StephanKinsella.com

My friend and former patent lawyer colleague Steve Mendelsohn sent me the essay below (Steve doesn’t have his own blog, so this is posted here with his permission). One of his other pieces is the funny “Confessions of a Law School Asshole,” published when he was a law student at U. Penn in The Penn Law Forum (Sept. 26, 1990). Feel free to send Steve comments at steve@mendelip.com.

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The God of Death and the Death of God

by Steve Mendelsohn

steve@mendelip.com

From almost my earliest childhood memories, I remember being terrified of death.  I remember crying out to my dad from the dark of my bedroom as a 7 or 8 year old, unable to sleep from my fear of death.  “Dad,” I’d wail, “what happens when you die.”  “Your soul goes into a new baby,” he’d reassure me.

            But that wasn’t reassuring.  That wasn’t reassuring at all.  What good is that to me if my soul goes into a new baby?  I don’t remember who I was before that person’s soul came into me when I was born.  So, in the same way, my consciousness would not continue after I die and my soul goes into some other new baby.

            What good was my dad’s version of reincarnation if your consciousness doesn’t continue to your next incarnation?  And where the hell did my dad come up with reincarnation anyway?  Jews don’t believe in reincarnation.  Judaism isn’t sure what Jews should believe in, but it sure isn’t reincarnation. [continue reading…]

My parents’ recent selection of their tombstones got me ta thinkin’. I think the epitaph I’d like would be: Father, Husband, Libertarian.

Guy Kedem sent me a link to his article Dialogical Libertarianism: Ultimate Foundation of Ethics, which is a Hebrew-language discussion of Hoppe’s argumentation ethics and my estoppel theory of libertarian rights.

For more on argumentation ethics, see my “Argumentation Ethics and Liberty: A Concise Guide,” Mises Daily (May 27, 2011) (includes “Discourse Ethics and Liberty: A Skeletal Ebook”). For more on estoppel, see “Punishment and Proportionality: The Estoppel Approach,” Journal of Libertarian Studies 12:1 (Spring 1996): 51. Both approaches, and other, related theories, are discussed in my “New Rationalist Directions in Libertarian Rights Theory,” Journal of Libertarian Studies 12:2 (Fall 1996): 313-26.

From The Libertarian Standard, Dec. 5, 2011

My fellow TLS blogger Norman Horn’s recent speech, What you can do to promote liberty, called to mind some things I’ve blogged about before. In Nock and Leonard Read on “One Improved Unit” and the Power of Attraction, blogged previously here, I discussed the idea advocated by Albert Jay Nock and Leonard Read, that your primary task is to improve yourself–to strive for excellence in yourself. Then you become a bright light that attracts people; they see you are good, and successful, and worth emlating or listening to–so you win people over by the power of attraction. They come to you, and then you have more success spreading the ideas of liberty than if you go around being a boor. More detail, including excerpts from Nock and Read, are in that post.

[The Golden Age of America is Now]

The other post, previousyl blogged elsewhere, is reproduced in full here:

 Career Advice by North

Great passage that I’ve always liked from Hans-Hermann Hoppe’s The Economics and Ethics of Private Property, p. 417-18:

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

I seem to recall Rothbard saying something similar, something to the effect that in a free society we could of course expect the misfortunate and poor to receive charity from others, unless they were so unpleasant that they could find no one who could help them, in which case this is not the fault of the free market … anyone remember this?

[TLS]

From the Louisiana Civil Code:

Art. 2931.  Use of the thing deposited

The depositary may not use the thing deposited without the express or implied permission of the depositor.

Consider this in light of advocates of fractional-reserve banking, who claim that the customer who lends money to a “bank” can naturally be referred to as a “depositor.” Really?

Jakub Wozinski, who previously published “Hayek and Departure from Praxeology” in Libertarian Papers, asked me to post the draft of his working paper “A Priori of Justice,” the text of which is appended below (RTF; PDF). His note is below. Feel free to email comments to him or leave them in the comments field below.

 “A Priori of Justice” is an attempt to systematize the whole libertarian legal theory. This paper is based mostly on Hoppean and Rothbardian concepts, but I suggest some improvements. In my approach I emphasize homesteading should be understood as change of location and surety, i.e. material substratum of valid contracts. It is my view that this perspective can shed new light on the whole of libertarian theory.

Another aspect of my paper is the identification of law and ethics as one integrated theory justified by action and argumentation axioms. A libertarian legal code is presented as the only possible ethic and all other theories considered hitherto to be ethics are just beliefs which cannot be rationally proved.

I am hopeful that the reader will find in “A Priori of Justice” more than just the repetition of the old theories and will be surprised by my fresh approach.

Before publishing this paper, I would like to receive comments and other suggestions for improvement or refinement from other libertarians interested in these matters. I will be grateful for any comments (please send them to: wozinski@poczta.onet.pl).

[TLS]

[continue reading…]

[update: see KOL108 | “Why ‘Intellectual Property’ is not Genuine Property,” Adam Smith Forum, Moscow (2011)]

As I noted in a previous post, the 3^rd Adam Smith Forum was held earlier this month (Nov. 12, 2011) in Moscow. This event was organized by the Center for the Philosophy of Freedom, the Libertarian Party of Russia, and others. The Chairman of the ASF Steering Committee was economist Pavel Usanov, head of the Hayek Institute for Economy and Law, and Andrey Shal’nev, head of the federal committee of the Libertarian Party of Russia, was its co-chairman. I was invited to speak but could not attend in person, so my 47-minute speech “Why Intellectual Property is not Genuine Property” was presented remotely, with Russian subtitles. It is below, along with the original version and the English transcript plus the Russian translation, which was prepared by Maxim Tulenin, head of the Moscow branch of the Libertarian Party of Russia. Pictures from the event are here. The program with the list of speakers and topics is here (English translation).

Tulenin told me after the event:

I’m head of the Moscow branch of the Libertarian Party of Russia and I did the translation of your very consistent and convincing video lecture into Russian. Let me thank you, on behalf of the steering committee, Andrey Shal’nev and the participants for your contribution to the Forum, it was a great success with the audience, especially with the younger generation. I also tip my hat to you for the analytic case you’ve made against “intellectual property” because it has provided me with a pattern of argumentation suitable for my own Internet debates.

One of the participants in the Forum provided a brief overview of my talk (rough English translation). The Forum’s promo video excerpt, with Russian subtitles, is below, followed by the subtitled version presented at the Forum; the original version of my speech (without subtitles) follows these. The audio file is here. The English transcript is below, as is the Russian translation which was used for subtitles for the version presented at the Forum. The powerpoint presentation I used is also streamed below.

Stephan Kinsella speech at IIIrd Adam Smith Forum from ivangoe on Vimeo.

[continue reading…]

From The Meaning of Morality.

As I write in an upcoming paper (“The Ethical Case Against Intellectual Property,” Griffith Law Review, Symposium on Law and Anarchy: Legal Order and the Idea of a Stateless Society (Symposium Editor, Gary Chartier; forthcoming 2012)) [update: this article was withdrawn from this symposium due to a disagreement with the editors; a version was published as “Law and Intellectual Property in a Stateless Society,” Libertarian Papers (vol. 5, 2013)]:

First, as Professor Hoppe has argued, the assignment of ownership to a given resource must not be random, arbitrary, particularistic, or biased, if the property norm is to serve the function of conflict-avoidance.[1] This is because any possible norm designed to avoid conflict must be justified in the context of argumentation, in which participants put forth reasons in support of their proposed norms. The norms proposed in genuine argumentation claim universal acceptability, i.e. they must be universalizable. Reasons must be provided that can in principle be acceptable to both sides as grounded in the nature of things, not merely arbitrary or “particularistic” rules such as “I get to hit you but you do not get to hit me, because I am me and you are you.” Such particularistic norms or reasons are not universalizable; that is, they are not reasons at all, and thus are contrary to the purpose and nature of the activity of justificatory argumentation. B’s claim that he owns his own body and also owns A’s body, while A does not get to own his own body, is an obviously particularistic claim that makes arbitrary distinctions between two otherwise-similar agents, where the distinction is not grounded in any objective difference between A and B.

1. Update: on “giving reasons,” see R.M. Hare, Freedom and Reason (New York: Oxford University Press, 1963), §2.5: “a philosopher who rejects universalizability is committed to the view that moral judgements have no descriptive meaning at all.” [↩]
2. See also the related discussion between Tom Woods and Tom Mullen at Ep. 2173 Equality — Good vs. Evil Definitions. [↩]

I recently emailed a question to the Mises email list. The subject line: “Legal foundations and presuppositions of economic analysis.” An edited version:

I am looking for economic articles or textbooks that explicitly discuss the legal assumptions that economic analysis rests on. For example economists take for granted certain legal institutional features and concepts such as property rights, enforceability of contracts, negotiability of promissory notes, fraud, trespass, corporations, firms, interest, torts, title, insurance, and so on. If you are aware of any standard treatment of this issue—say, preliminary chapters in standard economic text books, classic journal articles, and the like—please let me know. For example, is this topic explicitly addressed as a normal part of the education or curriculum of economics undergrads?

One reason I am interested in this, aside from exploring it for its own sake, is to consider doing something like this but with a particular focus on (a) the Rothbardian-libertarian conception of property and related norms; and (b) Austrian economic analysis.

The only thing that occurs to me off the top my head that is even similar to something along these lines is Bohm-Bawerk’s chapter “Whether Legal Rights and Relationships are Economic Goods” in his Shorter Classics (ebook; Amazon); it’s also discussed in Gael J. Campan, “Does Justice Qualify as an Economic Good?: A Böhm-Bawerkian Perspective” The Quarterly Journal of Austrian Economics 2, no. 1 (Spring 1999) and Joseph Salerno, “Böhm-Bawerk’s Vision of the Capitalist Economic Process: Intellectual Influences and Conceptual Foundations,” New Perspectives on Political Economy, Volume 4, Number 2, 2008, pp. 87–112) [see also Richard Ebeling, Eugen von Böhm-Bawerk: A Sesquicentennial Appreciation].

In a discussion about this on Facebook, the always-amazing polymath Timo Virkkala told me:

Bohm-Bahwerk’s work—which really impressed John R. Commons, by the way—is what I would have recommended. The importance of institutions as the basis for human cooperation and markets has been written about extensively from a variety of points of view, Marxist, institutionalist (Veblen and Commons and others), New Institutionalists (Alchian, Coase, Demsetz, et al), and many others. A fraction of the work of the above folks looks at what you are interested in. Though this issue has long fascinated me, I’ve read little in this literature. Have you read Samuel Read? [Referencing his 1829 book Political Economy. An Inquiry into the Natural Grounds of Right to Vendible Property, or Wealth, available at Google books]

Me:

Actually I can’t find this guy Samuel Read in wikipedia or indeed any info about him at all on the web, other than this book. What do you know about him? Or do you know of any websites with further info on him?

Timo:

Samuel Read was highlighted in Rothbard’s history of econ theory. I acquired the book, and quickly lost it, back in the early 1980s. If I have him right (and I never got far in his book), he’s an early and important anti-Ricardian, and an analyst of property rights. But I’m not at all sure. I was asking the question hoping you’d know more than me!

Well, I have since obtained the PDF copy of the Read book, plus a print-on-demand version from Amazon (and as noted above, available online at Google books), and have begun to read it. It is really amazing. I’ll get into that in a minute. The funny thing is Virkkala recommended it to me as being discussed in Rothbard’s Austrian Perspective on the History of Economic Thought. Yet I can find no discussion of Read in Rothbard, or in Wikipedia, or elsewhere on the web. Virkkala then said he had confused “Samuel Bailey, an anti-Ricardian, for Samuel Read.” And indeed, Rothbard does mention Bailey in his book. But what is fascinating is what a great find this Read book is. If you just read the introduction you’ll be amazed. Further, Read cites Bailey approvingly in the Preface, but in a bizarre and cryptic way. On page vii-viii he refers to “a very able writer on Political Economy” and “the writer I allude to” without ever using a citation or name; a google search for the text he quoted reveals the author he is quoting was in fact Bailey, in his 1825 book A critical dissertation on the nature, measures, and causes of value (available at google books here). I am not sure why he refused to name Bailey. Some bizarre custom? Was Bailey anonymous at the time? Rivalry?

In any case. Back to Read. I haven’t finished the book yet, but just a few observations from the Preface and Introduction alone: [continue reading…]

I noted in “What Libertarianism Is” (n.1):

The term “private” property rights is sometimes used by libertarians, which I have always found odd, since property rights are necessarily public, not private, in the sense that the borders or boundaries of property must be publicly visible so that nonowners can avoid trespass. For more on this aspect of property borders, see Hans-Hermann Hoppe, A Theory of Socialism and Capitalism: Economics, Politics, and Ethics (Boston: Kluwer Academic Publishers, 1989), pp. 140–41; Stephan Kinsella, “A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability,” Journal of Libertarian Studies 17, no. 2 (Spring 2003): n. 32 and accompanying text; idem, Against Intellectual Property (Auburn, Ala.: Ludwig von Mises Institute, 2008), pp. 30–31, 49; also Randy E. Barnett, “A Consent Theory of Contract,” Columbia Law Review 86 (1986): 303.

(See also n.10 of “Intellectual Property and Libertarianism,” and text at n.11 of “Intellectual Freedom and Learning Versus Patent and Copyright.”)

I thought of this when I came across a discussion of “Wittgenstein’s Beetle“:

Another point that Wittgenstein makes against the possibility of a private language involves the beetle-in-a-box thought experiment.^[20] He asks the reader to imagine that each person has a box, inside of which is something that everyone intends to refer to with the word “beetle”. Further, suppose that no one can look inside another’s box, and each claims to know what a “beetle” is only by examining their own box. Wittgenstein suggests that, in such a situation, the word “beetle” could not be the name of a thing, because supposing that each person has something completely different in their boxes (or nothing at all) does not change the meaning of the word; the beetle as a private object “drops out of consideration as irrelevant”.^[20] Thus, Wittgenstein argues, if we can talk about something, then it is not private, in the sense considered. And, conversely, if we consider something to be indeed private, it follows that we cannot talk about it.

In the book Wittgenstein’s Beetle, Martin Cohen dismisses the experiment saying it “does not provide any support for the many different conclusions claimed by psychologists, philosophers and so many others” and suggests that it even seems to reinforce the notion that words have stable meanings.^[21]

I.e., both language and property are in a sense public. The connection is that property has to have a communicative (language) function, in that it sets up publicly observable or visible borders to communicate to third parties that a given resource is claimed by an owner and how they can avoid trespassing.