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Structural Safeguards to Limit Legislation and State Power

by on January 23, 2015

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In the mid-90s I wrote a couple of law review articles, each which contained a short summary list of possible structural and related changes that could be made (say, to the Constitution) to try to limit state power and to limit the danger of legislation (really, the danger of having a legislature). I’ve elaborated on this also here:

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Ultimately, most such changes are probably futile. Constitutions are paper limits used to prop up state power, and are interpreted and enforced by the very state that is supposed to be limited by it. But they are certainly better than useless measures such as term limits. Probably the single most important of these proposals would be the sunset proposal: every statute expires after some maximum number of years, unless positively reenacted. (For some additional suggestions regarding federalism, see my post Randy Barnett’s “Federalism Amendment”–A Counterproposal.)

Below I’ll include some excerpts from some key articles then some listings of proposals from the other sources.

The first excerpt is from my article “Legislation and the Discovery of Law in a Free Society,” Journal of Libertarian Studies 11 (Summer 1995):

For all these reasons, I do not believe that legislation is a legitimate or practical means of creating law, or even of patching it. If a legislature can be convinced to recognize and respect the right law, so can a decentralized court system, especially one competing with other courts for customers. Courts do not face the same pernicious and systematic incentives that legislators do to make bad laws, and many of them. And courts, if they go bad, at least have a more limited effect on society; whereas when legislatures go bad, there is no end to the evil that they can perpetrate.[1]

If legislation can be considered valid at all (given a governmental system), it can only be occasional or spurious legislation that modifies the body of law which is primarily developed by a court-based, decentralized law-finding system. If we must have legislation, several constitutional safeguards should accompany its exercise, to attempt to restrict legislation to a purely secondary role in the formation of law. Certainly, a supermajority,[2] and maybe a referendum, should be required in order to enact any statutes whatever, except perhaps for statutes that repeal prior statutes or that limit governmental power. [continue reading…]

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Italian Translation of “The Case Against IP: A Concise Guide”

by on January 5, 2015

My article “The Case Against IP: A Concise Guide,” Mises Daily (Sept. 4, 2009) has been translated into Italian, by , as “Contro la proprietà intellettuale: una breve guida.” So for my work has been translated into 14 languages. (Comments from the original Mises blog discussion, now deleted, are archived here.)

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“Argumentation Ethics and Liberty: A Concise Guide” (2011) and Supplemental Resources

by on January 1, 2015

My article “Argumentation Ethics and Liberty: A Concise Guide” was published in Mises Daily (May 27, 2011). It also includes “Discourse Ethics and Liberty: A Skeletal Ebook.”

The original article has broken and missing links, so I reprint it below, with corrections and updates. I follow with additional, supplemental material that was published or came to my attention after the original article’s publication, followed by the Archived comments on Mises Daily article and archived comments from the related Mises blog post.

Note that several of my articles listed in the original article are now updated and included as chapters in my book Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023), to wit:

Argumentation Ethics and Liberty: A Concise Guide

Mises Daily
05/27/2011 • Stephan Kinsella

Professor Hans-Hermann Hoppe burst onto the Austrolibertarian scene in the late 1980s, when he moved to the United States to study under and work with his mentor Murray Rothbard. Since his arrival, Professor Hoppe has produced a steady stream of pioneering contributions to economic and libertarian theory. A key contribution of Professor Hoppe is his provocative “argumentation-ethics” defense of libertarian rights.

In setting the stage, Hoppe first observes that the standard natural-rights argument is lacking:

It has been a common quarrel with the natural rights position, even on the part of sympathetic readers, that the concept of human nature is far “too diffuse and varied to provide a determinate set of contents of natural law.” Furthermore, its description of rationality is equally ambiguous in that it does not seem to distinguish between the role of reason in establishing empirical laws of nature on the one hand and normative laws of human conduct on the other. (The Economics and Ethics of Private Property [2006; EEPP], p. 313; also A Theory of Socialism and Capitalism [2010; TSC], p. 156 n.118)

Hoppe’s solution is to focus on the nature of argumentation instead of action in general:

The praxeological approach solves this problem by recognizing that it is not the wider concept of human nature but the narrower one of propositional exchanges and argumentation which must serve as the starting point in deriving an ethic. (EEPP, p. 345)

Here he draws on the work of his PhD advisor, the famous European philosopher Jürgen Habermas, and fellow German philosopher Karl-Otto Apel, who had developed a theory of “discourse ethics” or “argumentation ethics.” As Hoppe explains this basic approach,

any truth claim, the claim connected with any proposition that it is true, objective or valid (all terms used synonymously here), is and must be raised and settled in the course of an argumentation. Since it cannot be disputed that this is so (one cannot communicate and argue that one cannot communicate and argue), and since it must be assumed that everyone knows what it means to claim something to be true (one cannot deny this statement without claiming its negation to be true), this very fact has been aptly called “the a priori of communication and argumentation.” (EEPP, p. 314)

That is, there are certain norms presupposed by the very activity of arguing. Apel and Habermas go on to argue that the ethics presupposed as legitimate by discourse as such justify the standard set of soft-socialist policies. But Hoppe, while recognizing the value of the basic approach, rejected their application of this theory and socialist conclusions. Instead, Hoppe took what was valuable in the Apel-Habermas approach and melded it with Misesian-Rothbardian insights to provide a praxeological-discourse-ethics twist on the standard natural-law defense of rights.

In essence, Hoppe’s view is that argumentation, or discourse, is by its nature a conflict-free way of interacting, which requires individual control of scarce resources. In genuine discourse, the parties try to persuade each other by the force of their argument, not by actual force:

Argumentation is a conflict-free way of interacting. Not in the sense that there is always agreement on the things said, but in the sense that as long as argumentation is in progress it is always possible to agree at least on the fact that there is disagreement about the validity of what has been said. And this is to say nothing else than that a mutual recognition of each person’s exclusive control over his own body must be presupposed as long as there is argumentation (note again, that it is impossible to deny this and claim this denial to be true without implicitly having to admit its truth). (TSC, p. 158)

Thus, self-ownership is presupposed by argumentation. Hoppe then shows that argumentation also presupposes the right to own homesteaded scarce resources as well. The basic idea here is that the body is “the prototype of a scarce good for the use of which property rights, i.e., rights of exclusive ownership, somehow have to be established, in order to avoid clashes” (TSC, p. 19). As Hoppe explains,

The compatibility of this principle with that of nonaggression can be demonstrated by means of an argumentum a contrario. First, it should be noted that if no one had the right to acquire and control anything except his own body … then we would all cease to exist and the problem of the justification of normative statements … simply would not exist. The existence of this problem is only possible because we are alive, and our existence is due to the fact that we do not, indeed cannot, accept a norm outlawing property in other scarce goods next and in addition to that of one’s physical body. Hence, the right to acquire such goods must be assumed to exist. (TSC, p. 161)

Hoppe then goes on to show, following Rothbardian logic 1 that the only ownership rule that is compatible with self-ownership and the presuppositions of discourse, is the Lockean original-appropriation rule (TSC, pp. 160–69). In his book review of Man, Economy, and Liberty: Essays in Honor of Murray N. Rothbard (Walter Block and Llewellyn H.Rockwell, Jr., eds., Mises Institute, 1988), Hoppe pithily summarizes his argumentation-ethics approach (elaborated in further detail in his own chapter in the volume) as follows:

by engaging in discussions about welfare criteria that may or may not end up in agreement, and instead result in a mere agreement on the fact of continuing disagreements — as in any intellectual enterprise — an actor invariably demonstrates a specific preference for the first-use-first-own rule of property acquisition as his ultimate welfare criterion: without it no one could independently act and say anything at any time, and no one else could act independently at the same time and agree or disagree independently with whatever had been initially said or proposed. It is the recognition of the homesteading principle which makes intellectual pursuits, i.e., the independent evaluation of propositions and truth claims, possible. And by virtue of engaging in such pursuits, i.e., by virtue of being an “intellectual” one demonstrates the validity of the homesteading principle as the ultimate rational welfare criterion. (emphasis added)

Hoppe also gives credit to Rothbard for recognizing, in a brief passage, the insights that Hoppe later built on more systematically:

This defense of private property is essentially also Rothbard’s. In spite of his formal allegiance to the natural rights tradition Rothbard, in what I consider his most crucial argument in defense of a private property ethic, not only chooses essentially the same starting point — argumentation — but also gives a justification by means of a priori reasoning almost identical to the one just developed. To prove the point I can do no better than simply quote: “Now, any person participating in any sort of discussion, including one on values, is, by virtue of so participating, alive and affirming life. For if he were really opposed to life he would have no business continuing to be alive. Hence, the supposed opponent of life is really affirming it in the very process of discussion, and hence the preservation and furtherance of one’s life takes on the stature of an incontestable axiom.” (EEPP, p. 321–22, quoting Murray N. Rothbard, “A Crusoe Social Philosophy,” in The Ethics of Liberty (New York: New York University Press, 1998), pp. 32–33, also published as idem, “A Crusoe Social Philosophy,” Mises Daily (December 7, 2021).)

Not surprisingly, when Hoppe’s argumentation ethics appeared in the late 1980s, e.g. in a Liberty symposium and other publications, 2 Rothbard was excited by this new approach:

In a dazzling breakthrough for political philosophy in general and for libertarianism in particular, he has managed to transcend the famous is/ought, fact/value dichotomy that has plagued philosophy since the days of the scholastics, and that had brought modern libertarianism into a tiresome deadlock. Not only that: Hans Hoppe has managed to establish the case for anarcho-capitalist-Lockean rights in an unprecedentedly hard-core manner, one that makes my own natural law/natural rights position seem almost wimpy in comparison. 3

Tantalizingly, Rothbard concludes his piece,

A future research program for Hoppe and other libertarian philosophers would be (a) to see how far axiomatics can be extended into other spheres of ethics, or (b) to see if and how this axiomatic could be integrated into the standard natural law approach. These questions provide fascinating philosophical opportunities. Hoppe has lifted the American movement out of decades of sterile debate and deadlock, and provided us a route for future development of the libertarian discipline.

Since the advent of Hoppe’s breakthrough theory of rights, it has continued to gain attention and adherents (and controversy). I based my own, related “estoppel” theory of libertarian rights on Hoppe’s work starting in 1991 (see,  e.g., A Libertarian Theory of Punishment and Rights, in LFFS) and ended up writing a detailed survey of related theories; see Dialogical Arguments for Libertarian Rights, in LFFS). In the meantime, other work has built on Hoppe’s monumental rights theory, so much so that I’ve been tempted to collect material for an “argumentation-ethics reader.”

Because of logistic, copyright, and other issues, I’ve not completed this project yet, but as most of these pieces are online, I thought it would make sense to provide a skeletal outline, with links where available, of such a book. It is below. 4 Hoppe’s argumentation ethics and other important economic, philosophical, and political works are will be discussed in my upcoming Mises Academy course The Social Theory of Hoppe.

Discourse Ethics and Liberty: A Skeletal Ebook

Part One: Overview

  1. Introduction: Dialogical Arguments for Libertarian Rights, in LFFS
  2. “Discourse Ethics” (Wikipedia)

Part Two: Hoppe’s Argumentation Ethics

  1. Precursors to Hoppe: “Discourse Ethics: Notes on a Program of Philosophical Justification,” by Jürgen Habermas, and “Is the Ethics of the Ideal Communication Community a Utopia? On the Relationship between Ethics, Utopia, and the Critique of Utopia,” by Karl-Otto Apel, both in Seyla Benhabib & Fred Dallmayr, eds., The Communicative Ethics Controversy (Cambridge, Mass.: MIT Press, 1990) [not online]
  2. “From the Economics of Laissez Faire to the Ethics of Libertarianism,” in EEPP, by Hans-Hermann Hoppe
  3. “The Justice of Economic Efficiency,” in EEPP, by Hoppe
  4. “On the Ultimate Justification of the Ethics of Private Property,” in EEPP, by Hoppe
  5. “Appendix: Four Critical Replies,” in EEPP, by Hoppe
  6. “On The Ethics of Argumentation” (PFS 2016), by Hoppe

Part Three: Commentary on and Extensions of Hoppe’s Argumentation Ethics

  1. “Beyond Is and Ought,” by Murray N. Rothard
  2. “Hoppephobia,” by Rothbard
  3. “Defending Argumentation Ethics: Reply to Murphy & Callahan,” in LFFS, by Stephan Kinsella
  4. “Argumentation Ethics and The Philosophy of Freedom,” by Frank Van Dun
  5. Hoppe’s Argumentation Ethics and Its Critics, by Kinsella
  6. Revisiting Argumentation Ethics, by Kinsella
  7. “Hülsmann on Argumentation Ethics,” by Kinsella
  8. “The A Priori Foundations of Property Economics,” by Guido Hülsmann
  9. “Praxeology, Economics, and Law: Issues and Implications,” by Larry Sechrest
  10. “A Reply to the Current Critiques Formulated Against Hoppe’s Argumentation Ethics,” by Marian Eabrasu
  11. “Hopp(e)ing Onto New Ground: A Rothbardian Proposal for Thomistic Natural Law as the Basis for Hans-Hermann Hoppe’s Praxeological Defense of Private Property,” by Jude Chua Soo Meng; see also idem, “Austrian Reasons for Private Property Rights: A New Natural Law Retrieval of Hayek and Rothbard“

Part Four: Other and Related Approaches to Discourse Ethics

  1. “A Libertarian Theory of Punishment and Rights,” by Kinsella, in LFFS
  2. “The Basis and Content of Human Rights,” Georgia L. Rev. 13 (1979): 1143–70, by Alan Gewirth [not online; but see his Moral Rationality, and summaries by Pilon in works cited below]
  3. “Ordering Rights Consistently: Or, What We Do and Do Not Have Rights To,” by Roger Pilon
  4. “A Theory of Rights: Toward Limited Government,” by Pilon
  5. “Mises and Argumentation Ethics,” by Kinsella
  6. “Habermas: A Critical Approach,” Critical Review 2 (1988): 39–50, by Jeremy Shearmur [not online; see discussion in Kinsella, Dialogical Arguments for Libertarian Rights]
  7. “Economics and the Limits of Value-Free Science,” by Van Dun
  8. “On the Philosophy of Argument and the Logic of Common Morality,” by Van Dun [see also the more recent work by Van Dun, “Argumentation Ethics and The Philosophy of Freedom“]
  9. “Individualism and Political Dialogue,” by Tibor R. Machan 5
  10. The Logic of Liberty (New York: Greenwood Press, 1986), by G.B. Madison (not online; see discussion in Kinsella, Dialogical Arguments for Libertarian Rights)
  11. “Political Legitimacy and Discourse Ethics,” by Douglas B. Rasmussen (also discussed in Kinsella, Dialogical Arguments for Libertarian Rights)
  12. “Rights, Robinson Crusoe, and Friday,” by Michaël Bauwens
  13. Universally Preferable Behaviour: A Rational Proof of Secular Ethics, by Stefan Molyneux 6
  14. “From Dialogue Rights to Property Rights: Foundations for Hayek’s Legal Theory,” Critical Review 4 (1990): 106–32, by Jeremy Shearmur (not online; see discussion in Kinsella, Dialogical Arguments for Libertarian Rights)

****

Supplemental Resources and Updates

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Archived Comments from Mises Daily article

Paul Stephens· 91 weeks ago

This stuff is really key. Back in the ’70’s and 80’s, I encountered Habermas’s work a lot. There was a knot of Frankfurt School people at the University of Montana, and there was widespread global interest in it. All sorts of “neo-revolutionaries” drank from that well, including many of the leading Balkan intellectuals. I wouldn’t have guessed that Hoppe was part of this in a million years. I’ll have to read him more carefully, now.

Hayek and most of the “Austrians” are believed to have been more or less opposed to the Frankfurt school “Marxists” or Neo-Marxists. It just goes to show, it all comes full circle, and there is nothing new under the sun!

Archived comments (from the Mises Blog)

{ 79 comments… read them below or add one }

Stephan Kinsella May 27, 2011 at 8:32 am

Those interested in the comments of Hoppe and Rothbard above regarding argumentation ethics might also find of interest Hoppe’s Introduction to Ethics of Liberty, esp. his contrast of Rothbard’s style with that of Nozick, and his comments about Rothbard’s “knock-down” arguments, which could also apply to Hoppe’s argumentation ethics and could explain one reason some libertarians resist this approach.

REPLY

Justin J. May 29, 2011 at 5:30 am

Stephen, thanks for that interesting article.

Could you let us know in a nutshell how Habermas argued that the argumentation ethic implies support for his socialist policies, and did Hoppe answer that particular claim?

REPLY

Stephan Kinsella May 29, 2011 at 6:04 am

Justin, Habermas is a bit inscrutable.. I had trouble finding a good English concise and clear overview of his work. You’ll note I didn’t include a Habermas piece, for this reason. I did include Apel b/c I have a good concise article by him, and Hoppe prefers Apel’s take anyway as being conceptually clearer (IIRC)–even though Habermas was his teacher. So I did include this piece: Precursors to Hoppe: “Is the Ethics of the Ideal Communication Community a Utopia? On the Relationship between Ethics, Utopia, and the Critique of Utopia,” by Karl-Otto Apel.

The Habermas book I used in my research years ago was Moral Consciousness and Communicative Action http://www.amazon.co.uk/Consciousness-Communicative-Action-Jurgen-Habermas/dp/0745611044 — it is a bizarre book, full of weird ideas about World 1 and World 2 and so on (going from memory–it’s been 16-17 years). How he and Apel conclude socialist thigs–I only dimly remember but I think the basic argument is sort of taking a more democratic twist on the idea of argumentation; the idea that such social dialogue is “essential” and to be able to participate in it you must have resources (food, job) guaranteed to you by society. I think it’s wrong, for the same reasons Hoppe does. I think their insight is a good one but they just twisted it and beat it to try to make it yield their desired socialist result.

REPLY

fundamentalist May 27, 2011 at 8:56 am

“It has been a common quarrel with the natural rights position, even on the part of sympathetic readers, that the concept of human nature is far “too diffuse and varied to provide a determinate set of contents of natural law.”

That’s a straw man. See Feser’s “Last Superstition.” Philosophers since Hume have congratulated themselves for successfully defeating straw men versions of natural law. Feser shows how little Hume understood about natural law. Hoppe clearly knows little about natural law theory and has learned everything from the straw men arguments.

Natural law theory never did try to derive morality from human nature. In fact, nature in the natural law theory was nothing like what Hoppe, Rothbard or other mean by it. Today, nature refers to simply what is. In natural law nature meant the essence of something.

Feser uses the simplistic example of a triangle. The nature or essence of a triangle is to have three side, each a straight line. In nature we find many triangles that come close to the ideal triangle, but not many. They are no less triangles, just not ideal. In a similar way, humanity has an essence, and ideal nature with many deviations from it.

Man Austrians discuss natural law in the same way that Paul Krugman discusses Austrian economics, from a position a ignorance. That’s beneath Austrians. Austrians should apply the same honesty and rigor to ethics as they apply to economics.

The odd thing about Hoppe’s ethic is that it uses essentially the same argument for property as does natural law, just with different assumptions. However, Hoppe makes a logical leap when he goes from self-ownership to property rights being absolute.

The Hoppe argument for property doesn’t seem like an argument as much as a suggestion. That people own themselves is well established. But that only implies that rights to property outside of oneself exists as well. It doesn’t prove it.

“In a dazzling breakthrough for political philosophy in general and for libertarianism in particular, he has managed to transcend the famous is/ought, fact/value dichotomy that has plagued philosophy since the days of the scholastics…”

There never was such a conflict. Hume invented it. See Feser’s book.

REPLY

Peter Surda May 27, 2011 at 1:47 pm

Maybe I just don’t understand the argument, but I think it’s wrong (I mean the argument, rather than the conclusion. I consider the conclusion a normative one and therefore outside of the scope of economics). I have the following objections to it:

Arguing does not require that you have a right to argue. Only arguing logically correctly requires that. This creates a recursive condition and is therefore invalid (or a tautology, if you want to put it this way). The condition evaluates to “true” regardless of whether you have a right to argue or not. If you do, then your argument is correct. If you don’t, then your argument is false, and by arguing you are confirming the falsity. It’s like in the logical prototype “This sentence is true”.

There does not need to be a causal relationship between one’s preferences/rights and the logical content of an argument one is making. What if I’m lying in order to hide my preferences, or what if I’m advocating the violations of other people’s rights?

Arguing is merely a type of action, it can be in accordance or in a violation of rights. If I broke into Hoppe’s home in the middle of the night, woke him up and started telling him that I have a right to argue, he would probably object very strongly. You do not always have a right to argue. You only have a right to argue if you are not violating other rights. Which brings us back to the beginning.

REPLY

Thinker May 27, 2011 at 3:02 pm

You seem to be starting from the position that we know about our rights, then we argue. Think about it this way: suppose for the sake of inquiry that we don’t know about our rights before engaging in argument. Justifying argumentation is another matter, but hopefully this perspective makes the purpose of Hoppe’s argument more clear.

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Mike Peinovich May 27, 2011 at 10:28 pm

Think about what you are doing right here in making a proposition. You seem to be proposing some rules that you want us to accept. Why are you doing this? Because you acknowledge that we each have the right to accept or not accept the norm you propose. Your actions make the point. The right to argue is irrelevant. If you were to claim that people have no right to argue, how would you do this? You would have to do it with argument. Why would you advocate for the violation of right instead of just violating them unless you thought for some reason you had to convince others? In your break in example it is not the argument that is the unethical action, it is the break in.

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RC May 28, 2011 at 10:13 am

“Think about what you are doing right here in making a proposition. You seem to be proposing some rules that you want us to accept. Why are you doing this? Because you acknowledge that we each have the right to accept or not accept the norm you propose. Your actions make the point.”

Not at all. What does “the right to accept or not accept” mean?

“The right to argue is irrelevant. If you were to claim that people have no right to argue, how would you do this? You would have to do it with argument.”

And? Again, I ask: what does “right to argue” mean? And if I do not have a right to argue, does that mean I am incapable of arguing?

REPLY

Shay May 28, 2011 at 12:16 am

First, arguing is by definition doing so “logically correctly”. It’s irrelevant whether one thinks one is arguing, or is merely pretending to in order to deceive; only if one is arguing is one arguing. That is, making claims and backing them up with reasons.

One assumption in the original claim seems to be that the arguer is arguing a consistent, uniform philosophy. For example, everyone has a right to X. If one were arguing that he had a right to X and Y, but everyone else just X, then his making an argument wouldn’t imply that his right to argue carries to anyone else.

In your example of breaking in and then asserting your right to argue, the violation of rights isn’t arguing, it’s breaking in.

What I take from Hoppe is that it’s basically inconsistent to argue for anything other than what he describes, because the mere act of making an argument for it implicitly rests on what he describes.

REPLY

sweatervest May 28, 2011 at 1:34 am

Peter,

“This creates a recursive condition and is therefore invalid (or a tautology, if you want to put it this way)”

I have heard you at least being called a “falsificationalist” and that may be the source of the problem, because Hoppe is an “extreme rationalist” and critiques empiricism (both positivst and Popperean) quite intensely in “Economics and Ethics”. For a great and short defense of rationalism by Hoppe see this: https://mises.org/journals/rae/pdf/RAE3_1_16.PDF

Basically, that something is a tautology is quite different from it being invalid. Empiricists attack tautologies as being empty expressions of the conventions of language, but as Hoppe explains these are necessary conventions for any meaningful language. They represent true facts about reality as the rules of language are contrained by reality, particularly when language is tied to actions.

Hoppe obviously is not suggested one cannot attempt to argue that initiation of force is justified. He just means, as you seem to agree, that such an argument must be wrong. But that is all the scope of ethics ever was: to examine the *arguments* in favor of actions.

“It’s like in the logical prototype “This sentence is true”.”

And to a rationalist there is a manifestly true fact of reality contained in this tautology: that it is necessary for any meaningful language that stating a claim is the same as regarding the claim as true. This is not an empty definition of the word true, but a recognition of the fact that there is such a concept to be defined (regardless of its symbolic representation).

“There does not need to be a causal relationship between one’s preferences/rights and the logical content of an argument one is making”

What exactly is a right, though? Hoppe is arguing that the concept of a “right” is a recognition of the fact that in the course of an argument certain conditions cannot be avoided, and so, for example, argumentation can only take place so long as all participants are autonomous users of their bodies so being the autonomous user is a “right” in the sense that it is established once and for all by arguing at all. That is all a “right” could be. Preferences have a praxeological definition, but “rights” need an argumentative (which I suppose is a type of praxeological) definition.

“What if I’m lying in order to hide my preferences, or what if I’m advocating the violations of other people’s rights”

In the first case you can hide your preferences, but you cannot hide the unavoidable logical error. In the second, you are certainly capable of honestly wanting to violate others (or else there would be no issue of ethics), but you still must commit a contradiction to claim your preferences reflect rights.

“If I broke into Hoppe’s home in the middle of the night, woke him up and started telling him that I have a right to argue, he would probably object very strongly”

This misses the point, I think. Just think of how immediately contradictory it would be to argue that you do not have a right to argue (keeping in mind a “right” is something implied by the very act of argumentation). But consider this: are you simply informing Hoppe rudely of your preferences (i.e. to raid his house) or are you actually trying to convince him that you have a right to trespass on his property? If you are really doing the latter, you would be forced to act in accordance with such a claim being false, as you must keep your hands off him personally and allow him to speak and counter your arguments until he is utterly convinced of your arguments. There is the performative contradiction: you are forced to admit through your own actions that you don’t even believe what you are trying to argue.

To be clear, Hoppe is not contesting that people honestly prefer to violate others or that they are capable of doing so. A “right” is very different from an ability or preference. He is merely pointing out that an attempt to *argue* against private property must be an invalid *argument*.

Who cares what arguments can be made or not? That’s where the rationalism comes in…

REPLY

RC May 28, 2011 at 10:07 am

“What exactly is a right, though? Hoppe is arguing that the concept of a “right” is a recognition of the fact that in the course of an argument certain conditions cannot be avoided, and so, for example, argumentation can only take place so long as all participants are autonomous users of their bodies”

This is clearly not true, as someone can be sitting on me, yet I will still be able to argue. So even here Hoppe fails.

“so being the autonomous user is a “right” in the sense that it is established once and for all by arguing at all. That is all a “right” could be. Preferences have a praxeological definition, but “rights” need an argumentative (which I suppose is a type of praxeological) definition.”

But what does that “right” do for the “rightholder”? So what if I am an autonomous user of my body? Why can’t I punch another autonomous user in the face?
Has Hoppe even offered a definition of the word “right”?

REPLY

sweatervest May 28, 2011 at 6:12 pm

“This is clearly not true, as someone can be sitting on me, yet I will still be able to argue. So even here Hoppe fails.”

Until you die of starvation because you cannot get up and get food. What you say is only true momentarily. Hoppe emphasizes that a truth is fundamentally universal and perpetual, so it can never make any sense for something to be a “right” here and now but not there and later. So what you are saying is only relevant if what you really mean is people can sit on each other indefinitely and still be able to argue, which is patently false. If everyone sits on everyone else (ignoring the impossibility of such an act) they’ll all starve to death and then there will be no argumentation.

You can only save this by saying, “I can sit on you here and now and we can still argue” but then you would be attempting to tie a “right” to a place and time, when by definition rights are universal and perpetual.

“But what does that “right” do for the “rightholder”?”

This is a very statist outlook! Hoppe is not standing anywhere with an army explaining what he is going to compel anyone to do! This is an issue of *arguments*. It means you, as an arguer, can never argue the justifiability of initiating aggression. That’s all it means. Just like you can’t fly by flapping your arms no matter how badly you want to, you also cannot consistently argue that rights do not exist because you admit they do by arguing at all. Any attempt will be a failure, and it is worth pointing out you are not even trying to make such an attempt.

You have not attempted to justify initiation of force argumentatively, and this is what Hoppe says is impossible.

“Why can’t I punch another autonomous user in the face?”

What do you mean “can’t”? We’re not in a court room with armed guards ready to execute orders. Obviously you are capable of punching people in the face. If you do that then you are violating the other guy’s rights, and if you try to argue that you are not, you are *not* capable of doing that!

“Has Hoppe even offered a definition of the word “right”?”

I don’t know if he gives a concise one but I think it is clear if you actually read Economics and Ethics. Either way, I gave a definition of a “right”: something that is a necessary precondition of argumentation, something that is recognized as a consequence of engaging in argumentation. Call if whatever word you want, what cannot be denied is: such preconditions exist, no action could possibly undo the existence of such preconditions (i.e. no action can change the fact that argumentation presupposes certain things), and no sound argument can conclude those preconditions do not exist.

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RC May 28, 2011 at 7:24 pm

@Sweatervest,

“If everyone sits on everyone else (ignoring the impossibility of such an act) they’ll all starve to death and then there will be no argumentation.”

OK, then let’s try something less drastic. If someone puts a hand on my shoulders, I will still be able to argue. And I will be able to survive, especially if the person holding me will move along with me. This is true regardless of time.

“It means you, as an arguer, can never argue the justifiability of initiating aggression. That’s all it means. Just like you can’t fly by flapping your arms no matter how badly you want to, you also cannot consistently argue that rights do not exist because you admit they do by arguing at all.”

You need a right in order to argue? Do you need a right to drive a car in order to drive it? If so, then car theft would be impossible – since the thief has no right to use a car that is not his – yet it happens all the time.
Maybe I’m wrong, but that’s how I see it. And if I’m wrong, then how am I admitting that rights exist by arguing?

“Either way, I gave a definition of a “right”: something that is a necessary precondition of argumentation, something that is recognized as a consequence of engaging in argumentation. Call if whatever word you want, what cannot be denied is: such preconditions exist, no action could possibly undo the existence of such preconditions (i.e. no action can change the fact that argumentation presupposes certain things), and no sound argument can conclude those preconditions do not exist.”

Ah, now I think I understand you better. It is a fact, of course, that in order to engage in argumentation certain preconditions must exist: you must be alive, you must be capable of arguing etc. And in order to be alive, one has to be born, eat, drink, breathe etc. It is impossible to argue against this (or rather not impossible, but absurd).
However, the difference between us is that I do not consider such preconditions as rights. Take for example self-ownership. The way I understand self-ownership is that I have a right to control my body free of coercion. If someone punches me, that person becomes a criminal. But that does not mean that self-ownership is neccessary for me to use my body. So the question I asked: “what do rights do for the rightholder” is crucial. I don’t see any statism in this…

Regards,
RC

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Stephan Kinsella May 28, 2011 at 1:40 pm

Peter–between flights overseas right now so this will be quick.

Arguing does not require that you have a right to argue. Only arguing logically correctly requires that.

would you not agree that arguing does mean that the participants are engaged in a peaceful, rational discourse, where they are trying to persuade each other of some propositional truths by means of rational persuasion and the force of arguments alone, and that they are expressly not coercing each other? If I tell you that I will shoot you unless you agree with me, is this really an argument?

I think it’s obvious it has to be the former. And that means that each participant is assuming the validity–preferring–certain norms. Whatever these are–and it seems clear to me that they are related to ‘peace”, cooperation, respect for each others’ bodily autonomy–then it is inconsistent to propose a norm as valid that contradicts these necessarily presupposed norms.
“What if I’m lying in order to hide my preferences, or what if I’m advocating the violations of other people’s rights?”

I am not sure what lying has to do with it. If you have to admit on pain of contradiction that your proposed socialist ethic is incompatible with the norms you are necessarily adopting as an arguer, then you have to admit it, whether you internally don’t “believe” it or not. As for the latter–but if you grant that each participant in argument has to grant the other has rights, it is by virtue of having the nature, being the type of being that can participate in argumentation; it is generalizable not particularistic, so it obviosly applies to any rational human not just the two happening to argue.

“Arguing is merely a type of action, it can be in accordance or in a violation of rights. If I broke into Hoppe’s home in the middle of the night, woke him up and started telling him that I have a right to argue, he would probably object very strongly. You do not always have a right to argue. You only have a right to argue if you are not violating other rights. Which brings us back to the beginning.”

I don’t think Hoppe ever says there is a right to argue. His argument is that all norms are justifiable only in propositional exchange–discourse or argument. It is unthinkable that you could justify a norm without engaging in discourse. therefore IF there are any norms necssarily presupposed by arguers b/c of the nature of argumentation, this puts a limit on what norms could ever possibly be justified–the ones that are incompatible with argumentative norms could never be justified (argumentatively).

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Stephan Kinsella May 28, 2011 at 1:41 pm

Peter, “I think it’s wrong (I mean the argument, rather than the conclusion. I consider the conclusion a normative one and therefore outside of the scope of economics).”

I agree it’s not economics. It’s ethics. Are you saying that only economics is rational?

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nl May 28, 2011 at 1:52 pm

hmm. If cooperation is part of economics, and it is, I think, then ethics must be also.

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Stephan Kinsella May 28, 2011 at 2:45 pm

Well Mises said praxeology is the science of human action, of which economics was so far the best developed part. Economics is the study of the logic of human action. Not sure whether Hoppe’s ethical argument falls into economics but it does seem to be part of praxeology, or at least draws on it. see:

https://stephankinsella.com/2009/07/the-other-fields-of-praxeology-war-games-voting-and-ethics-and-extreme-praxeology/

http://blog.mises.org/6154/extreme-praxeology/

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sweatervest May 28, 2011 at 10:22 pm

But action can only be recognized and understood as such through the course of argumentation. But then argumentation can only be conceived of as a type of action.

That’s what Hoppe got into about how praxeology and the a priori of argumentation form sort of twin towers of epistemology, with no way to establish one as prior to the other. They are on equal footing. If I understand Mises and Hoppe correctly, they claim *everything* is praxeology, with which I agree. Even natural sciences can be put on a praxeological basis. So to point out that Hoppe’s arguments here are praxeological at their basis would not establish them as a part of economics.

The way I see it, ethics is prior to economics like math is prior to physics. It is necessary for ethics to establish what is meant by cooperation, property, wealth, and civilization before embarking on at least market economics. It is for this reason that economic progress changes qualitatively when rights begin or cease to be recognized. The economic calculation problem relies critically on the concept of private property, and property can only be defined using ethics.

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RC May 27, 2011 at 4:24 pm

“Arguing does not require that you have a right to argue. Only arguing logically correctly requires that.”

Not even that, actually. You do not need a right to argue in order to argue, just like you do not need a right to drive a car in order to drive it and you do not need a right to sing in order to sing. Rights do not give you capabilities.

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Kid Salami May 28, 2011 at 12:23 pm

I’m similarly bemused by the whole thing. I think the real issue is cooperation. That is, if two people are going to cooperate – as they must in any civilised society, even if just to agree that a nod towards the good you have in your hand and a node towards the one in mine means “do you want to swap” – then there must be some basis for this. And “reason” seems as good a starting point as any, rejecting force and trickery which both are, by definition, not cooperation.

If we don’t assume that we want cooperation, then there is nothing to derive anything from – anyone can just do anything and “rights” simply don’t exist.

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RC May 28, 2011 at 1:39 pm

Fully agree with you.
Besides that, I also do not understand why Hoppe assumes that engaging in argumentation automatically means that you want to solve a problem peacefully. What if you want to trick your adversary? Or what if you do not want to solve the problem but merely want to show the superiority of your arguments? Besides, isn’t it possible to argue while simultaneously dueling with swords? Saw that on film plenty of times.

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sweatervest May 28, 2011 at 5:51 pm

“I also do not understand why Hoppe assumes that engaging in argumentation automatically means that you want to solve a problem peacefully.”

You don’t!? Arguing literally means giving up on the initiation of aggression. By debating you and trying to convince you of something I am seeking an alternative to aggression.

What if you want to trick your adversary?”

Tricking is not arguing. Please do not confuse logic with rhetoric, which has become all too popular in these days of sophistry. If you are tricking someone you are either mistaken yourself or you are attempting to convince them of something you know is wrong, which means you cannot be supporting the case with reason but rather supporting it with logical fallacies that are famous for being bought by gullible people. Now consider how the only way to reveal that trickery is afoot is for someone to *logically* argue as such.

“Or what if you do not want to solve the problem but merely want to show the superiority of your arguments?”

How in the world can showing the superiority of an argument not be tantamount to solving the problem!? Argumentation is not some game detached from reality or actions. If the argument is superior then its conclusion is established and the problem of whether the conclusion is true or not is solved.

“Besides, isn’t it possible to argue while simultaneously dueling with swords?”

No!!

“Saw that on film plenty of times.”

Yelling at someone to burn in hell as you swipe at them with your axe while he utters the same is not an argument. An argument is not any opening of the mouth an utterance of words. If you are fighting someone to the death you are not having an argument with him. At most you are complementing your physical attacks with verbal attacks. As it seems the entire political left-wing will never understand, verbal attacks and arguments are *not* the same thing!!

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RC May 28, 2011 at 7:33 pm

This is a matter of semantics.

http://www.learnersdictionary.com/search/argumentation

“the act or process of giving reasons for or against something : the act or process of making and presenting arguments”

Notice that – at least in this definition – nothing is said about the purpose of argumentation.

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sweatervest May 28, 2011 at 9:38 pm

Hoppe makes it clear what he means by “argumentation” and does not rely on lexical definitions. When he says “argument” he means trying to convince someone of the truthfulness of something. In all those cases of aggression one is at most convincing someone to pretend to believe the truthfulness of something to save himself from harm.

Peter Surda May 29, 2011 at 4:50 am

Sweatervest,

thank you for your long replies, but I still have objections.

Arguing literally means giving up on the initiation of aggression.

It does not always mean that. It could just be an opportunistic measure. Or a lie, or a logically correct yet deceptively phrased claim.

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Peter Surda May 29, 2011 at 5:49 am

One more thing sweatervest,

whether one is genuinely arguing or merely phrasing sentences for utilitarian purposes is empirically indeterminable. Those two can only be distinguished after being interpreted within a specific ethical framework. So again we have the same problem of recursion.

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sweatervest May 28, 2011 at 5:31 pm

You are missing the point. In a world where everyone wants nothing more than to violate others, and everyone agrees cooperation would be torture, it remains that what is being wanted is a violation of rights. Rights are not something that can be agreed upon.

Ethics is not about agreement. It cannot be. Ethics is only relevant where there is a disagreement. If everyone can agree on what to do, then there is no conflict and no need to consider any concept of a “right”. A right becomes relevant when there is a disagreement over what people want to do, and some other means (i.e reason) may be used to make a decision.

Rights do not exist because people recognize them. They always exist because they are unavoidable preconditions of any discussion (that is what a right is). In a world where everyone constantly violates everyone else, one cannot say “rights do not exist”, one must say “rights exist, and they are constantly being violated”.

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sweatervest May 28, 2011 at 5:53 pm

In a world where no one understands math and adds 2 and 2 to get 5, it would remain true that 2 + 2 is 4. In this world sound mathematics exists, it’s just never used.

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Kid Salami May 28, 2011 at 8:15 pm

Were these directed at me? If so, might you be so kind as to rephrase them, as I find them to be buzzword-laden gibberish.

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sweatervest May 28, 2011 at 9:47 pm

Buzzwords!? I’d be delighted to see an example of what you think a buzzword is.

Anyways, I have a feeling you aren’t trying very hard to understand, but I will try to rephrase my statements anyways.

“If we don’t assume that we want cooperation, then there is nothing to derive anything from – anyone can just do anything and “rights” simply don’t exist.”

No, those rights are simply being violated. In a world where everyone believes or wants there to be no gravity there would still be gravity, it would just be that nobody acts in accordance with its existence. Similarly, in a world where no one wants cooperation rights do not disappear, it is simply that no one acts in accordance with their existence.

In such a world no argumentation would ever happen because arguments are cooperative and if no one wants cooperation they will fight instead. But this does not change the fact that recognition of rights is a precondition of argumentation. Argumentation never happens and its precondition, the recognition of rights, never happens either. This does not change the fact that if argumentation were to happen it would necessitate a recognition of rights. People can refrain from arguing, but if they choose to argue they literally give up on aggression by doing so. Thus arguing in favor of aggression is nonsense. One cannot undo by any action the fact that argumentation has necessary preconditions, even if one chooses not to argue.

Kid Salami May 29, 2011 at 5:30 am

“No, those rights are simply being violated. In a world where everyone believes or wants there to be no gravity there would still be gravity, it would just be that nobody acts in accordance with its existence. Similarly, in a world where no one wants cooperation rights do not disappear, it is simply that no one acts in accordance with their existence.”

I don’t understand what you’re trying to say. It is impossible that “nobody acts in accordance with its existence” in the case of gravity – you have no choice BUT to act in accordance with its existence.

Maybe you are saying “nobody acts in accordance with the fact that there exists a theory explaining why stuff doesn’t float off to space” even as they don’t in fact float off to space (which is not the same thing at all).

So, if you really do mean the first one, then I don’t know what you mean as it makes no sense.

If you mean the second, then what is the counterpart in your analogy with rights – that is, what is it that people have no choice but to obey/follow regardless of what they agree or admit to?

Kid Salami May 29, 2011 at 7:31 am

Hoppe in the Four Critical Replies Appendix says:

“First, the question of what is just or unjust (or what is valid or not)
only arises insofar as I am and others are capable of propositional
exchanges—of argumentation. The question does not arise for a
stone or fish because they are incapable of producing validity-claiming
propositions.”

Nor does it arise for humans who have no interest in cooperating with other humans. Saddam Hussein and his henchmen didn’t engage in much “argumentation” with the Kurds – by virtue of having bigger guns, Saddam just insisted they do what he wanted or he killed them. If he did argue with them one day to get them to do his as he wanted, because he really couldn’t be bothered having to go back to his car to get a new magazine and kill them, so what? What if you argue it is in someone’s interest to do as you say or they’ll end up dead? I really don’t say how we can get anywhere until two people have agreed on something.

“Yet if this is so—and one cannot deny that it is without
contradicting oneself, for one cannot argue the case that one cannot
argue—then any ethical proposal, or indeed any proposition,
must be assumed to claim it can be validated by propositional or
argumentative means.”

Where did the word “ethical” spring from here? All does is transfer my questions on the previous paragraph to another basically equivalent problem – what is an “ethical” proposal and how does it differ from a non-ethical one?

“There is then no way of justifying anything unless it is a justification by means of propositional exchanges and arguments.”

True, but here we presume that people are interested in “justifying” things. But this only makes sense when there is cooperation and Saddam wants to “justify” his actions to the Kurds because he wants something back. if he wants nothing from them, justification serves no purpose.

sweatervest May 28, 2011 at 5:42 pm

“You do not need a right to argue in order to argue”

You seem to be using the word “right” vacuously. You do need a right to argue in order to argue, and not only that you must recognize that same right in everyone else. If someone violates this right and puts tape over your mouth I’d love to know how you would continue to argue.

Furthermore, if you don’t recognize the rights of who you are arguing with, then you are not arguing but simply explaining. Arguing means acknowledging the other participants’ right to counter your argument.

“Rights do not give you capabilities.”

Who said they do!?

Seriously though, it is fairly obvious that Hoppe is not trying to convince us that people are not capable of violating the rights of others. If that were true there would be no reason to discuss rights at all. His point is that you cannot deny that certain things are rights and that certain actions are violations of rights. Whether or not such an act is good, desirable or possible is irrelevant.

This entire post is a straw man, and a rather poor one at that. I can only guess that the concept of a right to you is just a different way of saying someone gives permission.

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nl May 28, 2011 at 6:04 pm

“You seem to be using the word “right” vacuously.”

hehe
The term “right” or “law” is vacuous at all.

You may only discuss about the environment that makes claims practicable, negotiable, and enforceable.

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RC May 28, 2011 at 7:41 pm

Sweatervest,

You admit that rights do not give you capabilities. Yet earlier you wrote that you need a right to argue in order to argue. In order to argue, I have to be capable of arguing. Since a right to argue does not give me a capability to argue, therefore I do not need that right in order to argue. Please explain where I’m wrong…

Regards,
RC

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sweatervest May 28, 2011 at 10:07 pm

Well I’m not sure what a “right to argue” would mean anyways, and Hoppe never spoke of such a thing. People have rights to property, not to actions.

The right to your body does not “give” you the capability to argue, it is a precondition of that capability. If the right is no longer recognized then your capabilities change, and you can no longer argue.

Perhaps you are committing a fallacy of on composition. That there exists one capability that rests on recognition of certain things (rights), an example being the capability to argue, does not imply that all capabilities require rights. You do not need to recognize any behavioral norms as preconditions to driving a car, especially considering that such an action involves only you. But you must recognize behavioral norms as preconditions to having an argument. Since the only way to justify anything is with an argument it must be impossible to justify not recognizing those preconditions (you would be attempting to justify an action you are implicitly admitting, by arguing at all, is unjustifiable).

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RC May 28, 2011 at 10:27 pm

Sweatervest,

But you are missing the point – rights are not preconditions! At least not in the sense that people use the word “right”. You need to be alive in order to engage in argumentation – but you do not need a right to live to do it.

But never mind – can you simply explain this part?

“The right to your body does not “give” you the capability to argue, it is a precondition of that capability. If the right is no longer recognized then your capabilities change, and you can no longer argue.”

And could you explain what does “right to your body” mean?

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Thinker May 29, 2011 at 12:36 am

Hoppe does not say that you need the right to argue in order to argue. Rather, you must recognize argumentation as ethically permissible in order to argue. If you were to claim in argument “It is immoral to argue”, you would be trapped in a performative contradiction: by the act of engaging in argument, you affirm that one ought to argue. Thus, to attempt to argue “It is immoral to argue” is to claim “One ought do that which one ought not do”, a contradiction. This means that anything required for argument in general (note: not any particular argument), must be ethically permissible. To answer your question about what it means to have a “right to [use] your body”, this merely means that the use of your body is ethically permissible. According to Hoppe (and others), only you possess this right. If you wish to go into the meaning of ethics in general, that is another matter.

RC May 29, 2011 at 10:26 am

Thinker,

Thanks for the clear explanation, you seem to understand Hoppe very well. Anyway, now his argument makes sense, the way you explained it.
What I do not understand, however, is how Hoppe – through his argumentation ethics – establishes a whole system of (libertarian) ethics.
I can, for example, claim argumentation is moral – no performative contradiction here. However, I can also claim that engaging in Holocaust denial is immoral – and since I have done no such thing myself, I am not trapped in a performative contradiction.
Similarly, I can claim that the use of my body is ethically permissible, but not in every situation, for example not in a lifeboat situation. Therefore, I may claim that full self-ownership – in every moment, every situation and for everyone – is not ethical. At least that’s the way I understand it.
Thanks again for the very good explanation.

Kid Salami May 29, 2011 at 3:50 pm

“This means that anything required for argument in general (note: not any particular argument), must be ethically permissible.”

I hadn’t thought of it like that. So could you summarise it by saying that: you can’t commit a rights violation by attempting to persuade someone by arguing?

Thinker May 29, 2011 at 8:31 pm

Thanks, RC.
The way Hoppe considers argument is to abstract away from the particularities of any given argument, so that the ethical rules he discovers are implicitly accepted in every argument. He establishes absolute self-ownership using two characteristics of argument: the need for communication and the possibility of agreement. For the first, that the arguers are separate people, they have to employ their physical bodies in order to communicate with each other. Thus, an arguer implicitly recognizes that it is ethically permissible for him to use his own body. Similarly, he must recognize that his opponent has the right to use his body–if he does not, then he is not arguing, but soliloquizing. Self-ownership is absolute (1) because there is no non-arbitrary reason to restrict it and (2) because restrictions on self-ownership conflict with the possibility of agreement. In any argument, there always exists the possibility of agreement among the arguers–at the very least, they can agree that they disagree. However, if one arguer has the right to make use of his opponent’s body, then he may end the argument without agreement between the arguers. If this is the case, then we don’t have an argument, we have a…well, I’m not entirely sure what this situation would be called, but it wouldn’t be an argument.
Hoppe’s arguments for property rights in other physical objects are a good deal more complex, so there’s no good way to summarize them. Kinsella’s presentation is good and correct.
If you can argue something without permformative contradiction, all this means is that it is not an objective (or, more precisely, necessary intersubjective) ethical rule. We can decide whether or not to follow such rules after debating their merits in argument–or not, if no one wants to argue about them.
Hope this clarifies things.

Thinker May 29, 2011 at 8:53 pm

Kid Salami–”So could you summarise it by saying that: you can’t commit a rights violation by attempting to persuade someone by arguing?”

Yes, but the phrasing is potentially misleading. If an arguer punches his counterpart, then he has violated the other person’s rights, but that is because he punched someone, which is a separate action from engaging in argument. So if we were to rephrase it again as “we are arguing, therefore we are not violating anyone’s rights”, this second rephrasing would be incorrect. I noticed your post only after writing my response to RC, but there’s further clarification in that post.

RC May 29, 2011 at 10:23 pm

Thinker,

Due to a lack of time, I cannot offer a full reply now. But I shall certainly want to do it within several days, (since now I’m beginning to grasp Hoppe’s argument and you seem very competent in explaining it), so, if you are willing, check this thread by Thursday to see my reply.

Regards,
RC

Thinker May 29, 2011 at 10:35 pm

Sure thing. Glad to be of help.

RC June 2, 2011 at 8:56 am

Thinker,

Hope you’ll see this. But before I make my observations, I would like to point out that Aiden Gregg made an interesting comment (in this thread) regarding argumentation ethics. Also, you may want to read these posts by Brainpolice:
http://polycentricorder.blogspot.com/2009/08/on-performative-contradiction.html
http://anti-libertarian-libertarianism.blogspot.com/2010/12/rationalist-libertarian-ethics.html

Now, I will try to be brief… You wrote:

“The way Hoppe considers argument is to abstract away from the particularities of any given argument, so that the ethical rules he discovers are implicitly accepted in every argument. He establishes absolute self-ownership using two characteristics of argument: the need for communication and the possibility of agreement. For the first, that the arguers are separate people, they have to employ their physical bodies in order to communicate with each other. Thus, an arguer implicitly recognizes that it is ethically permissible for him to use his own body. Similarly, he must recognize that his opponent has the right to use his body–if he does not, then he is not arguing, but soliloquizing. ”

OK. It is undoubtedly true that one has to use his/her body in order to argue. So if someone says: “I do not have a right to use my body” that person is in contradiction with his actions. But two things:
1. Does not self-ownership mean something more than “it is ethically permissible for me to use my body”? Rothbard, for instance, defined self-ownership as “the right to control one’s body, free of coercion” – in other words: it is ethically permissible for me to control my body and it is not permissible for others to coerce on my body. Yet freedom from coercion is not neccesary for me to act. For example, I can say that it is ethically permissible for me to use my body, but it is ethically permissible for others to do so as well. And I am not in performative contradiction, the way I see it.
2. Even if someone contradicts his/her actions, is that only a proof that he/she is a hypocrite? What I mean by this is: does proving that someone is a hypocrite automatically invalidate the norm he/she is proposing?

“Self-ownership is absolute (1) because there is no non-arbitrary reason to restrict it and (2) because restrictions on self-ownership conflict with the possibility of agreement. In any argument, there always exists the possibility of agreement among the arguers–at the very least, they can agree that they disagree. However, if one arguer has the right to make use of his opponent’s body, then he may end the argument without agreement between the arguers. If this is the case, then we don’t have an argument, we have a…well, I’m not entirely sure what this situation would be called, but it wouldn’t be an argument.”

Yes, but the question is: if one enters into an argument, does that neccesary mean that he/she is seeking an agreement? For instance, I may see that my opponent is strong, so a voilent confrontation may turn out risky for me – so I turn to argumentation. Yet, I enter the argumentation not to establish the truth (or establish who has the higher moral ground) but to try to convince my opponent to accept my position. However, by no means I am willing to give up my position – if I see that the argument is going wrong, I may end the argumentation as it is giving me nothing. So I think that argumentation does not neccesarily mean that the parties involved in it are seeking a peaceful agreement.
Second problem: you wrote that there is “no non-arbitrary reason to restrict self-ownership”. That may well be true. However, we are returning to the problem of performative contradiction. If I say: “it is ethically permissible to use my body, but only in some situations” then I am not in contradiction. For example, I can say: “it is not ethically permissible for me to refuse to help someone in need”. Simply because I engage in argumentation does not mean, IMO, that my norm is invalidated, for my actions are not in contradiction with my words.

And now the final thing. You wrote:

“Hoppe’s arguments for property rights in other physical objects are a good deal more complex, so there’s no good way to summarize them. Kinsella’s presentation is good and correct.”

Even if argumentation ethics does establish full self-ownership, does it establish property rights in all external physical objects as well? It is true that man must eat and drink in order to survive (and engage in argumentation), but does that mean that the food he/she has eaten is property? Is not mere possession of external objects enough?

But maybe the last part is unneccesary, as the external objects problem is another matter… just offered a quick impression.

Regards,
RC

Thinker June 2, 2011 at 5:45 pm

RC,

1. That something is ethically permissible implies that prohibiting it is ethically impermissible, so Rothbard’s definition is the same as the Hoppe’s. I prefer “ethically permissible” to “right” because it’s more precise, and I’m sure dedicated hairsplitters can find distinctions, but for these purposes they’re the same and I’ll be using them interchangeably below. They key point I wanted to emphasize before was not that the right exists in a metaphysical sense, but that we must recognize it in order to engage in argumentation. In a similar way, I cannot know if I have free will, but must assume that I do in order to act, which I cannot not do. That self-ownership is exclusive depends on the possibility of agreement, which I hope I clear up below.
2. We actually can know more than that the maker of a performative contradiction is a hypocrite. Since the assumptions required for argumentation are prerequisites for any claim to be made, any claim that contradicts these assumptions must be false.

All your questions seem to require an answer to the question, “Why do/must we argue?” I’m not sure if Hoppe explains this in his English writings, but this is at the foundation of discourse ethics in general, not just Hoppe’s interpretation. I don’t actually know how Habermas justified the discourse approach–this is just what I’ve put together:If there is only one consciousness in the world (say, you), then all truths are subjective. However, if there are multiple consciousnesses (say, you and me), then new possible types of truths arise. Before (with just you), if you see pink, fluffy unicorns dancing on rainbows, that is the same as if there actually are such creatures; now (with both of us), whether we both see them, only one of us does, or neither of us does, has significance. We now have the possibility of intersubjective truths of two varieties: necessary and contingent. Necessary intersubjective truths are things like: space has three dimensions; events are ordered in time; man acts. Contingent intersubjective truths are things like: the sky is blue; trees grow upward; pink, fluffy unicorns are dancing on rainbows. Intersubjective is technically a more appropriate term than objective, since we are dealing strictly with objects within the realm of human experience. If we want to discover contingent intersubjective truths, we have to interact with other consciousnesses. We can discover necessary inersubjective truths (at least, some of them) through individual thought experiments. Thus, if we want to escape from solipsism and discover intersubjective truths about the world in which we live and act, we must engage in discourse–or argumentation–to compare our individual, subjective truths. And when we engage in discourse, we necessarily assume various ethical rules.

In argumentation, there is always the possibility of agreement on some intersubjective truth–at the very least that there exists disagreement on some issue. If anyone else may use your body, then they can end the argument without agreement. Thus, argumentation requires exclusive self-ownership.If you use discourse to try to convince someone that they should give you something, that is quite within the bounds of the discourse we’re dealing with. You are arguing with someone about the truth-value of the statement “I deserve such-and-such.” If you fail to convince your counterpart, then you have established that the statement is strictly subjectively true rather than intersubjectively true.

With respect to your other objection, you must accept self-ownership at the time and place of argument. So you can claim, for example, that you will not have the right to use your body in five minutes or on another planet, but in five minutes or when you are on that other planet, you will have to recant on that earlier claim. The assumptions of argumentation always apply because the need to identify intersubjective truth is always present.

I feel the need to reemphasize that this is just what I’ve come up with on my own–I’m satisfied that it is correct, but I haven’t consulted with anyone else to get any kind of constructive criticism (and I do realize the irony of not having engaged in discourse concerning my ideas on discourse ethics). If you can provide some, I would be very grateful.

On your final point, it’s not that, for example, the food someone eats is their property–it’s quite possible that they stole it from someone else. Rather, they must be permitted to appropriate previously unowned food so that they can eat it later. I suppose if you were to scrape some berries off a bush with your teeth and started chewing immediately, the line between appropriation and eating becomes blurred, but appropriation comes first.

Hope this clears some things up.

RC June 2, 2011 at 7:11 pm

Thinker,

Thanks for replying, your explanation of “why we argue” is excellent. Of course, argumentation is neccesary in order to establish the truth (intersubjective agreement). I was merely pointing out that the conventional understanding of argumentation is “the act to give reasons for or against something” which does not neccesarily mean an attempt to establish truth. But I’m sticking with the understanding of argumentation that you have given, from now on. Now moving on…”In argumentation, there is always the possibility of agreement on some intersubjective truth–at the very least that there exists disagreement on some issue. If anyone else may use your body, then they can end the argument without agreement. Thus, argumentation requires exclusive self-ownership.”Yes, but like you wrote – they can. Can does not mean must. I generally do not think it is morally permissible to use others people’s bodies (with the exception of lifeboat scenarios and maybe some other extreme cases), but let’s say for instance that I enter into some BDSM relationship and agree to be a slave, with a provision that makes it permanent (don’t laugh, I’m trying to make a point here:p). Does that mean I cannot enter into an argumentation with my mistress? The way I see it, she may use my body at any time, and so end the argument without agreement. However, she may choose not to exercise that power; we may very well end our argument (on whatever subject that may be) in agreement. So it appears that while full self-ownership GUARANTEES that the argument will end in some sort of agreement, it is not neccesary for such an agreement to happen, IMO.”With respect to your other objection, you must accept self-ownership at the time and place of argument. So you can claim, for example, that you will not have the right to use your body in five minutes or on another planet, but in five minutes or when you are on that other planet, you will have to recant on that earlier claim. The assumptions of argumentation always apply because the need to identify intersubjective truth is always present.”Yes, but I mentioned a specific situation. If I have full self-ownership rights, then it is morally permissible for me, for example, not to help people tied to railroad tracks (the famous trolley problem). Since I did not coerce them in any way (someone else did the tying), I will not be responsible for their death if I do not help. So no one could throw me in jail. Yet I find something morally very wrong in this…
That’s why I gave the example of “it is not ethically permissible for me to not help someone in need”. If so, then I do not have full self-ownership. Yet I can still enter into an argument, because I did not deny that it is morally permissible to use my body, but just stated that “it is morally impermissible to use my body in situation X”. And my adversary cannot end the argument by making use of my body, since in this case I am using it in a ethically permissible way.”I feel the need to reemphasize that this is just what I’ve come up with on my own–I’m satisfied that it is correct, but I haven’t consulted with anyone else to get any kind of constructive criticism (and I do realize the irony of not having engaged in discourse concerning my ideas on discourse ethics). If you can provide some, I would be very grateful.”Do you mean criticism of Hoppe’s argument? If so, I recommend to you the criticism that Calahan and Murphy made, the brief comment by Roderick Long (it’s titled “Hoppriori”) and D. Friedman and a criticism that Eabrasu made in 2005 (I think now he somehow changed his position, although he probably still does not accept Hoppe’s argument). Also, did you read those that I have linked you? Here, btw, are the links:
http://praxeology.net/unblog05-04.htm#10
http://brunoleonimedia.servingfreedom.net/WP/051007_Mises_WP_Eabrasu.pdf
http://www.anti-state.com/murphy/murphy19.html
http://www.daviddfriedman.com/Libertarian/On_Hoppe.html“On your final point, it’s not that, for example, the food someone eats is their property–it’s quite possible that they stole it from someone else. Rather, they must be permitted to appropriate previously unowned food so that they can eat it later. I suppose if you were to scrape some berries off a bush with your teeth and started chewing immediately, the line between appropriation and eating becomes blurred, but appropriation comes first.”Yes, it is true that they must be ethically permitted to appropriate previously unowned food in order to survive. But isn’t that mere possession rather than ownership? If I pluck an apple and put it in my mouth, I have certainly appropriated it – but again, it seems to me I do not need to establish ownership of it to eat it. In other words, “it is morally permissible for me to appropriate unowned objects, but it is not morally permissible for me to use force against those, that will try to take it from me” does not seem to be a contradiction. If someone takes my apple, I will not die – I will get another one (only this time I will eat it as soon as I can).Regards,
RC

RC June 2, 2011 at 7:18 pm

Thinker,

Sorry that the post turned up ugly – I was editing it and I did not finish, shucks. But I hope you will not have problems understanding it.

Thinker June 2, 2011 at 9:13 pm

RC,

No trouble.

The issue with the possibility of agreement is that in argument agreement is always possible, whereas if self-ownership is not exclusive, agreement is only possible under certain circumstances. (The case for exclusive self-ownership is a good deal more solid if we utilize the universalizability criterion, which I haven’t used because I don’t know Kant’s precise argument for it.)

As far as I know, Hoppe’s contract theory is identical to Rothbard’s. You and your mistress could live together happily and share as much pain as you wished, with the caveat that as soon as you (I assume you are the Submissive in this relationship) decide that you no longer desire to be subject to your mistress’s harsh whims, you are released from that contract. Self-ownership doesn’t prohibit you from allowing people to use violence against you. It merely means that you are the ultimate authority on how your body is used, reviewing any decisions you permit others to make in this regard.

In the trolley problem scenario, you may help or not help the victims according to your own conscience; self-ownership is no less applicable in that case than in any other because if you were to claim at that moment that you may be compelled to save the lives of the people tied down, you would be trapped in a performative contradiction. Generally, when not in situation X, you can make all manner of claims about what is permissible in situation X, but once situation X arises, the same ethical rules as ever apply.

As I mentioned above, Hoppe’s argument for private property in things other than arguers’ bodies does not follow directly from argumentation. The two are not unrelated, but the only thing we get from argumentation is that we must be permitted to appropriate resources. The details come from separate arguments.

I was concerned with my own arguments primarily–I’ve never presented them before, so I was a bit concerned about their quality. I haven’t looked at the links you’ve posted just yet, but I’ll be getting to them momentarily.

RC June 2, 2011 at 11:15 pm

Thinker,

I will just like to touch one matter before we end our discussion.

You wrote:

“In the trolley problem scenario, you may help or not help the victims according to your own conscience; self-ownership is no less applicable in that case than in any other because if you were to claim at that moment that you may be compelled to save the lives of the people tied down, you would be trapped in a performative contradiction. Generally, when not in situation X, you can make all manner of claims about what is permissible in situation X, but once situation X arises, the same ethical rules as ever apply.”

This I do not understand. If I claim that “it is ethically impermissible for me not to help someone in need” and that moment one day arrives – I would be in performative contradiction only if I did not help. If I help, there is no performative contradiction. Notice that “it is ethically impermissible…” does not mean that it is ethically impermissible for me to act, just ethically impermissible for me not to act in a certain way (i.e. not helping that person in need). While untying the unfortunate people I can talk, sing, I can do whatever as long as I am helping them.

Regards,
RC

Thinker June 3, 2011 at 2:03 am

RC,

If you claim that “it is ethically impermissible for me not to help someone in need”, but there is not currently occasion for this rule to be put into effect, then there is no performative contradiction. However, if the day arrives when this rule my be applied, and you were to make that claim again (which you must for it to be put into practice), then you would be trapped in a performative contradiction. (Remember, if someone may legitimately coerce you into doing something, even with a stated purpose, they are the judge of that purpose, and if they believe that you must not argue as part of your obligatory help, you may not dispute that judgment.)

Thanks for taking the time for this discussion–it’s been the most enjoyable one I’ve had in a long time. Good night.

RC June 3, 2011 at 9:54 am

Thinker,

I also thank you for our discussion, it’s been a great pleasure.

Although I cannot agree with you on the last part. I think it is overstreching to claim that when situation X arrives, I must make my claim again (what if there is no one next to me?) and that others can interpret the purpose anyway they like (since “I must help” does not mean “I must help while simultaneously doing or not doing Y”). But I’ll leave it at that.

Thank you very much once again.

Regards,
RC

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vcif May 29, 2011 at 9:43 am

@RC

I read through this thread. You seem to be falling into the same logical trap repeatedly.

For instance, your example of the right to drive is a reiteration of the same general misconception as the person sitting on another, the right to live, etc . It simply does not follow that a right doesn’t exist because someone violates it. Nor does it follow that doing something (living in your example) means you don’t “need” or have(!) a right to do it. Besides that, if I understand correctly , Hoppe’s goal is to prove the existence of rights through argumentation ethics, not the other way around.

See, “If [you need a right to drive a car in order to drive a [your?] car], then car theft would be impossible – since the thief [by definition a violator of right] has no right to use a car that is not his – yet it happens all the time.”

So, your argument is that since thieves exist, then I have no property right in my car. Your corollary to this is that I do live, therefore I don’t “need” [have?!] a right to live. These are both non-sequitors of the same category.

You need to take a step back to the begininning of what Hoppe is saying. Does truth exist? Is there right and wrong or is it all just convention? Can we deduce through reason?

Hoppe starts with humans make arguments. To dispute this is proof of its axiomatic truth. Attempts to allow some argumentation while restricting someone’s free movement, to use force to modify someone’s “argument”, or to otherwise obstruct the process of argumentation doesn’t negate the argument. This is the same logical trap you fall into above.

In addition, your breaking and entering example not only falls into this same logical trap, but also puts the cart before the horse. You are trying to negate his argument that humans argue by going n +1 steps ahead, “disproving” his property right in his house by violating it, and then concluding that you also don’t have a right to argue because he booted you from his living room.

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RC May 29, 2011 at 10:08 am

“So, your argument is that since thieves exist, then I have no property right in my car. Your corollary to this is that I do live, therefore I don’t “need” [have?!] a right to live. These are both non-sequitors of the same category.”

No, no, no.

To make it short, since I have little time: I never stated that “since thieves exist, then I have no property right in my car”. I merely pointed out that the thief does not need property rights in a car in order to use it (i.e. steal it).
Same thing with life: the fact that you are living (like the fact that you are driving a car) does not mean you have a right to live (or a right to drive a car, like in the thief example). Nor is it neccessary (for me to live).
Hoppe seems to argue that because certain preconditions need to exist in order to argue, these preconditions somehow become rights. How – I don’t have the slightest idea.

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nl May 29, 2011 at 10:26 am

Again:
The term “right” or “law” is vacuous.
You may only discuss about the environment that makes claims practicable, negotiable, and enforceable.
Some ways are indeed normative not practicable, negotiable, and enforceable, and that can be explained by a priori logic, and to this regard by the hindrance of the performative estoppel principle.

vcif May 30, 2011 at 11:02 am

@RC

They don’t become rights, they are rights that are elucidated through argumentation ethics.
Now if I understand correctly…
Hoppe says humans make arguments. You have two choices:
1)agree
2)disagree

If you disagree, then you are making an argument which proves his point.

So, humans argue. In order to make an argument you must be a self-owner. Otherwise you are a sock puppet and not making an argument.Someone holding a gun to someone’s head does not negate the requirement that arguments are made by self-owners. The problem you seem to have with this is: How can there be a requirement of self-ownership when it can be taken away by force and that person is still capable of making an argument? 1)They are not making an argument 2)forcible enslavement does not negate the concept of self-ownership.

If we have exclusive use to our bodies (self-ownership), then the concept of ownership exists. I.e humans can own. In other words, humans do have property rights. That which humans have property rights in is a different question.

If humans can own, then is there a conflict-free way to gain ownership. In other words, is there an internally consistent way to acquire ownership. Yes, through original appropriation or through voluntary mutual exchange.

There is no leap of faith here. Once you know x must be true, then any condition that must exist in order to make x true, must be true as well.

nl May 30, 2011 at 12:00 pm

> If humans can own, then is there a conflict-free way to gain ownership.
That is tautological.

> In other words, is there an internally consistent way to acquire ownership. Yes, through original appropriation or through voluntary mutual exchange.

Maybe, if we accept that. But what is original appropriation? Why may nobody save a rain forest in your world, and why may everyone pump as much ground water as he can?

Charlie May 27, 2011 at 6:28 pm

“For millions of years, mankind lived just like the animals. Then something happened which unleashed the power of our imagination. We learned to talk and we learned to listen. Speech has allowed the communication of ideas, enabling human beings to work together to build the impossible. Mankind’s greatest achievements have come about by talking, and its greatest failures by not talking. It doesn’t have to be like this. Our greatest hopes could become reality in the future. With the technology at our disposal, the possibilities are unbounded. All we need to do is make sure we keep talking.”

– Stephen Hawking

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feudalredux May 28, 2011 at 11:54 am

boom boom, bang bang, lie down you’re dead

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Stephan Kinsella May 28, 2011 at 1:44 pm

I was just made aware of this article by Michaël Bauwens, Rights, Robinson Crusoe, and Friday (Independent Institute, October 13, 2008), that contains an argument similar in some respects to Van Dun’s earlier discourse ethics work linked in the main article.

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nl May 28, 2011 at 1:46 pm

Some interesting comments because they correspondent to my own deliberations.

Frank van Dun’s description of natural law takes account to the term of respect to persons. This seems to be important. The respect to a person is an a priori condition to argue with a person, so that the discourse may get normative relevance. But the concept of ‘respect’ goes wider than that of ‘arguing’. Why? Because you signify your commitment by respect to other persons, or by respect to actions of other persons that then must include also the respect to an other person. (For example, a theft must have respect to actions of an other person; otherwise he wouldn’t try to own his booty.) Arguing is only one method for such commitments.

But Kinsella states: “Hoppe’s solution is to focus on the nature of argumentation instead of action in general”.

That seems curious to me!

The nature of argumentation is a useful concept (the prepositions of property as well) but it can’t substitute the Misean science of action in terms of action. Men act. Ethics must be understand as a cooperative mean to act. A issue that Mises himself hadn’t paid attention to it. Rothbard’s problem was his lack of apriorities. He used Lockean property as a makeshift.

Lockean property (i.e. the “labor theory of property”) does mean that you may take any form of a free good, and use it in your own terms of production or consumption. But what does that mean to other actors with other comprehensions of a proper production or consumption? For example, one actor calls his act “the acquisition of a free good”. An other actor calls it “a natural resource which we have to save in its natural state for a while”, and he leaves it in this way. In the Lockean paradigm it is impossible to save protected areas or natural resources like ground water without “labor” because of the naive term of the Lockean slogan of “first- and latecomers”. And there are many other serious problems with the subjective Lockean property concept. (For example, you must claim its worldwide validity by violence, i.e. you need a state!). But Hoppe doesn’t really rid oneself of it. He continues suddenly at a point where Rothbard has been already gotten on the wrong track.

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Devin May 28, 2011 at 4:03 pm

As for Natural Law, I would suggest people read John Wild’s book, “Plato’s Modern Enemies and the Theory of Natural Law”, which Rothbard referenced in “The Ethics of Liberty”, in order to understand the basis of Natural Law as Rothbard understood it. It can provide an ontological backing for those things which Hoppe argues that people must presuppose when they argue. I would suggest skipping ahead to the section on Natural Law and also skip the section on the history of Natural Law on the first read. As for Argumentation Ethics, I find that it suffers, on a metaphysical level, the same problem as Mises’s ethic as Rothbard discusses it in charpter 26 part c of “The Ethics of Liberty”; that is it relies on people being agreeable to the tenets of reason and equality. You could have a society of unruly people or groups who see themselves as superior. Given that people accept the premises, I do not see them as sufficient as Natural Law. There will arise conflicts which Natural Law could solve but not Argumentation Ethics. For example, can an infant be killed? Natural Law would say no due to its conception of being which is one having essential traits and categories of action. People exist in a continual state of flux where they must perform certain actions to live, grow, and prosper. It is fundamentally the same as the Austrian concept of utility with the addition of personal necessity. Those actions arise from individual traits and are recognized apart from hedonistic desires through reason. An infant is actively developing the faculties of language and reason through babbling, observation, and listening to its parents. The infant is actively developing the faculties it needs to argue for its own self ownership, and so it must be recognized due to those active tendencies, which show that the infant has in essence self-determination, that an infant has self ownership. Argumentation ethics, as far as I’m aware, does not have a conception of the individual. If it takes the individual as being static, then the infant has not sufficiently developed its cognitive and reasoning skills to argue for its own self ownership and so it would not be a crime to kill it. I think Argumentation Ethics can compliment Rothbard’s work but not replace it.

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Stephan Kinsella May 28, 2011 at 4:24 pm

“It can provide an ontological backing for those things which Hoppe argues that people must presuppose when they argue.”

What’s the difference between an “ontological backing” and a “backing”? What does “ontological” add to this sentence?

Also I think you mean complement not compliment.

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Devin May 28, 2011 at 8:06 pm

I suppose I was a little unclear. Hoppe shows that there are certain presumptions people make about human nature, self ownership and such, when arguing. Argument can serve as an affirmation of self-ownership in any particular case. However, the scope is only those individuals who are engaged or could engage in argument. Is, the ability to argue, the standard for self ownership, if so why, and if not then what is and why? Ontology, the study of being, would answer the question of ‘who does self-ownership apply to?’. In taking a static or dynamic conception of the individual, in some circumstances you would arrive at different conclusions, and I believe the example I gave about the legality of infanticide to be an example of such a circumstance. The dynamic conception of being, that Wild puts forth, would apply self-ownership to all of the individuals that the static conception applies to, which would be those individual who could actively argue, but the dynamic conception would also apply to those individuals who are learning how to argue or demonstrate self-ownership. I suppose that I am getting more at the question you posed at the end of your article, “How We Come to Own Ourselves”, which was, “when and exactly how does a child homestead himself?”. From that article, it seems that Hoppe could be split on the issue, on the side of the dynamic view there is the section from his 1989 treatise and on the side of the static view there is his German publication from 1985. From the example you give that drowning someone is homicide and likewise so is not caring for an infant to whom you are a parent, you seem to take the dynamic view. I assume that a trusteeship does not give the parents full ownership of the infant, in your view. Granted there may be other views about being, but those were the two that Wild discussed and that I am aware of.

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Stephan Kinsella May 29, 2011 at 6:00 am

By the way, for those who are encountering this for the first time in this (explicitly concise) article, or who have not read a lot of Hoppe’s actual writing on this, if you have doubts about the theory, I would recommend that you read at least the following (all of which are linked at the end of the piece):

1. “Appendix: Four Critical Replies,” by Hoppe
2. “From the Economics of Laissez Faire to the Ethics of Libertarianism,” by Hans-Hermann Hoppe
3. “Defending Argumentation Ethics: Reply to Murphy & Callahan,” by Stephan Kinsella

Especially #1 above may answer some of your concerns or questions.

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Aiden Gregg May 29, 2011 at 7:13 am

I am still trying to get my head around Hoppe’s arguments.

I think I am clear that, if one endorses the value of rational argumentation between individuals, and one attempts to persuade another individual by rational argument, then one implicitly subscribes to a minimalist version of the private property ethic.

This is because, in so doing, one treats one’s interlocutor, not a pawn who should do one’s bidding, or a subject to be rhetorically manipulated, but as a fully-fledged person. To argue rationally with someone is necessarily to treat them with dignity, to defer to them, to recognize the boundaries of their personhood, to refrain from infringing upon their basic mental and physical core.

Doing so may imply the endorsement of the private property ethic with some degree of generality. For example, if show you enough respect to argue with you, I may do so because I think it would be a good idea for me to be shown the same respect, or for people to show each other the same respect generally.

However, how general should the inference be? Could one not endorse a private property ethic when it comes to argumentation, but reject it under some other circumstances? Can’t I consistently respect the sancity of your self in some ways but not in others? Can’t I say this, for example? “By all means you should be fully free to argue with me. But you shouldn’t be free to hold on to 100% of your non-bodily property.

Here’s a concrete example. All else equal, suppose, on a desert island, Crusoe is filthy rich and living it up, but Friday is dirt poor and starving miserably. (Yes, I know, this is a contrived example. But accept it for now as an ideal approximation to illustrate a point.) Crusoe could help Friday. Most people would agree it would be good thing if Crusoe helped Friday. But Crusoe, heartless and selfish as he is, opts not to. The non-aggression principle says he shouldn’t be compelled to help Friday, that his private property should not be seized by a third-party for Friday’s benefit.

Now, explain how argumentation ethics shows that it would be wrong to forcibly transfer a little wealth from callous Crusoe to frugal Friday.

(Again, we are implausibly assuming that there is no other way Friday could be helped, etc. The point of the example is to interrogate the principle, not to represent how things would work in reality. Libertarianism can be defended pragmatically on utilitarian grounds when realistic factors are considered. But that is not the defense that Hoppe mounts.)

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feudalredux May 29, 2011 at 5:03 pm

“Now, explain how argumentation ethics shows that it would be wrong to forcibly transfer a little wealth from callous Crusoe to frugal Friday.”

That’s easy. Argumentation ethics are the ethical principles for people who care about “minimizing conflicts” in their interactions. These crazy people pretty much define “argument” to preclude the use of violent actions. For these people, transferring wealth forcibly would be inconsistent with their ethic for minimizing conflicts, and would be wrong.

Now, for psychopathic people who revel in violence and cruelty, their ethics clearly will differ, esp. consider what happens if your notion of a good argument is somewhat Neanderthal in nature and involves a good clubbing around the ears. In this latter case, transferring wealth forcibly would be entirely consistent with the barbarous nature of such uncivilized brutes, and it would not be wrong at all!

The choice we all need to make is what our ultimate values are. Hopefully we’ll make some civilized choices in the 21st century ?

P.S Not sure if Hoppe has any ideas on the “apodictically certain” harm in involuntary actions. Maybe Kinsella will respond. Who knows?

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Aiden Gregg May 30, 2011 at 6:15 am

No, no. You miss the point.

Suppose I am a beneficient overlord (of the sort that never manages to exist) and I care about Friday. I want to transfer wealth forcibly from Crusoe to Friday. I am not a heartless, selfish psychopath, like Crusoe is. It is precisely because I am not that I want to effect the transfer.

According to argumentation ethics, however, the transfer cannot be ethical because it violates property rights, and because an ethics that violates property rights is impossible, because one presupposes property rights in arguing at all.

My question is how for the presupposition of property rights goes. One necessarily presupposes SOME property rights in arguing. But does one necessarily presuppose property rights in ALL situations, including the imaginary one I describe?

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nl May 30, 2011 at 8:54 am

A right of property as such is nonsense.
It is impossible to discuss such issues without a definition of what “property” should mean.
Consider property as a convenient state that allows you to be able to schedule your possession.
Do you need to argue to reach such opportunity? That is obviously no necessary presupposition.

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feudalredux May 30, 2011 at 9:32 am

Look, I don’t believe in the existence of fantastical entities such as “property rights”. These are concepts and abstractions that only exist in the minds of certain people.

Hoppe claims that all people possess and necessarily use such concepts in their thinking. And that it is only a matter of demonstrating that such is indeed the case. And then it is a matter of applying these concepts consistently (otherwise, you can prove almost anything from a contradiction).

It should be clear from my reply that I don’t believe Hoppe’s claims can be applied universally, but only to certain types of people. I believe that it comes down to a choice to be made by each thinking person.

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nl May 30, 2011 at 10:28 am

Apriorities are universal, Locke is not.
Locke is no science.

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feudalredux May 30, 2011 at 11:09 am

“Locke is no science.”

You are a philosopher? That’s your argument?I’m not impressed. Try harder next time.

Hint: You are assuming your conclusion to be true. (Revisit how the article defines argumentation.)

“In essence, Hoppe’s view is that argumentation, or discourse, is by its nature a conflict-free way of interacting,”

It that supposed to be “by nature” or “by definition” ?

nl May 30, 2011 at 11:31 am

@feudalredux

> Hint: You are assuming your conclusion to be true. (Revisit how the article defines argumentation.)

I have no argumentation problem. I argue only that labor is subjective and not normative as such.

Aiden Gregg May 30, 2011 at 7:36 am

Hoppe is surely correct that one cannot in good faith argue with someone without also presupposing that that someone possesses at least some property rights, namely, those that are being respected when one submits an argument for their consideration, an act of deference and respect.

But does it entail recognition of that someone’s property rights across the board?

Hoppe’s attempts to make the crucial inferential leap as follows. He claims that, not only does X arguing with Y entail X presupposing that he respects Y’s property rights while arguing, but also that X arguing with Y entails X presupposing that he endorses further preconditions for Y’s property rights being sustained, in particular, the right for Y to appropriate scarce resources and to exercise exclusive control over them. (Hoppe generalizes the right for Y to everyone. But if it applies to everyone, then it must also apply to Y. So let us consider the case of Y.)

In Hoppe’s own words:

“Furthermore, it would be equally impossible to sustain argumentation for any length of time and rely on the propositional force of one’s arguments if one were not allowed to appropriate in addition to one’s body other scarce means through homesteading action (by putting them to use before somebody else does), and if such means and the rights of exclusive control regarding them were not defined in objective physical terms. For if no one had the right to control anything
at all except his own body, then we would all cease to exist and the problem of justifying norms simply would not exist.”

Now, I think this is not necessarily true. Hence, I think Hoppe’s argument is not watertight.

Here’s why. Suppose the Y with whom I am arguing is paralyzed and on life support. Except for the minimal capacity to move a finger to communicate via a computerized word-selection interface, Y can’t do anything else. Hence, Y is incapable of survival without external help. By definition, Y lacks the power to originally appropriate scarce resources and to exercise exclusive control over them. Instead, Y relies completely on the charity of others. But despite this, Y still retains the power to argue via the computer interface, which permits two-way linguistic communication.

So, Y now lacks the power to “appropriate in addition to one’s body other scarce means through homesteading action (by putting them to use before somebody else does)” and cannot exercise “exclusive control regarding them […] in objective physical terms”.Yet, Y can still argue. I can still respect Y’s specific implicit property rights as he does so.Hence, it is not necessarily true that “it is impossible to sustain argumentation for any length of time and rely on the propositional force of one’s arguments” unless one also has the *power* to appropriate scarce resources and to exercise exclusive control over them. Someone can do so provided they are externally helped, like Y in our thought experiment.

Hence, it is not necessarily true that “it is impossible to sustain argumentation for any length of time and rely on the propositional force of one’s arguments” unless one has the *right* to appropriate scarce resources and to exercise exclusive control over them. This is because, logically, one cannot have the rights to do something without first having the power to do something. Paralyzed Y in our thought experiment lacks the power to appropriate scarce resources and to exercise exclusive control in the service of survival. Hence, Y cannot logically have the right to do so.

Now, I think Hoppe’s argument will tend to be true. If I implicitly support property rights in arguing, then I should by extension tend to support the preconditions for argumentation, which also includes other property rights, defined by original appropriation and exclusive control. Also, general property rights, like the specific property rights presupposed in argumentation, both show a respect for human dignity. Someone sympathetic to the former should also be sympathetic to the latter.

But they key word here is *tend*. I don’t have to support the preconditions for argumentation all the time under all circumstances. The thought experiment I provide proves that there is no necessary move from support for property rights implicit in argumentation, to support for property rights as generally defined in terms of original appropriation and exclusive control in the service of survival. In the thought experiment, original appropriation and exclusive control cannot be exercised in the service of survival. Hence, rights to them cannot exist. So, it is possible to support property rights implicit in argumentation without also supporting rights defined in terms of original appropriation and exclusive control in the service of survival.

Hence, Hoppe’s argument, for all its ingenuity, fails for Y. If it fails for Y, it cannot be universally true. If it cannot be universally true, it cannot be necessarily true.

I would welcome any demonstration that my argumentation here is fallacious.

REPLY

Thinker June 2, 2011 at 11:14 pm

“This is because, logically, one cannot have the rights to do something without first having the power to do something.”

Not necessarily. I would argue that one can have rights and simply not exercise them, and the reasons why they do not exercise those rights are unimportant. At the very least, you have to justify this statement.

REPLY

Aiden Gregg June 7, 2011 at 3:22 am

X has no legs. You say to X “You have the right to walk freely”.
X is a chimp. You say to X “You have the right to free speech”.
X is a man. You say to X “You can the right to an abortion”.

What is wrong in all these cases?

Certainly, one can have rights and not exercise them, as in, happen not to exercise them, or choose not to exercise them. But one cannot logically have rights if one is in instrinically incapable of exercising those rights. It simply does not make sense.

Is that an adequate justification of my statement?

REPLY

Ned Netterville June 2, 2011 at 10:30 pm

During the four days that this lively discourse was extant, the president by executive order, the federal courts by many decisions, congress by acts, and regulators and other bureaucrats by meddling, compromised the rights of many Americans without even a nod to argumentation or argumentation ethics.

Early in this thread, FUNDAMENTALIST made the following comments:

“Philosophers since Hume have congratulated themselves for successfully defeating straw men versions of natural law. Feser shows how little Hume understood about natural law. Hoppe clearly knows little about natural law theory and has learned everything from the straw men arguments.
Natural law theory never did try to derive morality from human nature. In fact, nature in the natural law theory was nothing like what Hoppe, Rothbard or other mean by it. Today, nature refers to simply what is. In natural law nature meant the essence of something…Man(y) Austrians discuss natural law in the same way that Paul Krugman discusses Austrian economics, from a position a ignorance. That’s beneath Austrians. Austrians should apply the same honesty and rigor to ethics as they apply to economics. The odd thing about Hoppe’s ethic is that it uses essentially the same argument for property as does natural law, just with different assumptions. However, Hoppe makes a logical leap when he goes from self-ownership to property rights being absolute.”

These comments seem to say that Hoppe, Hume and Rothbard along with “many” Austrians are rather shallow thinkers when it comes to ethics. I read through this thread rather quickly and did not see where anyone challenged these rather serious charges. Having never thought that any of the three nor Austrians in general were weak on ethics, I was surprised that no one took up fundamentalist’s gauntlet to make a defense. I have taken fundamentalist’s suggestion and ordered the recommended book by Edward Feser, but until I read it, which will take some time, I don’t feel qualified to making a worthy defense. In the meantime, anyone else want to try?

REPLY

Thinker June 2, 2011 at 10:57 pm

As much as I’d love to represent discourse ethics, I’m afraid I don’t know the first thing about natural law. I imagine that there’s a tradeoff involved in this–the more a person explores the intricacies of natural law, the less time and energy he can spend on discourse ethics (or any other ethical theory for that matter), and vice versa. It would surely be a fascinating conversation for a proponent of discourse ethics and an exponent of natural law explaining the intricacies of each others’ ideas, but it looks like this isn’t the time or place.

REPLY

nl June 3, 2011 at 8:32 am

OK, here is another gauntlet (one more).

The Weakness in Hoppe’s Line of Argument

This chapter examines the problematic part in Hans-Hermann Hoppe’s essay “The Ultimate Justification of the Ethics of Private Property”1. Professor Hoppe offers his ethics to demonstrate that only the private property ethic can be justified argumentatively, because it is the praxeological presupposition of argumentation as such. He demonstrates that self-ownership of the own body is implied in the very act of argumentation, and therefore that self-ownership cannot be denied without committing a performative contradiction.

Then he tries to extend property rights out to things outside our own body. He builds a link between a person and some kind of resource by inserting the homesteading principle as a basic part into his theory.2 He notes3 that property rights must be axiomatic for argumentation because without the ability to appropriate natural resources, mankind would die out and there would be no such thing as arguments.

My objections4 begin with this: firstly, it is not a satisfactory methodical proof to draw a conclusion only from asking what would be in the converse case as Hoppe does (non sequitur),5 because he must implicitly presuppose two other things at the same time. He must presuppose that there is no other rule to bring appropriation into effect and that appropriation is always preferable and necessary for us not to die out. In the further discussion I will show that the weakness lies just in these presumptions.

Secondly, I think that ‘property’ must already be an abstraction from consent norms (what I will explain later). But with Hoppe’s argument there is no need for consent. It would be well enough for him if one firstly invested ‘labor’ into an unowned scarce resource and based oneself on the Lockean principle. He asks what would happen in the absence of acquiring the right of exclusive control over goods by homesteading action. “One would have to interrogate and come to an agreement with the entire world population to make sure that one’s planned actions would not change another person’s evaluations regarding his property.”6 Or in other words, nobody would invest labor; i.e. nobody would continue with his actions before he has not convinced the entire world population of his own enterprises. In this scenario, one’s own action would rest on the actions and evaluations of other people. Thus, because Hoppe sees the appropriation rule of homesteading as obligatory, he founds a positive law. In Hoppe’s view of true property only one law of absolute exclusive property right is necessary and possible, because it should be valid for all humans. If the rule were not valid for some people, then they could own the property themselves, and others could appropriate it again and again until everybody owns everything and nothing. (So Hoppe says: “Property rights cannot be conceived of as being timeless and nonspecific regarding the number of people involved.”) In short, this argument should make clear how absurd the hypothesis is that one could doubt about the first-in-first-own rule. But the result is a law. And that law simply discards my assumption above that property could be an abstraction of consent. However, this seems to me a fundamentally flawed understanding.

The world that Hoppe envisions in that is not so black and white. In the first instance, I could consult the same kind of logic as Hoppe. When Hoppe claims that homesteaded ‘property’ is necessary for humans to live at all, then it must be true that there is no kind of homesteaded property that itself would challenge human nature as such. Otherwise, that mere fact would reduce Hoppe’s logic ad absurdum at this point. I will bring such an example, but before I do, we must study another argument Hoppe uses to justify homesteading. He is using again an argumentum a contrario:

“If a person did not acquire the right of exclusive control over other, nature-given goods by his own work, that is, if other people, who had not previously used such goods, had the right to dispute the homesteader’s ownership claim, then this would only be possible if one would acquire property titles not through labor, i.e., by establishing some objective link between a particular person and a particular scarce resource, but simply by means of verbal declaration.”

The fact that someone (who, unlike you, has not invested any ‘labor’ in it) takes something from you confers no valid norm to the taker. Even the robber’s refusing to use the robbed good demonstrates his own claim to respect an exclusive right of possession. Such taking is rightly called ‘aggression.’ But the rest of the affair is fraught with problems. Firstly the ‘robber’ must not recognize the labor – maybe this is simply a communication problem. Secondly, he could undervalue your ‘labor’. He may claim that what you are doing is useless, and you should show that it has any need and is not excessively wasteful, only serving your well being or striving for power. So, he could say, you might feign the investment of ‘labor’ in order to get control of a resource, or you are exploiting a natural resource and he is asking for it to be rationed.7

Let me illustrate this problem by an extreme example: Someone is sucking off the air from the atmosphere in order to create a new planet in outer space or in order to produce solid matters from oxygen. He may do this since air is considered a free good, and he is investing labor into free air to transform it into his new end. At the same time he and his epigones are slowly withdrawing the natural basis of human life, and one day, people will realize that air is ‘scarce.’ Suddenly everybody would be responsible for his own air and his own atmosphere and everybody has to suck off air for his own aims. This example seems a bit far-fetched.

But please think about what happened in these kind of cases in the times of homesteading land and settlement. At first, there was ample land. As time passed the need for land grew decisively and people had more and more conflicts about it. They erected fences and they declared exclusive property rights to their lots of land. When immigrants were searching for new lots, this usage was probably mutually beneficial. However, where homesteaders encroach upon territory used by nomads, the latter will probably suffer if they cannot adapt their way of life.8 The problem is not that the sedentary way of live was the ‘better’ lifestyle.9 It was rather a change of paradigm with many unpredictable consequences. Finally it is a discussion of values with winners and losers in practice from the ethical view. Hence, I made clear that my far-fetched example of the accumulative homesteading of air has an historical precedent in the homesteading of land. (Of course, the originally historical cases were more complex than my easy picture here.)

In a nutshell, the absolute and exclusive property right, based on Lockean principle, cannot be derived as an a priori norm due to the subjective evaluation of ‘labor’. It can possibly be derived that someone who doesn’t respect the property of another cannot expect that he ethically creates own property by his performative contradictions.10 But one can actually ‘find’ these facts only within the process of interaction or consensus. And one cannot ex ante assume such facts as ‘property’ without implicit or explicit acceptance. Otherwise it would mean that performing any absurd ‘labor’ on a scarce resource would produce a legitimate claim to it. Hoppe didn’t solve this problem in his descriptions. In any case, this discussion makes clear that the Lockean principle doesn’t work due to the subjectivity of ‘labor’. Therefore, the principle of homesteading doesn’t belong to the catalog of a priori norms when there are different views about the respect of ‘labor’.

REPLY

  1. See Rothbard’s article “Justice and Property Rights.” This piece was published in two forms in 1974: first, in Egalitarianism as a Revolt Against Nature and Other Essays (available online here) and also in The Logic of Action One:

    we have two mutually exclusive claimants to the ownership of the hoop. If the economist agrees to endorse only Z’s sale of the hoop, then he is implicitly agreeing that Z has the just, and Y the unjust, claim to the hoop. And even if he continues to endorse the sale by Y, then he is implicitly maintaining another theory of property titles: namely, that theft is justified. Whichever way he decides, the economist cannot escape a judgment, a theory of justice in the ownership of property. …

    Let us consider the first principle: the right to self-ownership. This principle asserts the absolute right of each man, by virtue of his (or her) being a human being, to “own” his own body; that is, to control that body free of coercive interference. Since the nature of man is such that each individual must use his mind to learn about himself and the world, to select values, and to choose ends and means in order to survive and flourish, the right to self-ownership gives each man the right to perform these vital activities without being hampered and restricted by coercive molestation.

    Consider, then, the alternatives — the consequences of denying each man the right to own his own person. There are only two alternatives: either a certain class of people, A, have the right to own another class, B; or everyone has the right to own his equal quota share of everyone else.

    The first alternative implies that, while class A deserves the rights of being human, class B is in reality subhuman and, therefore, deserves no such rights. But since they are indeed human beings, the first alternative contradicts itself in denying natural human rights to one set of humans. Moreover, allowing class A to own class B means that the former is allowed to exploit and, therefore, to live parasitically at the expense of the latter; but, as economics can tell us, this parasitism itself violates the basic economic requirement for human survival: production and exchange.

    The second alternative, which we might call “participatory communalism” or “communism,” holds that every man should have the right to own his equal quotal share of everyone else. If there are three billion people in the world, then everyone has the right to own one-three-billionth of every other person. In the first place, this ideal itself rests upon an absurdity — proclaiming that every man is entitled to own a part of everyone else and yet is not entitled to own himself. Second, we can picture the viability of such a world — a world in which no man is free to take any action whatever without prior approval or indeed command by everyone else in society. It should be clear that in that sort of “communist” world, no one would be able to do anything, and the human race would quickly perish.

    … Let us now turn to the more complex case of property in material objects. For even if every man has the right to self-ownership, people are not floating wraiths; they are not self-subsistent entities; they can only survive and flourish by grappling with the earth around them. They must, for example, stand on land areas; they must also, in order to survive, transform the resources given by nature into “consumer goods,” into objects more suitable for their use and consumption. Food must be grown and eaten, minerals must be mined and then transformed into capital, and finally into useful consumer goods, etc. Man, in other words, must own not only his own person, but also material objects for his control and use.

    [↩]

  2. Hoppe, “The Ultimate Justification of the Private Property Ethic,” Liberty (September 1988); “The Justice of Economic Efficiency,” in EEPP; TSC, ch. 7. [↩]
  3. Rothbard, “Beyond Is and Ought,” originally published in Liberty 2, no. 2 (Nov. 1988): 44–45; see also Rothbard, “Hoppephobia,” originally published in Liberty 3, no. 4 (March 1990): 11–12 and reprinted at LewRockwell.com (Oct. 4, 2014). See also this Rothbard video commenting on Hoppe’s argumentation ethics, May 1989, after the publication of Hoppe’s TSC, which has comments by Rothbard echoing his positive comments in Liberty. See also this amusing anecdote by David Gordon where he recollects a joke Rothbard pulled on him about Hoppe’s argumentation ethics: David Gordon Speaks with The Society of Libertarian Entrepreneurs (part 2). [↩]
  4. See also my blog posts “Revisiting Argumentation Ethics” and “Extreme Praxeology.” My post “Quotes on the Logic of Liberty” contains a several insightful quotes from famous and libertarian thinkers complementary to Hoppe’s themes and arguments. [↩]
  5. Machan’s’s article is published at Poznan Studies in the Philosophy of Science and the Humanities 46 (June 1996): 45-55; also included as chapter 13 of Classical Individualism: The Supreme Importance of Each Human Being (Routledge 1998). For my critique, see Dialogical Arguments for Libertarian Rights and my Hoppe’s Argumentation Ethics and Its Critics. See also Remembering Tibor Machan, Libertarian Mentor and Friend: Reflections on a Giant. [↩]
  6. Does not bother to mention Hoppe’s argumentation ethics; criticized by David Gordon here. [↩]
  7. Abstract:

    “The purpose of this paper is to showcase the links between Hans-Hermann Hoppe’s libertarian argumentation ethics and Karl-Otto Apel’s transcendental pragmatics with a special reference to the consensus theory of truth proposed by the latter thinker. More specifically, we contend that Hoppe’s theory is logically contingent on Apel’s views on truth in that some crucial gaps in Hoppe’s ground- ing of the so-called a priori of communication and argumentation are filled by Apel’s original arguments. Additionally, the paper provides a case for interpreting Hoppe’s ethics as a theory of rational conflict-freedom, which seems to cohere best with the transcendental-pragmatist approach. Finally, we offer a few comments on how the most common objections against Hoppe’s theory can be overcome on the basis of transcendental pragmatics and the conflict-freedom principle.”

    From pp. 36–37:

    “… we claim that Hoppe is to be classified as a proponent of the consensus theory of truth as expounded by Apel. More importantly, the Apelian consensus theory of truth is here identified as a presupposition or a background theory of Hoppe’s argumentation ethics. We contend that the latter theory is logically contingent on the former. Thus, the advo- cates of Hoppe’s argumentation ethics must espouse Apel’s consensus theory if they want to uphold their stance. Opponents, on the other hand, should take it into account in order to avoid formulating misguided objections and, as they deem appropriate, redirect their criticism. In fact, as will be seen, several objections raised by critics stem from the neglect of the transcen- dental pragmatics and the concomitant misconstrual of the Hoppean ethics as one describing the factual conditions of possibility for argumentation. In reality, against the background of its transcendental-pragmatist presuppositions, Hoppe’s theory ought to be read as a conception that aims to prescribe principled solutions for conflicts over scarce resources.

    “The questions of the truth theory and epistemology in general have gone unnoticed by the vast majority of commentators. To our knowledge, the only exception is Ilia Schmelzer, who correctly acknowledges the consensus theory of truth of Habermas and Apel as the epistemological underpinning of Hoppe’s argumentation ethics (2013, pp. 4–32). He nonetheless puts stress on the sharp criticism of Hoppe from the standpoint of critical rationalism rather than on the exhaustive illumination of the links between Hoppe’s ethics and Apel’s and Habermas’ views on truth. Furthermore, whereas Schmelzer seems to perceive Hoppe’s theory as influenced by Apel and Habermas to by and large the same degree, we emphasize Hoppe’s connections to Apel.”

    [↩]

  8. “Most of my observations will not be novel for scholars of libertarianism: I rely on the insights provided by great theorists of this philosophy—L. von Mises, M. Rothbard, W. Block and N. S. Kinsella, among others. Their works form the basis of the libertarian theoretical foundation of the book. For speech act theory, I rely on the classic works of J. L. Austin, H. P. Grice and J. R. Searle, as well as the followers of this intellectual tradition. I am greatly indebted to all the authors I cite throughout this book—if I manage to see into the distance, it is only because I stand on the shoulders of giants. However, I expect that some of those giants would not agree with what is written on the following pages. Some would think that I completely misinterpret them in my analysis, which may indeed be the case, intentionally or unintentionally. Wherever I realise that I twist certain theoretical postulates for my argument, I will indicate this.” [↩]
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Rothbard on Leonard Read and the Origins of “Libertarianism”

by on November 17, 2014

In a previous post I observed that modern libertarianism originated with the thought of Rand, Rothbard, Friedman, Hazlitt, and Read in the 1960s and 1970s (and that the term “libertarian” can perhaps be traced back to 1802). 1 I’ve also argued that the key figure of modern libertarianism, ultimately, was Murray Rothbard, “Mr. Libertarian.” 2 I still think this is right, but it’s interesting to note that in Rothbard’s journal Libertarian Forum, this distinction was bestowed upon Leonard Read in his obituary, in Vol. 17.5-6, May-June 1983, Rothbard (presumably it was Rothbard, as the editor), wrote: 3

More than any other single person, Leonard was the founder of the modern libertarian movement. … 4

In addition, more than anyone else Read coined the name “libertarian” for the current movement. Before that, we had no single name, awkwardly going back and forth between “individualist” and “true liberals”. The problem with the latter phrase is that the quasi-socialists had already succeeded in appropriating the term “liberal”, and calling ourselves “true” anything was confusing and hardly persuasive. And the term “individualist” tended to confuse political philosophy with possessing a spirit of individual autonomy. Read and a few others launched the term “libertarian” for the freedom philosophy, and it stuck—the only case I know of when we were able to appropriate a word from others. For before that, communist-anarhcists had often referred to themselves as “libertarian.” The first time when we were referred to publicly as “libertarians” was in an odious book, published in the 1950’s, by a certain Ralph Lord Roy, entitled Apostles of Discord. There was a repellent literature in those days of works written by aggressive centrists and “moderates” who pilloried all “extremists” as per se evil. Roy, a Social Gospel Protestant, wrote his book to attack both Communist and ultra-rightist “extremists” in the Protestant church. That was par for the course in those days, but lo and behold! he included a chapter called “God and the ‘Libertarians'”, spotting quasi-anarchistic extremists then centered around a libertarian publication for Protestant ministers called Faith and Freedom.  Libertarianism had arrived on the American ideological scene.

Ironically, as Rothbard goes on to note, “In later years, Leonard Read drew away from the libertarian movement which he had named and founded.”

[Update: used in 1796, apparently.]

 

  1. See Kinsella, “The Origin of ‘Libertarian’”; also “Libertarianism After Fifty Years: What Have We Learned?“, in ,Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023). [↩]
  2. Libertarianism After Fifty Years: What Have We Learned? (transcript). [↩]
  3. The PDF and HTML versions of the journal are apparently down now, but .mobi and epub versions are available here. [↩]
  4. See also on this, See “Libertarianism After Fifty Years: What Have We Learned?“. [↩]
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Balancing Intellectual Property Rights and Civil Liberties: A Libertarian Perspective [Transcript]

by on November 8, 2014

Below is an unedited (raw) transcript of my Yale speech “Balancing Intellectual Property Rights and Civil Liberties: A Libertarian Perspective,” available at KOL151. [continue reading…]

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Argumentation Ethics, Estoppel, and Libertarian Rights: Transcript

by on November 7, 2014

Below is an edited transcript of my presentation “Argumentation Ethics, Estoppel, and Libertarian Rights” delivered (by remote video) at the 6th Adam Smith Forum, Moscow, Russia (Nov. 2, 2014).

Video and audio for the speech, plus further information and related resources, are available at Kinsella on Liberty Podcast, Episode 161.

 

Argumentation Ethics, Estoppel, and Libertarian Rights 

Stephan Kinsella
6th Adam Smith Forum, Moscow, Russia
Nov. 2, 2014
(Edited transcript)

Hello. This is Stephan Kinsella. I am speaking today from Houston, Texas in the United States. I am happy to be able to present to the Adam Smith Forum and I appreciate the invitation to speak. I did speak here in 2011, 1 remotely that time as well. I was unable to attend in person. And I hope to remedy that someday and to visit Moscow and Russia. But I appreciate the invitation.

Today’s topic will be on “Argumentation Ethics, Estoppel, and Libertarian Rights”. I have spoken and written on these topics before. More detail can be found in the notes to the podcast I will do of this lecture after the event. But if you want to follow up you can go to my website which is stephankinsella.com and I will have resources available there, primarily a previous Mises Academy course called “Libertarian Legal Theory” and also a course on the social theory of Hans-Herman Hoppe. 2

So a brief introduction. I am an attorney in Houston, Texas. I am a long-time libertarian and follower of the Austrian School of Economics, primarily the thought of Ludwig von Mises, Murray Rothbard and Hans-Herman Hoppe, and also have been an anarchist libertarian for quite some time. I have developed my own set of views about libertarian rights and related matters and that’s what the topic of today’s conversation will be. [continue reading…]

  1. KOL108 | “Why ‘Intellectual Property’ is not Genuine Property,” Adam Smith Forum, Moscow (2011). [↩]
  2. See:

    [↩]

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Rothbard on the “Original Sin” in Land Titles: 1969 vs. 1974

by on November 5, 2014

Related:

In the June 15, 1969 issue of The Libertarian Forum, in an article “Massacre at People’s Park,” Murray Rothbard writes:

The cry has gone up that all this was necessary to defend the “private property” of the University of California. In the first place, even if this little lot was private property, the bayoneting, gassing, torturing, and shooting of these unarmed park-developers would have been “overkill” so excessive and grotesque as to be mass murder and torture and therefore far more criminal than the original trespass on the lot. You do not machine-run [sic] someone for stealing an apple; this is punishment so far beyond the proportion that “fits the crime” as to be itself far more criminal than the original infraction. So that even if this property were legitimately private the massacre is still to be condemned.

Secondly, it is surely grotesquerie to call the muddy lot “private property”. The University of California is a governmental institution which acquires its funds and its property from mulcting the taxpayers. It is not in any sense private property then, but stolen property, and as such is morally unowned, and subject to the libertarian homesteading principle which we discuss below. The people of Berkeley were homesteaders in the best American—and libertarian—tradition, taking an unused, morally unowned, muddy lot, and transforming it by their homesteading labor into a pleasant and useful people’s park. For this they were massacred.

This has hints of the leftist and left-libertarian view of property rights—that if there is “taint” or “original sin” in the origin of title to current possessed resources, then the title is not legitimate, and the resource may be regarded as “unowned” and is legitimately subject to homesteading. Why something that is stolen is to be regarded as unowned, as opposed to owned by some dispossessed claimants and original owners, is not clear, and seems to contradict later writing by Rothbard. 1

[Update: see also , discussing Rothbard’s “Confiscation and the Homestead Principle,” from Libertarian Forum, vol. 1.6, June 15, 1969, making similar left-libertarian arguments. And see also Mises, Rothbard, and Hoppe on the “Original Sin” in the Distribution of Property Rights as well as Justice and Property Rights: Rothbard on Scarcity, Property, Contracts… ]

But in any case, later writing by Rothbard, as of 1974 at the latest, seems to reject any such implications. As I noted in my post Justice and Property Rights: Rothbard on Scarcity, Property, Contracts…, Rothbard published his article “Justice and Property Rights,” 1974, and in two forms: first, in Egalitarianism as a Revolt Against Nature and Other Essays, which is available online here; and also, a second version, in Property in a Humane Economy, Samuel L. Blumenfeld, ed. (the second version is also included as a chapter in The Logic Action One, which is not online, and in Economic Controversies, which is available online). The two pieces seem identical but the latter version, from the Blumenthal collection, appends an important concluding paragraph that is not present in the earlier version:

It might be charged that our theory of justice in property titles is deficient because in the real world most landed (and even other) property has a past history so tangled that it becomes impossible to identify who or what has committed coercion and therefore who the current just owner may be. But the point of the “homestead principle” is that if we don’t know what crimes have been committed in acquiring the property in the past, or if we don’t know the victims or their heirs, then the current owner becomes the legitimate and just owner on homestead grounds. In short, if Jones owns a piece of land at the present time, and we don’t know what crimes were committed to arrive at the current title, then Jones, as the current owner, becomes as fully legitimate a property owner of this land as he does over his own person. Overthrow of existing property title only becomes legitimate if the victims or their heirs can present an authenticated, demonstrable, and specific claim to the property. Failing such conditions, existing landowners possess a fully moral right to their property.

It appears that language was added by Rothbard to combat the arguments of some, such as some left-libertarians, who want to argue that existing property titles are illegitimate because of their non-immaculate origins and, presumably, ought to be wrested from current nominal owners, especially the wealthy, and I suppose redistributed to the proles.

Or, as Rothbard wrote in ch. 9 of The Ethics of Liberty (1982):

To sum up, for any property currently claimed and used: (a) if we know clearly that there was no criminal origin to its current title, then obviously the current title is legitimate, just and valid; (b) if we don’t know whether the current title had any criminal origins, but can’t find out either way, then the hypothetically “unowned” property reverts instantaneously and justly to its current possessor; (c) if we do know that the title is originally criminal, but can’t find the victim or his heirs, then (c1) if the current title-holder was not the criminal aggressor against the property, then it reverts to him justly as the first owner of a hypothetically unowned property. But (c2) if the current titleholder is himself the criminal or one of the criminals who stole the property, then clearly he is properly to be deprived of it, and it then reverts to the first man who takes it out of its unowned state and appropriates it for his use. And finally, (d) if the current title is the result of crime, and the victim or his heirs can be found, then the title properly reverts immediately to the latter, without compensation to the criminal or to the other holders of the unjust title. 2

I do not see a closely corresponding passage in For A New Liberty (1973) (I stand to be corrected on this), so it appears to me that sometime between 1969 and 1973, Rothbard’s thought on this matter developed.

See also the related thoughts of thinkers like Mises and Hoppe on this issue, as discussed in Mises, Rothbard, and Hoppe on the “Original Sin” in the Distribution of Property Rights.

  1. I’ll have to find this language; I forget where it is. [↩]
  2.  But cf. some arguably inconsistent comments elsewhere in ch. 9, and also in ch. 10. [↩]
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Do Business Without Intellectual Property (Liberty.me, 2014)

by on October 24, 2014

Do Business Without Intellectual Property coverMy monograph Do Business Without Intellectual Property was released by Liberty.me earlier this year. The PDF file is here.

I release this material, insofar as legally possible (see Copyright is very sticky!), with a CC0 “no rights reserved” license.

The Table of Contents is listed below. A Liberty.met seminar discussion of these topics  is available at “KOL159 | Seminar: “Practical Solutions to the IP Trap”

[Update: Liberty.me discussion forum about this topic.

In addition, I could have added more detail about defensive patent publishing and defensive patent pools:

Table of Contents

  • INTRODUCTION 3
  • WHAT IS IP? 5
  • WHY DO BUSINESSES NEED TO CARE ABOUT IP? 5
  • SHOULD WE ABOLISH IP? 6
  • IP VERSUS PROPERTY RIGHTS 7
  • HISTORY OF PATENT AND COPYRIGHT LAW 9
  • INTELLECTUAL PROPERTY IS CONTRARY TO FREE
  • MARKETS AND HUMAN FREEDOM 10
  • WHY DOES IP PERSIST? 12
  • IP, INNOVATION, AND FREEDOM 13
  • WHAT SHOULD YOU DO? 14
    • First, Do No Harm 14
    • But While IP Exists … 15
    • To IP or Not to IP 16
    • Steps You Can Take Now 17
  • EXAMPLES OF IP CONTRARIANISM 18
  • PUBLISHING AND COPYRIGHT 19
    • Music without Intellectual Property 21
    • Inventing without Intellectual Property 21
    • Dying without Intellectual Property 21
    • Patents 22
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Answer to Libertarian Questions from High School Class in Norway

by on October 22, 2014

My exchange with a high school teacher from Norway, whose class had some questions about the libertarian approach to certain issues.

I am teacher at a high school in Norway. During my classes I have spent some time trying to explain libertarianism to my students, and I have used some of your articles, and of course Murray Rothbard has been central.

Some of the students have really dug into the material, to my surprise really. Regarding the extent anyway.

I am writing to you because I simply have trouble answering their questions up to a point, and I would sincerely appreciate it if you would help me with some questions here:

1) What happens on a territory – in a stateless society – where a person or a group of persons are starving to death because nobody will employ them, do business with them, help them etc. What are they supposed to do? Starve to death because, after all, those who wont help them have gained their properties just and should thereby not be attacked? What if survival for them triumphs “justice”? Will this not be an unstable society? Is it not easy to understand that these people will choose war rather than death?

2) Mobility: How can a stateless society avoid that a rich misantrophe uses his rights to block important trade routes and roads?

3) Is it reasonable to accept that private persons can own nuclear weapons or high-tech modern war weapons?

4) The ethics of Liberty by Rothbard; do you hold this as the primary work in freedom ethics, and do you find any flaws in it? Or is it as you see it flawless, and thereby a document which should be basis for a “common law”?

5) There has been some talk about Rothbards work on children here in Norway; is it correct that he meant that not feeding ones child should not be a punishable offense by common law? Do you support this and his reasoning behind it?

Best regards,

[X]

[continue reading…]

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Libertarianism After Fifty Years: What Have We Learned?

by on October 21, 2014

Note: An updated and revised version of this transcript is included as chap. 25 of Legal Foundations of a Free Society (Houston: Papinian Press, 2023).

Note: on the origins of modern libertarianism, see also Murray N. Rothbard, “Towards a Strategy for Libertarian Social Change” (April, 1977):

“The contemporary libertarian movement in the United States may be precisely dated as beginning just after World War II. … Into this wasteland there stepped Leonard E. Read, late of the Los Angeles Chamber of Commerce and the National Industrial Conference Board, who, in 1946, founded the Foundation for Economic Education. The creation of FEE marked the beginning of the modern libertarian movement in America.”

See also Rothbard, “Listen, YAF” Libertarian Forum (Aug. 15, 1969).

And Rothbard, quoted in Rothbard on Leonard Read and the Origins of “Libertarianism”: “More than any other single person, Leonard was the founder of the modern libertarian movement. … ” 1

See also many, many references to “modern libertarianism” or “the modern libertarian movement” in The Complete Libertarian Forum (1969–1984). See also Roderick Long’s Foreword to the Laissez Faire Books edition of Jerome Tuccille’s classic It Usually Begins with Ayn Rand (2012): “It Usually Begins with Ayn Rand is a jazz improvisation on the early history of the modern libertarian movement …”

See also Matt Zwolinski and John Tomasi, The Individualists: Radicals, Reactionaries, and the Struggle for the Soul of Libertarianism (2023), p. 7:

After introducing libertarianism in chapter 1, we turn to introducing the three major periods or waves of libertarian thought. The first, “primordial” era covers the latter half of the nineteenth century, with special focus on Britain, France, and the United States. The second “Cold War” era runs from the 1930s through the 1980s and mainly centers in the United States. Finally, and more tentatively, we discuss the emerging “Third Wave” of libertarianism.

I agree that there are precursors to modern libertarian thought in the nineteenth century and before, but would not count the “primordial era” as modern libertarianism proper; in my estimation, and that of Rothbard, as noted above, modern libertarianism finds its beginnings in the 1950s and 1960s, with FEE and Ayn Rand’s works, especially Atlas Shrugged (1957), Milton Friedman’s Capitalism and Freedom (1962), and many other works by Bastiat, Mises, and so on.

See also Timeline of libertarianism in the United States.

As for my comment in the chapter that “the modern libertarian movement is only about five or six decades old,” this of course means there is still work to be done. As Ayn Rand herself wrote of Objectivism in 1978, just 4 years before she died (as quoted by Barbara Branden in the Foreword to Nathaniel Branden’s The Vision of Ayn Rand:

Much work remains to be done, as Rand was quick to acknowledge. In an interview with Garth Ancier of Focus on Youth in 1978, Rand was asked: “Miss Rand, is there anything more to say about your philosophy that you haven’t said already?” I’m glad you are not that acquainted with my philosophy, because if you were, you would know that I haven’t nearly said everything yet. I do have a complete philosophical system, but the elaboration of a system is a job that no philosopher can finish in his lifetime. There is an awful lot of work yet to be done. 2

We have made progress since the early days of Rand and Rothbard and their earlier progenitors and contemporary colleagues. Libertarianism has become more radical and more integrated with insights from Misesian-Austrian economics. Its numbers have grown, as have the numbers of scholars and books written.

As we do not have a fully libertarian world in which detailed libertarian law can organically develop, we have no body of concrete libertarian law developing. This will eventually be essential to have in a free society, since there are limits to what theory alone can do. Deduction, reasoning, and armchair theorizing can only get you so far. 3 The legal system of a free society will need to have concrete rules or legal precepts that are operational and that develop organically in decentralized legal systems, but based on more general and abstract libertarian principles of justice. 4 Such a libertarian legal order cannot develop until it starts being used.

In the meantime the activists can try to bring about more freedom more quickly and the theorists can keep trying to advance our understanding of liberty and libertarian principles. Again, there is much work left to be done in libertarian theory. Theorists since the days of Rand and Rothbard have continued to contribute to the edifice of libertarian thought, and there is much more that calls out for attention. 5

It is not for everyone. Some are not libertarian at all. Others are more or less libertarian in their lives but otherwise not interested in thinking about it or doing anything about it. That is fine. It’s enough to just be a productive, peaceful person. Still others are passionate about understanding the ideas, both to enrich their own lives and understanding and to help understand what can be done to make things better. Some are activists, both political and intellectual; others more cerebral and focused on understanding, teaching, correcting, writing (even if the activists, in their impatience and often with an anti-intellectual kind of snobbery, often disdain or even scorn or mock theory and the theorists).

Why work on understanding the ideas of liberty, on repeating them, preserving them, teaching them, correcting and developing and extending them, in an unfree world which largely sees this as unserious, pointless, a parlor game? In a sense, it is for the remnant, biding its time until it can be called into action. 6 We want to advance libertarian theory so that it can be used by jurists when a freer world emerges. 7

***

Below is an edited transcript of my speech “Libertarianism After Fifty Years: What Have We Learned?” delivered at the NYC LibertyFest (Brooklyn, NY, October 11, 2014; available at Kinsella on Liberty Podcast, Episode 152). The original title was “Libertarianism After Fifty Years: A Reassessment and Reappraisal” but I was allotted only about 15-20 minutes so condensed the scope and could only touch briefly on many of the matters discussed.

Libertarianism After Fifty Years: What Have We Learned?

Stephan Kinsella
NYC LibertyFest, Brooklyn, NY
October 11, 2014

Introduction

Hello. I’m glad to be here. Thank you to Ian and Mike for the invitation. I do have my eleven year old son with me. It’s the second or third time he’s seen me speak. He’s been to Auburn with me. I went to NYC Comic Con with him on Thursday. So turnabout’s fair play although it was fun. Comic Con was great.

I have fifteen minutes. My topic is “Libertarianism After Fifty Years – What Have We Learned”? If I get cut off I will continue this in a private podcast, if I run out of time. You can find more information, if I run out of time, because this is a big topic for fifteen minutes.

This is my own view of libertarianism. It might not be shared by everyone here. But what I would like to talk about is—what is the libertarian movement? How old is it? Where did we come from?

In my view, the libertarian movement is about fifty years old—the modern libertarian movement. I think we can date it, you know, the glimmers of the movement started with Ayn Rand and Isabel Patterson and Rose Wilder Lane with their books in 1943. Of course, there are precursors to the libertarianism in the Enlightenment and classical liberal thought. There are other writers, Leonard Read, Milton Friedman. But I think we can really date the dawn of the modern libertarian movement to 1957 with the publication of Atlas Shrugged by Ayn Rand. And then the works of Rothbard, more importantly, with Man, Economy and State in 1962. 8

So the movement is about 55, 45 years old. It’s a relatively young movement as far as ideologies go and political philosophies go. We still have our disagreements over certain controversies like abortion and other issues. But a lot of progress has been made in the last fifty years. We’ve had a lot of development, partly because of incessant libertarian internal debate, criticism by outsiders, criticism by minarchists, criticism by insiders. But at the fifty year stage, I do think it is a good time to step back and reflect and think what have we learned over the last fifty years. How we could use this going forward to further refine and develop our ideas. [continue reading…]

  1. See Rothbard’s obituary of Leonard Read in his journal Libertarian Forum, Vol. 17.5-6, May-June 1983; the PDF and HTML versions of the journal are apparently down now, but .mobi and epub versions are available here. [↩]
  2.  Barbara Branden, “Foreword: The Dawn of Objectivism,” in Nathaniel Branden, The Vision of Ayn Rand: The Basic Principles of Objectivism (2011), quoting Objectively Speaking: Ayn Rand Interviewed, edited by Marlene Podriske and Peter Schwartz, p. 239. [↩]
  3. The Limits of Armchair Theorizing: The case of Threats; also 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). [↩]
  4. On the distinction between abstract legal rights and more concrete rules that serve as guides to action, see “Legislation and the Discovery of Law in a Free Society” and Kinsella, “Knowledge, Calculation, Conflict, and Law,” in LFFS, the subsection “Abstract Rights and Legal Precepts” and the section “The Third-Order Problem of Knowledge and the Common Law,” text at n. 24 et seq. [↩]
  5. Areas That Need Development from Libertarian Thinkers. [↩]
  6.  Activism, Achieving a Free Society, and Writing for the Remnant. [↩]
  7. See Stephan Kinsella, “Legislation and the Discovery of Law in a Free Society,” in Legal Foundations of a Free Society [LFFS] (Houston, Texas: Papinian Press, 2023), Part V.B; also Roman Law and Hypothetical Cases. For an example of a concise statement of the basic principles of libertarian justice, see Aggression and Property Rights Plank in the Libertarian Party Platform. [↩]
  8. The following is an excerpt I wrote to a Foreword for a forthcoming libertarian book:

    Modern libertarian theory is only about five decades old. The ideas that have influenced our greatest thinkers can be traced back centuries, of course,[1] to luminaries such as Hugo Grotius, John Locke, Thomas Paine, Herbert Spencer, David Hume, and John Stuart Mill, and to more recent and largely even more radical thinkers such as Gustave de Molinari, Benjamin Tucker, Lysander Spooner, Bertrand de Jouvenal, Franz Oppenheimer, and Albert Jay Nock.[2]

    The beginnings of the modern movement can be detected in the works of the “three furies of libertarianism,” as Brian Doherty calls them: Rose Wilder Lane, Ayn Rand, and Isabel Patterson, whose respective books The Discovery of Freedom, The Fountainhead, and The God of the Machine were all published, rather remarkably, in the same year: 1943.[3] But in its more modern form, libertarianism originated in the 1960s and 1970s from thinkers based primarily in the United States, notably Ayn Rand and Murray Rothbard. Other significant influences on the nascent libertarian movement include Ludwig von Mises, author of Liberalism (1927) and Human Action (1949, with a predecessor version published in German in 1940); Nobel laureate F.A. von Hayek, author of The Road to Serfdom (1944); Leonard Read, head of the Foundation for Economic Education (founded 1946); and Nobel laureate Milton Friedman, author of the influential Capitalism and Freedom (1962).

    The most prominent and influential of modern libertarian figures, however, were the aforementioned novelist-philosopher Ayn Rand, the founder of “Objectivism” and a “radical for capitalism,” and Murray Rothbard, the Mises-influenced libertarian anarcho-capitalist economist and political theorist. Rothbard’s seminal role is widely recognized, even by non-Rothbardians. Objectivist John McCaskey, for example, has observed, that out of the debates in the mid-1900s about what rights citizens ought to have,

    “grew the main sort of libertarianism of the last fifty years. It was based on a principle articulated by Murray Rothbard in the 1970s this way: No one may initiate the use or threat of physical violence against the person or property of anyone else. The idea had roots in John Locke, America’s founders, and more immediately Ayn Rand, but it was Rothbard’s formulation that became standard. It became known as the non-aggression principle or—since Rothbard took it as the starting point of political theory and not the conclusion of philosophical justification—the non-aggression axiom. In the late twentieth century, anyone who accepted this principle could call himself, or could find himself called, a libertarian, even if he disagreed with Rothbard’s own insistence that rights are best protected when there is no government at all.”[4]

    We can date the dawn of today’s libertarianism to the works of Rand and Rothbard: to Rand’s Atlas Shrugged (1957); and, especially, to Rothbard’s Man, Economy, and State (1962), Power and Market (1970), and For A New Liberty (1973), plus his journal The Libertarian Forum (1969–1984). For A New Liberty stands today as a brilliant, and early, bold statement of the radical libertarian vision. By the mid-60s, the modern libertarian movement was coalescing, primarily behind the non-initiation of force principle and the “radical capitalism” of Ayn Rand, and Rothbard’s systematic libertarian corpus based upon the non-aggression principle or axiom. It is no surprise that the Libertarian Party was founded in 1971, as these ideas, and the liberty movement, were gaining steam.

    In the ensuing decades many other influential works appeared expounding on the libertarian idea, such as Linda and Morris Tannehill, The Market for Liberty (1970), John Hospers, Libertarianism: A Political Philosophy for Tomorrow (1971), David Friedman, The Machinery of Freedom (1973), Robert Nozick, Anarchy, State, and Utopia (1974), Henri Lepage, Tomorrow, Capitalism (1978), Samuel Edward Konkin III, New Libertarian Manifesto (1980), Jan Narveson, The Libertarian Idea (1988), Anthony De Jasay, Choice, Contract, Consent: A Restatement of Liberalism (1991), Richard Epstein, Simple Rules for a Complex World (1995), Charles Murray, What It Means to Be a Libertarian: A Personal Interpretation (1996), David Boaz, Libertarianism: A Primer (1998), Randy E. Barnett, The Structure of Liberty (1998), and, more recently, Jeffrey A. Miron’s Libertarianism, From A to Z (2010), Jacob Huebert’s Libertarianism Today (2010), Gary Chartier’s The Conscience of an Anarchist (2011), and Gerard Casey’s Libertarian Anarchism (2012).

    [1] For more on this, see Brian Doherty, Radicals for Capitalism: A Freewheeling History of the Modern American Libertarian Movement (2008), and David Boaz, The Libertarian Reader: Classic and Contemporary Writings from Lao Tzu to Milton Friedman (1998).

    [2] See Boaz, The Libertarian Reader, id.

    [3] See Doherty, Radicals for Capitalism, id.

    [4] John P. McCaskey, “New Libertarians: New Promoters of a Welfare State” (April 14, 2014), See also Wendy McElroy, “Murray N. Rothbard: Mr. Libertarian,” LewRockwell.com (July 6, 2000). [↩]

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Answers to Questions About Libertarian Punishment and Estoppel

by on October 21, 2014

An interchange with someone with questions about one of my articles, which sets out my “estoppel” theory of libertarian rights. For more background on these issues, see the links interspersed below, and those in the following endnote: 1

From Mr. S:

I just read your article “A Libertarian Theory of Punishment and Rights”, which was very interesting, thank you.  It raised a number of questions in my mind which I wanted to raise with you in case you’ve dealt with them elsewhere and can point me to these sources.

(Note that I am ignoring for now that both aggressor and victim may have protection insurance policies and so the punishment scale might already have been agreed to; I’m more focused on what a libertarian judge should decide in the absence of preset penalties.)

  1. I raised with [a certain libertarian philosopher] the problem of failed attempts.  You deal with this a little in the area of assault (p.640), but not sufficiently to answer my question.  If A shoots at B but misses, what is the punishment B can levy on A?   Is it just that B can shoot at A and miss, which seems pointless?   But if that wouldn’t instill in A the same amount of fear that B suffered, per your assault example, is B justified in actually hitting A with the bullet and potentially killing him, with A being estopped from complaining about this?  Should failed attempts be punishable at all?  According to Rothbard, neither deterrence nor rehabilitation are valid bases for punishment; rather, only restitution and retribution are appropriate.  But in my example, there is nothing to be restituted and retribution would imply shooting and missing.  Then, to make things more interesting, what if A shot at B and missed, and B didn’t even know A had shot at him, so never suffered any fear (but witnesses saw it and reported A)?   Again, what is the basis on which failed attempts should be punishable?  In a failed attempt there has been no physical invasion of body or property, and mental distress cannot be the basis for action since one cannot have property in one’s feelings (that would raise a host of conflict-creating problems).
  2. It seems to me that the estoppel principle should be more narrowly stated.  In your examples, you say that if A murders B then  A is estopped from complaining about being murdered as punishment.  Yet shouldn’t this be restated to say that A is estopped from complaining about being murdered as punishment by B or his representative?  In other words, I don’t think you mean to imply that A is estopped against the whole world from complaining about being murdered; D (a complete stranger) cannot murder A and then claim that by A’s action in murdering B, A is estopped against anyone from complaining.  Yet that would be one reading of the estoppel principle as stated, since A has by his actions apparently indicated that he sees nothing wrong in murder, so it could be open season on A.
  3. If, as stated on p.635, the goal of punishment is to equalize damage suffered, not just the actions that caused the damage, then that could work against the victim.  If nice person A beats up gang member B, since B is used to getting beaten in his daily life the damage suffered is probably not that great.  Thus he would have to reduce the punishment beating he exacts on A.  Perhaps the theory should be that the victim can exact the greater of (x) equalizing action and (y) equalizing damage.  However, saying “should” is somewhat normative, and I wonder what the positive theory behind such a “greater of” concept would be.
  4. That raises a broader point: what is actually being estopped and therefore what forms the basis for outlining the bounds of punishment: (A) the actions of the aggressor [e.g., punching the victim], (B) the result caused [e.g., burst spleen] or (C) the damage suffered by the victim [e.g., inability to continue working as a laborer]?  Can an aggressor be estopped from any one of these that was not obvious at to him at the time?  If so, then does estoppel not really rest on what the aggressor has actually acknowledged by his actions, but rather what a “reasonable aggressor” should have realized what he was doing?
  5. Moreover, why can the victim choose to exact a dollar remedy for a physical aggression (leaving aside the situation where the aggressor bargains for this with the victim to avoid physical retaliation)?  Under estoppel the aggressor has only acknowledged he does not believe hitting is wrong, but it doesn’t mean he has acknowledged that taking someone’s money is wrong.  It seems that the broader the range of remedies the victim is entitled to exact, the looser the connection to the aggressor’s actions which give rise to the estoppel.  We could end up effectively concluding that the aggressor indicated by his actions that he does not believe in the sanctity of private property at all, and thus any punishment is warranted.  Surely that’s not where we should end up?
  6. What is the theory underlying why heirs can take action on behalf of a murder victim (assuming there is nothing in the victim’s will saying so, and there is no protection policy for which the heirs are the beneficiaries)?  If each person’s body is his own property, how can an heir claim to have been damaged when only the victim’s body was invaded?

[continue reading…]

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Mises, Rothbard, and Hoppe on the “Original Sin” in the Distribution of Property Rights

by on October 7, 2014

Related:

Modern libertarianism began in the 1960s, about 50 years ago, with the writing of Ayn Rand and Murray Rothbard, primarily, and others like Leonard Read, Milton Friedman, Hayek, Mises, etc. Over the years, certain canards or confusions keep appearing, some from insiders, some from our statist critics. There’s a continual need to debunk and counter some of these. As the theory of liberty continues to mature and advance, the mistakes that need to be addressed become more obvious, at the same time that we are more able to address them.

I’d like to discuss here a couple of paired confusions relating to property rights. One relates to the “Lockean” argument for homesteading, or original appropriation of property; the other concerns rectification for past injustices. Both are interrelated. You’ve probably heard both of these in various forms. For example, the opponent of libertarianism just assumes that our theory is based on the Lockean idea of original appropriation—then makes the “original sin” argument that all property rights are tainted by various acts of theft or statism, and therefore, since you can never trace your property title back to the original pristine owner, no current property title is really valid.

My instant reaction to such comments is always: they are (if they are statists) trying to justify taking my property. If they are libertarians, they are trying to justify not being anarchist. Basically, when I hear people talk like this, I brace myself for the inevitable theft that they are about to endorse or condone or advocate. Two favorite quotes of mine come to mind here:

“Run for your life from any man who tells you that money is evil. That sentence is the leper’s bell of an approaching looter.” —Ayn Rand, Francisco’s Money Speech

“Is there a need to reform taxes? Most certainly. Always and everywhere. You can always make a strong case against all forms of taxation and all tax codes and all mechanisms by which a privileged elite attempts to extract wealth from the population. And this is always the first step in any tax reform: get the public seething about the tax code, and do it by way of preparation for step two, which is the proposed replacement system.

“Of course, this is the stage at which you need to hold onto your wallet.” —Lew Rockwell

When I hear people saying the libertarian theory of property is flawed because it relies on theft, etc., I know this is just a precursor to some kind of advocated aggression. I hold onto my wallet. I keep an eye on these people.

These issues are related but somewhat different. Let me take them one at a time. [continue reading…]

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Kinsella 2009Stephan Kinsella is a libertarian writer and retired patent attorney in Houston, Texas. He has published widely on various areas of libertarian legal theory and on legal topics such as intellectual property law and international law. His publications include Legal Foundations of a Free Society (Papinian Press, 2023), Against Intellectual Property (Mises Institute, 2008), International Investment, Political Risk, and Dispute Resolution: A Practitioner’s Guide (Oxford, 2020), and The Universal Principles of Liberty (2025).

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