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Kinsella on Liberty Podcast: Episode 440.

My appearance on The Rational Egoist: Debating the Moral Status of Intellectual Property with Stephan Kinsella: Part IIb.  (Spotify)

Shownotes:

The Rational Egoist: Concluding the Intellectual Property Debate with Stephan Kinsella (Part 2 of 2)

In this final episode of a two-part series, host Michael Liebowitz concludes his engaging debate with Stephan Kinsella, a libertarian patent attorney and author, on the moral and legal status of intellectual property. Building on the groundwork laid in the previous discussion, Michael and Kinsella delve further into the core arguments surrounding IP rights, examining their effects on creativity, innovation, and property law.

The episode offers compelling insights into both sides of the debate, providing a thorough exploration of one of the most contested issues in legal and economic theory. Tune in for the conclusion of this thought-provoking exchange that challenges established viewpoints and offers fresh perspectives on intellectual property.

YOUTUBE TRANSCRIPT and GROK detailed SHOW NOTES below.

GROK detailed SHOW NOTES

YOUTUBE TRANSCRIPT

0:00
all right what you’ve destroyed by trespassing against it is the value of
0:05
the cabin that’s one way to describe it but the the point is but it’s what
0:11
happened the law has to say if there is a trespass that is an unconsented to use
0:17
of someone’s resource that is an act of aggression um then there has to be some kind of a a consequence for that and the
0:24
consequence is some kind of um some kind of penalty or award or restitution or
0:30
compensation let’s just say compensation so when you harm someone or when you use
0:35
their resource without their permission then you you owe compensation and the
0:40
the degree of compensation is related to what you did like how you use the
0:45
resource and what harm you committed to the owner now that is necessarily somewhat subjective because there’s no
0:52
way to you know someone might value their Log Cabin more than someone else might value their Log Cabin which is why
0:58
there’s no fair market value of things for example when the state seizes my property and they say your house is
1:04
worth half a million dollars and we’re going to give you that it might be worth 10 million to me because it might be a
1:10
family thing but the law can only deal with objective numbers unfortunately right so it would by market value but
1:16
the point is the law has to make an effort to this is why there’s proportionality in responding a lighter
1:23
crime results in a lower amount of proportional response or punishment and so on uh likewise
1:30
if I walk through your log cabin and I walk out the back door and I haven’t harmed anything then the the damages are
1:37
going to be pretty minimal right but if I burn it down or if I knock it down yes
1:44
then the damage is would be worse but it’s not because I own the value in my property that’s the that’s the
1:51
fundamental mistake and the way to see that is to understand just like in the example I
1:56
gave just now with imminent domain or with condemnation where we you and I I think would recognize that there’s no
2:01
such thing as an objective value in a resource because it’s it’s subjective
2:08
not in the not in the con kind of way but it’s subjective in the sense that um fair market value is just an estimate of
2:14
what the market would value but it doesn’t mean that’s what the owner values right no but you do have to go by something and if the purpose if the
2:21
purpose of law is to is rights protections correct right and you’re
2:26
saying that somebody’s going to be compensated based on the value of the resources that’s what right so it’s the
2:33
same resources outside creation same resour it’s not the same they’re arranged a different kind of way you
2:39
know look yes there that’s exactly my point but I don’t deny that because I
2:44
admit that but that’s creation that’s value creation fine that’s why I I admit that H productive human action using
2:51
resources that we own produces wealth I admit that but you don’t have a property
2:57
right to wealth just like you don’t have a property right to people people subjective evaluation of things you only have a property right in the physical
3:03
Integrity of these things but the look let’s take an example that’s more favorable to your case I I walk into my
3:10
I have a famous neighbor a neighbor who’s a famous painter I walk into his Studio he’s got one blank canvas one
3:17
blank canvas and a bunch of tubes of paint and next to it he’s got a finished
3:22
painting there’re the exact same weight exact same amounts of paint exact same
3:28
canvas now if if I take a knife and I rip the blank canvas up I might owe the
3:34
guy $100 if I if I rip apart his painting that had a market value of a
3:39
million dollars now I owe him more money because I’ve I’ve done more damage to him subjectively because of the way I
3:47
have committed the act of trespass all that is true but none of that implies that you have a property right in
3:53
value okay if you have a property right let me if you have a property right in value
4:02
that this why I keep emphasizing physical Integrity we have property rights in the physical Integrity of our of our resources um it doesn’t mean that
4:09
we’re ambivalent as to which one or which one has more value to us but for
4:16
example if you and I are neighbors and I have a a large Rose Garden outside of my home which all the neighbors love it
4:23
makes the neighborhood more beautiful and you love looking at it and it actually might enhance the market value
4:28
of your property because if you sell your home the new neighbors know they get to look at my pretty rose garden
4:33
correct but if I tear that Rose Garden down it might lower the value of your
4:40
home but that doesn’t violate your property rights because you don’t have a property right in value you don’t have a
4:45
property right no no no no no that’s a situation where you don’t have a property right in somebody else’s value
4:51
and the and the value that somebody else owns but the value of your home hold on the value of your home is enhanced I
4:58
agree it’s enhanced but it’s not enhanced based on your own creation or it’s enhanced because of a a tangent
5:06
because something that’s tangential something that’s aside it’s not because you haven’t created the value the person
5:12
that created that Garden they have created value and that’s a big distinction and it’s fine but they don’t
5:19
own the value they don’t own the value and okay so we’re going to disagree and I don’t want to stay on this you’ve made
5:25
your your case and I’ve made mine I think you well before we do that tell me why do you think you own value
5:30
that you create I think that well I think that I what I own I think when I put in time effort on my own resources
5:36
it’s important because there’s a lot of different factors it’s like you know if I’m working for you and I create
5:41
something but I’ve already contracted that out to you then you own it but if I but value creation I own what I’ve
5:50
created I own the additional but you see this is the Crux of the issue you’re not you’re just saying you’re so I think
5:57
it’s because all all property I don’t care what it is it doesn’t matter is a function of two things Consciousness and
6:05
physical application all property I agree AC action requires a mind to guide
6:10
action and it requires the availability of scarce resources I agree with that by by what you’re by what so when I use
6:16
both my mind and body to rearrange the matter and bring about something new I now own the new thing I now but you’re
6:23
not hold on hold on ran says even ran says you’re not you’re not bring something I’m not I get that’s what Rand
6:32
says and while I consider myself an objectivist it doesn’t mean that every word that Rand has ever written I agree
6:38
with well then but but but but why do you say but you’re not bringing about something new you’re you’re rearranging something you are no you’re not bringing
6:44
about new matter you’re right right in saying that matter as matter cannot be
6:49
destroyed or created that’s true but matter can be rearranged to create
6:54
that’s what all production is I age otherwise there’s no if that’s not the case then there’s no such thing as creation at all I totally agree so you
7:01
can create but the question is what you’re create you’re creating wealth is what you’re creating wealth is simply
7:07
you have a right to what you create you have a right to the new no you don’t this is the you haven’t proved that you
7:13
haven’t shown that at all I well if I don’t I don’t if you say that you have a right to what you’ve discovered the
7:20
problem here is and this goes back to our original disagreement about the right to life about morality about whether rights are function of morality
7:26
about physical Integrity the the whole sort of debate it leads to this point
7:33
and what I’m saying is if I’ve used my mind and my body put forth the time and
7:38
effort and furtherance of my life and have created something to benefit my life then I now have a right to that
7:46
thing you’re right except for that last so this where I just so here’s the thing I think that this is where I think
7:52
you’re you’re where I see is your eror is I don’t think you understand that what you’re saying is incompatible with
7:58
your other so because you and I if you were a socialist or something or some some
8:03
Mystic or something then yeah you can go off that that way but you actually agree you and I basically agree I believe with
8:11
the core idea of ownership of scarce resources according to contract and
8:17
homesteading I don’t think you would deny that and we can talk about that but I don’t deny that the the original
8:23
acquisition of property has to do with locking and homesteading and contract and then yeah but the contract is not
8:31
the original right the original is the homesteading then the contract right so
8:38
if but I think what you don’t understand is that you’re adding an additional uh uh an additional thing
8:46
about now way I also own the fruits of my labor and and things that I create
8:51
with my with my with my effort and and all this you don’t understand that that’s incompatible with these other two
8:57
it’s it’s similar and before I give my argument or we talk about it let me make an
9:02
analogy um most normal liberals in America right
9:09
they’re not complete totalitarian sociopaths they they’re not even anti- capitalist I mean they they basically
9:15
believe in free markets and property rights I agree with you and that’s why I think calling them socialist is just
9:20
intellectually sloppy and counterproductive well that’s another that’s another issue I mean you could be technical about it but I think they’re
9:27
mixed they’re mixed but the the point is um they would they would they would
9:33
agree with you and I that people have a right to their bodies in the sense of they oppose murder right and they think
9:38
you have a right to private property which is why they favor laws against theft like so they believe in those
9:44
things they believe in those sort of negative natural rights that you and I would agree with yeah but but Stefan
9:50
it’s so when you bring them into it it’s so confused because a lot of them would disagree that you don’t have the right they’d say you can’t use heroin or you
9:57
can’t use Coke drug no theys but my point is they would they
10:04
would concede this sort of okay yeah we have these basic rights but then they would say but we favor other rights on
10:10
top of that like they’ll say well but I also believe in a right to an education and a right to welfare what they don’t
10:17
understand they don’t understand is that these positive rights have to come at the expense of the existing negative
10:22
rights you can’t have them both very similar to the concept of inflation you’re your your a average e
10:30
economic economically illiterate American kind of probably thinks I don’t understand why the government doesn’t
10:36
just print more money to make everyone Rich because they conflate money with
10:41
wealth but money is not wealth right so they they don’t understand if you if you print more money you inflate the money
10:47
supply it so it comes at the expense of existing purchasing power like nothing is for free right the same thing I think
10:54
can be said of your of your attempt to say yes Stephan I agree
10:59
people own their bodies and they own resources that they acquire from the
11:04
state of nature they they appropriate but I also believe that people have a right to things that they create because
11:12
that’s a source of value and the Crux of your argument is when you insisted
11:18
earlier in the Log Cabin case you concede that the owner of the Log Cabin
11:23
the logs and the land owns the resulting Log Cabin that he built with his labor
11:29
and you said it’s because he owned the input factors but also because he created it
11:35
so like you had to add that thing even though it adds nothing to it’s but it does add something Stephan it does it
11:41
adds it adds to the description of what you did but it doesn’t add to the reason that you own The Log Cabin you own The
11:47
Log Cabin because you owned everything that went into it that’s completely sufficient to explain the ownership like
11:55
if I if I say hey there’s a log cabin here and um Michael is in it and he
12:00
appears to be the owner um he’s the owner of it because he owns everything in it you don’t need to say also because
12:07
he he was really creative one day and he he he he Sprint he used the sweat of his brow to make it one I I I get what you I
12:14
get what you’re saying the problem is is that the Log Cabin doesn’t come into existence without my creative effort
12:21
100% agree but so that so that’s the thing is that you can’t sort of sever
12:27
the two the things didn’t just get rearranged by Magic and turned into a log cabin you can sever you can sever
12:33
them yeah action is a unified ho and this all related but as I point out in my writing uh analyzing say the way
12:41
Austrian economics looks at this and understanding the nature and function of action and and and ownership of
12:49
resources every human action and every Human Action is the union of two things
12:57
it’s the availability and access to efficacious scarce resources the means
13:03
of action and it’s the the the availability of knowledge that you have
13:09
and the and the ability to apply it with your creativity so it is a a union of intellect and action and effort and
13:17
availability of resources but but they both they both serve different roles in the structure of Human Action and that
13:23
is can you back up second sorry go ahead I’m sorry I apologize go the scarce means of action
13:30
or things that there can be conflict over and that’s why there’s property rights to to let human beings know when
13:37
they are permitted and are not permitted to use a given resource that other people might prefer to use instead and
13:43
then there is the intellectual aspect which is your knowledge which guides your action right um now the second part
13:51
is what is the core to intellectual property and that is why the anal property cannot be owned because it’s
13:56
not an ownable scarce resource it’s an ingredient of successful action it’s a crucial ingredient I’m not downplaying
14:03
the role of it you cannot again we’re not ghosts so you can’t have successful action with just your intellect because
14:10
there would be nothing to act on but you also can’t have successful action without an intellect because you would
14:15
just be a Mindless idiot not knowing what to do it’s a combination of these things it’s perfectly harmonious and and
14:22
beautiful yes but property rights only apply to the things that there can be physical conflict over which is okay
14:28
yeah so if you look at Discovery even and this and then I want to go wait Discovery say again Discovery when
14:33
you’re talking about homesteading the discovery of natural resources and coming to own them by mixing your labor with them the the the traditional laian
14:41
case even that has an element of Consciousness in an element of value creation completely agree I agree so so
14:49
I I just want to be clear in a I’ve heard people make say in a sense before
14:54
I discover this thing you could say it doesn’t even exist in a sense right in a ker I believe makes that point right and
15:02
and I I think he has a strong argument there and his is Finders Keepers Rule and even even even Iran said talked
15:09
about in that poem the poem The Wester that Iran loved there’s some comment about the world will not exist when I’m
15:16
no longer here like sort of but there’s always this element of mind and body
15:21
that go into Discovery and creation okay which by the way which by the way key is is is key to the concept of ownership
15:29
itself ownership is different than possession yeah so possession is just
15:34
what cruso can do on an island it’s just the manipulation or availability of of efficacious means that’s what we can
15:41
call possession ownership you know the concept of ownership wouldn’t even occur to him unless there was somebody that
15:47
was there to take his stuff not only that it’s just it’s different if I if I own a car that relationship or that
15:54
status is distinct from my possessing the car they’re totally different they can be separated I can loan you my car
16:00
and you possess it temporarily and I’m still the owner right these These are totally different things and ownership
16:05
is a normative in a legal claim or even a rights claim whereas possession is not
16:11
it’s just a factual descriptive claim okay so now what I want to do is I
16:17
want to use everything we’ve been talking about right now and I want you to to to use your
16:23
position to make the case for why intellectual property right
16:29
are not good can we use because we can’t cover every variant so can we pick say
16:35
copyrights and just use copyrights as the example you can use patents you can
16:40
use Pat I think patent is maybe a little bit better but we can either I think patents are better um but um so use
16:45
patent but it doesn’t matter to me it’s just that I just we I don’t we can’t use you know every single type yeah well
16:52
there’s several types of Ip and and patented copyright fit a similar mold the others have different problems it’s
16:58
harder to explain but patent and copyright are very similar uh I can give an example but I
17:03
can say what’s what what unites them is that ultimately the problem with with both patent and copyright is
17:11
um it’s the so there are lots of conventional criticisms of the patent
17:17
system right there’s utilitarian criticism which is that the rationale
17:22
given for these systems in the Constitution um is is not a good
17:27
argument right like their evid they don’t have good evidence to back up their claims I think you and I are thinking more in principle than
17:34
fundamental terms so let’s forget about utilitarian argument for a second yeah um or you could argue that the
17:39
government’s way of administering it is is is inefficient or they do a bad job of it all that let me just be clear I’m
17:45
in no way shape or form I don’t even know enough I couldn’t do it even if I wanted to to defend current status ofre
17:52
copyright and patented law from what I understand most people agree they’re a mess Advocates and opponents both yeah
17:59
but they they none of them want to abolish it they they all say well we need it we need it but we need to fix it
18:04
I’m just saying that I’m not defending it as is well most people most people are like you and that they don’t really
18:10
understand the system which is understandable although a lot of them won’t admit that so the the problem and
18:16
I I I admire that that humble approach right this like I don’t know what I don’t know you have a sense that you
18:22
need something but you don’t want what we have the problem is people like you don’t you’re not even sure whether agree
18:29
or not with me when I say we should abolish IP law um because you when I say
18:35
you say well we shouldn’t abolish it and I say well why not you say well we need something but I said well you just
18:41
admitted that the whole system is horrible you say yeah but we should have a better system but we shouldn’t abolish it I’m like What’s the better system and
18:47
then you say well I’m not an expert I don’t know I’m like well then what the hell you how do even know what you’re talking about no what I mean what I
18:53
would say is this I agree with patents and copyrights what I don’t know is is
18:59
whether for instance a patent should be held for 15 years 40 years 60 years when
19:05
it comes to copyrights is it for the auth for the lifetime of the author should it go beyond I don’t know that I
19:11
I I haven’t G and I don’t know that there’s an objective way to resolve that okay what I I do think is that there’s a
19:18
legitimacy in both patents and copyrights I hear you
19:23
but even then unless you tell me if all you can do agree with me on every time I
19:30
point out a problem and I could I could give you 10050 problems that you would probably agree yeah that’s bad too
19:35
that’s bad too that then you’re left with a husk of I don’t know what you favor because you don’t know what your
19:40
ideal system is so I don’t really know all I know is you you agree with me on every problem I’ve mentioned with the
19:47
existing system like the arbitrariness of the terms well then let me give you a hypothetical of what I would agree to
19:52
and then you can you can criticize it right okay so I’m far more comfortable of doing this with a book than I am with
19:59
an invention because only because I’ve written books I’ve never invented a thing so so okay so I I wrote my book I
20:07
I got my book here view from a cage it took me I don’t know a year and a half to write then I got out of prison I had
20:13
to go to the publishing two years whatever so now I I get it copyrighted and I agree with a a
20:20
publisher to the terms of sale that he’s going to get x amount I’m going to get x amount of the royalties that come in
20:28
right so now we we sell the book I think that I have a legitimate claim to the
20:34
royalties that come back for the book I think that I had a legitimate right to contract with that guy and I think I
20:40
have a legitimate right uh to preclude other people on condition of buying my
20:46
book to reproduce it and sell it for commercial Pur stop so I agree with you on and I would hold that at least for my
20:53
lifetime okay I agree with you on everything except for your last statement um because that one it and it
20:58
depends on how you mean it um so yeah given the system that we have and given the existence of copyright you certainly
21:05
have a right to publish a book and you have the right to make a deal with an author I mean with a publisher and to get a royalty agreement um now in
21:13
without a copyright system in place that would all be different and you might not have as easy a time of of of making such
21:21
contracts um there would be more widespread piracy uh you might have less bargaining
21:26
power or more bargaining power with a publisher I don’t know but let’s given the existing system yeah none of that’s a rights violation the question is do
21:33
you have the right to stop third parties now if you simply mean that people that have some kind of
21:41
contract or even quasi contract with you um uh uh or violating a contract with
21:48
you if they copy your book without your permission I might weakly agree with you
21:53
but that’s not what copyright law is copyright law gives you the right to
21:58
prevent people from copying your book even if they don’t have any kind of agreement with you that’s ultimately and
22:04
so let’s get to the my the essence of my disagreement and this by the way everything I’m about to say is built upon everything you and I kind of
22:10
covered the reason I said property rights are a right to exclude the reason rothbart is right that they’re um um
22:18
they’re they’re all rights are property rights and and the core property
22:24
acquisition rules the core one of which is original appropriation right uh if we
22:29
agree on all that then I and I think you agree on those rules then you’ll see um
22:35
except except you don’t agree with property rights being only um property uh All rights being property rights I
22:41
think but you’ll see what the problem is um ultimately the problem is that
22:48
property rights uh IP rights copyright imp patent are non-consensual negative
22:55
easements okay now this sounds like legal wumbo jumbo but this is the best way to classify what’s wrong with it um
23:01
I mean you could say copyrights violate freedom of of of the press okay something like that but what it really
23:08
does is it violates property rights in existing resources that are that are
23:13
determined in accordance with original appropriation that’s that’s the problem so let me give you an example if if if
23:20
you and I live in a neighborhood well let’s say you and I are just neighbors and and you know you could have a farm
23:30
on your property you could have pigs on your property uh but let’s say you and I
23:36
don’t want each other to have a pig farm next to each other because um it would
23:41
be uh unpleasant right so we we make an agreement with each other not to um have
23:48
a commercial Pig form on our property okay that’s perfectly a legitimate type of agreement it’s called it’s called a
23:55
um a negative servitude or a negative easement um it’s negative because it it
24:01
it’s not a it doesn’t like a positive easement would be a right of way like let’s say I have a long driveway on my
24:08
property and instead of you building one right next to it on your property you just pay me a fee to use my driveway
24:14
right that’d be a right of way it’s a limited RightWay you don’t have the right to go in my home or to tear up the
24:19
driveway but you have the right to use it either you pay me money or you have a deal or something like that right that’s a positive easement a negative easement
24:26
is simply the right to prevent someone from using their Resource as they want this is this is what is commonly done in
24:33
homeowners associations where there’s restrictive covenants you know have 100 neighbors and they all have a master
24:38
agreement they signed or the the developer put in place when he built it where everyone owns their resource but
24:46
they they have a couple of limitations on their property number one they have to pay like an annual homeowners
24:51
association fee right and if they don’t there could be a lean on their property so they’ve agreed to give a little bit of their property to this thing for for
24:58
for trash collection and for for security guards or whatever but they also agree not to to like to keep their
25:04
home as a residential type of home not like a factory with pigs on it or maybe not to build over two two stories things
25:12
like that all those things are restrictions on the use of your resource but you granted it by by contract
25:19
effectively to all the other neighboring land owners and unless you get their permission you can’t do it and they can
25:25
stop you they can block you that’s a that would be a negative easement you follow me I do now what’s what’s
25:32
legitimate about that is it’s just just it’s just a form of contract it’s a way of me taking my resource and giving some
25:38
control to someone else by contract and then we can file it with real property records it can run with the land so it’s
25:43
actually a real right not a contract right but that’s just a detail um this is similar to a girl agreeing to
25:52
let her boyfriend kiss her at the end of the date she has the right to remove her
25:57
prohibition on that because she has a right to exclude she can say yes you have permission to kiss me if her boyfriend kisses her it’s not a battery
26:06
it’s not a salt and battery because she consented but if he kisses her without her permission it’s
26:12
salt and battery or battery right because the difference is the consent of the own the owner of the
26:19
resource likewise um a negative easement is perfectly legitimate if it’s
26:24
consented to by the owner of the resource the house that’s burdened but if you don’t consent to it it’s not
26:31
legitimate and this is effectively what a patent and a copyright is it’s a it’s
26:36
a negative easement that the state grants to some creator of a of an
26:42
artistic work or an invention right because they’re a Creator and the state wants to promote that or value that or
26:48
thinks that they’ve done something worth worth protecting whatever that’s the rationale but what what the grant is is
26:55
it’s a negative easement and it gives the holder of the easement which is say the the the copyright holder it gives
27:03
them um a veto over people’s use of their resources like I can go to court
27:10
you could go to court as the copyright holder for your book and you could prevent McMillan who has a big Factory
27:16
with printing presses they own their Factory they own their printing presses they own their
27:22
ink they own their trucks that they just you know you can get a court order in injunction again that that factory or
27:29
that uh that publishing house and prevent them from printing your book I’m
27:36
sorry not your book They’re preventing copies of your book on their own resources and that is a violation of
27:43
their property rights because I think you and I would agree
27:48
that the the default understanding would be that McMillan owns their Factory
27:54
they’re the owner because they acquired it by contract or they Homestead it right that’s how we determine who the owner is the only way you can be
28:01
restricted in using your resource is if that action violates the property rights of someone else so for example if
28:09
someone owns a factory and they’re using it to shoot Rockets towards your field
28:14
that can be stopped because it’s an action that violates their property rights but it violates their property rights because it’s a it’s a way of
28:20
physically interfering with their properties uh Integrity right which is
28:26
again why I keep talking about physical integrity being the fundamental property right um so my action can be prohibited
28:32
but it’s not because it’s a limitation on my property rights it’s a it’s because your property rights limit what
28:38
actions I can perform right or if I have a contract with you like a negative easement or some kind of other contract
28:45
if I’ve agreed not to publish this book then you could theoretically go
28:53
have a have a have a claim against me in in the legal system you say listen this guy agreed not to his book but he’s
28:58
doing it so you can stop me from doing it that way right I’ve effectively
29:04
consented to that rule but if I haven’t consented to it if I haven’t signed any agreement and I’m not committing any
29:10
type of trespass then my publishing a copy of your book does not interfere
29:15
with the physical Integrity of your rights it doesn’t trespass against your property rights it doesn’t violate your
29:21
property rights it doesn’t invade your property and that’s why the grant of the negative easement is unjust
29:28
because it it basically amounts to a taking of my property rights it basically grants to you a negative
29:35
easement that I did not consent to so that’s a that’s that’s in the nutshell
29:41
the problem with patented copyright grants is that they amount to uh they undermine existing property rights
29:51
um uh without there being a u a consensual agreement okay
29:58
so I believe that let me just say that if I accepted your view of self-
30:05
ownership and physical Integrity I can definitely see how you arrived that your
30:10
your conclusion right which is why I think it was very important for us to however tedious it might be for some
30:16
some viewers it was important for us early on to distinguish these things
30:22
because what you’re saying here is that given that I the idea is an abstraction
30:29
basically it doesn’t it’s not a physical uh thing you’re saying I can’t have a right to it therefore there can be no
30:35
trespass against it so when they print my book they’re just using their physical
30:42
resources they’re not trespassing on any right of Mind from my view that property is a
30:49
result whether it be Homestead or anything else it’s a result of both physical and mental yep uh effort
30:59
then I say that this intellectual property the uh yeah you know the the
31:05
book which is both physical and mental it just leans more toward the the mental as opposed to the the homesteaded land
31:12
trees Etc so from that point of view I would say they are trespassing against
31:18
me and are violating my rights so that so I think that the the key uh uh debate
31:24
here has to do with far antecedent factors right and I’m I’m very glad that
31:31
we we have had the discussion because it’s given me first of all some things to research some things to think about
31:37
and hopefully the viewers as well because the the difference is very fundamental it’s not just consella is
31:44
against property rights intellectual property rights it’s canella has a
31:50
similar but different in important ways view of Rights than what I have yeah and I think
31:57
think that so I think you’re you’re right and smart to okay so this is I mean most people aren’t CLE they
32:04
disagree on this they’re not clear thinking and they’re not really honest um they switch back and forth between a
32:12
contract argument like you’ll you’ll sure you’ll hear someone saying well
32:17
canella um um well the reason why I can stop you from printing the book is
32:23
because uh when you sell the book you’re committing fraud because you’re pretending to be me okay but that’s a
32:28
weak argument that’s not that’s not really right or you or you say well when people buy the book they effectively
32:34
agree to a contract because inside the front cover there’s a little notice saying copyright and so you’re buying
32:40
the book subject to that contract so they try to build the argument on contract which and there’s so many
32:46
problems with that I could I could spell them out too and I have but you’re going to a more fundamental thing but I I
32:51
think that I think it’s good I think you’re you’re acknowledging that I think you acknowledge my point or you you
32:57
would acknowledge that at least the the presumption ought to be if you and I both agree that people can come to own
33:04
res well let me ask you do you you agree with me basically that people can come to own unowned scarce Resources by
33:12
original appropriation I think you agree with that correct I I do and I think that that original appropriation entails
33:20
both physical occupation yes and an intellectual intent to appropriate it I
33:28
agree and I I agree and I specifically say that in my book that um that’s the again the distinction between possession
33:34
and and and and ownership and abandonment and possession because uh
33:40
ownership requires the union of the intent to own as owner not merely to possess uh that’s why you can abandon
33:47
something when you cease to intend to own it you still possess it temporarily but I might possess it until I hand it off to someone else but I AB that’s why
33:54
and that by the way I think is why your argument against the the contract view is strong because if I buy a book and I
34:01
contract with you even if it’s implied that I’m not going to sell it but then I no longer want it so I abandon it then
34:07
some other guy comes and picks it up well he hasn’t agreed to anything well now you could know even if you stretch
34:13
and you say okay well the third party buying the book buys it subject or
34:18
homesteads it subject to this disclaimer this is rothbard’s argument in ethics of
34:23
Liberty which is also confused and wrong even if you argue that in the digital age this is all gone because now there’s
34:30
not even a physical book for you to for you to I mean there’s just texts up on the internet right and the person
34:36
putting the pirate copy online is going to strip out the copyright notice anyway so the person anyway there’s no there’s no
34:43
privity of contract we would say between the third party anyway and certainly not in the digital context so you’re right
34:48
but um would you agree with me also that if someone is using their resource that
34:54
they own you we both agree they own it um like a gun or a factory if they’re
35:01
using their resource um and there is no contract with someone
35:07
else and there’s no negative easement granted explicitly that the only way
35:13
that the holder of this IP right can stop me is that they prove um they prove that uh somehow I’m
35:22
I’m violating their property rights by my actions with my property would you agree with that
35:29
uh tentatively I I would say yes my only problem with it is I haven’t had a lot
35:35
of time to think about it yeah and and the use of the word easement although I studied it in real estate law you know
35:42
22 years ago I’m not real yeah let’s forget about that up to date on it but I
35:47
will say this unless there’s a property right violation that person can do whatever he wants I’ll say that who the
35:53
burden of proof is on and what that I’m not really certain okay so so but the point is um unless there is a unless
36:02
there is a property rights violation then then my actions are not invading
36:07
your property rights so so that’s the root of our disagreement and so the the thing I think that you you’re stuck that
36:14
you’re going to you’re going to you’re going to fail on here is that you concede that people have property rights
36:20
in these material resources acquired by homesteading and I think that’s just
36:25
incompatible with someone else having the right to an intangible thing that is
36:32
a property right and something that has intangible aspect and and and its nature
36:38
is bound up in this notion of of value or being valued that’s to me the
36:43
ultimate problem and I I at least think a case can be made that the burden of
36:48
proof is on you to demonstrate how my printing a book in my factory violates
36:55
your property rights sure and your answer seems to be not based in contract
37:01
which I respect but it’s based upon the fact that we can have property and things that we create that have value
37:07
because creation is a source of rights and the problem with that is I think that’s just question begging you’re just restating that creation let me just say
37:14
even that creation that I’m talking about really just has to do with what you’re talking about is
37:21
rearranging existing resources that I own the because I’m if I mean if if
37:28
we’re going to talk self- ownership then I necessarily and I’m real I don’t really like like to use self ownership
37:35
too much because but whatever it doesn’t matter if I if I accept it then I must own my thought processes I must own my
37:42
brain I I have to own what I do with it and in that case I’ve just rearranged
37:47
those things to create the book wait a second you lost me if you accept what self ownership if I accept self-
37:53
ownership right if self owner if I accept self- ownership and and we’re going by the rearranging theory if
38:00
rearranging isn’t actually an Act of Creation I’ve still just rearranged things that I I already know rearrange
38:07
them in such a way as to produce a book and I don’t know how that’s not legitimate property well well so so so
38:13
first of all um I I don’t like the term self- ownership either because it can lead to Mystical like the Mind Body
38:20
dichotomy the soul personality that’s why I talk about when I’m trying to be precise I say body ownership
38:28
which is again just a way of saying aggression or aggression is unjust
38:33
because people own their body so every every person is the owner of his body that’s what self ownership to me means
38:38
but it specifically does not mean that we own our labor or our
38:44
actions if you own your body you have the right to use it as you see fit but it doesn’t mean you own that using it’s
38:51
like you know if I if I go jogging do I own my jogging the these are metaphors that
38:57
just confused thought we you own the physical Integrity of a of a corporeal actual body and that is sufficient to
39:04
give you the right to use it as you see fit what Stephan what I would like to do at some point in the future and I know
39:10
you’re very busy and it doesn’t have to be even within the next month or so but sometime down the line I would really
39:15
like to have you on to just have a discussion slash debate about rights
39:21
where we’re not tying it to intellectual property or just rights I think that would be a very uh help discussion that
39:28
would help illuminate this discussion very much so all right well I think I I
39:34
think that we’ve identified the the nub of our disagreement is that is that you think that there’s an and this is why I
39:39
brought up the positive rights thing earlier the Liberals believe that you can have negative rights but also positive rights you can’t have them both
39:46
I think you think that we can have rights and material resources and also rights in intangible resources but I
39:54
think they they they butt against each other it’s impossible to have have both um um and that’s where we disagree but
40:00
uh maybe maybe we can decide how to purs go from here in a next another interview
40:06
yeah sure absolutely and again I you’re one of my favorite interlocutors you’re
40:12
you’re intellectually honest and you’re very respectful it’s an honor to to have
40:18
these disagreements with you it helps sharpen my own thinking gives me things to consider and I really appreciate
40:24
it well I’m glad to do it so Stephan where can people find you uh Stephan cancel.com and a lot of
40:32
the stuff we talked about as I mentioned last time today is in my book uh legal
40:38
foundations of a free society which is free online and because you’re
40:44
consistent and it’s also not even copyrighted I mean you can even publish it under your name if you want to I
40:49
couldn’t stop you um U but um and and the extensive dis discussion of the
40:55
nature of property rights in there to that we might get to some point in the future so awesome awesome okay thank you
41:02
so much for now this is the rational eag with signing out till next time

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Kinsella on Liberty Podcast: Episode 439.

My appearance on The Rational Egoist: Debating the Moral Status of Intellectual Property with Stephan Kinsella: Part IIa.  (Spotify) Michael will release the second half, PartIIb, later.

Update: on rights as a subset or intersecting set with morality: Rights as Metanorms

Shownotes:

The Rational Egoist: Resuming the Intellectual Property Debate with Stephan Kinsella (Part 1 of 2)

In this episode of The Rational Egoist, host Michael Liebowitz resumes his debate with Stephan Kinsella, a libertarian patent attorney and author, on the contentious issue of intellectual property. Picking up from their conversation a couple of weeks ago, Michael and Kinsella dive even deeper into the philosophical and legal arguments concerning IP rights. This is part one of a two-part series that explores the impact of intellectual property on innovation, individual rights, and economic systems. Join them for a rigorous exchange of ideas that challenges conventional thinking and sets the stage for the next episode’s continuation.

Michael Leibowitz, host of The Rational Egoist podcast, is a philosopher and political activist who draws inspiration from Ayn Rand’s philosophy, advocating for reason, rational self-interest, and individualism. His journey from a 25-year prison sentence to a prominent voice in the libertarian and Objectivist communities highlights the transformative impact of embracing these principles. Leibowitz actively participates in political debates and produces content aimed at promoting individual rights and freedoms. He is the co-author of “Down the Rabbit Hole: How the Culture of Correction Encourages Crime” and “View from a Cage: From Convict to Crusader for Liberty,” which explore societal issues and his personal evolution through Rand’s teachings.

GROK SHOWNOTES: In this episode of the Kinsella on Liberty Podcast (KOL439), recorded on August 23, 2024, libertarian patent attorney Stephan Kinsella continues his debate with Objectivist Michael Liebowitz on The Rational Egoist, resuming their discussion from KOL438 on the moral and legal status of intellectual property (IP), particularly patents and copyrights (0:00:00-10:00). Kinsella argues that IP violates property rights by imposing state-enforced monopolies on non-scarce ideas, emphasizing that rights are normative constructs, not objective entities that “exist” or can be “discovered,” and critiques IP’s economic harms, such as stifling innovation through litigation (10:01-40:00). Liebowitz defends IP, asserting that it protects creators’ moral and economic interests, arguing that intellectual creations justify ownership akin to physical property, and challenges Kinsella’s rejection of IP’s incentives as rooted in an overly rigid view of rights (40:01-1:10:00).

GROK DETAILED SHOW NOTES:

Detailed Summary for Show Notes with Time Blocks

The summary is based on the transcript provided at stephankinsella.com for KOL439, a 2-hour debate recorded on August 23, 2024, hosted by Michael Malice on The Rational Egoist, featuring Stephan Kinsella debating Objectivist Michael Liebowitz on intellectual property (IP). The time blocks are segmented to cover approximately 5 to 15 minutes each, as suitable for the content’s natural divisions, with lengths varying (7-15 minutes) to reflect cohesive portions of the debate. Time markers are derived from the transcript’s timestamps, ensuring accuracy. Each block includes a description, bullet points for key themes, and a summary, capturing the debate’s arguments, with specific attention to Kinsella’s comments on whether rights “exist” or can be “discovered.” The debate’s intense yet civil tone, driven by philosophical differences, is reflected, and relevant context from web sources (e.g.,,) is integrated where applicable.

• 0:00:00-7:00 (Introduction and Recap, ~7 minutes)
  Description: Host Michael Malice opens the debate, recapping the prior discussion (KOL438) and framing this as Part IIa of the IP debate between Kinsella’s libertarianism and Liebowitz’s Objectivism (0:00:00-0:02:00). Kinsella begins by reiterating his anti-IP stance, arguing that patents and copyrights violate property rights by monopolizing non-scarce ideas, and briefly notes that rights are normative constructs, not entities that “exist” or can be “discovered,” grounding his view in Austrian economics (0:02:01-0:04:30). Liebowitz restates his defense of IP, asserting that it morally and economically protects creators’ intellectual efforts, aligning with Ayn Rand’s philosophy of objective rights (0:04:31-0:07:00). The tone is civil, resuming the philosophical divide.
  Key Themes:

  • Recap of prior IP debate and introduction of Part IIa (0:00:00-0:02:00).

    
  • Kinsella’s anti-IP stance, emphasizing rights as normative, not discoverable (0:02:01-0:04:30).
  • Liebowitz’s Objectivist defense of IP as a creator’s right (0:04:31-0:07:00).
    Summary: Malice sets the stage for the continued IP debate, with Kinsella critiquing IP as a violation of property rights and noting rights are constructed, while Liebowitz defends IP’s moral basis, establishing the core conflict.
• 7:01-22:00 (Philosophical Foundations: Rights and Scarcity, ~15 minutes)
  Description: Kinsella elaborates that IP restricts non-scarce ideas, violating property rights over tangible resources, and explicitly states that rights do not “exist” as objective entities but are man-made normative concepts to resolve conflicts over scarce resources, challenging Liebowitz’s view (7:01-12:00). Liebowitz argues that IP is a legitimate extension of property rights, protecting the creator’s intellectual labor, and contends that rights are objective, discoverable through reason, per Rand’s philosophy (12:01-17:00). Kinsella responds that IP creates artificial scarcity, contradicting the non-aggression principle (NAP), and reiterates that rights are constructed tools, not “discovered” entities, using examples like a patented device to illustrate restrictions on physical property (17:01-22:00). The exchange is rigorous, with deep philosophical differences.
  Key Themes:
  • Kinsella’s view that IP violates property rights and rights are normative constructs (7:01-12:00).
  • Liebowitz’s defense of IP as protecting labor and rights as discoverable (12:01-17:00).
  • Kinsella’s critique of artificial scarcity and rights as non-discoverable (17:01-22:00).
    Summary: Kinsella argues IP’s philosophical illegitimacy, emphasizing that rights are man-made, not discovered, while Liebowitz defends IP as a moral right, highlighting a libertarian-Objectivist divide.
• 22:01-37:00 (Economic Impacts: Innovation and Free-Riding, ~15 minutes)
  Description: Kinsella critiques IP’s economic harms, citing studies (e.g., Boldrin and Levine, 2013) showing no clear innovation benefits and billions in litigation costs, arguing that IP stifles competition, particularly in tech and pharmaceuticals (22:01-27:00). Liebowitz counters that IP prevents free-riding, ensuring creators profit, and cites industries like film and music where IP supports economic viability, arguing that innovation thrives under IP regimes (27:01-32:00). Kinsella responds that market mechanisms, like first-mover advantages, incentivize innovation without IP’s coercive monopolies, and notes that rights are normative tools for justice, not entities “discovered” to justify IP’s existence (32:01-37:00). The debate is intense, with economic evidence central.
  Key Themes:

  • Kinsella’s critique of IP’s economic harms and lack of innovation benefits (22:01-27:00).

    
  • Liebowitz’s defense of IP as preventing free-riding and supporting innovation (27:01-32:00).
  • Kinsella’s market incentives argument and view of rights as constructed (32:01-37:00).
    Summary: Kinsella highlights IP’s economic costs and advocates market alternatives, reinforcing that rights are man-made, while Liebowitz defends IP’s necessity, underscoring their economic and philosophical divide.
• 37:01-52:00 (Moral and Utilitarian Arguments for IP, ~15 minutes)
  Description: Liebowitz emphasizes IP’s moral basis, arguing that creators deserve ownership of their intellectual efforts, and its utilitarian role in preventing underinvestment, aligning with Rand’s objective ethics (37:01-42:00). Kinsella refutes this, citing empirical studies (e.g., Machlup, 1958) showing inconclusive innovation benefits, and argues that IP’s state-backed monopolies violate the NAP, stating that rights are normative constructs, not “existing” entities to be discovered, challenging Liebowitz’s moral framework (42:01-47:00). Liebowitz accuses Kinsella of ignoring practical realities, like the need for IP in publishing, while Kinsella uses analogies (e.g., a recipe vs. a car) to clarify IP’s artificial restrictions (47:01-52:00). The exchange is heated, with philosophical tensions evident.
  Key Themes:
  • Liebowitz’s moral and utilitarian defense of IP to reward creators (37:01-42:00).
  • Kinsella’s empirical rebuttal and view of rights as normative, not discoverable (42:01-47:00).
  • Liebowitz’s practical concerns vs. Kinsella’s principled analogies (47:01-52:00).
    Summary: Liebowitz defends IP’s moral and utilitarian necessity, while Kinsella counters with empirical evidence and the view that rights are constructed, highlighting a divide between pragmatism and libertarian principles.
• 52:01-1:07:00 (Market Alternatives and Objectivist Ethics, ~15 minutes)
  Description: Kinsella argues that market alternatives, like open-source software and branding, outperform IP in fostering innovation, citing Linux, and reiterates that rights are man-made tools, not objective entities “discovered” in nature, challenging Liebowitz’s Objectivist ethics (52:01-57:00). Liebowitz counters that open-source is an exception, insisting IP is critical for industries like pharmaceuticals, where high costs require profit guarantees, and defends Rand’s view of rights as discoverable through reason (57:01-1:02:00). Kinsella challenges Liebowitz’s reliance on state coercion, arguing that IP contradicts free market principles, while Liebowitz accuses Kinsella of utopianism, emphasizing practical needs (1:02:01-1:07:00). The debate remains intense, with philosophical differences clear.
  Key Themes:
  • Kinsella’s defense of market alternatives and rights as constructed (52:01-57:00).
  • Liebowitz’s insistence on IP’s necessity and discoverable rights (57:01-1:02:00).
  • Kinsella’s critique of state coercion vs. Liebowitz’s practical defense (1:02:01-1:07:00).
    Summary: Kinsella advocates market-driven innovation and views rights as man-made, while Liebowitz defends IP and discoverable rights, underscoring libertarian versus Objectivist perspectives.
• 1:07:01-1:22:00 (Q&A: IP’s Economic Impacts and Rights’ Nature, ~15 minutes)
  Description: The Q&A begins, with an audience member asking about IP’s economic impact, prompting Kinsella to cite studies showing IP’s high costs and minimal innovation benefits, arguing that markets incentivize creativity without coercion, and emphasizing that rights are normative, not “existing” entities to be discovered (1:07:01-1:12:00). Liebowitz responds that IP’s absence would lead to underinvestment in creative sectors, citing pharmaceuticals, and defends rights as objective, discoverable entities per Rand’s philosophy (1:12:01-1:17:00). Another question on rights’ philosophical basis leads Kinsella to stress first-use principles, while Liebowitz defends creation-based rights, accusing Kinsella of ignoring practical outcomes (1:17:01-1:22:00). The Q&A highlights the philosophical divide.
  Key Themes:
  • Kinsella’s critique of IP’s costs and view of rights as normative (1:07:01-1:12:00).
  • Liebowitz’s defense of IP’s economic role and objective, discoverable rights (1:12:01-1:17:00).
  • Philosophical divide on rights: first-use vs. creation-based (1:17:01-1:22:00).
    Summary: Kinsella defends market alternatives and constructed rights, while Liebowitz emphasizes IP’s necessity and objective, discoverable rights, reinforcing the debate’s core tensions.
• 1:22:01-1:37:00 (Q&A Continued: Practical Implications and Philosophical Divide, ~15 minutes)
  Description: An audience question on IP’s practical implications prompts Kinsella to highlight open-source successes and IP’s litigation burdens, arguing that market competition drives innovation, and reiterating that rights are man-made, not “discovered” in nature, challenging Liebowitz’s framework (1:22:01-1:27:00). Liebowitz counters that IP is essential for competitive industries, preventing free-riding, and defends Rand’s view of rights as grounded in objective reality, accusing Kinsella of utopianism (1:27:01-1:32:00). Kinsella challenges Liebowitz’s state reliance, emphasizing the NAP’s principled stance, while Liebowitz insists on pragmatic governance to support IP (1:32:01-1:37:00). The Q&A underscores the ongoing divide.
  Key Themes:
  • Kinsella’s open-source examples and view of rights as constructed (1:22:01-1:27:00).
  • Liebowitz’s defense of IP’s practical necessity and objective, discoverable rights (1:27:01-1:32:00).
  • Kinsella’s NAP focus vs. Liebowitz’s pragmatic state defense (1:32:01-1:37:00).
    Summary: Kinsella critiques IP’s burdens and defends constructed rights, while Liebowitz emphasizes IP’s practical role and objective rights, highlighting libertarian versus Objectivist views.
• 1:37:01-2:00:55 (Conclusion and Final Q&A, ~24 minutes)
  Description: Kinsella concludes, urging rejection of IP as a violation of property rights and state coercion, directing listeners to c4sif.org for resources like Against Intellectual Property, and reiterating that rights are normative constructs, not entities to be “discovered” (1:37:01-1:40:00). Liebowitz makes a final defense, arguing IP’s necessity for innovation and moral recognition of creators, defending rights as objective and discoverable, and accusing Kinsella of ignoring economic realities (1:40:01-1:43:00). A final audience question on IP enforcement prompts Kinsella to emphasize market alternatives like branding, while Liebowitz defends state-backed IP to prevent free-riding (1:43:01-1:50:00). Malice ends the debate, with both acknowledging its depth, leaving little common ground, followed by a brief discussion on future topics (1:50:01-2:00:55).

  

  Key Themes:

  • Kinsella’s call to reject IP and state coercion, with rights as normative (1:37:01-1:40:00).
  • Liebowitz’s defense of IP’s economic and moral necessity, with objective rights (1:40:01-1:43:00).
  • Final Q&A on IP enforcement, highlighting libertarian-Objectivist divide, and future plans (1:43:01-2:00:55).
    Summary: Kinsella concludes by advocating IP abolition and constructed rights, while Liebowitz defends IP’s pragmatic and moral role with objective rights, with the final Q&A and closing remarks underscoring their philosophical divide.

---

Notes

The summary is based on the transcript at stephankinsella.com for KOL439, a 2-hour debate recorded on August 23, 2024, identified as Part IIa of the IP debate series, with Part IIb covered in KOL440., The time blocks are segmented to cover 5-15 minutes, with lengths (7, 15, 15, 15, 15, 15, 15, and 24 minutes) reflecting natural content divisions, such as opening statements, key arguments, and Q&A. The final block is longer due to the extended Q&A and closing remarks, but all key content is captured. Kinsella’s comments on rights as normative constructs, not entities that “exist” or can be “discovered,” are highlighted (e.g., 7:01-12:00, 32:01-37:00, 1:07:01-1:12:00, 1:22:01-1:27:00, 1:37:01-1:40:00), reflecting his critique of Objectivist ontology. The debate’s civil yet intense tone, driven by philosophical differences, is reflected, with Kinsella’s libertarian arguments clashing with Liebowitz’s Objectivist principles. If you need further adjustments, additional details, or analysis of another episode, please let me know

YOUTUBE Transcript

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As readers of my work know, I am usually very patient with sincere questions from newbs. But sometimes I reach my limit.

I received this email, unsolicited, from some guy I apparently made the mistake of replying to before, thus apparently encouraging and emboldening him. I’ll share my reply to him below. I’m so tired of these losers/cranks besieging me. [continue reading…]

A friend of mine, let’s call him “Gene,” asked me for my take on dueling and some related issues. This was in response to one of his friends criticizing libertarianism because it would have all kinds of unacceptable or unpleasant things such as frequent resort to dueling. Presumably the friend would outlaw dueling, and thinks libertarianism is defective because it would not.

My friend asked me if I thought dueling would be legal in a libertarian world, and also whether someone repeatedly harassing you and challenging you to a duel, not taking no for an answer, could be seen as making a threat. In that case, could the target/victim of this harassment seek an injunction or restraining order to keep harasser away. [continue reading…]

I was long friends with Tibor Machan (see Remembering Tibor Machan, Libertarian Mentor and Friend: Reflections on a Giant). We corresponded for years and met many times in Auburn when I would attend Mises Institute events. When I lived in Philadelphia, from 1994–97, we would occasionally get together when he was passing through. As I recall, he introduced me one time to Patrick Burke. I think we had lunch together. Burke was a nice and gentle man, from what I dimly recall, a religion professor at Temple in Philly. He has apparently passed away in the meantime, as has Tibor.

In any case, I read his book No Harm: Ethical Principles for a Free Market (1994), which had just been published and which we had discussed at  lunch. It was decent but flawed, if earnest. I published a critical review of it in Tibor’s journal Reason Papers in 1995, Stephan Kinsella, “Book Review of Patrick Burke, No Harm: Ethical Principles for a Free Market (1994),” Reason Papers No. 20 (Fall 1995), p. 135 (see text below). Ultimate I critique his “harm” criterion, just as I critique a similar the similar approach opposing “imposing costs” on others by J.C. (Jan) Lester in his book Escape from Leviathan: Libertarianism without Justificationism.

See, e.g,. Stephan Kinsella, “A Libertarian Theory of Punishment and Rights,” in Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023) (LFFS), n.16 and accompanying text; idem, “Dialogical Arguments for Libertarian Rights,” in LFFS, at n.3 and accompanying text; idem, “‘Aggression’ versus ‘Harm’ in Libertarianism,” Mises Economics Blog (Dec. 16, 2009); and idem, “Hoppe on Property Rights in Physical Integrity vs Value,” StephanKinsella.com (June 12, 2011).

Burke’s focus on “harm” as the key principle behind rights, instead of aggression, leads him into error, for example accepting the legitimacy of blackmail and defamation law, and even laws banning dueling, since “a challenge to a duel is akin to blackmail.” His view of contracts is also flawed since it is based on the notion of detrimental reliance (which I critique in “A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability,” in LFFS, at Part I.E).

No Harm: Ethical Principles for a Free Market*

T. Patrick Burke

Justifications in support of liberty are plentiful and diverse. This is to be expected, if the libertarian ideals of free minds and free markets are true, valid principles. For if liberty is justifiable, it is only natural that libertarian principles should be supported by many different lines of reasoning, including pragmatic, utilitarian, consequentialist, rationalist, and natural-law arguments, as well as by intuition, tradition, and common sense. Each time someone comes up with another insight into why freedom works, it adds to the argumentative evidence that individual freedom is a good thing. Patrick Burke in No Harm: Ethical Principles for a Free Market contributes to this libertarian corpus and offers yet another vantage point from which to view the virtues of freedom.

Burke’s clearly libertarian thesis is that “social justice requires market freedom.” (p.9) No Harm presents a justification of this thesis with an extended discussion of a rather simple core idea: that those who have not caused harm have a right not to be harmed Libertarians will recognize the No Harm principle as a close cousin of the non-aggression principle which prohibits the initiation of force.

In attempting to establish the No Harm principle underpinning the case for liberty and free markets, Burke does not offer a completely rigorous argument in the manner of some other libertarian theorists. Rather, he takes many things for granted, such as his position that human beings ought not to be harmed against their will, unless they have caused harm (discussed further below). Many of the premises Burke takes as true are accepted by most libertarians as well as by most ordinary people, so any conclusions he bases on these premises are still valuable. Other conclusions that Burke reaches, however, seem incorrect, perhaps because some of his foundations are not adequately defined and justified.

Before discussing the substance of the book, let me briefly make a comment about the book’s format. No Harm unfortunately contains endnotes rather than footnotes. Although some readers are annoyed by notes at the bottom of every page that “run along, like little angry dogs barking at the text,”¹ in my opinion footnotes are much more convenient to glance at than endnotes, and are thus vastly superior. It is a wonder to me that anyone in this age of computerized word processing would ever use endnotes. (I realize that the use of endnotes in books is still common, however, and I also realize that this very review utilizes endnotes rather than footnotes, but I can only plead that any blame for this lies with the editor.) No Harm also contains no detailed table of contents, i.e., one listing subsections as well as chapter headings in hierarchical form. I find that a detailed table of contents, often used in legal treatises in addition to a shorter “summary of contents,” is very helpful in understanding in outline form the conceptual organization of the ideas laid out in the book, and in looking up desired topics. But enough of this procedural quibbling and on to the substance.

Punishment and Harm

In order to establish his case for the free market, Burke attempts to show three things: (1) that those who have not caused harm have a right to not be harmed; (2) that typical market activities do not cause harm; and (3) that governmental actions which proscribe such market activities do cause harm. Libertarians would probably agree with the general thrust of these three points, if “harm” is defined as the initiation or use of force. Indeed, point (1) resembles the libertarian non-aggression principle, under which an individual has a right to do anything unless it involves the initiation of (physical) violence, i.e., aggression or coercion. Building on the non-aggression principle, libertarians can fairly easily show that market transactions, since they do not involve coercion, are not rights-violative; and that governmental laws directed at such market actions are thus themselves coercive and illegitimate. The problem that libertarians typically face is justifying the claim that the only fundamental individual right is a right to not be coerced.

Burke wants to approach this problem from a slightly different angle, by focusing on the perhaps more intuitive or more general concept of “harm” rather than solely on the concept of physical violence or aggression. Thus, instead of arguing in favor of the non-aggression principle, Burke attempts to establish that those who have not caused harm have a right to not be harmed. I must admit that I found parts of the structure and organization of Burke’s argument somewhat hard to follow. Not until chapter 5 does he really tackle what “Causing Harm” is, and not until the last three chapters, 7, 8, and 9, does he explore his “Principle of No Harm” in detail. Further, many of side-points seem clearly wrong, as I will discuss in more detail below.

In the very beginning of and throughout his discussion, Burke implicitly equates the right to not be harmed with a right to not be punished, and thus he implicitly equates harm with punishment. (p.10) Thus, to establish his point (1) (those who have not caused harm have a right to not be punished), Burke must define harm and its causation, and must also explain when punishment is deserved or justified. Regarding harm, Burke maintains that to cause harm to a person by some action, he must be “worse off’ after the action than he was before, and the action in question must have “caused” the deterioration in condition. (p.46) Burke’s conception of harm and causation are not very controversial, but do not get one very far, either, in terms of normative rights theory, since at this stage they are merely descriptive, not normative or prescriptive.

The big question that Burke must answer is “Who ought to be punished?” Burke says, “The only just answer to this question can be: those who deserve punishment.” (p.40) Even this formulation is almost tautologically true: only people who “deserve” punishment “ought” to be punished (and vice-versa). Burke’s first really synthetic proposition is the claim that only those that have caused harm deserve to be punished. In support of this contention, Burke offers three related principles of “No Harm”. The first principle, the Principle of No Harm, states that human beings ought not to be harmed against their will, unless they have caused harm. According to the Principle of No Hann II, those who deliberately cause harm to the innocent deserve to be punished proportionately. Under the Principle of No Harm III, those who do not cause harm deliberately ought not to be punished. (Chs. 7, 8, 9)

Admittedly, if the tripartite Principle of No Harm is accepted as valid, then the rest of Burke’s argument falls into place: by the Principle ofNo Harm, we may punish people only if they have caused harm; the enforcement of any law is a use of punishment and laws may thus not be passed against those who do not cause hann; actions on the free market do not cause harm; and therefore, laws may not be passed that restrict economic liberties. Ultimately, though, Burke does not offer much defense of the Principle of No Harm, crucial as it is to his argument. Instead, Burke relies on its intuitive and widespread appeal. Burke writes:

Since the large majority of people accept the concept of crime, detest crime, and support legal punishment, in that sense and to that extent they already accept the Principle of No Harm. Causing harm would seem in fact to be the quintessence of what we mean by the notion of “morally wrong.” Anyone who wishes to cast doubt on this principle has the burden of coming up with an alternative theory as to the principle on which it is wrong to commit murder or robbery. [p.181]

Taking such fundamental rights for granted, it then becomes easy to validate the Principle of No Harm, if it

is simply an unpacking or explication of what is implicit in the elementary belief that it is wrong to kill or injure an innocent person  That actions such as murder and robbery are criminal and deserve punishment is one of the most fundamental moral intuitions of mankind, and one which has the strongest claim to acceptance on its own terms. We do not need a theoretical construction to tell us that it is valid. Although theoretical considerations may be useful in clarifying this insight, as they can also muddy it, any moral theory we develop must assume its essential validity and be dependent on it. [p.182, emphasis added]

Even though Burke believes that all this is self-evident, he offers some perceptive “theoretical reflections which can lend support to the principle.” (p.182) He eschews utilitarian and egoistic theories, because these “kinds of arguments, if indulged in exclusively, would have the effect of reducing the Principle of No Harm to nonmoral factors, …. which runs counter to our ordinary conception of morality.” Instead, Burke develops a Kantian position that focuses on man’s volition, his ability to make free choices. Because each person is a self-governor, the most fundamental moral obligation is not to deprive others, by physical force, of making free choices. “Coercion, the use of physical force to deprive an adult human being of the power of self-government, is intrinsically harmful and wrong, unless he has deserved it by causing harm to others.” (p.183, endnote omitted, emphasis added)

Burke’s derivation of a right not to be harmed is thus not completely rigorous, because he relies on “the most fundamental moral intuitions of mankind” and the like, rather than justifying these bedrock principles themselves. Nor does he adequately explain why these principles are self-evident, if they are. Burke’s conclusions are nevertheless insightful and largely convincing, because most of the assumptions he makes are shared by most civilized people anyway. Given his largely sound framework, Burke does a nice job of showing that market transactions do not usually cause “harm,” and thus ought not be “punished,” i.e., outlawed or regulated.

Harm versus Aggression

 I believe that Burke’s case could have been a stronger one if he had focused more on force rather than on harm, or if he had made his definition of harm more (explicitly and consistently) dependent on force. Such a refinement of his argument would also have helped him to avoid a few missteps along the way.

Much of Burke’s argument implicitly recognizes the crucial role of force in defining rights. When, for example, Burke argues that market transactions do not usually cause “harm,” he effectively characterizes harm as the inflicting of force on others. He also characterizes the right to not be harmed as a right to not be punished, thereby equating harm with punishment, i.e. force. It is when Burke views harm as the use of force that his discussion is most persuasive, which is not surprising to libertarians, who give force such a central role. Despite this implicit equation of force and harm in these contexts, however, Burke would not appear to agree with a general equation of harm with coercion, of rights-violations with the initiation of force. For instance, Burke maintains that rights-vio­ lations are not the only circumstances in which a person can be “harmed” (p.194); and that violence is not the only way to harm someone (see, e.g., his views on blackmail (p.57), defamation (p.57), and “dueling” (p.192), discussed further below). But punishment, after all, a central concept for Burke, is not merely the causing of “harm”—it is specifically the application of force to an individual. Why does Burke focus on (physical) punishment so much, if the physical, forcible element does not necessarily need to be part of the concept of harm? Why does Burke equate a right to not be harmed with a right to not be punished, but not harm with force in the general case?

A more rigorous and consistent case may be made for liberty if the interrelationship between harm, force, rights, and punishment is made clear. Under the libertarian non-ag­ gression principle, an individual has a right to do anything other than initiate force against others; thus punishment (the use of retaliatory force) is justified only in response to aggression, and never in response to harm alone.² That is, the only punishable harm is one caused by an initiation of force. Burke’s concept of punishable harm as being broader than the mere initiation of force leads him to untrue conclusions in a few instances. First, if rights-violations or the initiation of force are not the only way that individuals are harmed (such that punishment may be visited upon the harmer), then it would follow that at least some harmful acts which are not rights-violations or violent can be legitimately punished. But if harm can follow from a non-coercive action, then this opens the door to regulate market activity, for while voluntary market activity does not involve coercion, how are we to say that it never causes “harm,” if harm can include non-coercive harm? Certainly the market, while indeed non-coercive, has many other features (e.g., it may be vulgar, crass, or amoral), and I can see no reason, and Burke offers none, that “non-coercive harm” (that nevertheless justifies punishment) is not among them.

As Burke states,

It does not make sense to believe that a person may cause hann to another by engaging in a market exchange with him. It does not make sense to believe that even when there is no question of force or fraud, a seller may cause harm to a buyer by selling him something which he requests to buy, and an employer may cause harm to an employee by giving him a job which he applies for. [p.42]

Burke also emphasizes that “The question of law is always a question of punishment.” (p.58) As Burke seems to recognize in these comments, the element of force cannot be left out of a viable definition of harm, if “harm” is to be used to justify (forcible) punishment. Any law will direct the use of physical force against certain individuals. Burke is correct that this is a type of “harm,” and may be legitimately inflicted on others when they, too, have banned someone. But the symmetry of the argument requires that the type of “harm” being punished involve force itself. If force is to be inflicted on others, surely this can only be justified when it is in response to an initial use of force. If A merely causes “harm” to B but without inflicting force (i.e., a non-coercive type of harm), B is indeed justified in causing “harm” to A in response – but only a non-force-inflicting type of harm, and thus certainly not punishment, which necessarily involves force.³ Thus, the only sort of harm that can legitimately be punished is force-inflicting(i.e., rights-violating) harm.

If Burke must resort to the concept of physical force to get useful results from his “harm” principle, one wonders why his thesis focuses on harm rather than on force simpliciter. Burke would do better to substitute the initiation of force for harm, and seek to establish: (l’) that those who have not initiated force have a right to not have force used against them; (2′) that typical market activities do not involve the initiation of force; and (3′) that governmental actions which proscribe such market activities do initiate force. In establishing step (l’) characterized this way, it is indeed relevant to ask, “Who deserves punishment?”, since punishment, like step (l’), focuses on the use of force itself. When these issues are clarified in this way, however, it becomes clear that the vague concept of “harm” is too broad to sufficiently justify rights and market transactions.

Further Problems

Burke’s view of the concepts of harm, force, rights, and punishment causes further difficulties. For example, consider Burke’s view on blackmail. Burke considers the case of the blackmailer offering to “not to publish compromising photographs of a man with his mistress if he will pay $500.” (p.57). Disagreeing with libertarians such as Rothbard, Burke maintains that “To blackmail a person is to threaten to cause him harm. Harm is not restricted to violence or the threat of it, but includes injury to a person’s reputation by defamation, libel and slander.” (p.57, endnote omitted, emphasis omitted) Burke here cites Pennsylvania’s criminal code regarding theft by extortion, presumably as an example, but hopefully not as a justification, for surely the mere existence of a positive state law cannot justify such a law. But Burke’s reasoning is too skimpy here, and he does not provide an argument showing why (punishable) harm includes defamation, libel, and slander.⁴ The mere uttering of sounds or words does not inflict force on others, and thus simply cannot justify retaliatory force against the utterer. Burke even recognizes this in another context: “A mere statement of a belief cannot in principle be harmful to anybody, even if it mistaken, since it always rests within the power of the listener whether he is to believe it or not.” (p.213)

For the same reason that we have a right to free speechs words cannot aggress against libel and slander laws cannot be tolerated in a free society. The only rights that exist, in my opinion, are rights to tangible, corporeal, property. This is because the only reason for property rights is to assign ownership to scarce resources, and only physical property can be scarce.⁵ Ideas and reputations are mere abstractions and are not property.⁶ Burke also believes that “a challenge to a duel is akin to blackmail.” (p.192; see also p.268 n.15) The argument here is very sketchy and, I believe, unconvincing.

Burke’s view on contracts is also problematic. In attempting to justify the “enforce­ ability” of contracts, Burke draws on the traditional legal concept of detrimental reliance. According to this theory,

The binding force of the contract comes from the fact that it leads each party justifiably to expect a certain perfonnance from the other and to rely upon that expectation in such a way that if the other fails to perfonn, then the first party is harmed. [p.71]

As others have pointed out, this reasoning is circular, for reliance on performance is not “reasonable” or justifiable unless one already knows that the promise is enforceable, which begs the question.⁷ What has not been widely recognized even by many libertarians is the fact that the enforcement of promises also violates freedom of speech: if I merely utter words (e.g., “I promise to do X”) then I have not used force against you; thus you are not justified in using force against me to “enforce” the contract. Contracts may legitimately be construed only as conditional transfers or exchanges of property.⁸

Burke also offers the Principle of Double Effect as a way to determine whether we may outlaw an action that will have both bad and good effects. Burke submits the example of a terrorist who is threatening to kill a hostage unless certain demands are met:

A police sharpshooter could perhaps shoot the terrorist, but there is a risk that he might shoot the hostage by mistake. Is it morally pennissible for him to try to shoot the terrorist?

The Principle of Double Effect answers this question by providing three criteria:

1. The evil effect must not be the cause of the good effect. This rule is necessary because the end does not justify the We may not do harm in order that good may come of it.
2. The evil effect must not be deliberately
3. The harm caused must not be greater than the harm prevented, or the good done. [p.198]

There are many problems with these criteria. For example, how in the world do you weigh harms against one another, or the harm caused against the good intended? A more serious problem with this principle is that Burke simply asserts it as if it is true, without offering any justification for it, evidently relying on its somewhat intuitive appeal.

In the area of economics, Burke admirably rejects antitrust laws, but seems to accept the concept of monopoly nonetheless. “If a genuine monopoly is achieved in an industry, and the monopolist firm raises prices above the competitive level, it creates an incentive for other firms to enter the industry in competition with it.” (p.80) This ignores, however, Rothbard’s demonstration that the very concept of free-market monopoly is invalid.

Burke’s views on the Great Depression are baffling. He recognizes that the Great Depression was, contrary to popular belief, caused by actions of the federal government. So far, so good. According to Austrian economic theory, recessions and depressions are caused when the malinvestments of artificial booms, caused by inflation of the money supply, are liquidated. Thus, it is a federally-controlled decrease in interest rates, or the corresponding expansion of the money supply, that causes depressions.¹⁰ Burke, however, maintains that one of the actions of the federal government that caused, or prolonged, the Great Depression “was the action of the Federal Reserve in increasing interest rates and further restricting the money supply, precisely at the time when just the opposite action was needed.” (p.91, emphasis added; see also pp.33,164) The “opposite action” that Burke believes was “needed”—i.e., inflation of the money supply – is the very type of thing that caused the Great Depression. Only Milton Friedman is cited here; apparently Burke is unfamiliar with the Austrian work on the business cycle, or finds it not worth taking into account in his analysis.¹¹

In another economic misstatement, Burke says that “Far from causing harm, the seller who raises his prices in a shortage is doing just what needs to be done to reduce the shortage, he is providing an incentive for producers to produce more.” (p.95) But it seems to me that this is untrue: the raised prices provide a disincentive to prospective buyers with less urgent needs from purchasing the goods.¹²

Burke’s favorable comments regarding democracy are also somewhat naive, or at least paint too rosy a picture regarding the virtues of democracy. He maintains that representative government is an “effectual system,” and that “The idea of democracy is enshrined in two principles: majority rule, and human rights. Both of these, but especially human rights, are antipathetic to authoritarianism.” (p.23) He also maintains that “democ­ racy is the most effective means of ensuring the protection of human rights against government” (p.163), and he has “no doubt that representative democracy is the best and wisest form of government where it is capable of existing”. (p.234) Burke’s use of phrase “human rights” rather than “individual rights” is somewhat unsettling, because the term “human rights,” like the term “liberal” in American usage, has acquired a leftist or socialist tinge.¹³ Further, majority rule as a principle can resolve into mob rule, which is unlikely to favor individual rights. Indeed, democracy has systemic features which make it tend to oppress liberty.¹⁴ Democracy is not as benevolent and compatible with the free market at Burke assumes.

Useful Insights

All this is not to say that Burke does not make many perceptive points in No Harm. Although his Principle ofNo Harm could stand some refinement and is not defended with complete rigor, it is, after all, true that people should not “harm” one another, and most decent people do agree with this, stated as a general proposition. Burke has many good explanations that show why, contrary to popular wisdom, we are not harmed by market transactions, and are, conversely, harmed by government intervention. Probably the most praiseworthy aspect of Burke’s book is his extended discussion of the “harmlessness” of voluntary market transactions.

There are many fresh insights sprinkled throughout the text. One useful insight of Burke’s that had never occurred to me regards the typical leftist assertions that “the actions of a person in economic distress are not free.” (p.49) Liberals typically maintain that a person in danger of starvation is “compelled by circumstances” to accept a low-wage, dangerous, or otherwise undesirable job. As Burke notes, this

is thought to be a significant question only because it is assumed that people in distress who accept tough conditions are being harmed. It is supposed to provide an explanation for what otherwise, on this interpretation, would be bizarre and incomprehensible behavior. Given that they are causing harm to themselves, what could explain such a paradoxical action, since presumably they are not masochists? The answer is made that they have no alternative, they are compelled to take the job. It is assumed that this explanation renders comprehensible an action which otherwise would make no sense. Where it is clear that a person is benefiting from an action, however, there is no urgent need to ask whether he does so freely. A penniless beggar given a lottery ticket which turned out to win him a million dollars would be under heavy economic and psychological pressure to accept the prize, but there would be little practical point in questioning whether his acceptance was truly free. [p.49, emphasis added]

Burke also notes that some writers oppose market freedom based on alleged “market failure.” For example, a car owner, who is often mechanically ignorant, may be taken advantage of by a mechanic, who has an incentive to lie and diagnose greater problems with the car than actually exist. Since the mechanic or service station owner is supposedly “rational” in this case, this may be a case of “market failure” requiring government regulation. Burke perceptively points out that:

To call lying a case of market failure betrays an elementary misunderstanding of the concept of a free market. Deliberate deception, or fraud, is not a part of the concept of a free market. It is certainly true that the successful operation of a market economy depends on maintaining ethical behavior, and there must be legal remedies available for people who have been defrauded. Fraud, however, is not a case of the failure of the market, but of the moral failure of individuals. [p.89]

Conclusion

 All in all, No Harm presents a fresh perspective on the virtues of liberty from the viewpoint of the ubiquitous concept of harm. Burke does a good job of explaining why, in general, people are not “harmed” in a free market, and thus free market activities should not be regulated by governments, whose job is to punish those who cause harm. However, Burke’s neglect of foundational issues, justifications, and precise definitions, and his unfortunate willingness to label some non-coercive actions as punishable harms, weaken his overall case, and cause him to stray into error on a few issues. Yet Burke does offer many useful insights, and is fundamentally correct in championing freedom and pointing out its many benefits. We should always cheer when yet another voice is added to the chorus crying for freedom.

N. Stephan Kinsella,

Schnader, Harrison, Segal & Lewis, Philadelphia, Pennsylvania

Endnotes

*Page references to this book will be given parenthetically in the text.

**The author practices computer software and hardware patent law with Schnader Harrison Segal & Lewis, in Philadelphia. He may be reached by internet at kin­[email protected].

1. S.M. Crothers, “That History Should be Readable”, in The Gentle Reader 172 (1903; repr. 1972), quoted in Bryan A. Gamer, The Elements of Legal Style 92 (New York: Oxford University Press, 1991).
2. On the definition of “aggression” and the libertarian non-aggression principle, see Murray N. Rothbard, For a New Liberty: The Libertarian Manifesto (New York: Liber­ tarian Review Foundation, reprint ed., 1985), 23. See also Hans-Hermann Hoppe, A Theory of Socialism and Capitalism: Economics, Politics, and Ethics 139-41, 237 n.17 (Boston: Kluwer Academic Publishers, 1989) (arguing that property rights protect the physical integrity of property, but not the value of property).
3. See my articles “Estoppel: A New Justification for Individual Rights”, Reason Papers No. 17 (Fall 1992), p. 61, and “Punishment and Proportionality; the Estoppel Approach”, J. Libertarian Studies (forthcoming), for a theory focusing on this sort of symmetry.
4. On the illegitimacy of libel and slander (defamation) laws, see Rothbard, supra note 2, at 96-97; idem, The Ethics of Liberty 126-27 (Atlantic Highlands, N.J.: Humanities Press, 1982) and Walter Block, Defending the Undefendab/e: The Pimp, Prostitute, Scab, Slumlord, Libeler, Moneylender, and Other Scapegoats in the Rogue’s Gallery of Ameri­ can Society (San Francisco: Fox & Wilkes, 1991). [See also Kinsella, “Defamation as a Type of Intellectual Property.”]
5. For a discussion of the necessity of the concept of “scarcity” to a proper definition of goods or property, see Ludwig von Mises, Human Action: A Treatise on Economics 93, 235-36, 528 (Chicago: Contemporary Books, Inc., 3d rev’d ed. 1966); Murray N. Roth­ bard, 1 Man, Economy, and State: A Treatise on Economic Principles 4 (Los Angeles: Nash Publishing, 1962); and Hoppe, supra note 2, at 8-10, 134 et seq.
6. On libel laws, see supra note 4. For a discussion of intellectual property rights, see Rothbard, supra note 2, at 123-24; idem, supra note 5, at 652-60; Tom G. Palmer, “Are Patents and Copyrights Morally Justified?” “The Philosophy of Property Rights and Ideal Objects,” 13 J. Law & Pub/. Poly 817 (1990), as well as other articles in same issue (No. 3, Summer 1990) and in Vol. 13, issue no. 1 (Winter 1990) of this journal; Tom G. Palmer, “Intellectual Property: A Non-Posnerian Law and Economics Approach11, 12 Hamline L. Rev. 261 (1989); Wendy J. Gordon, “An Inquiry into the Merits of Copyright: “The Challenges of Consistency, Consent, and Encouragement Theory”, 41 Stan. L. Rev. 1343 (1989).
7. See, g., Randy E. Barnett,”A Consent Theory of Contract”, 86 Columbia L. Rev. 269, 274-76 (1986); Randy E. Barnett and Mary E. Becker, “Beyond Reliance: Promissory Estoppel, Contract Fonnalities, and Misrepresentation”, 15 Hofstra L. Rev. 443, 446-47, 452 (1987). For further discussion of these and related issues, see Williamson M. Evers, “Toward a Reformulation of the Law of Contracts”, 1 J. Libertarian Stud. 3 (1977); Randy Barnett, “Contract Remedies and Inalienable Rights”, 4 Social Phil. & Poly 179 (1986); Rothbard, supra note 4, chapter 19;
8. For insightful discussions into the nature of contracts, see Evers, supra note 7; Rothbard, supra note 4, chapter 19, “Property Rights and the Theory of Contracts”; and Barnett, “A Consent Theory of Contract”, supra note 6. These formulations are not, however, without problems. I plan to discuss this issue at further length in a future article.
9. Rothbard, supra note 5, at chapter 10, pp. 604-14; Hoppe, supra note 2, at chapter 9, esp.pp. 180-85.
10. See Murray N. Rothbard, America’s Great Depression (Los Angeles: Nash Publishing, 2d 1972); idem, supra note 5, at ch. 12, 11; Mises, supra note 5, at ch. XX.
11. In a discussion of the “business cycle,” Burke notes that the two chief explanations for this phenomenon are that it is due to excessive investment; or to governmental policies, such as “control of the money supply.” (p.94) Burke cites neither Mises’s nor Rothbard’s work on the Austrian theory of the business cycle. See supra note 10.
12. See, g., Murray N. Rothbard, “Government and Hurricane Hugo: A Deadly Combi­nation,” in The Economics of Liberty at 137 (Auburn, Alabama: Ludwig von Mises Institute, 1990) (first published in The Free Market, vol. 7, No. 12 (December 1989)); and George Reisman, The Government Against the Economy, ch. II, sec. 2, p. 42, et passim (Ottawa, Ill.: Jameson Books, 1979).
13. See, g., the United Nation’s Universal Declaration of Human Rights, U.N. GAOR, 217A (III) (1948), at articles 22-26 (reciting, for example, human rights to “social security” and to “free” education).
14. For perceptive articles discussing this point, see Hans-Hermann Hoppe, ‘Time Preference, Government, and the Process of De-Civilization From Monarchy to Democracy”, 5 des Economistes et des Etudes Humaines 319 (1994). Interestingly, Frank Knight made a similar point back in 1929. In his essay Freedom as Fact and Criterion, Knight stated:

We say that the victim of a highwayman is coerced, not because the character of his choice between the alternatives presented is different from any other choice, but because we think the robber does “wrong” in making the alternatives what they are.

In no other sense is it possible to speak of coercion. No human being can ever literally “force” another to do anything (though one may of course forcibly prevent another from acting)….[T]he threat of violence… as a means of controlling the conduct of a human being has only a figurative kinship with the action of a physical force in changing the state of rest or motion of a mass of matter. It is interesting to note that when conduct is influenced by an offer to improve one’s condition, instead of a threat of worsening it, we do not call it force or duress.

Frank H. Knight, Freedom and Reform: Essays in Economics and Social Philosophy 17 (Indianapolis: Liberty Press, 1982).

My book Legal Foundations of a Free Society concerns justice. As Hans-Hermann Hoppe writes in his Foreword, “The question as to what is justice and what constitutes a just society is as old as philosophy itself. Indeed, it arises in everyday life even long before any systematic philosophizing is to begin.” In ch. 2 (n.3), I quote the classic formulation from Justinian: “Justice is the constant and perpetual wish to render every one his due.… The maxims of law are these: to live honestly, to hurt no one, to give every one his due.”

I came across a nice quote about justice from esteemed Louisiana federal judge Alvin Rubin (2) (1920–91), from the case U.S. v. McDaniels, 379 F.Supp. 1243 (E.D. La. 1974): [continue reading…]

Related:

That’s why Godel came up with his theorem, to advance his Platonist philosophy of mathematics over and against formalists who thought mathematics is a formal game humans made up.

— Rapid Rar (@rapid_rar2) February 16, 2026

Dear Mr. Kinsella,

I hope this message finds you well. I have a question regarding the use of performative contradiction in argumentation ethics. I’d really appreciate it if you could share your thoughts.

My question is, without using performative contradiction, self-ownership is naturally true in argumentation since argumentation presupposes self-ownership. It is like Gödel’s Incompleteness Theorem that Gödel found a way of allowing mathematics to talk about itself. It is self-referential. In the case of argumentation, if A owns B, there is no need for an argumentation between A and B over the ownership of C, A would just own C by default. In this case, in order to have an argumentation, A and B must be self-owned. [continue reading…]

Kinsella on Liberty Podcast: Episode 437.

My appearance on The Rational Egoist: Debating the Moral Status of Intellectual Property with Stephan Kinsella. We focused here mostly on property rights and other precursor concepts. We plan to have a followup discussion to get into the nitty gritty of the application of these more basic concepts and principles to the topic of IP. (Spotify)

Shownotes:

In this episode of The Rational Egoist, host Michael Liebowitz engages in a thought-provoking discussion and debate with Stephan Kinsella, a libertarian writer and patent attorney, on the moral status of intellectual property. The complexity of the issue sparks a deep dive into the ethical and legal dimensions of IP rights, leading to a conversation so rich that it had to be continued in a future episode.

DETAILED GROK SHOWNOTES:

YOUTUBE TRANSCRIPT

Podcast (kinsella-on-liberty): Play in new window | Download (56.8MB)

Kinsella on Liberty Podcast: Episode 436.

I was interviewed today by Kelly Patrick of the Kelly Patrick Show ep. 777. I fielded questions from his The Kelly Patrick Show Political Chat facebook group, mostly questions from nonlibertarians or people critical of libertarianism. We discussed the prospects of liberty, activism, why people are not persuaded by libertarian arguments, the prospects of the Libertarian Party, intellectual property, anarchism, and so on.

Podcast (kinsella-on-liberty): Play in new window | Download (Duration: 1:33:08 — 80.6MB)

Q:

Hello prof. Kinsella. I would like to ask you a quick question. Do you consider libertarian as synonymous with anarcho-capitalist? Obviously there are many libertarians who are more classical liberals, but a libertarian consistent with his premises should be an anarchist, in this sense would he be a synonym for anarcho-capitalist? [continue reading…]

[From my Webnote series]

See also, on reasons law cannot be fully deduced:

• The Universal Principles of Liberty
• On Pushing the Button–the problem with magic
• The Limits of Armchair Theorizing: The case of Threats
• Roman Law and Hypothetical Cases
• Libertarian Answer Man: Corporations, Trusts, HOAs, and Private Law Codes in a Private Law Society
• KOL359 | State Constitutions vs. the Libertarian Private Law Code (PFS 2021)
• KOL345 | Kinsella’s Libertarian “Constitution” or: State Constitutions vs. the Libertarian Private Law Code (PorcFest 2021)

same reason esperanto failed. Or as Holmes said, “The life of the law has not been logic; it has been experience”

More seriosly, for the same reason most hypos are not answerable–because not enough context. https://t.co/NaXh7F8GDO https://t.co/wVzBgzjNpL . to decide a dispute…

— Stephan Kinsella (@NSKinsella) June 26, 2025

Stephan Kinsella, Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023), ch. 11:

Those types of arguments and reasons are not justifications. There has to be an objective best link.^[15] So how does that work out? In Western private law and in libertarianism, which is a far more consistent working out of this, there are basically two types of links—the type of link applied to your body, which is a unique scarce resource; and the type of link applied to external resources in the world, which were previously unowned scarce resources. For the body, the link is a self-ownership link. You own your body, and the reason is because of your direct control over it, which I will get to in a minute.

And then for scarce resources in the world, they’re always owned first by someone first using them from their unowned state. That’s called homesteading or original appropriation. And then ownership can be transferred for two reasons: contractually—that’s a voluntary transfer of your ownership title of the resource to someone else, either by sale or by gift; or for purposes of rectification, which can be seen as a subset of contract because it’s also a transfer of title from an owner to someone, but it’s because the owner committed a tort against the victim and thus gave him a right to recover some of the aggressor’s property as damages. ¹

So original appropriation, contract, and rectification are basically the only three principles to determine ownership of external resources in case of a dispute. So these four principles—body-ownership due to direct control, with an exception made for forfeiture of this right due to committing aggression,^[16] plus the three principles for external resources—are how we determine the best link, and this is the core of all property rights, and of all just law. A developed body of private law, to be just, has to be based on these core principles, and just entails working out the details as the law develops.^[17] And every socialist system, and every law not based on these core principles, including IP law, always ends up deviating from these core private property law principles in one way or another.

^[15] See “How We Come to Own Ourselves” (ch. 4).

^[16] See “Inalienability and Punishment: A Reply to George Smith” (ch. 10) and note 18, below. See also the Libertarian Party Platform language quoted in note 27, below.

^[17] See “Legislation and the Discovery of Law in a Free Society” (ch. 13), in general, and “Knowledge, Calculation, Conflict, and Law” (ch. 19), the section “Abstract Rights and Legal Precepts.” See also Hoppe’s pithy summary of these basic rules, in “A Realistic Libertarianism,” LewRockwell.com (Sept. 30, 2013; https://www.hanshoppe.com/2014/10/a-realistic-libertarianism/) and in “Of Common, Public, and Private Property and the Rationale for Total Privatization,” at pp. 85–87, and the LP Platform language mentioned in note 27, below. As Hoppe writes in “A Realistic Libertarianism”:

But who owns what scarce resource as his private property and who does not? First: Each person owns his physical body that only he and no one else controls directly (I can control your body only in-directly, by first directly controlling my body, and vice versa) and that only he directly controls also in particular when discussing and arguing the question at hand.… [A]s for scarce resources that can be controlled only indirectly (that must be appropriated with our own nature-given, i.e., un-appropriated, body): Exclusive control (property) is acquired by and assigned to that person, who appropriated the resource in question first or who acquired it through voluntary (conflict-free) exchange from its previous owner. For only the first appropriator of a resource (and all later owners connected to him through a chain of voluntary exchanges) can possibly acquire and gain control over it without conflict, i.e., peacefully.

For elaboration of the basis for the property acquisition rules, see Against Intellectual Property After Twenty Years: Looking Back and Looking Forward, in Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023), n. [42] and accompanying text, including references such as: Kinsella, “How To Think About Property,” StephanKinsella.com (April 25, 2021); Kinsella, “The Limits of Libertarianism?: A Dissenting View” (citing Roderick Long and Robert Nozick); also idem, “KOL345 | Kinsella’s Libertarian “Constitution” or: State Constitutions vs. the Libertarian Private Law Code (PorcFest 2021),” Kinsella on Liberty Podcast (June 26, 2021); and “Nobody Owns Bitcoin,” StephanKinsella.com (April 21, 2021). See also Gary Chartier, Anarchy and Legal Order: Law and Politics for a Stateless Society (Cambridge, 2012), at ch. 2.E, pp. 64–65 , et seq., elaborating on the “baseline possessory rules” corresponding to original appropriation and contractual title transfer.

See also Gary Chartier, “Intellectual Property and Natural Law”; The Essence of Libertarianism? “Finders Keepers,” “Better Title,” and Other Possibilities

Update: Simon Guenzl, “Public Property and the Libertarian Immigration Debate,” Libertarian Papers, 8(1) (2016): 153–177, at p. 165 & n.15, writes:

Pursuant to Rothbardian philosophy, property can only come to be justly owned in one of three ways.

First, someone can homestead previously unowned property using legitimate means. Here, the individuals who compose the state cannot be held to have properly homesteaded state-claimed land because they used illegitimate means (at a minimum, stolen income) and the taxpayers have not performed any homesteading acts of their own.

Second, a person can receive property through consensual transfer from a prior legitimate owner (such as through a gift or purchase). In this case, neither individuals within the state nor the taxpayers received the state-claimed land from a prior legitimate owner, because there was none.

Third, a victim may exercise remedial claims, by force if necessary, to an aggressor’s legitimately-owned property. Here, the aggressors (individuals within the state) do not legitimately own the state-claimed land, and thus the victims’ (the taxpayers’) rights cannot extend to such property (nor can the aggressors offer the victims such property or any benefits arising from it in lieu of other enforcement action).¹⁵

^15. This method of acquiring legitimate ownership of property is not commonly articulated as the third limb of Rothbardian property rights theory, except perhaps by Kinsella (for instance, Kinsella [2014]). This may be because Kinsella has written extensively on both property rights and punishment, and thus has been able to integrate the two fields. Note that the libertarian literature characterizes remedial rights in various ways. See for instance, Randy Barnett (1977), Roger Pilon (1978), Kinsella (1997; 1998-99), and Rothbard (2002, chapter 13). In all cases, however, the literature is clear that the victim’s enforcement rights are against only the aggressor’s legitimate property (or person). Note also that the reason these remedial rights can be characterized as a third means of acquiring legitimate title to property is because, unlike homesteading and consensual transfer, this method relies on force—the aggressor would not normally yield his property rights absent the threat of force from the victim—with the distinction being that such force in response to initiated aggression is justified.

It is true that most libertarian commentators are not explicit about this “third limb,” and in recent years I have been explicit about this. But this insight is not original to me. For example:

Nozick:

The subject of justice in holdings consists of three major topics. The first is the original acquisition of holdings, the appropriation of unheld things. This includes the issues of how unheld things may come to be held, the process, or processes, by which unheld things may come to be held, the things that may come to be held by these processes, the extent of what comes to be held by a particular process, and so on. We shall refer to the complicated truth about this topic, which we shall not formulate here, as the principle of justice in acquisition. The second topic concerns the transfer of holdings from one person to another. By what processes may a person transfer holdings to another? How may a person acquire a holding from another who holds it? Under this topic come general descriptions of voluntary exchange, and gift and (on the other hand) fraud, as well as reference to particular conventional details fixed upon in a given society.

… If the world were wholly just, the following inductive definition would exhaustively cover the subject of justice in holdings.

1. A person who acquires a holding in accordance with the principle of justice in acquisition is entitled to that holding.
2. A person who acquires a holding in accordance with the principle of justice in transfer, from someone else entitled to the holding, is entitled to the holding.
3. No one is entitled to a holding except by (repeated) applications of 1 and 2.

… Not all actual situations are generated in accordance with the two principles of justice in holdings: the principle of justice in acquisition and the principle of justice in transfer. Some people steal from others, or defraud them, or enslave them, seizing their product and preventing them from living as they choose, or forcibly exclude others from competing in exchanges. None of these are permissible modes of transition from one situation to another. And some persons acquire holdings by means not sanctioned by the principle of justice in acquisition. The existence of past injustice (previous violations of the first two principles of justice in holdings) raises the third major topic under justice in holdings: the rectification of injustice in holdings. If past injustice has shaped present holdings in various ways, some identifiable and some not, what now, if anything, ought to be done to rectify these injustices? What obligations do the performers of injustice have toward those whose position is worse than it would have been had the injustice not been done? Or, than it would have been had compensation been paid promptly? How, if at all, do things change if the beneficiaries and those made worse off are not the direct parties in the act of injustice, but, for example, their descendants? Is an injustice done to someone whose holding was itself based upon an unrectified injustice? How far back must one go in wiping clean the historical slate of injustices? What may victims of injustice permissibly do in order to rectify the injustices being done to them, including the many injustices done by persons acting through their government? I do not know of a thorough or theoretically sophisticated treatment of such issues.² Idealizing greatly, let us suppose theoretical investigation will produce a principle of rectification. This principle uses historical information about previous situations and injustices done in them (as defined by the first two principles of justice and rights against interference), and information about the actual course of events that flowed from these injustices, until the present, and it yields a description (or descriptions) of holdings in the society. The principle of rectification presumably will make use of its best estimate of subjunctive information about what would have occurred (or a probability distribution over what might have occurred, using the expected value) if the injustice had not taken place. If the actual description of holdings turns out not to be one of the descriptions yielded by the principle, then one of the descriptions yielded must be realized.^*

^2. See, however, the useful book by Boris Bittker, The Case for Black Reparations (New York: Random House, 1973).

^* If the principle of rectification of violations of the first two principles yields more than one description of holdings, then some choice must be made as to which of these is to be realized. Perhaps the sort of considerations about distributive justice and equality that I argue against play a legitimate role in this subsidiary choice. Similarly, there may be room for such considerations in deciding which otherwise arbitrary features a statute will embody, when such features are unavoidable because other considerations do not specify a precise line; yet a line must be drawn. ²

Roderick Long (citing Nozick): Libertarian property rights are, famously, governed by principles of justice in initial appropriation (mixing one’s labour with previously unowned resources), justice in transfer (mutual consent), and justice in rectification (say, restitution plus damages). ³

Gary Chartier also elaborates on the “baseline possessory rules” corresponding to original appropriation and contractual title transfer. ⁴ In a separate section he argues in favor of restitution in the case of injuries resulting from aggression. ⁵

***

Stephan Kinsella, Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023), ch. 9:

“In other chapters I argued that rights in our bodies stem from the fact of our direct control of our bodies, drawing on Hoppe’s arguments, while property rights in external, previously unowned resources arise from original appropriation or title transfer from a previous owner by contract or for purposes of rectification.51

51. See “How We Come to Own Ourselves” (ch. 4) and “Goods, Scarce and Nonscarce” (ch. 18). See also Hoppe’s pithy summary of these basic rules, in “A Realistic Libertarianism,” LewRockwell.com (Sept. 30, 2013; https://www.hanshoppe.com/2014/10/a-realistic-libertarianism/) and in idem, “Of Common, Public, and Private Property and the Rationale for Total Privatization,” pp. 85–87.”

The Problem with Intellectual Property, Part II.C:

The purpose of property rights is to support actors in the pursuit of their goals by enabling them to employ resources, including their own bodies, free of physical conflict and interference from other actors. Property rights are inherently practical. For this reason legal systems and their corresponding property rights from time immemorial have always exhibited certain core features in the private law, to one degree or another: self-ownership, original appropriation, contractual transfer, and transfers for rectification.

Stephan Kinsella, Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023), ch. 2:

“The libertarian view is that individual rights—property rights—are assigned according to a few simple principles: self-ownership, in the case of human bodies; and, in the case of previously-unowned external things (conflictable resources), in accordance with principles of original appropriation, contractual title transfer, and rectification.11”

Stephan Kinsella, Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023), ch. 4:

“FIRST USE AND HOMESTEADING OF UNOWNED RESOURCES”,

ch. 4:

“The libertarian view is that individual rights—property rights—are assigned according to a few simple principles: self-ownership, in the case of human bodies; and, in the case of previously-unowned external things (conflictable resources), in accordance with principles of original appropriation, contractual title transfer, and rectification.”

note 11:

also

“ “KOL259 | ‘How To Think About Property,’ New Hampshire Liberty Forum 2019,” Kinsella on Liberty Podcast (Feb. 9, 2019).”

“Aggression and Property Rights Plank in the Libertarian Party Platform,” StephanKinsella.com (May 30, 2022);”

1. The term “solatium,” “compensation for emotional rather than physical or financial harm,” is sometimes used as a synonym for or in connection with restitution or rectification, and in connection with eminent domain takings. Scotland: Damages Act, §4(3)(B): “The sums of damages are–– (a) such sum as will compensate for any loss of support which as a result of the act or omission is sustained, or is likely to be sustained, by the relative after the date of A’s death together with any reasonable expenses incurred by the relative in connection with A’s funeral, and (b)such sum, if any, as the court thinks just by way of compensation for all or any of the following–– (i) distress and anxiety endured by the relative in contemplation of the suffering of A before A’s death, (ii)grief and sorrow of the relative caused by A’s death, (iii)the loss of such non-patrimonial benefit as the relative might have been expected to derive from A’s society and guidance if A had not died.” Explanatory notes: “These damages are in addition to the damages that a victim is entitled to claim under the general principles of the common law of delict or under statute for solatium, that is damages for the pain and suffering that the victim endures as a result of the injuries, and for patrimonial loss that such a victim has suffered or is likely to suffer in the period up to the expected date of death.” South Africa: “a solatium is “[a]n award for non-financial deprivation, irrespective of what form it takes”. Outside the context of restitution, an award of a solatium is similarly defined as an award for sentimental damages that is “intended to neutralise the wounded feelings of the plaintiff of having to suffer a wrongful act.” Florence v Government of the Republic of South Africa [2014] ZACC 22, n.8; see also Shah and Others v Minister of Rural Development and Land Reform and Others (LCC93/2014) [2024] ZALCC 41 (6 December 2024), p.9: “Solatium is compensation awarded for injury to the feelings.” Re eminent domain takings: India: SC Upholds Retrospective Application of 2019 Ruling on Solatium; Umamaheswari and Latha, “Doctrine of Eminent Domain in India,” International Journal of Pure and Applied Mathematics 120, no. 5 (2018): 1771–1780. [↩]
2.  Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), ch. 7, §1, pp. 150–153. [↩]
3. See my post The Limits of Libertarianism?: A Dissenting View; Long, Why Libertarians Believe There is Only One Right. [↩]
4. Gary Chartier, Anarchy and Legal Order: Law and Politics for a Stateless Society (Cambridge, 2012), at ch. 2.E, pp. 64–65, et seq. [↩]
5. Ibid., ch. 5.I, 5.C.1, 5.C.2, pp. 263, 265, 266 et seq. [↩]