StephanKinsella.com

Note: An updated and revised version of this article is included as chap. 23 of Legal Foundations of a Free Society (Houston: Papinian Press, 2023).

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“Stephan Kinsella on Libertarian Legal Theory, Self-Ownership and Drug Laws,” interview with Anthony Wile, The Daily Bell (July 20, 2014). Revised version in published as “On Libertarian Legal Theory, Self-Ownership and Drug Laws,” in Legal Foundations of a Free Society (forthcoming 2023).

From The Libertarian Standard, May 9, 2014:

Second Thoughts on Leoni, Hayek, Legislation, and Economic Calculation

My articles have been translated so far into 14 languages. Most of it so far is my shorter pieces, as well as my Against Intellectual Property. But the topic that has always interested me most is rights theory. What I regard as one of my most important papers, and in any case one of my personal favorites, Punishment and Proportionality: The Estoppel Approach, Journal of Libertarian Studies 12:1 (Spring 1996), though, which sets out my view of libertarian rights in some detail, has never been translated. Nor has much of my other writing on rights theory, except for a Dutch translation of New Rationalist Directions in Libertarian Rights Theory, which contains a summary of my rights theory and related ones such as Hoppe’s argumentation ethics. 

Until now, that is: the Punishment and Proportionality paper has just been translated into Portuguese by Miguel Serra. The translation is: Pena e proporcionalidade: A abordagem do Estoppel (also now published on the Ludwig von Mises Institute Brazil). I’m extremely grateful to and honored by Mr. Serra, as well as those who have done the other translations. The spreading, global libertarian community is truly a wonder to behold. It gives me hope for humanity.

Update: There is an HTML version available, Agressão, pena e proporcionalidade – como estabelecer os limites?. And I also now see Punição e Proporcionalidade: A Abordagem do Estoppel

Update: PDF versions of the above are now available, sent to me by Thiago Machado, a Brazilian libertarian student: one file formatted for A4 paper (good for PC/tablet) and the other one formatted in A6 (good for smartphones).

Update:

• KOL465: Sheldon Richman on Corporations, Limited Liability, Price Controls, Thickism, Abortion, Pipes
• Will Moyer, “Why I left libertarianism: An ethical critique of a limited ideology,” Salon (June 14, 2014). Subtitle: “I value many contributions libertarianism makes to challenging power. But here’s why I no longer associate with it” (pasted below)
• The Limits of Libertarianism: Rebutted, by Stefan Molyneux

Moyer’s piece is now memory-holed so I will append below the entire piece from Archive.org.

One Will Moyer recently penned The Limits of Libertarianism, which has gotten some attention among libertarians, and critics thereof, on Facebook and various blogs. In the article, Moyer, who implies that he is an ex-libertarian, makes various characterizations of, statements about, and criticisms of libertarianism, many of which I believe to be incorrect. Below I discuss a few of my disagreements with Moyer’s piece. As a preliminary matter, it will be helpful to set down a brief explanation of some of the basic aspects of libertarianism.

“Libertarianism” is the name given to a particular political philosophy. As I discuss in some detail in What Libertarianism Is, what characterizes libertarianism is not “property rights,” since every political philosophy has some treatment of property rights. Every system has an answer to the question: who gets to control that resource?

What distinguishes libertarianism from other political philosophies is its particular answer as to how property rights should be allocated in scarce (i.e., rivalrous, contestable) resources. And that answer is: property rights ought to be allocated in accordance with Lockean principles of initial appropriation, sometimes called homesteading; contractual transfer; and other transfers as a result of torts or crimes. As Roderick Long puts it, citing Robert Nozick,

Libertarian property rights are, famously, governed by principles of justice in initial appropriation (mixing one’s labour with previously unowned resources), justice in transfer (mutual consent), and justice in rectification (say, restitution plus damages). ¹

Another formulation that describes the libertarian idea is the opposition to “aggression.” The link between the so-called “non-aggression principle” and our property rights view is that we oppose aggression defined in terms of property rights so allocated. We believe aggression is unjust and unjustifiable. Thus, our shorthand use of phrases like “non-aggression principle” or “non-initiation of force,” as well general terms like “liberty” and “freedom,” and opposition to “coercion,” ² and so on—all of which are either shorthand or conceptually dependent terms on the more fundamental and primary notion of property rights. As an example: if I hit you, it is aggression because you own your body. If I take an apple from you, it is aggression only if you own the apple; if it is my apple and I am retrieving it from a thief, the act of force used to take it back is not aggression. We cannot determine whether a given apparent “border crossing” is invasion, or theft, or trespass, or aggression, unless we first identify who the owner of the contested resource is.

In fact, the reason property rights are more fundamental than, and a concept upon which “aggression” depends, is that the only reason there is a need for property rights is the possibility of conflict, and this arises only because we live in a world of scarce (rivalrous) resources. As Mises explains, humans act, which means to employ certain scarce means to achieve certain chosen ends. The scarce means are physical resources in the world that our scientific knowledge informs us are causally efficacious in interfering with the world, in changing the course of events to achieve some forecasted state in the future that is desired more than what is otherwise predicted by the actor to come about. As Hans-Hermann Hoppe explains in Of Private, Common, and Public Property and the Rationale for Total Privatization,

Conflict only results if our different interests and beliefs are attached to and invested in one and the same good. In the Schlaraffenland, with a superabundance of goods, no conflict can arise (except for conflicts regarding the use of our physical bodies that embody our very own interests and ideas). There is enough around of everything to satisfy everyone’s desires. In order for different interests and ideas to result in conflict, goods must be scarce. Only scarcity makes it possible that different interests and ideas can be attached to and invested in one and the same stock of goods. Conflicts, then, are physical clashes regarding the control of one and the same given stock of goods. People clash because they want to use the same goods in different, incompatible ways.

Even under conditions of scarcity, when conflicts are possible, however, they are not necessary or unavoidable. All conflicts regarding the use of any good can be avoided if only every good is privately owned, i.e., exclusively controlled by some specified individual(s) and it is always clear which thing is owned, and by whom, and which is not.

It is important, then, to emphasize that every dispute is always really about scarce resources. And every proposed or disputed law is ultimately about the use of force against some identifiable scarce resource: a human body, or other scarce resources in the world that humans can employ as means of action. For example, it is sometimes said that people “fight over religion.” This is not true. People fight only over scarce resources. Disagreement over religion may be the reason for the fight but the fight is always conducted with physical force, mediated by causal means (e.g. weapons), to physically control others’ bodies or owned resources. For example A may tell B to change to A’s religion or face death; the fight here is over who get’s to control B’s body. ³  When the state threatens to jail people for disobeying drug laws, the state is asserting an ownership claim over its citizens’ bodies. When the state taxes people, it is taking their money.

So: we say aggression (invasion of property rights) ⁴ is unjustifiable. This matters, in our view, or should matter, to those who care about justice and justifying their claims (as anyone engaging in argumentation or discourse about such matters undeniably demonstrates). ⁵  As I noted in my 1996 JLS paper Punishment and Proportionality: The Estoppel Approach, [continue reading…]

1. Long, Why Libertarians Believe There is Only One Right. [↩]
2. But see my post The Problem with “Coercion”. [↩]
3. On the danger of imprecise language and metaphors, see my post On the Danger of Metaphors in Scientific Discourse. [↩]
4. See text at n. 11 of What Libertarianism Is for various terminological formulations used to describe aggression. [↩]
5. See Hoppe’s “argumentation ethics” defense of libertarian ethics; links in my Argumentation Ethics and Liberty: A Concise Guide. [↩]

From a (fairly informal) Facebook post of mine:

First significant thinker to get libertarianism totally right: Hans-Hermann Hoppe. Let me splain.

I view the modern libertarian movement as starting around the 50s or so, with people like Leonard Read, Ayn Rand, Milton Friedman, and a bit later, Rothbard, and the like. Yes there were important forbears—Bastiat, classical liberals, and others. (http://archive.mises.org/18385/the-origin-of-libertarianism/; see also Libertarianism After Fifty Years: What Have We Learned?)

But the earlier libertarians always got something major wrong or were missing some major essential points. Most of them were pro-state—not anarchist. Minarchists, classical liberals. That’s a serious problem.

And the ones who were anarchist always seemed to get some major issue wrong. For example, Spooner, who was great on just about everything, was bad on IP (http://c4sif.org/2012/06/tucker-on-spooners-one-flaw/). This flows from a confused concept of the nature of rights and acceptance of the confused idea of the labor theory of property, stemming from Locke’s formulations and overly metaphorical thinking.

Probably the best overall libertarian in pre-modern times was Benjamin Tucker but even he, like lots of the earlier anarchists, was confused on some basic economic issues, the “land” question, etc.—this latter issue even corrupted his heroic opposition to IP: his argument against IP is that it is based on the idea that you own the products of labor (“he who first takes possession of any material production of nature”), but that this would imply you can own land. And we know we can’t have ownership of land, therefore the principle behind IP must be flawed too. [See Land Monopoly and Literary Monopoly]

So Tucker was great, esp. for his time, but not complete.

Further, he was too early to benefit from modern Austrian economics, especially the praxeological-Misesian approach. Which I regard as essential to being a basically modern, complete, systematic, coherent, principled libertarian. You need to be anti-state/anarchist, Austrian (Misesian), and also consistent and very propertarian. Without this it is more proto-libertarian or flawed libertarianism.

Rand was bad on IP (a major issue) and bad on the state. So fail.

Milton Friedman—ditto (at least on the state).

Read was great, and good on IP, and Austrian-ish economics, but he was not an anarchist AFAIK.

Hazlitt was getting closer, but as far as I know he was not an anarchist. In any case, he was not a comprehensive political philosopher.

One of the people I’m learning a bit more about is Sam Konkin III. From everything I know about him he was pretty solid on everything—the state, IP, everything. He was in fact one of the pioneers of the modern anti-IP movement. However, he was more of a minor figure and did not have a fully fleshed out political theory that I am aware of. He is known for “agorism” and his fairly brief (but profound and correct and perspicacious) comments on IP, but ….

So the obvious candidate is Rothbard. Anarchist, radical, propertarian, profound, comprehensive and systematic, steeped in Misesian economics. You might award him this crown. But he misstepped on IP. It is not just a misstep that is the issue here; it is why he did it. He failed to apply his own property rules and contract theory consistently here. And the former was, I think, because he did not emphasize the role of scarcity and conflict at the root of property enough. Being an expert on Misesian praxeology, with its emphasis on the role of scarce means in human action, it’s a bit surprising, but hey, you can’t do everything. Every great thinker stands on the shoulders of giants, as Rothbard himself did (including being influenced Rand’s sort of systematic tying together of various strands of thought into a libertarian-ish whole), even as he was a giant in his own right.

Hoppe, thoroughly steeped in both Mises and Rothbard, finally got it right, IMO. He did not write much about IP but in his brief comments he indicated the right path. And he also focused intensely on property rights, and—crucially, the issue of scarcity and its core relationship to property rights. He built on Rothbard and Mises, with insights from people like Hume (scarcity) and others like Habermas (rights theory, argumentation ethics, which Rothbard enthusiastically endorsed and saw the revolutionary promise of). If you combine Mises, Rothbard, and Hoppe, you get the culmination of advanced, consistent libertarian philosophy. (See Hoppe, A Realistic Libertarianism)

Not saying this is perfect or the political philosophy is closed or complete, nor that there is not more work to do. But in my view, the main edifice of modern, radical, principled libertarianism is Rothbardian-propertian-Austro-anarcho-Hoppeanism.

Related:

• J.C. Lester: “Against Against Intellectual Property: A Short Refutation of Meme Communism”;
• “Aggression” versus “Harm” in Libertarianism.
• Anarchist Libertarian Jan Lester’s Argument for Intellectual Property;
• The “Ontology” Mistake of Libertarian Creationists;
• Kinsella v. Schulman on Logorights and IP
• J.C. Lester: “Against Against Intellectual Property: A Short Refutation of Meme Communism”

Starting around 1:30:00, another deeply flawed attempt to argue for intellectual property. It’s made all the worse in that it comes from an anarchist libertarian, J.C. Lester, author of Escape from Leviathan: Liberty, Welfare and Anarchy Reconciled (conspicuously not online yet. Why some people take time to write books but don’t want to make their ideas accessible is a perennial mystery—but in tune with the IP idea, I suppose). His entire Popperian “conjecturalist” approach is in my view flawed, as his is view that libertarianism is about reducing “impositions,” instead of aggression. See my discussion of some of this in “Aggression” versus “Harm” in Libertarianism. See transcript below. [continue reading…]

In 1978 or so, in seventh grade at St. George, a Catholic elementary school in Baton Rouge, one of my favorite teachers was Mr. Owens. In 1989, when I was in grad school, I sent him the following letter (somewhat edited here). He was by then the principal of St. George and a friend who visited years later said he saw a copy of my letter pinned on the bulletin board being Mr. Owens’s desk. I took that to mean he was happy to have gotten the letter. He passed away a few years ago.

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Sunday, July 30, 1989

Mr. Jim Owens, Principal
St. George Elementary School
7880 Siegen Lane
Baton Rouge, LA 70809

Dear Mr. Owens,

I don’t know if you remember me or not.  I used to be a student of yours at St. George, when I was in the 7th grade.  I think that was in 1978 or so.  You taught me religion.

You might not remember this either, but I haven’t forgotten.  You always gave us puzzles and riddles to work out.  For example, if you have 99 marbles of one color and 1 of the other color in a bag, what is the most you would have to pull out to be sure what the dominant color is.  Or, in the famous Alpha (truth tellers) and Beta (liars) puzzle, what do you ask the native at the bridge to see if the bridge is safe.  Etc. [The solution is: you ask the native: if you were a member of the other tribe, and I asked you if the bridge were safe to cross, what would you answer? And then the answer is the opposite of the answer.]

Well, one puzzle you gave us was:  if you have three cities at the top, and three at the bottom, can you draw a road from each city at the top to each at the bottom without crossing roads?  We tried and tried, all of us students, to get that one; no one could find a solution.  We always had to cross some lines.  When we told you we thought it was impossible, you said, “Ahh, but can you prove it’s impossible?”  Which none of us could.

I am writing to present you with the proof. [continue reading…]

Legislação e direito em uma sociedade livre, Portugese translation of “Legislation and Law in a Free Society,” Mises Daily (Feb. 25, 2010). Translations of my other writing is here.

I did a Reddit Ask Me Anything thread recently, on the anarcho-capitalist sub-reddit, here: http://www.reddit.com/r/Anarcho_Capitalism/comments/1vd8s9/i_am_stephan_kinsella_anarcholibertarian_writer/.

Previous Reddit AMA’s I did: Reddit Ask Me Anything Thread. One I did a year ago is at My reddit “ask me anything”.

Back in 1991, I did a book review of J. Neil Schulman’s The Robert Heinlein Interview and Other Heinleiniana (originally published 1990; sample). My review was posted and discussed on the “GEnie Science Fiction and Fantasy RoundTable” (I believe GEnie was one of those pre-Internet dial-up networks some of us used back in the day). I thought I had lost my review but was able to find a copy buried on my hard drive, along with some comments by Schulman and others that was on that forum. Here is my initial letter to Schulman and the review, and some of the followup commentary that appeared on the forum (with some editing).

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From Stephan Kinsella
Friday, April 26, 1991

Neil,

I just finished reading your book, The Robert Heinlein Interview and other Heinleiniana. I enjoyed it very much. Although there are a few gripes, which will become apparent in the course of the review listed below.

I did note errata while I was reading it. [omitted]

After the errata, I list a book review below. Go ahead and distribute it, if you wish.

If you want any biographical data on me, here it is. I’m 25, graduating from law school (the LSU Law Center) on May 31. I’m going to practice corporate law in Houston, Texas, with the Jackson & Walker law firm. But first, I’m going to London (probably) for a year to get an LL.M (master’s in law) in International and Comparative Law. …

I’m a big Ayn Rand, C.S. Lewis, and Heinlein fan, as are you.

* * *

\\ERRATA\\

[omitted]

BOOK REVIEW OF THE ROBERT HEINLEIN INTERVIEW
Reviewed by Stephan Kinsella
April, 1991

As a big fan of Robert Heinlein’s works, I was happy to discover J. Neil Schulman’s paperless book, The Robert Heinlein Interview and other Heinleiniana. I downloaded it from GEnie, and was able to read it in about four two-hour sittings (this is a rough estimate). (One hint for readers of paperless books: to keep track of where I left off, I created a small ASCII file called BOOKMARK. Every time I “set the book down,” I noted the line number or page number, and opened up BOOKMARK, and wrote something like “At line 1024, file HEINLN2” to remind myself where to pick up next time.) [continue reading…]

I have a Reddit Ask Me Anything thread going on here: http://www.reddit.com/r/Libertarian/comments/1ozbpv/i_am_stephan_kinsella_libertarian_writer_and/.   My summary:

I am Stephan Kinsella, libertarian writer and patent attorney. Ask Me Anything! (self.Libertarian) submitted 368 milliseconds ago by nskinsella

I’m Stephan Kinsella, a practicing patent lawyer, and have written and spoken a good deal on libertarian and free market topics. I founded and am executive editor of Libertarian Papers (http://www.libertarianpapers.org/), and director of Center for the Study of Innovative Freedom (http://c4sif.org/). I am a follower of the Austrian school of economics (as exemplified by Mises, Rothbard, and Hoppe) and anarchist libertarian propertarianism, as exemplified by Rothbard and Hoppe. I believe in reason, individualism, the free market, technology, and society, and think the state is evil and should be abolished. My Kinsella on Liberty podcast is herehttps://stephankinsella.com/kinsella-on-liberty-podcast/ I also believe intellectual property (patent and copyright) is completely unjust, statist, protectionist, and utterly incompatible with private property rights, capitalism, and the free market, and should not be reformed, but abolished. Ask me anything about libertarian theory, intellectual property, anarchy.

Feel free to join in–