Duncan Whitmore has replied to me again, so here is my response. Our exchange began with trade but has become a dispute about foundations. The surface topic is free trade versus a limited, strategic use of protection. Underneath that is a fight over what makes a liberal order possible, and what keeps it alive once the slogans have faded. Mr Whitmore argues as a principled libertarian. He takes property rights as natural rights, from which politics should withdraw save to avert plain evils. I argue as a contingent libertarian. I take rights as a settlement adopted by a community for chosen ends: prosperity, peace, continuity, and the minimal unhappiness compatible with survival. That difference explains why he treats tariffs as an outrage in themselves, while I treat them as tools that may sometimes be justified to repair the conditions that let liberty breathe. [continue reading…]
Dan Carlin’s Hardcore History: Addendum: EP34 Atomic Accountability.
Dan visits with Professor Alex Wellerstein, whose new book about Truman and the dropping of the atomic bombs will challenge everything you think you know about the subject.
Current AI Models have 3 Unfixable Problems Sabine Hossenfelder
Grok: Sabine Hossenfelder argues that current generative AI models (large language models, diffusion-based image/video generators, etc.) have three fundamental, essentially unfixable limitations that prevent them from ever reaching artificial general intelligence (AGI).
They are purpose-bound by design – These models are trained to detect statistical patterns in specific data types (text tokens, image patches, video frame relations). They lack the ability to perform abstract, general-purpose reasoning that can be applied to any domain or task. Scaling them up will not magically create true abstraction.
Hallucinations are manageable but inevitable – LLMs don’t retrieve facts; they generate the most statistically plausible continuation. When the training data contains little or no information on a topic, they confidently produce nonsense. Hossenfelder notes that recent OpenAI research suggests rewarding models for saying “I don’t know” when confidence is low could largely mitigate the practical problem, even if it never eliminates hallucinations entirely. She considers this limitation acceptable rather than fatal.
Prompt injection is fundamentally unsolvable – Because LLMs treat all input (system instructions and user prompt) the same way—token sequences—they cannot reliably distinguish instructions from data. Adversarial prompts can always override intended behavior (“ignore previous instructions…”). Workarounds (formatting rules, external filters, better system prompts) are fragile and will never make the models fully trustworthy for critical tasks.
Hossenfelder also emphasizes a related deep flaw: current models interpolate well within their training distribution but cannot reliably extrapolate or handle truly out-of-distribution scenarios (evident in bizarre failures of video generators and the inability of LLMs to produce genuinely novel ideas). In her view, these architectural limitations mean today’s deep-learning paradigm is a dead end for AGI. Companies like OpenAI and Anthropic that have bet everything on scaling LLMs will face serious trouble when the expected massive revenues fail to materialize. True general intelligence will require entirely new approaches—most likely some form of abstract world models, neurosymbolic reasoning, or a “logic language” that can represent concepts independently of specific modalities. Until then, she quips, the fastest path to human-level machine intelligence may be humans simply getting dumber.
There are three collections I’m aware of, of people notable enough for inclusion in such but not major enough figures to warrant their own biographies (e.g. Rothbard, Mises).
Walter Block, ed. I Chose Liberty: Autobiographies of Contemporary Libertarians (Mises Institute, 2010). The only one online (my entry is in this one, “How I Became A Libertarian“). 1 Thanks Jeffrey Tucker and the Mises Institute’s once-great open publishing policy. 2 (After Tucker and Doug French left Mises in 2011 or so, the Mises Institute has has unfortunately switched from CC-BY to the useless and restrictive CC-NC-ND, which is worse than nothing.) See what open publishing does? It preserves knowledge.
As I note here, the latest PFS book has just been published by Sebastian Wang and his Hampden Press, co-published with the Property and Freedom Society.
Regarding the hostility of some libertarians to my pro-international law views, as mentioned below, Rothbard had some relevant and interesting comments on international law.
The libertarian objective, then, should be, regardless of the specific causes of any conflict, to pressure States not to launch wars against other States and, should a war break out, to pressure them to sue for peace and negotiate a cease-fire and peace treaty as quickly as physically possible. This objective, incidentally, is enshrined in the international law of the eighteenth and nineteenth centuries, that is, the ideal that no State could aggress against the territory of another—in short, the “peaceful coexistence” of States.9
Suppose, however, that despite libertarian opposition, war has begun and the warring States are not negotiating a peace. What, then, should be the libertarian position? Clearly, to reduce the scope of assault of innocent civilians as much as possible. Old-fashioned international law had two excellent devices for this: the “laws of war,” and the “laws of neutrality” or “neutrals’ rights.” The laws of neutrality are designed to keep any war that breaks out confined to the warring States themselves, without aggression against the States or particularly the peoples of the other nations. Hence the importance of such ancient and now forgotten American principles as “freedom of the seas” or severe limitations upon the rights of warring States to blockade neutral trade with the enemy country. In short, the libertarian tries to induce neutral States to remain neutral in any inter-State conflict and to induce the warring States to observe fully the rights of neutral citizens. The “laws of war” were designed to limit as much as possible the invasion by warring States of the rights of the civilians of the respective warring countries. As the British jurist F.J.P. Veale put it:
The fundamental principle of this code was that hostilities between civilized peoples must be limited to the armed forces actually engaged…. It drew a distinction between combatants and noncombatants by laying down that the sole business of the combatants is to fight each other and, consequently, that noncombatants must be excluded from the scope of military operations.10
[Notes]
9 The international law mentioned in this paper is the old-fashioned libertarian law as had voluntarily emerged in previous centuries and has nothing to do with the modem statist accretion of “collective security.” [I.e., the UN and its framework. —SK] Collective security forces a maximum escalation of every local war into a worldwide war—the precise reversal of the libertarian objective of reducing the scope of any war as much as possible.
10 F.J.P. Veale, Advance to Barbarism (Appleton, Wis.: C.C. Nelson, 1953), p. 58.
This recognizes that classic international law was, in fact, perfectly compatible with libertarian natural law theory as I have maintained. I think the confusion arises partly because of legal positivism and the confused idea that international law is not “real” because there is no world government to enforce it, 1 and because of ignorance of international law itself and the modern UN. International law pre-dates the UN and is not legislated or created by the UN.
(I still think the UN is on balance good, as a forum for states to try to settle disputes without engaging in violent combat, but negative aspects of the UN 2 do not reflect on international law itself.”)
[¶10.83] Until the early twentieth century, States not infrequently applied military force against other States as a means to resolve investment disputes involving their nationals’ property.145 Under certain circumstances, this sort of “gunboat diplomacy” was considered lawful under customary international law.146 In his classic treatise The Law of War and Peace, the great international law scholar Hugo Grotius opined that the recovery of property was one of three situations justifying the use of force under the law of nations.147
In 1900, for instance, the U.S. Secretary of State approved the dispatch of a naval vessel to Venezuela to prevent the destruction of property belonging to the New York & Bermudez Company, an American corporation. He instructed the Secretary of the Navy that “the gunboat should also protect all existing rights and maintain the status quo pending an investigation and decision as to an attempt which was alleged then to be in contemplation to deprive the company of its property by executive action.”148 The Jecker Claim is another notorious example. Here, Mexico obtained a loan from a bank owned by French and Swiss interests. The Mexican government never received more than 5 percent of the face value of the loan,149 but its subsequent default was one of the primary justifications for France’s invasion of Mexico in 186–62.150
Today, some investors hailing from militarily and politically powerful States might favor the threat or use of force to obtain restitution or compensation for expropriated property.151 Such an option is no longer available, however, due to fundamental changes in international law and politics. In particular, the U.N. Charter has since 1945 prohibited the use of force to resolve disputes, except in the case of self defense.152 Today, it is generally accepted that a State may not use force against another State in response to a taking of the property of one of its nationals. This conclusion is reinforced by the modern movement toward “permanent sovereignty over natural resources,” which emphasizes the right of a State to control over its own resources and territory.153
As Professor Brownlie concludes in his important study on the use of force under international law:
Is nationalization, with or without prompt and adequate compensation, a measure which justifies protection? If so, can a state protect property of nationals threatened not by nationalization but by laws restricting use of currency, discriminating export regulations, or taxation? May the right be exercised in favor of bond holders? It is submitted that the answer must be negative in these cases since if it were other-wise any state accepting foreign investment or permitting ownership of property by aliens is severely curtailing its sovereignty as a result.154
2. The U.N. prohibition against the use of force
The U.N. Charter prohibits the use of force by any State, except in limited cases for the purpose of self defense. The general prohibition against the use of force is set forth in Section 2(4) of the Charter. This prohibition is regarded as a principle of customary international law,155 and thus is applicable to all nations, not only those that have voluntarily acceded to the Charter by joining the U.N. Article 2(4) of the Charter provides:
All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.156
The self defense exception is set forth in article 51 of the Charter:
Nothing in the present Charter shall impair the inherent right of individual or collective self defense if an armed attack occurs against a member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.157
145 M. SORNARAJAH, THE INTERNATIONAL LAW OF FOREIGN INVESTMENT 19-20 (3d ed. 2010); M. Sornarajah, Power and Justice inForeign Investment Arbitration, 14 J. INT’L ARB. 103 (1997); ]AMES CABLE, GUN BOAT DIPLOMACY: POLITICAL APPLICATIONS OF LIMITED FORCE (1981); Matthew B. Cobb, The Development of Arbitration in Foreign Investment, MEALEY’S INT’L ARB. REP. (Apr. 2001).
146 IAN BROWNLIE, INTERNATIONAL LAW AND THE USE OF FORCE BY STATES 289 (1963).
147 The other two occasions were for defense or punishment. 2 HUGO GROTIUS, DE JURE BELLI AC PACIS, ch. 1, § 2; ch. 2, § 13 (A.C. Campbell trans., 1814), available at http://www.constitution.org/gro/djbp.htm. See also HIGGINS, supra note 37, at 238.
148 Letter from Mr. Hay to Sec. of Navy, Dec. 28, 1900, 250 MS. Dom. Let. 8, reprinted in 6 MOORE’S lNT’L LAW DIGEST 258 (1906).
149 The loan’s face value was 75 million francs, but the Mexicans received only 4 million.
150 DONALD R. SHEA, THE CALVO CLAUSE: A PROBLEM OF INTER-AMERICAN INTERNATIONAL LAW AND DIPLOMACY 14 (1955); IBRAHIM SHIHATA, TOWARDS A GREATER DEPOLITICIZATION OF INVESTMENT DISPUTES: THE ROLES OF ICSID AND MIGA 1 n.2 (1992).
151 See Hans-Hermann Hoppe, Banking, Nation States and International Politics: A Sociological Reconstruction of the Present Economic Order, in THE ECONOMICS AND ETHICS OF PRIVATE PROPERTY 61, 80-81 (1993) (“The need for a productive economy that a warring state must have also explains why it is that ceteris paribus those states which have adjusted their internal redistributive policies so as to decrease the importance of economic regulations relative to that of taxation tend to out-strip their competitors in the arena of international politics. Regulations through which states either compel or prohibit certain exchanges between two or more private persons as well as taxation imply a non-productive and/or non-contractual income expropriation and thus both damage homesteaders, producers or contractors [i.e., those that cause wealth to come into existence]”).
152 U.N. Charter, supra note 64, arts. 2(4), 51.
153 See Chapter 5.
154 BROWNLIE, supra note 146, at 301. See also [M.N.] SHAW [International Law, 7th ed. 2014], supra note 18, at 829-31; HIGGINS, supra note 37 [Rosalyn Higgins, Problems and Process (1994)], at ch. 14. On the doctrine of legislative or parliamentary sovereignty, see Chapter 4, Section B.l.
155 SHAW, supra note 18, at 814-15. [Here Shaw cites K. Skubiszewski, ‘The Use of Force by States,” in Manual of Public International Law (ed. M. Sørensen), London, 1968, pp. 739, 742–4, p. 745 [§12.02, 12.03], and L. Henkin, R. C. Pugh, O. Schachter and H. Smit, International Law: Cases and Materials, 3rd edn, St Paul, 1993, p. 893. See also the Third US Restatement of Foreign Relations Law, St Paul, 1987, p. 27; J. P. Cot, A. Pellet and M. Forteau, La Charte des Nations Unies: Commentaire Article par Article, 3rd edn, Paris, 2005, p. 437, and The Charter of the United Nations (ed. B. Simma et al.), 3rd edn, Oxford, 2012, p. 203, noting that it also constitutes a rule of jus cogens.
See also Clive Parry, “The Function of Law in the International Community,” in Manual of Public International Law, M. Sørensen, ed. (London, 1968), §1.04, p. 35: “War, then, has ceased to be a relevant legal concept and the right of war to be a legal right.” And as usual, it all started in Rome:
From §1.02, p.10:
Our story, then, begins with Rome and its empire. While the imperial idea still held sway in Rome and the Roman world there could in theory be no state within that world save the one universal state. There was equally but one law. Theory, however, had to make some concession to reality. Thus the universal law of Rome was not the tribal ius civile of the city of Rome itself, forced upon Rome’s allies and vassals. On the contrary, it was largely the ius gentium, an amalgam of the customs practised by the numerous peoples who made up the empire. If there was one common law it was common to all because immemorially familiar to all. A common or universal law did not, moreover, connote a single jurisdiction. Under the empire, jurisdiction was parcelled out between the territorial provinces—a circumstance of great significance for the future. But, at least after the extension of Roman citizenship to the whole empire, the drawing of a distinction between the law applying to a particular people and the law applying in a particular place could have no meaning. And this was the politico-legal condition of things to which the barbarian invaders of the empire came.
And see K. Skubiszewski, ‘The Use of Force by States,” in Manual of Public International Law (ed. M. Sørensen), London, 1968, pp. 739, at 742–4, p. 745 [§12.01, 12.02]:
“We have seen in 1.04 how the traditional place and role of war in the international community underwent a basic change during the twentieth century. Prior to 1919, inter-state relations abounded in wars, and situations developed frequently where states felt free to begin wars when recourse to arms appeared to be to their advantage. But neither the study of the last millennium, especially in Europe, nor the recent date of the instruments prohibiting war warrant the conclusion that until 1919 or 1928 international law licensed war as an always perfectly lawful means of settling disputes or changing existing rights. It may be argued that the twentieth century instruments relating to the outlawry of war and the prohibition of the use of force bring to conclusion a historical development, the origins and beginnings of which go far beyond our times. In the early law of nations states had a right of war (jus ad bellum), but that right was not identical with a licence to wage war. Long before the creation of the League of Nations and the United Nations, states justified, or attempted to justify, their belligerency. In particular, states attached legal significance to the existence of a cause of war. Discussions on the just and unjust causes of war go back to the Middle Ages, but were not merely theoretical discourses of theologians, philosophers, political writers and publicists. They reflected, if not the actual practice of states, at least the preoccupations of governments and rulers.
However, until the post-1918 developments, international law lacked a specific rule prohibiting certain kinds of war, let alone war in general. We are not concerned here with rare and occasional limitations such as the neutrality treaties or The Hague Convention No. II, of 1907 (Martens, NRC, 3rd ser., vol. 3, p. 414). International law never defined the permissible causes of war. The state remained for centuries the sole judge of what constituted a valid and sufficient cause. As long as the state was, in fact, free to determine the object of its obligation, the element of legal obligation did not exist. Hence the frequent practice of states to resort to war whenever the national interest so demanded and the general acceptance among the positivist writers of the view that, prior to 1919, states had an unlimited right of war. While the right of war which states enjoyed was not necessarily unlimited, and international law did not give a licence to wage wars, it remains a historical fact that only the twentieth-century instruments have had the effect of radically modifying the place of war in international law. For it is these instruments which abolished the traditional jus ad bellum. The reader must, however, remember that this change in the law did not eliminate war and other categories of force from international life. Outlawry is one thing, compliance with the new law another. Contrary to their obligations, states continue to resort to force, and actual physical conflict remains, alas, an ever present phenomenon in inter-state relations.”
the principle of the prohibition of the use of force expressed in Article 2, paragraph 4, of the Charter of the United Nations may be found in the fact that it is frequently referred to in statements by State representatives as being not only a principle of customary international law but also a fundamental or cardinal principle of such law.” The Court further noted that this principle “has come to be recognized as jus cogens” (a peremptory norm of general international law from which no derogation is permitted)
—SK]
156 U.N. Charter, supra note 64, art. 2(4).
157 Id., art. 51.
***
See this Grok summary and analysis of the status of the illegality of war under customary international law:
Yes, the prohibition on the use of force against another state—except in self-defense or when authorized by the UN Security Council—is widely recognized as a rule of customary international law (CIL), independent of treaty obligations such as those in the UN Charter. This norm prohibits states from threatening or using armed force against the territorial integrity or political independence of another state.
This rule is also considered a peremptory norm (jus cogens), binding on all states without exception.
The prohibition became settled as CIL in the post-World War II era, particularly following the adoption of the UN Charter in 1945, though its foundations include earlier developments such as the 1928 Kellogg-Briand Pact (which renounced war as an instrument of national policy) . By the mid-20th century, through consistent state practice and opinio juris (the belief that the practice is legally obligatory), the norm had crystallized into CIL. Evidence includes widespread adherence to the UN Charter’s principles, the 1970 UN General Assembly Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States (Resolution 2625 (XXV)), which elaborates the principle of refraining from the threat or use of force , and subsequent judicial affirmations.
Prior to this period, international law often permitted certain uses of force (e.g., for debt recovery, reprisals, or conquest), but such permissive practices were progressively restricted and ultimately superseded in modern CIL.
The leading ICJ case affirming this as CIL is Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Merits, Judgment of 27 June 1986) . In this judgment, the ICJ explicitly held that the prohibition on the use of force—corresponding to Article 2(4) of the UN Charter—exists as a rule of customary international law, binding independently of the Charter itself (see especially paragraphs around 187–201 in the judgment, where the Court examines state practice and opinio juris to confirm the customary status; for example, it states that “A further confirmation of the validity as customary international law of the principle of the prohibition of the use of force expressed in Article 2, paragraph 4, of the Charter” is found in various sources, and the Court applied it to find U.S. actions in breach of CIL obligations “not to use force against another State” ; see also excerpts confirming the customary prohibition applies to armed attacks, including via proxies ; and detailed analysis in scholarly sources noting the Court’s reliance on the rule’s customary nature ).
The Court rejected U.S. justifications for supporting Contra rebels and concluded that self-defense under CIL requires an actual armed attack, necessity, and proportionality—paralleling but independent of Charter Article 51.
Regarding the development of customary international law and jus cogens, see also the similar doctrines in municipal law e.g. Louisiana civil law which regards custom as a source of law and distinguishes it from mere usage. See La. Civ. Codearts 1, 3:
Art. 1. Sources of law
The sources of law are legislation and custom.
Art. 2. Legislation
Legislation is a solemn expression of legislative will.
Art. 3. Custom
Custom results from practice repeated for a long time and generally accepted as having acquired the force of law. Custom may not abrogate legislation.
See, on this, Gail S. Stephenson, “Custom as a Source of Law in Louisiana,” La. L. Rev. 79, no. 4 (Summer 2019): 1045–1070, Michel Fromont and Alfred Rieg, Introduction au Droit Allemand: Foundations, 1 (1st ed. 1977; J.-R. Trahan tr. 2001), p. 196–199; A.N. Yiannopoulos, “The Civil Codes of Louisiana,” in Louisiana Civil Code 2010, , ed. (West/Thomson Reuters, 2010).
Custom’s key characteristics are “longevity, consistency, and widespread observance.”40 Professor Emily Kadens condenses these characteristics into two parts: “an objective requirement that an act be done repeatedly over time [the longevity and consistency factors], and a subjective requirement [known as the opinio juris] that the people engaging in the act do so out of a sense of legal obligation [the widespread observance factor].”41 The comments to Civil Code article 3 are in accord: “According to civilian theory, the two elements of custom are a long practice (longa consuetudo) and the conviction that the practice has the force of law (opinio necessitatis or opinio juris).”
41. Kadens, supra note 11 [Emily Kadens, “Introduction: Lessons from the History of Custom,” Texas Int’l L. J. 38, no. 3 (2013): 349–355], at 350. The common law concept of custom also requires a sense of legal obligation. As one commentator explained, “[T]he custom must, even prior to its formal recognition by the courts, have created in some people an obligation to conform.” Schauer, supra note 26 [Frederick Schauer, “The Jurisprudence of Custom,” Texas Int’l L. J. 38, no. 3 (2013): 523], at 524. Furthermore, the “notion of custom arising out of a sense of legal obligation . . . has been specifically recognized as an attribute of customary international law.” David J. Bederman, The Curious Resurrection of Custom: Beach Access and Judicial Takings, 96 COLUM. L. REV. 1375, 1451 (1996).
[p. 1050; most footnotes omitted]
See also Yiannopoulos, “The Civil Codes of Louisiana”:
Customs arises from a long series of acts constantly repeated, which by such repetition, and uninterrupted acquiescence, have acquired the force of a tacit and common consent. This notion of customary law was first formulated in Roman law during the period of the Republic. It is accepted today in most civil law jurisdictions. Civil codes, however, do not ordinarily include definitions of customary law because, according to modern legislative technique, definitions have no place in a legal text.
The definition of customary law indicates that customs consist of two elements: (1) a long series of actions constantly repeated; and (2) a juridical sentiment that the practice is binding. This definition makes it clear that there is a substantial difference between usage and custom. Usage is a practice lacking the element of juridical sentiment. However long repeated, usage is not binding. If a practice is binding, it is custom rather than usage. Thus, the assumption of the husband’s name by the wife was a custom because it reflected a general sentiment that the practice was binding. [LXXII] 3
… Conventional usages are certain practices, sometimes general, more often local or professional, that individuals follow in their contracts. By virtue of the principle of freedom of contracting, and the requirements of the principle of good faith, these conventional usages are implied in every juridical act. If they are not expressly excluded, they are considered to have been adopted by the parties. Such usages are particularly numerous in the relations among merchants, in labor law, in letters of credit, and in maritime contracts.
Conventional usages are clearly distinguishable from customs. Customs contain two elements, a series of actions constantly repeated as well as a feeling that these actions are binding in law. In contrast, conventional usages contain only one element, that of a constant practice. People do not consider themselves bound by conventional usages; they may adopt or reject them. Conventional usages are considered as having been adopted in a contractual relationship, in order to supply or construe the intention of the parties, because the parties are presumed to have taken them into account. The very choice of adopting or rejecting conventional usages excludes the feeling that they are binding.
In international law, jus cogens refers to peremptory norms that are fundamental principles accepted by the international community as non-derogable, meaning no state can opt out or derogate from them through treaties or other agreements. Examples include prohibitions on genocide, slavery, torture, and aggression. These norms emerge primarily from customary international law (CIL), which itself requires two key elements: (1) consistent state practice (longa consuetudo) and (2) opinio juris sive necessitatis—the subjective conviction among states that the practice is legally obligatory, not merely a matter of convenience or habit. Jus cogens represents an elevated subset of CIL, where the opinio juris is particularly strong, reflecting a near-universal belief in the norm’s binding and overriding nature. Without opinio juris, a widespread practice might exist but would not crystallize into CIL or jus cogens; it would remain a non-binding convention or usage. This is exemplified in the updated discussion on the blog post, where the prohibition against the use of force (as in UN Charter Article 2(4)) is affirmed as both CIL and jus cogens: “The Court further noted that this principle ‘has come to be recognized as jus cogens’ (a peremptory norm of general international law from which no derogation is permitted)” (from the ICJ case Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), ICJ, Judgment of 27 June 1986, as quoted in International Investment, Political Risk, and Dispute Resolution, 2d ed., 2020, ¶10.83–88). The added quotes highlight how pre-20th-century practices, such as using force for property recovery (e.g., gunboat diplomacy justified by Grotius for recovering property as one of three situations warranting force), have been overridden by this jus cogens norm, solidified through post-1945 state practice and opinio juris rejecting self-help in favor of peaceful dispute resolution.
This framework parallels the distinction between custom as a primary source of law and mere usage in Louisiana’s civilian tradition, as detailed in the attached documents. In the Louisiana Civil Code (as discussed in both PDFs), custom is explicitly recognized as an authoritative, primary source of law alongside legislation (La. Civ. Code art. 1). The “Stephenson” PDF (pages 7–9) defines custom as arising from “practice repeated for a long time and generally accepted as having acquired the force of law” (La. Civ. Code art. 3), requiring both objective elements (longevity, consistency, and widespread observance) and a subjective element: opinio juris, or the conviction that the practice is legally obligatory (opinio necessitatis or opinio juris). The comments to article 3 emphasize this dual requirement, drawing from civilian theory (e.g., Marcel Planiol and François Gény). Usage, by contrast, is distinguished as a secondary, persuasive source (La. Civ. Code art. 1, cmt. b; art. 4). It encompasses habits, mores, social conventions, or business practices that lack the “coercive idea” or sense of legal obligation (pages 8–9). For instance, Planiol notes that usages are “freely adopted” rather than “imposed,” and Gény describes them as non-coercive manifestations of society (e.g., etiquette or daily habits). The “Yiannopoulos” PDF reinforces this on page 63, stating that usage lacks the “element of juridical sentiment” and is not binding, whereas a binding practice with opinio juris constitutes custom (e.g., the historical custom of a wife assuming her husband’s name). Courts may resort to usages for guidance in interpreting contracts (La. Civ. Code arts. 2053–55) or filling gaps (art. 4), but they do not have the force of law like custom. Thus, just as opinio juris elevates practice to jus cogens in international law, it transforms mere usage into binding custom in Louisiana law—without it, the practice remains non-obligatory. The new quotes in the blog post illustrate this shift in international contexts: historical “self-help” uses of force for property disputes (e.g., the U.S. naval intervention in Venezuela in 1900 or France’s invasion of Mexico in 1861–62 over the Jecker Claim) were once accepted practices but lacked the opinio juris to persist as custom against modern prohibitions; as Brownlie concludes, allowing force for nationalization or property recovery would “severely curtail[] its sovereignty,” reflecting a evolved opinio juris that now deems such actions unlawful (International Law and the Use of Force by States, as quoted in IIPR, 2d ed., ¶10.83–88).
This ties into the concept of prescription in civil law, which operates as a mechanism where long-standing practice or possession can acquire legal force, akin to a form of custom grounded in time and acceptance. In Louisiana (La. Civ. Code Book III, Title XXIV), prescription includes acquisitive prescription (gaining ownership through uninterrupted possession for a specified period, e.g., 10 or 30 years) and liberative prescription (extinguishing claims after a lapse of time). It reflects civilian principles where prolonged, consistent behavior—often with an implicit opinio juris of legitimacy—alters legal rights, overriding initial defects (e.g., possessing property without title eventually grants ownership if unchallenged). This mirrors custom’s formation: both rely on longevity and a sense of obligation or acquiescence to “prescribe” new legal realities. The “Stephenson” PDF notes the historical roots of custom in preliterate societies and medieval Europe (pages 4–5), where unwritten practices became law through repetition and conviction, similar to how prescription “cures” flaws over time. The added blog quotes underscore this in international law’s evolution: Skubiszewski observes that 20th-century instruments prohibiting force “bring to conclusion a historical development” that abolished traditional jus ad bellum, yet “outlawry is one thing, compliance with the new law another,” implying that persistent non-compliance could theoretically prescribe exceptions, though jus cogens’ peremptory nature resists such erosion (“The Use of Force by States,” in Manual of Public International Law, 1968, pp. 739–745, as quoted).
Richard Epstein extends this prescriptive logic analogously to U.S. constitutional law in his book The Classical Liberal Constitution: The Uncertain Quest for Limited Government (2014), invoking a “prescriptive constitution” to reconcile long-standing practices with original constitutional design. Drawing from common-law doctrines like adverse possession (a counterpart to civil-law acquisitive prescription), Epstein argues that entrenched institutions or precedents, even if inconsistent with the Constitution’s original intent or text, can gain legitimacy through prolonged acceptance and practice, provided they avoid massive societal dislocations. He explains: “I chose the term ‘prescriptive constitution’ to highlight the immense difficulties that arise whenever long practices are in tension with the original constitutional design,” analogizing to property law where “a continued trespass can protect title by prescription and adverse possession” after a “magic point” of time. This approach tempers strict originalism: while Epstein favors overturning errors in areas like economic liberties where text aligns with classical liberal principles, he advocates sustaining certain “constitutional errors” if they have become embedded and functional. Applied to the Federal Reserve (an independent agency blending monetary policy powers not neatly fitting legislative, executive, or judicial branches, potentially violating separation of powers on its face), Epstein’s view suggests its century-long operation (since 1913) has effectively “prescribed” its constitutionality through uninterrupted acquiescence and societal reliance, modifying the Constitution de facto without formal amendment. This echoes custom’s opinio juris (widespread belief in its legitimacy) and prescription’s time-based validation, treating the Fed as a “long-standing practice” that, despite original tensions, should be upheld to prevent upheaval—much like how custom supplants gaps in Louisiana law or jus cogens overrides conflicting treaties. The new Rothbard quotes in the blog align with this libertarian skepticism of modern statism, praising “old-fashioned international law” for ideals like “peaceful coexistence” and “severe limitations upon the rights of warring States,” while critiquing “modern statist accretion” like collective security (e.g., the UN), suggesting that prescriptive entrenchment of such institutions might warrant reversal if they infringe core liberties (“War, Peace, and the State,” Mises.org).
(See FedSoc forum: Loper Bright Fallout for SEC Rulemaking?, quoting judge Edith Johnson: “a regulation initially unauthorized by statute cannot become authorized by the mere passage of time.” Dunn-McCampbell Royalty Interest, Inc. v. National Park Service, 112 F.3d 1283 (5th Cir. 1997) (pdf, p. 13; 2).
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Jurisprudence constante, a doctrine rooted in civilian legal traditions (particularly French and other civil law systems, including Louisiana’s hybrid framework), refers to a consistent, long-standing series of judicial decisions that interpret or apply a legal rule in the same manner across multiple cases. It is not formally binding like common-law stare decisis but carries significant persuasive authority, especially when the jurisprudence forms a “constant” or unbroken line of reasoning. In essence, it elevates judicial interpretation to a near-normative status through repetition and consistency, often filling gaps in legislation or custom. As noted in the attached “Stephenson” PDF (page 3), some commentators view it as akin to custom—thus potentially a primary source of law—because it represents “an interpretation of a rule of law that has been accepted and applied by the courts in repeated decisions in a long line of cases” (quoting Mary Garvey Algero). However, Louisiana courts predominantly treat it as a secondary source with only persuasive effect, distinct from true custom (e.g., Delta Chem. Corp. v. Lynch, cited on page 3, affirming that even jurisprudence constante is not binding). The “Yiannopoulos” PDF echoes this on page 63, emphasizing that jurisprudence lacks the coercive force of custom unless it embodies opinio juris.
This concept relates directly to the analysis in several ways, bridging the civilian distinctions between custom and usage, the role of opinio juris, prescription, and even Epstein’s prescriptive approach:
Connection to Opinio Juris and Custom vs. Usage: Jurisprudence constante mirrors the formation of custom in requiring both objective repetition (a “long line of cases” akin to consistent state practice or longa consuetudo) and an implicit subjective element of conviction (opinio juris) that the interpretation is legally sound or obligatory. In the analysis, custom demands this dual structure to become binding law (e.g., La. Civ. Code art. 3, as discussed in “Stephenson” pages 7–9), while mere usage lacks the “juridical sentiment” or coercive idea (Planiol and Gény references). Similarly, jurisprudence constante isn’t automatic; it gains weight only when courts repeatedly affirm it with a sense of normative necessity, transforming judicial habit (usage-like) into a persuasive norm (custom-like). Without opinio juris—e.g., if decisions are inconsistent or lack conviction—it remains non-binding, much like how international practices without opinio juris fail to form CIL or jus cogens. The updated blog quotes highlight this evolution: historical self-help force (e.g., gunboat diplomacy) was once a repeated practice but lost opinio juris under modern jus cogens prohibitions, shifting from permissible usage to illegality.
Parallels to Prescription: In civilian law, prescription solidifies rights through time and unchallenged practice, “curing” initial defects (e.g., acquisitive prescription in La. Civ. Code Book III, Title XXIV). Jurisprudence constante operates analogously: a prolonged, uninterrupted judicial consensus “prescribes” an interpretation as effectively part of the law, overriding potential statutory ambiguities. This ties to the analysis where prescription validates long-standing behaviors with implicit legitimacy, similar to how jurisprudence constante embeds judicial norms over time. For instance, if courts consistently interpret a code provision in a novel way without legislative correction, it acquires prescriptive force, akin to the “historical development” Skubiszewski describes in international law’s abolition of jus ad bellum (as quoted in the blog).
Relation to Epstein’s Prescriptive Constitution and Libertarian Critiques: Epstein’s framework, as analyzed, uses prescription-like reasoning to legitimize entrenched “constitutional errors” through prolonged acceptance, drawing from adverse possession doctrines. Jurisprudence constante extends this to civilian adjudication: repeated judicial affirmance can “prescribe” a rule’s meaning, even if it tensions with original text, provided it avoids societal disruption. In the Federal Reserve example, longstanding judicial deference (a form of constante) has effectively prescribed its constitutionality despite separation-of-powers concerns, reflecting opinio juris via acquiescence. From a libertarian lens (as in the blog’s Rothbard quotes praising “old-fashioned international law” for limiting state aggression), this raises caution: jurisprudence constante could entrench “modern statist accretions” (e.g., expansive regulatory interpretations) unless checked, much like how custom’s opinio juris might solidify jus cogens norms that override individual rights, such as barring force for property recovery. In Louisiana, where custom is primary but jurisprudence secondary, this doctrine tempers such risks by keeping judicial “custom” persuasive rather than coercive.
In the present discussion, the relevant question is whether the self defense exception allows a State to use force against another State in response to interference with or taking of the property rights of its nationals.158 If property has been illegally taken by a host State, the use of force by a State to recover the property would fall more under the category of “self help” than self defense. Self help has been defined as “the use of force to obtain legal rights improperly denied.”159 Article 51, which allows self defense, does not permit self help. In fact, it is nearly universally accepted that it is unlawful for a State to use such self help to recover property of its nationals.160 Thus, the self defense exception to the prohibition on the use of force does not allow the “self help” necessary to recover property.
Incidentally, the customary international law (not “UN” law) is more or less compatible with the views of libertarians such as Rothbard and Ayn Rand, others such as Tom Woods, etc., in Rothbard’s Objectivist Influences. Their view is that while the US government may have an obligation to respect and protect the rights of American citizens in the US, especially if the citizen travels to or invests in a regime hostile to private property rights, it should not intervene to protect his property rights from expropriation in these regimes, as he knew the risks. (Plus, as I argue in this article, there are measures the investor can take to reduce this risk, such as investment insurance, international concession agreements protected by internationalized stabilization clauses (under international law), or relying on international investment protection treaties negotiated between their home country and the host state.)
Let us see how libertarian theory applies to the problem of imperialism, which may be defined as the aggression by State A over the people of country B, and the subsequent maintenance of this foreign rule. Revolution by the B people against the imperial rule of A is certainly legitimate, provided again that revolutionary fire be directed only against the rulers. It has often been maintained—even by libertarians—that Western imperialism over undeveloped countries should be supported as more watchful of property rights than any successor native government would be. The first reply is that judging what might follow the status quo is purely speculative, whereas existing imperialist rule is all too real and culpable. Moreover, the libertarian here begins his focus at the wrong end—at the alleged benefit of imperialism to the native. He should, on the contrary, concentrate first on the Western taxpayer, who is mulcted and burdened to pay for the wars of conquest, and then for the maintenance of the imperial bureaucracy. On this ground alone, the libertarian must condemn imperialism.11
11 Two other points about Western imperialism: first, its rule is not nearly so liberal or benevolent as many libertarians like to believe. The only property rights respected are those of the Europeans; the natives find their best lands stolen from them by the imperialists and their labor coerced by violence into working the vast landed estates acquired by this theft.
Second, another myth holds that the “gunboat diplomacy” of the turn of the century was a heroic libertarian action in defense of the property rights of Western investors in backward countries. Aside from our above strictures against going beyond any State’s monopolized land area, it is overlooked that the bulk of gunboat moves were in defense,not of private investments, but of Western holders of government bonds. The Western powers coerced the smaller governments into increasing tax aggression on their own people, in order to pay off foreign bondholders. By no stretch of the imagination was this an action on behalf of private property—quite the contrary.
In other words, Rothbard supported the classical international law, not the UN’s system, and saw it as largely incompatible with “gunboat diplomacy,” which further bolsters his (and that of others like Rand, Woods, etc.) view that if a US national or company has its property expropriated in another country, it is not the obligation or even right of the US to use force against the host country; rather, the international law principle of sovereignty and opposition to aggressive war should be upheld.
Using International Law to Protect Property Rights and International Investment
Among libertarians I am known most for my intellectual property (IP) and general libertarian theorizing, as in my books Legal Foundations of a Free Society (Papinian Press, 2023), Against Intellectual Property (Mises Institute, 2008) and other publications. In my libertarian writing and theorizing I have tried to blend my practical and theoretical legal knowledge (of IP law, oil & gas law, international law, Roman/Louisiana/civil law, and common law) with libertarian and Austrian economics scholarship and insights.
I viewed this “libertarian legal” writing as my hobby or avocation, although I devoted a lot of time to this research and writing, and in retirement it is what occupies much of my time and attention. In my vocation, 4 I also practiced law for over thirty years, initially in the fields of oil and gas and international law, then specializing in IP and patent law, and general commercial law as general counsel of a high-tech company. [continue reading…]
Such as the leftist or socialist tinge of modern international UN resolutions, as mentioned in my article: see, e.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”); Khawaja on Socialist Welfare Rights; What Libertarianism Is, n.38. But as I noted in the article below, “the UN has no power to tax or legislate and in any case the UN is not the same as customary international law.[↩]
Objectivists and other statists like to retreat to emotivism and irrelevant issues like manners when debating with libertarian anarchists. The low-IQ Jan Helfeld tried this tack when I debated him years ago. He was upset that I would follow his ridiculous debate rules, to which I retorted that he favors taxing me so he is worse. It led to some pretty funny exchanges. See below. [continue reading…]
It may be true that lovers of liberty, originally steeped in society’s preferred form of social democracy, must travel along the spectrum of the state via small (“minimal”) before reaching the conclusion that the state must go. But logically, this is not the case. To cure cancer, it is not necessary to reduce the size of a tumor bit by bit. The cure is to remove it. Similarly, if a rock upsets the flow of a stream, the solution is not to change the size or shape of the rock, to make it more streamlined, but to simply remove it. [continue reading…]
I just watched (because I’m a masochist) a video over 3 hours in length by a fellow with the handle “LiquidZulu (LZ)”. He used that time to blast Dave Smith for being unsound on libertarian theory and “afraid to debate him” or something. [continue reading…]
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