; it was just a clickbaity blog) as being the rare person who could give financial and investment advice from an Austrian perspective.

Robert “Bob” Wenzel, Raymond Nize, or whatever his real name was

(You’ll note I said “late.” Bob, or whatever his real name was, allegedly died last year. See David Gordon, “Robert Wenzel, RIP” (May 27, 2021); Robert Wenzel – 1957 to 2021; Taylor Lewis, “Rest in Peace, Robert Wenzel” (June 12, 2021); Walter Block, “Bob Wenzel, RIP” (June 1, 2021); Daniel McAdams, “Robert Wenzel, RIP” (May 26, 2021). I say “allegedly” and express skepticism that Bob Wenzel was his real name for reasons that will become apparent below.)

[continue reading…]

1. See How I Became A Libertarian, December 18, 2002, LewRockwell.com [in I Chose Liberty: Autobiographies of Contemporary Libertarians (compiled by Walter Block; Mises Institute 2010)]. Supplementary material:  “Faculty Spotlight Interview: Stephan Kinsella,” Mises Economics Blog (Feb. 11, 2011) [archived]. [↩]

Interesting discussion re a new book from Billy Christmas, whom I also published in Libertarian Papers: “The Possibility of Thick Libertarianism” (2016), the abstract of which is:

“Abstract: The scope of libertarian law is normally limited to the application of the non-aggression principle (NAP), nothing more and nothing less. However, judging when the NAP has been violated requires not only a conception of praxeological notions such as aggression, but also interpretive understanding of what synthetic events count as the relevant praxeological types. Interpretive understanding—or verstehen—can be extremely heterogeneous between agents. The particular verständnis taken by a judge has considerable moral and political implications. Since selecting a verständnis is pre-requisite to applying the NAP, the NAP itself cannot tell us which one we ought morally to choose. Therefore the application of the NAP calls on moral and political considerations outside of the NAP itself. Since some of these are more consistent with an endorsement of the NAP than others, libertarianism is not a “thin” commitment to the NAP alone, but a “thick” commitment to the NAP and other supporting moral and political considerations.”

[continue reading…]

In a recent tweet, I said:

I’m continually puzzled at the hatred some lowbrow libertarians have for the UN and international law. Did they miss the “we are not Birchers” memo?

[Update: See also Murray Rothbard, “Just War,” in John Denson, ed., The Costs of War: “Classical international law … should be brought back as quickly as possible.” See also:

• KOL250 | International Law Through a Libertarian Lens (PFS 2018)
• International Law, Libertarian Principles, and the Russia-Ukraine War
• Expropriation, Inalienability, and International Law: The Illusory Requirements of Nondiscrimination and Public Purpose
• Neocons Hate International Law
• The UN, International Law, and Nuclear Weapons
• Nukes and International Law]

I got the expected flack. Including a private comment from a friend I respect who said, in essence:

There is nothing good about the UN and nothing bad about the Birchers. The UN is funded by fiat inflation and tax dollars. It’s not a voluntary organization. It’s built on theft. How can a libertarian find that anything but criminal?

[continue reading…]

[From my Webnote series]

• On the Danger of Metaphors in Scientific Discourse

From Facebook:

LIBERTARIAN ANSWER MAN TIME

Smart Contracts discussion with a libertarian friend, B:

KINSELLA:

… it’s not smart, and it’s not a contract. It’s just code as far as i can tell. You ever coded? It’s just a bunch of defined if-then instructions. [continue reading…]

I’ve assembled a Youtube Playlist: Anarcho-libertarian Austrian Hoppe Kinsella Music, including some combos such as Anarcho-Hoppean Synth Mix (mp3; nskinsella on Huffduffer).

From C4SIF:

Mr. IP Answer Man Time: On Steel and Swords

Feb. 4 2022

From V:

Dear Professor Kinsella,

I am an economics scholar in the Austrian economics tradition, I am an adherent of the libertarian outlook on life and have read many of your articles on intellectual property and decentralised law.

I was reading your book, Against Intellectual Property. The book is very clear and precise in pinning down the opposing ideas for intellectual property and showing their weakness further. The justification of property rights on the basis of scarcity is a more solid foundation than the idea of natural rights. Carl menger has the same line of thinking with regards to how it is only the scarcity of goods which makes them economic goods and leads people to economize on them, therefore That idea is also as solid as a rock but in the third chapter “IP AND PROPERTY RIGHTS” on page no 36 in the section Creation vs. Scarcity, I think you have made a remark which justifies patents as property rights…

Read more>>

Note: Updated and revised version included as chap. 9 of Legal Foundations of a Free Society (Houston: Papinian Press, 2023).

See also Stephan Kinsella, “The Title-Transfer Theory of Contract,” Papian Press Working Paper #1 (Dec. 20, 2024), forthcoming in David Howden, ed., Palgrave Handbook of Misesian Austrian Economics (Palgrave, forthcoming 2025), which is a concise re-statement of the argument given in ch. 9 and which also includes some important additional arguments, nuances and clarifications.

***

“A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability,” J. Libertarian Stud. 17, no. 2 (Spring 2003): 11-37, based on paper presented at Law and Economics panel, Austrian Scholars Conference, Auburn, Alabama (April 17, 1999).

Update: In the chapter I argue that having a right to to own or use a resource does not automatically imply the right to alienate or transfer it. Apparently Hume made a similar point. See David Owens, “Does a Promise Transfer a Right?,” in Gregory Klass, George Letsas, & Prince Saprai, eds., Philosophical Foundations of Contract Law (Oxford University Press, 2014), p. 80, 87–89, et pass, citing David Hume, A Treatise on Human Nature (L. A. Selby-Bigge ed., 1978), at 516–25. As Owens writes (p. 89):

The idea that we “own” our rights to control our performances tends to obscure Hume’s Point because, in Grotius’ words, it is “in the very nature of property” that we are able to transfer or otherwise modify our property rights by declaration. In fact Hume’s Point calls the possibility of property (so understood) into question quite as much as the possibility of promise. Why should I have both the right to decide whether or not to drive my car and the power to give that right away by declaration? How does the former right explain the latter power? Indeed how can the latter power be explained at all?

Owens also discusses how Grotius thought that “the power of transfer by declaration is invovled in the very idea of ownership.” p. 80: “Men who are masters of their own goods have by the law of nature a power of disposing of or transferring all or any part of their effects to other persons; for this is in the very nature of property.” Quoting Hugo Grotius, The Rights of War and Peace (Richard Tuck ed., 2005), at 566.

Update: See also errata for Legal Foundations of a Free Society:

Regarding ch. 9, and also “The Title-Transfer Theory of Contract”: see Williamson M. Evers, “The Law of Omissions and Neglect of Children,” J. Libertarian Stud. 2, no. 1 (1978): 1–10. He writes (p. 5): “A third legally enforceable duty has been contractual obligations. The present author, however, has maintained elsewhere that the only properly enforceable contracts are those in which transfers of property title have been agreed upon. Mere promises or induced expectations should not be legally binding; only the agreed-upon transfers of property.” This implicitly recognizes the notion, as I write in ch. 9 (217, 223), that contracts need not be viewed as binding obligations, and also the related notion that breach of contract is impossible (p. 209).

Related:

• Łukasz Dominiak & Tate Fegley, “Contract Theory, Title Transfer, and Libertarianism,” Diametros (10 Sep. 2022; doi: 10.33392/diam.180)
• KOL225 | Reflections on the Theory of Contract (PFS 2017)
• KOL197 | Tom Woods Show: The Central Rothbard Contribution I Overlooked, and Why It Matters: The Rothbard-Evers Title-Transfer Theory of Contract
• Interview of Williamson Evers on the Title-Transfer Theory of Contract (Aug. 5, 2014) (KOL146)
• Thoughts on Walter Block on Voluntary Slavery, Alienability vs. Inalienability, Property and Contract, Rothbard and Evers
  (Jan. 9, 2022)
• Justice and Property Rights: Rothbard on Scarcity, Property, Contracts…, Libertarian Standard (Nov. 19, 2010)
• The Problem with “Fraud”: Fraud, Threat, and Contract Breach as Types of Aggression (July 17, 2006)
• “Libertarian Legal Theory, Lecture 3: Applications I: Legal Systems, Contract, Fraud,” Mises Academy, Feb. 14, 2011 (KOL020)
• KOL338 | Human Action Podcast Ep. 308 with Jeff Deist: Rothbard on Punishment, Property, and Contract
• KOL372 | Discussing Contract Theory, Restitution, Punishment, with Matthew Sands of Nations of Sanity
• KOL285 | Disenthrall: Contracts with Stephan Kinsella
• KOL 029 | First Degree Liberty Interview: Argumentation Ethics and the Title-Transfer Theory of Contract

[From my Webnote series]

Related:

• The Problem with “Coercion”
• The State is not the government; we don’t own property; scarcity doesn’t mean rare; coercion is not aggression
• The new libertarianism: anti-capitalist and socialist; or: I prefer Hazlitt’s “Cooperatism”

[Note: this topic is also discussed in “Against Intellectual Property After Twenty Years: Looking Back and Looking Forward,” in Legal Foundations of a Free Society (Papinian Press, forthcoming 2023), Part III; also in “What Libertarianism Is,” in LFFS, p. 33.

See also “Goods, Scarce and Nonscarce,” in LFFS:

“Instead, the term scarcity here refers to the possible existence of conflict over the possession of a finite thing. It means that a condition of contestable control exists for anything that cannot be simultaneously owned: my ownership and control excludes your control.”

See also “Good Ideas is Pretty Scarce”

Update: Penner on Intellectual Property, Monopolies, and Property, p.69:  “So long as we conceive of a right to use in a social situation, in the real world, that is, the implications of that kind of right will raise issues about the rightfulness of excluding others, because the vast majority of the uses that a person will make of a thing are impossible if everyone tries to use the thing at the same time. Because we live in a world of scarcity there is an insufficient quantity of perfect substitutes for everything that people wish to use, and this cannot but give rise to conflict. Now, of course, some things are not scarce, and in some situations commons work (although in the case of commons, too, a large set of people is usually excluded), but this does not detract from the general point. The obvious solution is to link rights of use with rights of exclusion, and so we must look at the different exclusionary rights to which rights of use may be linked.”]

It’s been my impression that usually, when some author coins a bunch of new terms, or over-uses older, arcane terms, it’s a sign he’s a crank. ¹ Usually it’s some amateur wannabe “intellectual,” or a quasi-mystic, who borders on incoherent. I figure you only get to coin a new term if you are some serious scholar and real genius pioneering new ground; and if you coin more than one, then the bar is even higher. For example Mises coined praxeology, catallactics and thymology, I believe. That’s at least 3. But hey, he is entitled; they all make sense, and he is one of the greatest geniuses and original thinkers of the 20th century.

Another neologism I like is “cooperatism,” coined by Hazlitt to describe what we call libertarianism. ² Libertarianism has been somewhat coopted by minarchists and doesn’t really get at the essence of our property rights allocation rules, which are not directly about “liberty” or “freedom,” but about rules that permit conflict-free use of scarce (rivalrous) resources, and thus enable cooperation between human actors in a division and specialization of labor society or community. Anarchy is too broad since it covers non-libertarian anarchists, and anarcho-capitalist is too narrow. I tend to prefer libertarianism or anarcho-libertarianism, or if we want to get real specific, Austro-anarcho-libertarianism. In any case, “libertarianism” is preferable to “voluntaryism,” since coerced action is “voluntary” but can still be unjust and aggression. ³ If you hand over your wallet to an armed robber, your action is voluntary, but you didn’t meaningfully consent to it. So the crucial criterion is whether a given action is consensual, not whether it’s “voluntary.” So “consensualist” could be another good term for the freedom philosophy, but cooperatism is good too and libertarianism is fine for now. I’m too stubborn to give it up. Some annoying libertarian anarchists say things like “Oh, I’m not a libertarian—I’m an anarchist.” This is dishonest. Others who are obviously libertarians but shun the word for various reasons, such as “I prefer the term ‘liberal.'” Annoying. Just because you don’t “like” a word doesn’t mean you can unilaterally change its definition. As I often point out, all consistent libertarians are anarchist, ⁴ and all true anarchists are libertarian.

But we have to be careful with neologisms. Writers often abuse the privilege, like Hayek with nomos, thesis, taxis, cosmos—concepts and terms  almost no one really remembers or finds useful. I’ve come across others over the years but can’t recall the specifies… Voegelin with his “gnosticism,” others with “immanentizing the eschaton,” Galambos with his “primordial property,” blah blah blah. [continue reading…]

1. Amusingly, in a recent book, the author coins bizarre terms like “architectonics” and “kleristocracy,” and uses other terms like “sortition” or “a dominium in sortitio” in odd ways, and then notes

   We resist any usage of “communitarianism” for the project of this book. Despite its suggestive usefulness, it is freighted with associations to socialism and to the communitarianism of Amitai Etzioni—positions alien to architectonics. We are forced to the terms “architectonics” and “kleristocracy” not out of vanity for novelty or neologism, but in the confidence, as C.S. Peirce once suggested, that they would be “safe from kidnappers.”

   T.L. Hulsey, The Constitution of Non-State Government: Field Guide to Texas Secession (2022) (self-published, of course), n.11; and not online, of course; and under copyright, of course; and no citation to the Peirce quote, or to the Etzioni reference, of course. [↩]

2. See my post The new libertarianism: anti-capitalist and socialist; or: I prefer Hazlitt’s “Cooperatism”. [↩]
3. See also  The Problem with “Coercion”. [↩]
4. See What Libertarianism Is. [↩]

LIBERTARIAN ANSWER MAN TIME
Restrictive Covenants and Homeowners Associations (HOAs)

(From this Facebook post)

[Update: see Libertarian Answer Man: Restrictive Covenants, Reserved Rights, and Copyright; also discussed a bit in KOL354 | CDA §230, Being “Part of the State,” Co-ownership, Causation, Defamation, with Nick Sinard]

FROM C:

“Hello,
“I’ve recently taken interest in how you’ve structured arguments against IP from a pro-property position, they’ve been really helpful in working my way through things I intuitively understood, but needed a more-cohesive framework for.

“There is, however, something that has been bugging me since before I stumbled upon your stuff. Not related to IP specifically, but to property in general. I’m hoping you can fill me in because my own research has led me nowhere – I’m not a lawyer so I apologize if this is quite basic, as well as for the length of my email. [continue reading…]