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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).

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[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.

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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.

The 3^rd Adam Smith Forum is being held Nov. 12, 2011 in Moscow. This is an impressive event, organized by the Center for the Philosophy of Freedom, the Libertarian Party of Russia, and others. The Chairman of the ASF Steering Committee is economist Pavel Usanov, head of the Hayek Institute for Economy and Law; Andrey Shalnev, head of the Center for the Philosophy of Freedom Moscow, is its co-chairman. I was invited to speak but cannot attend in person, so my speech “Why Intellectual Property is not Genuine Property” will be presented remotely, with Russian subtitles.

Update: For further information and video of the lecture, see my followup post here.

Jeff Tucker and Tom Woods had excellent criticisms of The Vatican’s Pontifical Council for Justice and Peace released a document Monday, calling for a world economic authority and condemning the “idolatry of the market.” But were I still a devout Catholic, of the opinion that the Church was infallible when speaking through its pope ex cathedra, this would concern me. Sure, sure, this is not a statement by the pope himself, and is not ex cathedra. And infallibility relates to pronouncements concerning faith or morals. Yet what could be more related to morals than the political system that governs us, given the hundreds of millions of people murdered and billions more lives ruined by these wicked agencies? If God through his sub-wing the Holy Spirit supposedly intercedes to prevent the Church from speaking erroneously on such grave moral matters, why would He let it preach statism and socialism and economic confusion.

Hmm. It’s almost enough to make one doubt the Church’s teaching authority–and the whole religious shebang (Christian, Moslem, Jewish, Hindu, whatever).

Interesting recent case: Man Tracks Down Classic Camaro Stolen 16 Years Ago:

Owner Brent Dockery had no idea that the car was stolen, reports the Deseret News. The VIN number had been altered. However, police were able to verify the vehicle after locating the original VIN in a door panel.

That was sufficient enough to transfer ownership to Edward Neely. Dockery may have purchased the car, but he did not legally obtain title to the stolen Camaro. Neely’s rights never terminated.

There is still one more legal issue left. Dockery installed $10,000 in upgrades, according to the Associated Press. He wants to remove them from the vehicle.

If Neely does not agree, a court may order him to return the upgrades if easily removable. Otherwise, he might be on the hook for their value. This is because the upgrades are technically the property of Dockery. It would also be unjust to allow Neely to benefit from their presence.

The first part seems to be a basically libertarian result: the owner of the car remained the legal owner, and thus was able to get it back, even if an innocent, third-party, good-faith purchaser had bought it in the meantime. He can go after his own seller, if he wants, to try to get his purchase money back, but if not, he suffers, not the real owner of the car.

The last part is more difficult. Sure, the improvements that the later buyer put into the car should be returned, but what about the parts that cannot easily be removed? It looks like the original owner might have to compensate the last guy based on the doctrine of “unjust enrichment.” Is that doctrine libertarian? Who can say. It does not seem completely unreasonable, at least in some of its applications, as here. But I’m not so sure it is compatible with libertarianism even here. It seems to me that the guy who improved the car took the risk that he was improving a car that he might not own. And his bet backfired.

Hoppe has explained how Marx was “essentially correct” in his theory of history and class analysis. His main mistake was his understanding of exploitation, which was based on a flawed understanding of the labor theory of value. As Hoppe argues, drawing on Rothbardian libertarian and Austrian insights, the only meaningful exploitation is aggression against private property. Once you understand exploitation in this light, a Marxian style class analysis and understanding of history makes sense.

And Marx was also right about some of his views about capitalism. In the comments section on a recent Mises post, Chartier: Markets Not Capitalism, left-libertarian Charles Johnson perceptively writes:

The term “capitalism” was introduced by anti-capitalists but not by Marx. Its most notable early appearance is in Louis Blanc’s Organisation du Travail (1840), published while Marx was still a grad student in Berlin.

Fun fact: Marx himself actually hardly ever uses the word — “capitalism” (Kapitalismus) appears all of about 2 or 3 times in the whole three volumes of Das Kapital, and hardly anywhere else in all of his work. But he does talk about “capitalists” and the “capitalistic mode of production” all over the place, and when later Marxist writers took up the term “capitalism” from Blanc, Proudhon, and other early adopters (mostly French), it was fairly straightforward to treat the term as more or less equivalent in meaning to Marx’s “capitalistic mode of production” (i.e. a mode of production based on concentrated absentee ownership of capital and the hiring of employees to work it).

None of these folks, incidentally, understood the term to mean “a free market in land and means of production.” Some (Blanc, Marx) believed that a free market in land and the means of production would inevitably tend to produce capitalistic patterns of ownership and control. Others (Proudhon, Warren, Tucker) dissented, and argued explicitly that a free market in land and the means of production could possibly, or even would naturally tend to, undermine capitalistic patterns of ownership and control (in the sense that large-scale inequalities of wealth would tend to dissipate, absolute poverty would largely disappear, and the working class would become the owning class, no longer subject to perpetual rent or debt, and no longer dependent on relationships with absentee owners of capital in order to make a living); hence (they held) if you were serious about being an anti-capitalist, then you ought to be serious about freeing markets and abolishing the state. On this one, I side with the Anarchists.

I side with Marx, not the “Anarchists,” here: [continue reading…]

Some of my comments on a thread on facebook:

[update: see KOL004 | Interview with Walter Block on Voluntary Slavery and Inalienability; Slavery, Inalienability, Economics, and Ethics; Slavery, Inalienability, Economics, and Ethics; and discussion of this see my “Causation and Aggression,” in Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023), the section “Fixed Pie of Responsibility and Joint and Several Liability”, and n.31]

Making moves! In design phase for a math product and hat idea. Found my manufactures! Discussing details. Also working on a paper involving the defense of voluntary slavery.

Stephan Kinsella

Latest notable terms from this and last week’s Slate Culture Gabfest (feel free to email me suggestions or leave them in the comments to the main page, which keeps a running collection of the terms from this series of posts).

And added to the list of terms I’m waiting to hear: stigmergic and Cockaigne.

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