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KOL293 | Faith and Free Will, with Steve Mendelsohn

by on August 18, 2020

Kinsella on Liberty Podcast, Episode 293.

This is my discussion with my old friend and colleague, patent lawyer Steve Mendelsohn, about faith and free will and related issues, some of which are discussed in his book Shallow Draughts: Faith in the Absence of Free Will (2017) (PDF of this book and his most recent one posted here [Shallow Draughts] and here [Sequitur] with his permission). (Steve and I worked as patent lawyer associates together from about 1994-96 or so in Schnader Harrison in Philly.)

Yes, yes, I know I normally talk only about libertarian legal theory, or, mostly, IP, and try to avoid discoursing about topics I don’t think I’m an expert on … like faith, concept formation, knowledge theory, free will, compatibilism, and the like, but, hey, what the hell. Caveat listener!

Related:

Update: Re the upcoming PFS talk by David Dürr (Switzerland): “On Freedom of the Will,” I had these comments to Hoppe:

I am curious to see what he will say.

I am also skeptical of free will in the causal sense, since it seems to presuppose downward causation, which seems to me to be as irrational and spooky as quantum action at a distance, which Einstein himself rejected. And yet in the teleological realm there must be choice as it’s a component of action. So this is the dilemma.

I know there are some libertarian arguments that try show free will is apriori true–by Rand and others, maybe Rothbard–to the effect that you cannot deny free will because it is presupposed in arguments where you are trying to persuade others that free does not exist—since you presuppose they are free to (choose to) change their minds if they agree with your arguments. There is some subtle error in this reasoning, I think. For genuine apriori—necessarily true—truths, they are of the form that the denial is contradictory since the proposition denied is assumed to be true in the attempt to deny it. E.g. we cannot conceive of a world that does not exist, or without causality.

But we can conceive of a mechanistic world where intelligent humans emerge who experience an illusion of volition but are wrong that it is real, because they are conflating the teleological-praxeological realm with the causal realm, just as logical positivists and monists do. There have been some so-called “compatibilists” who attempt to square the circle, e.g. Daniel Denniet, but they all fail as far as I can tell since they are too monist. This is similar to the way most atheists’ arguments against God are weak because they come from an empiricist and logical positivist stance. They are all too scientistic and unaware of dualism and praxeology.

So I have thought the apparent dilemma, an antinomy, really, can be solved best by a type of dualism inspired by Mises’s—in which we recognize that choice is an ineluctable component of action in praxeological-teleological analysis–an unavoidable assumption. It is part of the conceptual language we must employ in characterizing other humans as actors (teleological realm) instead of mere behavers (causal realm). I think you (Hoppe) hint at something similar in ESAM–where you writes:

But if one can learn from experience in as yet unknown ways, then one admittedly cannot know at any given time what one will know at a later time and, accordingly, how one will act on the basis of this knowledge. One can only reconstruct the causes of one’s actions after the event, as one can explain one’s knowledge only after one already possesses it. Indeed, no scientific advance could ever alter the fact that one must regard one’s knowledge and actions as unpredictable on the basis of constantly operating causes. One might hold this conception of freedom to be an illusion. And one might well be correct from the point of view of a scientist with cognitive powers substantially superior to any human intelligence, or from the point of view of God. But we are not God, and even if our freedom is illusory from His standpoint and our actions follow a predictable path, for us this is a necessary and unavoidable illusion. [The Economics and Ethics of Private Property]

I think this basically is the solution to the dilemma: a Hoppean-Misesian type of dualistic approach like this.

Hoppe’s reply: “The central error of the determinists is that on their own terms they cannot claim their theory to be true or false. True or false, right or wrong do not exist. But talking about this very question shows demonstrates that it DOES.”

My reply: I agree with you we have to assume choice because we must understand others as choosing actors. As long as we understand that this applies to the understanding of humans as actors, in the praxeological-teleological realm, and doesn’t have any implications for “spooky” causal notions of downward causation etc., … in other words, adopting a type of dualist approach is inescapable if one wants to regard others as actors and to understand their actions, motives, purposes, and so on. This is what modern logical positivists and empiricists are unable to do; they are stuck with monism.

Update: See discussion of free will as an assumption behind some arguments in quantum physics (which I have always been skeptical of).

Here she discusses Gerard ‘t Hooft, The Cellular Automaton Interpretation of Quantum Mechanics (2016) and his idea about an ontological wave function. Hunh.

***

Grok Summary:

Kinsella on Liberty Podcast: Faith and Free Will with Steve Mendelsohn – Show Notes

Introduction and Guest Background

0:02 – 2:10

In this episode of the Kinsella on Liberty podcast, host Stephan Kinsella interviews Steve Mendelsohn, an old friend and patent lawyer colleague from Philadelphia. Kinsella introduces the episode as a rare direct interview, one of only a few among his 300+ episodes, which typically feature rebroadcasts of his appearances on other shows. Mendelsohn, a mentor to Kinsella during their time at the Schnader law firm in 1994, joins from his home in the peaceful suburbs of Philadelphia, specifically near Narberth. The conversation begins with a light discussion about Mendelsohn’s current situation, including his limited visits to his office due to remote work trends post-March 2020.

Remote Work and Office Space Changes

1:14 – 2:10

Mendelsohn discusses how his law firm is adapting to remote work, with their office lease expiring and plans for a smaller downtown footprint. He explains that the central Philadelphia location remains necessary due to the geographical distribution of staff and lawyers across the region. The conversation touches on the phrase “it is what it is,” with Kinsella noting its recent use by Michelle Obama, setting a casual tone before diving into the main topic.

Introduction to the Main Topic: Faith and Free Will

2:10 – 3:44

Kinsella outlines the episode’s focus on faith and free will, a departure from his usual topics of intellectual property, libertarianism, and Austrian economics. He admits to not being an expert in this area but finds it suitable for an interesting discussion. Mendelsohn, who has self-published a book titled Shallow Drafts: Faith in the Absence of Free Will, shares that he and Kinsella have discussed these ideas over years via email and phone. Both have read Sam Harris’s book Free Will, which influences their perspectives, with Mendelsohn noting the topic’s philosophical complexity.

Mendelsohn’s Book and Publishing Experience

3:05 – 8:52

The discussion shifts to Mendelsohn’s book, now in its fourth edition on Amazon, which he finds easy to update due to the platform’s on-demand publishing. Kinsella highlights how this eliminates traditional publishing issues like rights reversion and editorial delays. They explore the idea of making the book available as a free PDF online, with Kinsella suggesting a dedicated website or landing page. Mendelsohn agrees to consider this, noting he’s already shared the PDF with contacts but hasn’t posted it publicly.

Philosophical Journey and Beliefs

9:35 – 20:03

Mendelsohn recounts his philosophical journey, sparked by a college bet with his roommate Dan, who challenged him to take an upper-level philosophy course despite his physics background. This experience led to his paper on belief formation, using the analogy of mistaking a dog for a fox in fog, illustrating that beliefs form automatically and involuntarily. He argues that we don’t control our beliefs, proposing an experiment where theists try believing God doesn’t exist for 36 hours, a challenge no one has accepted. Kinsella shares a similar anecdote, suggesting belief in God may be genuine, as evidenced by extreme actions like the 9/11 attacks.

Defining Faith and Free Will

20:03 – 37:51

Mendelsohn introduces his concept of “automatic, involuntary, subjective evidence weighing” (ASO), equating it to faith, the process by which brains move from evidence to conclusions, whether for secular beliefs (e.g., Shakespeare wrote Hamlet) or religious ones. Kinsella challenges this, arguing that faith, as used by religious people, implies belief without evidence or reason, distinct from trust. They debate the nature of evidence, with Mendelsohn emphasizing testimonial evidence (e.g., trusting authorities) and Kinsella insisting on perceptual and rational sources, drawing on Ayn Rand’s philosophy to distinguish between perception and conceptual errors.

Compatibilism and Determinism

37:51 – 56:25

The conversation turns to free will, with Kinsella outlining his Austrian-Misesian compatibilism, which reconciles deterministic causality with teleological explanations of human choice in economics and sociology. He distinguishes between causal (physical) and teleological (purpose-driven) realms, arguing that even without true free will, choice remains a useful concept. Mendelsohn, skeptical of free will, sees actions as determined or random, citing quantum mechanics but agreeing it’s irrelevant to the absence of free will. They discuss a libertarian argument for free will via proof by contradiction, which Mendelsohn counters by emphasizing the automatic nature of belief formation.

Implications for Justice and Punishment

56:25 – 1:20:46

Mendelsohn argues that lacking free will makes punishing or rewarding individuals inherently unfair, though societal benefits justify it to encourage or discourage behavior, as per Sam Harris. Kinsella agrees but favors incapacitation over retribution in a libertarian justice system, suggesting voluntary ostracism and restitution in a stateless society. He contrasts Jewish repentance (requiring acknowledgment and amends) with Christian forgiveness, citing a church shooting where forgiveness was offered without repentance. They discuss how childhood trauma, like spanking, may contribute to criminal behavior, advocating for peaceful parenting to reduce such outcomes.

Critique of Compatibilism and Dennett’s Views

1:20:46 – 1:27:19

Kinsella critiques Daniel Dennett’s compatibilism, which conflates free will with freedom, contrasting it with his own version based on Mises’ dualism. Mendelsohn reads from his book’s epilogue, recounting a 2017 encounter with Dennett, where he challenged Dennett’s belief in free will. Dennett’s response—that free will implying no responsibility is undesirable—was deemed disingenuous, akin to theistic arguments avoiding uncomfortable truths. Kinsella agrees, criticizing the “new atheists” (Harris, Dawkins, Hitchens, Dennett) for their empiricist, monist tendencies, though they often reach correct conclusions despite lacking a robust appreciation for reason.

Closing and Media Recommendations

1:27:19 – 1:28:59

The episode wraps up with light-hearted banter, including politically incorrect jokes about a one-armed fisherman. Kinsella recommends the Hulu series Devs, which explores quantum computing, free will, and determinism, urging Mendelsohn to watch it despite his limited TV consumption. They humorously note the podcast might be a second take, thank the audience, and sign off, with Kinsella fumbling to stop the recording.

Transcript (Grok)

Introduction and Background

0:02

Stephan Kinsella: Okay, we are recording. We’re live. This is Stephan Kinsella. I’m doing a Kinsella on Liberty podcast. Usually, it’s just a rebroadcast of my interviews on other shows, and every now and then, I will talk to someone else. This is maybe the third or fourth time I’ve done this out of 300 or so episodes. So, I’ve got online with me Steve Mendelsohn, an old buddy of mine, an old patent lawyer friend, an old patent lawyer colleague, kind of a mentor, in Philadelphia—or what do you call it? You don’t call it Philadelphia. What do you call it where you live?

0:33

Steve Mendelsohn: Well, I live outside of Philadelphia.

0:39

Stephan Kinsella: Outside Philly, right? This is Penn Valley?

0:46

Steve Mendelsohn: Penn Valley. No, what’s the train stop on the Main Line that you do? Narberth. That’s my stop.

0:50

Stephan Kinsella: Narberth. You’re not Narberth, same zip code but different name?

0:55

Steve Mendelsohn: Okay, okay. So, you’re in the peaceful suburbs of Philly.

1:00

Stephan Kinsella: It is very peaceful. I’m on my back porch right now, and luckily, they stopped mowing next door, so it’s quiet. How’s Philly doing lately?

1:07

Steve Mendelsohn: I wouldn’t know. I haven’t been there much in the last five or six months. I’ve been to my office three times since March 15th, twice to see new office space.

1:14

Stephan Kinsella: Philly, okay. Yeah.

Discussion on Office Space and Remote Work

1:21

Steve Mendelsohn: Yeah, but our lease is running out, so we’re looking for new space.

1:27

Stephan Kinsella: What are you going to do?

1:32

Steve Mendelsohn: Well, we’re going to have fewer people because everybody’s gotten used to working at home, so we’re probably going to offer people that option to continue. So, we’re just going to have a smaller footprint downtown and see how it goes.

1:38

Stephan Kinsella: Why would your footprint be downtown if you need a little footprint on occasion? Why not just make it in some cheaper location or something?

1:45

Steve Mendelsohn: Because we have staff and lawyers who live on all sides of Philadelphia, in Jersey, North, South, West. So, it’s a central location, you know. Unfortunately, but that’s the way it is. It is what it is, as they say. I love that expression.

1:52

Stephan Kinsella: I heard Michelle Obama say it yesterday.

2:03

Steve Mendelsohn: Michelle Obama said it yesterday.

Introduction to the Podcast Topic

2:10

Stephan Kinsella: Okay, so let me just tell people what—usually, I talk about intellectual property, and you’re actually a patent lawyer, and we’re not going to talk about that today, but maybe next week or so, you and I and another fellow colleague are going to talk about patent law. That’ll be fun. Every now and then, I deviate into other topics, usually libertarian-related ones or Austrian economics. But sometimes it gets into philosophy. As I mentioned to you, I try not to talk—when you said let’s talk about faith and free will, first I thought you meant for a podcast, and I thought, well, I don’t usually do podcasts on things I don’t think I’m an expert on, but I know enough to have an interesting conversation, and some people might want to hear it.

2:47

Steve Mendelsohn: The lack of expertise didn’t keep me from writing a book about it.

2:59

Stephan Kinsella: I know, I know. Believe me, I have lots of libertarian friends who do that kind of thing too.

Steve Mendelsohn’s Book on Faith and Free Will

3:05

Stephan Kinsella: Let’s see here. I’m going to share my screen just to show your book. So, you self-published a book, which is not—you know, that used to be—so, I heard it’s “Shallow Drafts.” How would you pronounce it?

3:19

Steve Mendelsohn: “Shallow Drafts: Faith in the Absence of Free Will.” And you and I have had some email and some phone conversations over the last few years about this issue.

3:32

Stephan Kinsella: I think we both read Sam Harris’s book on free will, right?

3:44

Steve Mendelsohn: Absolutely. And I’ve read lots of other perspectives on that too over the years. In fact, this issue for me has always been one of the most perplexing in all philosophy. I think I’ve come to a sort of approach to it that works for me, which is sort of my own kind of cobbled-together—I call it Austrian-Misesian compatibilism, you know, kind of borrowing on the dualism of the methodology of Mises and the Austrians with some of the conceptual insights of Rand, but also with a realist attitude about causality. I mean, ultimately, I don’t believe there’s true free will. I think that we’re either causally determined or that we’re random. Either way, there’s no room for free will. It’s still meaningful to talk about choice in an economic and in a sociological sense. So, that’s kind of my wrapper of what I think.

4:32

Stephan Kinsella: But you wrote a book. This is your first book. You just have another one came out?

4:47

Steve Mendelsohn: I just released the second book, yep.

4:56

Stephan Kinsella: How’d you find the Amazon process? Because I just published something on there too.

5:01

Steve Mendelsohn: I love it. It’s great. This is actually “Shallow Drafts” is actually in its fourth edition because—well, I screwed up the first one completely, but then I had additional things to say, and I found additional quotes to add. It’s so easy just to spit out another edition. I read a book by somebody a while back, and I reached out to him because I had found a typo, and I had some questions to ask him about the substance of his book. And he said, thanks for pointing out the typo, but since his publisher is never going to issue another edition, there’s no point in keeping track of those things. But with Amazon, find a typo, spit out a new edition.

5:44

Stephan Kinsella: Well, of course, it has implications for copyright law because, in the old days, there were all these rights that would revert back to the author if the book was so-called out of print or something for a certain amount of time. But now that means nothing with on-demand publishing. It cost zero upfront. I didn’t have to pay a penny to Amazon. Anytime someone orders a book, including me, you just pay for that book.

6:07

Steve Mendelsohn: No, but what I mean is, if you’re an author, you could count on getting the rights back if your book went into disuse, you know.

6:14

Stephan Kinsella: Oh, I see. Okay, now you don’t have a publisher. I’m the publisher. You don’t have to worry about that, right? And you don’t have to worry about editors either. Well, and you don’t have to worry about the delays and also the effective censorship, right? I’m going to show you a cool thing about Zoom. You can do your own background. Can you see my—yes, I know, I could—that’s my front yard, actually. So, I’m sitting here looking at that front yard. Wow, my bedroom. Very nice technology, Steve. That’s a nice front yard too. You got a big park across the street.

6:47

Steve Mendelsohn: This reminds me of the stuff that we learned when we did Intel patents, remember, about block—block of video and difference in coding?

6:59

Stephan Kinsella: Just to tell people here, so you’re a couple years older than me, and you were a couple years older, more experienced than me at the law firm in Philadelphia, Schnader, where I joined in 1994. And you kind of did help guide, mentor me on some patent law stuff, which I appreciated. Gave me some good tricks, some good ideas, some good techniques. You probably still use them to this day.

7:23

Steve Mendelsohn: Yeah, might even have one or two new ones since then, I don’t know.

7:30

Stephan Kinsella: Well, the funny thing is, you know, now that we’re older, lots of the patents I wrote back in those days, now they’re public domain, right? They’re all expired. So, it’s like, absolutely, if I messed up, it’s too late now for anyone.

7:42

Steve Mendelsohn: [Laughter] Yes, sir.

Publishing and Sharing the Book

7:48

Stephan Kinsella: Okay, tell me what—so let me ask you a question. Your book—why, this is a meta question in a way—why didn’t you put a free PDF online as well as what you’ve done on—so what do you have, a Kindle and a print version on Amazon?

8:04

Steve Mendelsohn: Yeah, Kindle and print versions, yep.

8:10

Stephan Kinsella: Okay, why not post the—you have the file, obviously. You probably have a PDF you generated to do this, yeah?

8:15

Steve Mendelsohn: Yeah, why not post that online too? Well, you’re not trying to get rich off this, right? No, I could—I did recently email it to everybody I know and attached it.

8:21

Stephan Kinsella: Post it online. Why not say, okay, here’s Steve Mendelsohn’s book, here’s a PDF version online, and even a Mobi or an EPUB version, but if you want to buy it on Kindle, you can, if you want to buy it in paper, you can.

8:34

Steve Mendelsohn: Well, you’ll show me how to do that. You’ll show me how to do that. I can—you could post it for me. You have a website, you have your law firm’s website?

8:40

Stephan Kinsella: I do have my law firm’s website. A little sub-page, it could be IP Steve or something, and then you could put your free e-books on there, post the PDF.

8:46

Steve Mendelsohn: But then that would be people looking at my website to try to find my book, and that wouldn’t be—

8:52

Stephan Kinsella: Yeah, well, I would do a separate website, but I’m just saying, there’s one, do it. Yeah, you have—it’s called a landing page. You want a landing page for your site.

9:05

Steve Mendelsohn: Landing page, yeah.

9:11

Stephan Kinsella: So, you want to tell people, okay, here’s my book. If you want more information, go to drafts.com. That’s probably not available. Who knows, it might be. I think it is. After this thing gets published, I think as soon as someone’s going to homestead it and there you go, try to hit you up for it, hold me up for it.

9:30

Steve Mendelsohn: Yeah.

Philosophical Background and Beliefs

9:35

Stephan Kinsella: Okay, so tell me, so what are your basic thoughts on the—and I don’t know if we’ll even get to the free will stuff, so let’s talk about—you want to talk about faith first, right?

9:43

Steve Mendelsohn: Let me tell you a story. Can I tell you a story? So, I was an undergrad at the University of Michigan studying physics, and my housemate, my roommate Dan, was a dual major, actually. He was a dual major in philosophy and anthropology, which he called majoring in philanthropy, but that’s another story. But anyway, Dan made—dualism cropping up already, there you go—Dan made the outrageous statement one day that he could do better in an upper-level physics class than I could do in an upper-level philosophy class. And I said, that’s ridiculous. And I said, you haven’t taken the lower-level physics classes, you haven’t taken the math classes, you couldn’t possibly do better in an upper-level physics class than I could do in an upper-level philosophy class. Philosophy is—I’ve been bullshitting my whole life, and you’re on. So, I agreed to take 17th and 18th Century Continental Rationalism, Epistemology, and Ontology with Dan, an elective or something. Not only was I the only student in that class who hadn’t had Philosophy 101, I was the only student in that class who wasn’t a philosophy major. I had to go to—there were no prerequisites for that. I had to get permission from the professor to take the class.

10:47

Stephan Kinsella: How did you persuade him to make that mistake?

11:11

Steve Mendelsohn: I don’t remember. I went into his office, and I didn’t tell him about the bet, but I said I’d like to take the class. He said, well, what’d you get on your SATs? And I told him. He said, okay, you can take the class. And that was it. So, I took this class with Dan, and we studied Leibniz and Hume and Berkeley and Spinoza and Kant. And I didn’t understand a word of Kant. I’m pretty sure we read him in English, but I still didn’t understand a word of Kant. But I picked up a little from Berkeley and Hume.

11:29

Stephan Kinsella: Yeah, yeah, I picked up a little from Berkeley and Hume.

11:50

Steve Mendelsohn: And I remember writing a paper for that class about describing how I go off into my backyard, and it’s a foggy morning, and I see an animal off in the distance, and it has fox-like characteristics, looks like a fox, and I believe it’s a fox. As I walk closer to the animal, and the fog lifts, and it gets clearer and clearer, some of those fox-like characteristics now appear more dog-like, and now I believe that it’s a dog. But my belief that it was a fox, I didn’t control that process of reaching that belief, and I didn’t control the process of that belief switching from fox to dog. It all happened automatically and involuntarily. I didn’t choose my beliefs in the sense of consciously controlling the process of going from evidence to conclusion.

12:36

Stephan Kinsella: Sounds like you’re talking about free will now, not faith, but go—well, first, this is just beliefs. I’m not talking about actions, right? I’m talking about belief.

12:49

Steve Mendelsohn: Okay, okay, fine, talking about beliefs. So, I long have held that we don’t choose our beliefs, and I would argue with people wherever I could that we don’t control our beliefs. And I would tell people who insisted that they did control their beliefs that they should do an experiment. I ask them, do you believe that God exists? They tell me one or the other, yes or no. And I’d say, okay, for the next 36 hours, since you control your beliefs, choose to believe the opposite. If you’re a theist, choose to believe that God doesn’t exist for the next 36 hours. At the end of 36 hours, you can exercise your control again and go back to your previous belief. Well, I never had anybody take me up on that challenge.

13:37

Stephan Kinsella: Well, either we think the same way, and we’re both the same kind of smartasses, or I might have got this from you. But I’ve done the same exact thing, like, you don’t choose your beliefs, and if you think you can, go ahead, for the next two minutes, believe that the moon is made of cheese, and I’ll give you a million dollars, you know, something like that. And then people say, well, but I sort of think you can choose your beliefs over time, like you can sort of brainwash yourself slowly, in a sense. And I think some people do that. I used to be one of these atheists who thinks no one really believes in God; they just pretend to. But seeing people fly into the Twin Towers and that kind of stuff, I think they probably do believe it somehow. So, but I don’t know, but I kind of think you’re right. It’s not—action and belief are different things. Belief is what you think is true; action is what you choose to do based upon your beliefs, right, something like that.

14:27

Steve Mendelsohn: Right, so just to complete the previous story, so I took that class with Dan. He got a B+ on the class; I got a B. And then I said, okay, now it’s time to take that upper-level physics class with me. And that’s when he went out, and we ended up taking Astronomy 101 together instead as a compromise. But in any case, I’ve been thinking about, in writing—how did he score, what happened? We, in Astronomy 101, we both got A’s.

15:03

Stephan Kinsella: So, I let him off. Well, I think philosophy is more rigorous than we engineers would think, right? It’s—it is more, and, in fact, I think I’ve heard, surprisingly, that philosophy majors, graduates, get pretty high salaries in general compared to what you would think, like, because people know that they’re pretty good at logic and thinking and rigor, and it’s pretty deep stuff. Not that it’s a science, necessarily, but—anyway, no, it’s certainly rigorous. I’ll give them that, for sure.

15:41

Steve Mendelsohn: So, over the years, I have been arguing with people and every now and then writing an essay or two, mainly for my own consumption, about my beliefs about beliefs. And I had written one a few years ago in which I got to the point where I said, okay, if we don’t control our beliefs, and if we always act according to our beliefs, doesn’t that mean we don’t control our actions? Doesn’t that mean we don’t have free will? And at that point, I said, no, no, no, no, we can’t go there. That’s not good. Even if it was true, it wouldn’t be good for society. We got to pretend that we have free will for civilization to continue. And then I picked up Sam Harris’s book, “Free Will,” in which he says, not only do we not control our beliefs, we don’t control any of our thoughts, and we don’t control our actions. And I said, oh, Sam Harris wrote the book I was going to write, and then some, and going all the way. And I said, now what am I going to do? So, I was kind of deflated because Sam Harris had already written my book. And I was listening to an audio version of “Sea-Wolf” by Jack London, and in there, the captain of the ship—

16:53

Stephan Kinsella: Yeah, yeah.

16:54

Steve Mendelsohn: Well, in that book, the captain goes off on this tirade about how we don’t choose our beliefs, and we always act according to our beliefs, therefore we don’t control our actions. And I said, well, if Jack London wrote this 100 years before Sam Harris wrote his book, well, I can write my book. So, that’s what I did. I wrote my book. I think, frankly, the stuff I say about free will may be controversial to many people, but I don’t think much that is new there. I say things in a different way, but the conclusions about free will are certainly in Sam Harris and Jack London and many other places. But I think what I have to say about faith is somewhat new because what—when Sam Harris writes a book about the end of faith, and when Christopher Hitchens writes a book about faith, these guys are my heroes, but when they write about faith, they’re denigrating religious faith. And to me, the psychological process by which we come to acquire—

17:54

Stephan Kinsella: Wait, wait, hold on. You mean, so let’s be clear for a second. You’re talking about the four—what they call the four horsemen, these kind of new atheists, Hitchens, Harris, Dawkins, and Daniel Dennett. And I’ve read a lot of Dennett, by the way.

18:23

Steve Mendelsohn: Yeah, well, we’ll come back to Dennett because he’s one of your compatibilists that we’ll need to talk about. I’ve read a lot of this stuff on the philosophy of consciousness, not—

18:37

Stephan Kinsella: Yes, he’s the co-author of that great book, “The Mind’s I,” with Douglas Hofstadter, which is one of—okay, yeah, I read dorm room geek-out books of all. I read “Gödel, Escher, Bach,” and I understood as much of that as I understood Kant. So, well, Hofstadter is one of these—he’s one of these elusive—not gadfly, what’s the right word, like, he’s kind of a dilettante but a very smart one, kind of like Robert Nozick. But anyway, go ahead.

19:15

Steve Mendelsohn: So, where was I? Oh, getting interested in this, like, the implications of—you’re basically a—faith, the faith part, right? Sorry, I was talking about faith. So, to me, the psychological process, the operation that the brain performs when it generates beliefs, is the same whether those beliefs are what we call secular beliefs, like Shakespeare wrote Hamlet or Oswald shot JFK. And—

19:49

Stephan Kinsella: What do you mean by the same? Because they’re operating according to the laws of physics?

20:03

Steve Mendelsohn: Yeah, but also according to the laws of psychology. Our brain is performing a process that I call automatic, involuntary, subjective evidence weighing, A-I-E-W, which I pronounce ASO, automatic, involuntary. Our brains are organs operating according to the rules of physics and chemistry and biology, just like our hearts and our guts and our eyeballs, whatever, are operating according to physics and chemistry and biology. And they’re just—the brain’s doing its brain thing. It’s automatic, and it’s involuntary. And some of the things that it does is generate thoughts and beliefs and consciousness, and we can talk about that. But it’s just doing its thing automatically and involuntarily, and what it’s doing is it’s weighing the evidence that it has acquired over time, and it’s doing it subjectively because everybody’s brain is different, and—

21:07

Stephan Kinsella: Okay, yeah, no, okay, let me just for a second, we can keep going, but we can—there are several terms you’re using that I think part of the problem with these discussions is people don’t define their terms. Okay, free will needs to be defined, right, and choice, maybe they’re different concepts, right? Also, faith needs to be defined, and even the word—what was the word you just used—automatic, involuntary, subjective evidence, subjective, subjectivism needs to—because that’s used in different senses, like by economists and by ethicists. Okay, well, so, but go ahead.

21:43

Steve Mendelsohn: When I mean subjective, I mean that everybody is different. When I look at a tree in my—

21:51

Stephan Kinsella: But that’s not what subjective means. I mean, do you mean relative, or do you mean—what do you mean?

21:57

Steve Mendelsohn: Well, let me finish my—when I used to, when I looked at a tree before, people would tell me, look at the magnificence of trees; that has to be evidence for God’s existence. And I looked at those trees, and in years past, to me, that had probative value to supporting the conclusion that God exists.

22:17

Stephan Kinsella: But hold on, hold on, you’re using a legal—I mean, okay, so no one normal would use the word probative, okay? This is a term—it’s not a physics term, pointing to philosophy term, pointing to—it has—it tends to support. Look, I talk about a scale, okay, where we have a scale, sometimes the scale has more than two sides, sometimes the scale has two sides, right? God exists, God doesn’t exist, okay? There’s the scale, and there’s evidence that could potentially be on either side of that scale. People look at—

22:41

Steve Mendelsohn: But that whole way of describing it takes for granted a whole framework of looking at the universe, which is, I think, basically empiricist and logical positivist, right? It’s monist. That’s why I said dualism early on. I wasn’t quite joking. I mean, but I think you’re taking for granted a lot of things.

23:06

Stephan Kinsella: Well, let me take a step back then. A lot of things. Let me take a step back. When you say dualism, you mean mind-body, right? We got these two things.

23:19

Steve Mendelsohn: Well, but it relates to that. Dualism means that we understand the universe in terms of concepts. We, higher-level cognitive, intelligent human, you know, Homo sapiens, we’re not animals on the lower level, which are basically instinctual or whatever, or even more automatic, like the cricket with ganglia or whatever they have instead of brains. We take the evidence of the senses, which you—that’s what you’re kind of referring to in your own—not saying made-up language, but, you know, in philosophy, this is called the perceptual realm, right? So, we have percepts, we have evidence of the senses, we sense things about the universe. And now, according to, like, the way Ayn Rand and some of the realists would look at it, our brains organize this sense data into higher-level concepts to have a higher-level understanding of the causal aspects of what’s going on in the world. So, that’s how we understand and frame and think about the world. Now, even if we don’t have free will, and we’re just a pilot in this little airplane riding around the world on this sea of foam, we still understand the world in terms of concepts. And because we perceive ourselves as having choice and values, and we perceive other humans as being similar to us, we seek to frame them and categorize them and understand them in these conceptual terms in ways similar to us. So, we think of them as having choice and making choices and having purposes. So, it’s the teleological realm versus the causal realm. The causal realm would be the realm of physics, and that’s what you study with the methods of the natural sciences. But you have to study the teleological realms with a different methodology, which is what—that’s what I mean by dualism. That’s what Mises meant by dualism. You understand there are two realms of knowledge in the world: one is understanding human teleology and purposes, which would relate to economics and human interrelationships and social things, even law, and then science or the sciences, right, the natural sciences, which goes back to causality. And to me, the compatibilism I believe in is that, yeah, in essence, we are determined, or we’re random, either one. I think we’re probably determined because I don’t believe in this quantum randomness stuff, but I could be wrong. But either way, it doesn’t leave room for true free will. But it still leaves room for choice as a category or mode of explaining the teleological. Like, if you want to tell me you bought a brand new Mustang car, you’re telling me as another human, you’re communicating some information to me about a fact about the universe that you have a car, but you’re calling it a car, so you’re already organizing these different quarks into certain subgroups, right, and according to the function and the purpose that you impute upon them and society imputes upon them, like there’s a brake, there’s a clutch, there’s a transmission, there’s an electrical system. You know, God could probably look at it as a bunch of clouds of atoms and understand everything, but we’re not God, right? And no one is God.

26:58

Stephan Kinsella: All I’m saying, all I’m saying is, whatever those processes are that you just described, right or wrong, whatever they are, they happen automatically and involuntarily, okay? That’s in the physical realm. They happen automatically and physically in the physical realm. But if you think of your children or your friends or your wife or yourself, you conceive of what you do in the language of teleology, of purposes, right? You say, like, why did the guy rob the bank? Because he wanted to do this, like he had a goal in mind, and he chose the means at hand to do it. That’s a perfectly reasonable way of explaining what he did, even if, on the causal side, we don’t really have free will, right? I could be wrong about this. This is my compatibilism, which is always awkward. I mean, what’s the solution to this? To be a monist and to believe only in determinism, and then what’s the point? So, let’s say you prove that we don’t have free will, so even your inquiry was determined from the beginning of time, and whatever you’re going to decide based upon this conversation or later in your life is equally determined or random or somewhat random. Either way, either way, there’s nothing you can do about it.

28:20

Steve Mendelsohn: You got it. That’s right. By the way, there’s a recent—this is a total aside, but there’s a science fiction series that just came out a couple months ago on Hulu, FX, called “Devs.” You’ve got to watch this, Steve. It’ll blow your mind. You will love it. Have you heard about this?

28:32

Stephan Kinsella: No, it’s about all this stuff. It’s about physics, free will, compatibilism. It’s crazy. It’s crazy good. One of the best TV shows I think, maybe ever seen. Crazy. But go ahead.

28:45

Steve Mendelsohn: So, any parallel universes, you know, the Everett hypothesis that there’s many worlds and every choice breeds—by the way, let me ask you, as a physicist, do you think that your view of physics matters? Like, in other words, if you think that we live in a not Newtonian world but in a deterministic world, or if you think there’s a quantum world with randomness at the base, do you think that affects your analysis, or do you think it doesn’t matter?

29:04

Stephan Kinsella: I think it doesn’t matter. I think there are people who argue that quantum mechanics somehow explains free will, and I said, what? That’s the opposite. Quantum mechanics is randomness, so how does randomness—yeah, so, yeah, I’ve always agreed with that too. And you’ll see in my book, I talk about determinism not being the antonym to free will. It’s one possible non-free will existence is determinism, but also randomness. I happen to believe in, you know, you said Newtonian as if that was separate from determinism, but I equate the two, and to me, our reality is mostly determined with a little bit of quantum randomness thrown in.

29:55

Steve Mendelsohn: Okay, so you actually—okay, yeah, I think that might be the case, but I tend to believe in determinism down to the bottom, the bottom turtle, yeah, they are, yeah. And I don’t really believe in randomness, actually. I can’t believe in—because to me, randomness means—randomness, really, and probability are just measures of ignorance, right? And I don’t believe in this Heisenberg—I don’t believe in all these physicists who want to become philosophers and they interpret their mathematical models in a certain way. It’s fine as a model or as a metaphorical thing, but this stuff about Heisenberg and how the observer matters, there’s only so much precision in reality because whenever you measure something, you interfere with it, and that means that, in reality, I think that’s all too much, but I don’t know.

31:01

Stephan Kinsella: Well, right or wrong, yes or no, I don’t think it’s relevant to our discussion about free will because either way, either it’s purely deterministic, or it’s deterministic with a little bit of quantum uncertainty, either way, I don’t end up at free will. So, I’m—let me ask you this, let me ask you this, how would you handle this argument? Because this is the one argument that a lot of libertarians and libertarian philosophers try to give for free will. Their argument is this kind of proof by contradiction argument, sort of like the Aristotelian argument that, you know, for some of the basic axioms of philosophy, like the law of excluded middle or non-contradiction or whatever, like you have to assume the opposite to contradict it, or to deny it, so you’re basically ending up in a contradiction. So, it’s a sort of a proof by contradiction. And the argument is this, that when, let’s say, you and I are debating free will, and I believe in it, you don’t, you’re assuming that you’re advancing arguments meant to persuade me that you’re correct, and that I can choose to accept the standards of reason or whatever you’re advancing, right? I can choose to evaluate this and to decide or not. No, so you have to stop using the word choose. This argument is that you have to presuppose free will because the very endeavor of trying to argue about it presupposes free will. Have you heard this argument?

32:43

Steve Mendelsohn: Yeah, no, yeah, but it’s not—it’s not—you heard the argument though, you know what I’m—yeah, I’ve probably had people say things like that to me. I don’t recall specifically, but our beliefs aren’t static because our evidence isn’t static every moment of the day.

32:57

Mendelsohn: The idea is that—hold on, the idea is that when people give you evidence, you have to choose whether to accept it or not as valid. No, that’s the—that’s the subjective part. That’s the subjective part of automatic, involuntary, subjective evidence weighing. Our brain assigns weight to pieces of evidence that we acquire, and that assigning of weight also happens automatically and involuntarily. If you tell me—

33:29

Stephan Kinsella: Hold on, hold on, hold on, hold on, hold on. I would agree with that, but do you agree that human knowledge has increased over the last several millennia?

Mendelsohn: I mean, absolutely, we have more—we have our evidence is changing all the time.

33:34

Kinsella: No, no, it’s not just evidence, it’s the process by which humans choose—which they select, right? They select—

Mendelsohn: saying choose, choose is a loaded word, right? You wouldn’t say—say choose instead of—I don’t know what other word to use. It’s a problem.

33:52

Mendelsohn: Point is, it’s a problem with the English language because we have words that themselves presuppose the existence of free will. We don’t talk about a gumball machine choosing which gumball to dispense.

34:06

Kinsella: Well, okay, that’s funny you say that because there are—maybe it’s not you, I thought it was you—there are some patent claims you and I have drafted, or I’ve seen other people draft, like there was one I saw where it said, processor, wherein the processor believes this to—case. 1 And so, I know, this is the imprecise use of metaphorical language to describe an aspect of the way the thing is configured and set up to work.

Mendelsohn But that’s different.

Kinsella: I thought you taught me that one time,

Mendelsohn: but that’s different. That’s assuming that machines have the same quality as human beings, right? That’s—

34:41

Stephan Kinsella: They don’t, exactly.

Mendelsohn: And just like computers don’t choose or don’t believe, they don’t exercise conscious control over their operations.

Kinsella: You could see an engineer setting up a system, and he would describe the operation by saying, okay, so if this happens, the robot will choose this or that. I mean, he’s just trying to use the English language to describe what’s going on, right?

Mendelsohn: Because we don’t have good words in the English language that—

Kinsella: well, we also don’t have infinite knowledge. We don’t have infinite knowledge, like, from a God’s eye point of view of the way the quark swarms are going to work out. So, we describe it in terms of teleological or purposive actions because that’s the best way to get a descriptive view of what the system is doing, right?

Mendelsohn: And as you alluded to earlier, and as Sam Harris says, free will is an illusion, yes, it feels like we have free will, but that doesn’t mean—

35:39

Stephan Kinsella: Hold on a second. Correct me if I’m wrong on this. I thought I heard Sam say somewhere, or maybe it’s in one of his books, I thought he had this whole thing about the illusion of free will is itself an illusion, like he had this point that, right, that we don’t even experience, if you think about it closely for a second, you just examine your experience, it’s—there’s not even the illusion of free will. In other words, that whole metaphor is what’s used, that’s used by pro-free will people to denigrate the determinist, okay? They’ll say, well, you just think it’s an illusion, but Sam’s point, I thought Sam pointed this out somewhere, maybe you can correct me, but he says the illusion itself is an illusion because if you—you don’t actually experience, like you said, it’s like you’re flying in an airplane. That’s the Buddhist in Sam Harris. You’re witnessing things rather than choosing. You notice it after it’s been done, in a sense, right? 2

36:44

Steve Mendelsohn: Yeah, actually, I kind of agree with that. I don’t recall that in his book “Free Will,” it might be there, I don’t recall it. But as I said, he’s a big Buddhist, and that sounds like Buddhist talk. We don’t have—yeah, self. I’m surprised you like him because he’s sort of, you know, a lot of the progressive left, which you’re sort of kind of leaning towards, right, they hate Sam Harris because of his—because he’s realist about Muslims, right?

37:08

Stephan Kinsella: Right, well, yeah, I—that—well, some people good on some things and bad on the others, or you’re like, yeah, maybe he’s not so wrong. Well, I would say that we could discuss Muslims and Islam in two different ways.

37:27

Steve Mendelsohn: Talking about faith, let’s talk about faith and free will, basically, that implies a criticism of religion. So, my point is that faith is that process, that process of automatic, involuntary, subjective evidence weighing is faith. Faith is what takes us from evidence to conclusion, right? You and I have discussed—

37:51

Stephan Kinsella: Definition, I’m just—where do you—I’m a philosopher, I made it up, yeah, but that’s—you can’t just redefine a word. I know you can be your own lexicographer in patent law, but there are limits. You want to communicate with people. See, to my mind, as a sort of logical, rational person, there are two valid means of validating knowledge or having valid knowledge or sound knowledge about the world, okay? Let’s say one would be evidence or experience, and the other would be reason, right? And they combine, they intertwine, of course, especially chronologically, but because you can’t—so a baby can’t reason about a gun being pointed at him. He’s not afraid of the gun; he doesn’t know what the gun is, right? But after a certain point, you combine these things. You can’t have reason without any evidence to fill it; you’d be like a brain in a vat with no sensory data, you’d go crazy. But those two combined are the sources of knowledge: reason and evidence, okay? But leaning—so you keep talking about evidence, so you lean on one of those, right?

39:06

Steve Mendelsohn: You need to expand your definition of evidence, though, because most of the evidence that we have in our possession is not what we’ve experienced; it’s what we’ve heard from others. Most of what we believe, that’s—that’s a complicated topic, like historical evidence and things like that, but the point is—

39:27

Stephan Kinsella: The point is, from a conceptual and perceptual sense, it’s what you actually witness and perceive. So, that’s like raw information you’re getting about the state of affairs of the universe. There is some correspondence between the real world and what you’re perceiving, and then your brain integrates that into higher-level concepts, and that’s where mistakes get set in. So, I would say I agree pretty much with Ayn Rand and her whole philosophy on this, that if you perceive something, you can never have an erroneous perception. And now people try out the thing of illusions and hallucinations as counterexamples. I don’t think those are counterexamples because you’re just not perceiving anything then. But if you’re actually perceiving something, then that cannot be mistaken. Concept can be mistaken. It’s like the animal in the foggy field; it looks like a fox, I perceive it as a fox, that was—

40:20

Steve Mendelsohn: No, but that was your—see, that was your conceptual level, so you were trying to integrate it into a higher level of classifying the type of—that wasn’t a percept, right? I said, what was it, what was it, a fox? What was it? You said, I saw fox-like characteristics, and my brain concluded it was—I made it up, it’s not a true story, okay? But whatever it really was, that’s what you—my point is, that’s what you were perceiving because that’s what was physically causing your sense receptors to notice this. So, you were—whatever it was, that’s what you were receiving. I agree. I see, if I see a stick in the water, and it looks bent, yes, my conceptual mind is making the mistake of thinking it’s bent because I’m trying to go to that level, and that’s where you can make mistakes. I’m perceiving the stick, but I’m perceiving the stick in the only form possible, given the physics of the matter and the way the senses work, the way light waves work, that all this stuff works. So, I’m perceiving the actual stick, right? I’m just perceiving it in a form, in an unusual form, which confuses my conceptual faculty, right? So, at the conceptual level, you can make mistakes. But so, but my point is, all I’m saying is, all of that happens automatically and involuntarily. All that processing by our brains will issue—

41:43

Stephan Kinsella: I agree with you on that, but that’s the free will issue. Well, so far, we’re just up to beliefs, right? We’re just up to beliefs, so we’re not up to actions. The question is, but—so the question is, what’s the word faith, and what should it be used for? To my mind, the way I hear it used all the time, basically, faith is a third form, a third source of knowledge, which religious people use to justify believing in something for which they have no evidence and no reason.

42:05

Steve Mendelsohn: No, no, see, that’s unfair, that’s unfair. That’s where atheists like you and me—it’s unfair because I’m trying to actually give a coherent—you are not giving them credit because they do perceive evidence for God’s existence. You don’t give that evidence any weight, you don’t give that evidence any weight, but they do, of course they do. They look at a tree, and they say, that is magnificent, that could not have happened randomly, that could not have happened without a designer, whatever their arguments are.

42:41

Stephan Kinsella: Hold on, they’re not witnessing—so that’s—so that’s not—that’s not evidence, and that’s a reason. In other words, they’re—so they’re not witnessing God, okay? Here’s another piece of evidence, so now they’re making an argument, so they’re using reason. So, the—let’s take a step back. Argument makes sense. Somebody once told me that E equals mc², right? I didn’t even know what E equals mc² meant, and yet I believed that E equals mc². Why? Because people I trusted told me that that was true. So, my belief that E equals mc² was true, yeah, the evidence that I had were the statements made by trusted people. When I grew up, I was taught that God exists by people I trust, by my parents, by my clergy, by my siblings, by my friends. I was told that God exists.

43:52

Steve Mendelsohn: Then you grew up.

43:52

Stephan Kinsella: Yeah, then you grew up, okay? But that was the evidence that I had, that evidence—it is evidence. It’s the evidence that you have, that you base most of your beliefs on, what other people have told you, what you have read. If you believe that Shakespeare wrote Hamlet, you didn’t watch Shakespeare sit down at a table and write Hamlet. You don’t have that kind of evidence. Even if I had watched him do it, that doesn’t prove that he did it. I could be—but it’s not, but it’s still evidence, of course, but it’s still your evidence. I think you’re equating the word trust with the word faith, which is giving the—by the way, it’s giving the Christians and these religious nuts an out.

44:25

Steve Mendelsohn: Nobody—no, well, everyone trusts someone, so no religious person—no religious person says, I believe in the existence of God in the absence of evidence. Nobody says that.

44:38

Stephan Kinsella: I completely and totally disagree. I have asked—in fact, a lot of the hard ones, they—yes, they will say—maybe we talk to different people, but I—or maybe I’m—they say, they say, it’s written in this book, that’s all the evidence—

44:51

Steve Mendelsohn: No, no, no, no, no, no, hold on, a lot—well, first of all, they’re contradictory, so they will say things contradict, fine, but absolutely. But if you ask them, they have—you never heard any Christian say something like, well, if you could prove there’s a God, that would make it pointless to have faith in him, right? Or they say, well, God’s nature is inherently undefinable, so it just has—they—the whole idea of the leap of faith or the act of faith, why—why would you say a leap of faith? That’s exactly trusting an authority. That’s exactly what the ASO process does. It closes the gap; it spans the gap from evidence to conclusion. When you have a belief that Shakespeare wrote Hamlet, and, you know, whoever it is, Bacon did not write Hamlet, there are people who have written books about this issue on both sides, and there’s evidence for, and there’s evidence against, and you—there—and there’s probably, in some of these disputes, there’s probably no firm answer that we can ever—because it’s not a repeatable scientific experiment, and it’s not a process of a priori argumentation where you can prove it by—it’s not, it’s based on the evidence in your possession and how your brain processes that evidence. Some people look at—some people at the same evidence and conclude that Shakespeare did write Hamlet; some people look at that exact same evidence and conclude the opposite, the Bacon—Joseph—Joseph Soyinka wrote that the Earl of Oxford or someone was really the author of Shakespeare’s play.

46:40

Stephan Kinsella: Okay, and I know another guy that said it wasn’t Shakespeare; it was just another guy with the same name. I heard that about—about Homer, but anyway, actually, there’s another crazy libertarian named Alexander Galambos, Andrew Galambos, who argued that Thomas Paine really wrote the Declaration of Independence; it wasn’t Jefferson.

46:53

Steve Mendelsohn: Well, I recently got some arguments for it. He’s basically a conspiracy nut, but there are some arguments. True, we will never know for sure unless we can get a quantum computer and go back in time and recreate everything. We’ll never know for sure. I recently read Thomas Paine’s “Age of Reason”; it’s great. Yeah, he’s—he’s so underrated. Anyway, back to faith. He was—he was weak on intellectual property, I gotta say.

47:24

Stephan Kinsella: So, back to—so wanted copyright, okay, so faith. Anyway, these classical liberals, by—based on how good they were on intellectual property—there is a process by which we go from evidence to conclusion because not everything is certain, and yet we form beliefs in the face of uncertainty. And that process of going from evidence to conclusion is what I call the automatic, involuntary, subjective evidence that our brain performs to process the evidence that we have. It does so subjectively, meaning it’s based—everybody’s different, but it happens automatically, involuntarily, and the scale tips one way, or it tips the other way based on that automatic processing. Now, I think that’s what people call faith. Now, some people—you’re right, some people—

48:19

Stephan Kinsella: I’m with you until that point, and I kind of—I think you’re—it’s a little flip, you’re amateur philosophizing it, you’re kind of reinventing the wheel, which is what a lot of people do. You got to be careful not to be seen as a crank when you do that. Well, let me say it this way, take a lot of work to go through all the stuff, but when you go to the faith part, you just—that, that’s—I’m with you, like, it’s as a loose description of what we do. I would use maybe some slightly different terms, which I’ve acquired through my reading, but I think roughly you’re right. But I would also say that when you dismiss it as being automatic, I don’t know what that—it’s true, but what does that prove? It doesn’t mean that our minds don’t gradually get better at discovering real things.

48:58

Steve Mendelsohn: Absolutely, it’s not static, it’s not static, it’s dynamic, it changes. Not that it’s static, that has a direction. It has a direction towards truth, well, maybe in the grand scheme of things. How can we have—how can we have technological advancement if it doesn’t have a direction? We make mistakes all the time, cold fusion. I just read a great book. We have a direction, we have a direction, we are more advanced technologically now than we were 100 years ago and 500 years ago, etc.

49:33

Stephan Kinsella: Would you—I don’t know, I think, you know, if you look historically, probably the ancient Greeks probably had it over our Middle Ages, but they didn’t understand the things we understand about chemistry now and—and, okay, okay, so Newton’s equation and flight and space travel, okay, so there’s—there’s a direction, fine.

49:54

Steve Mendelsohn: All I’m saying is it’s not static. Our evidence changes all the time, and our beliefs can change when our evidence, when the accumulated evidence tips the scale the other way. That’s what happened to me when I went free, right? But this, even though this happens, we don’t have free will, absolutely, because the brain functions automatically and involuntarily in order—survival mechanism, the ones that survive selection, the ones that survive do better, tend to procreate and duplicate themselves, fine, absolutely.

50:31

Stephan Kinsella: We’re in agreement, so, but the point—the point is that, what’s the point? The point is that, from my perspective, those religious people who define faith differently from the way I define it are mischaracterizing the psychological process that’s going on in their brains because they are insisting that they are choosing, and that it’s not automatic and involuntary, that it’s voluntary, and that it’s the result of their exercising conscious control over the process of going from evidence to conclusion. And I say that’s wrong, so I throw it back in their face.

51:14

Stephan Kinsella: Hold up, you’re redefining the word faith. Are you going to define the word choose?

51:22

Steve Mendelsohn: Yeah, choose, choose, I’m saying that’s what they’re claiming. They’re claiming to choose is to exercise conscious control over a selection process, alright? There’s a number of options, and you end up with a single selection, okay? Even that word’s a little iffy because these words imply the existence of conscious control, and that’s what choice is. Choice implies conscious control. Again, we don’t talk about a gumball machine choosing a gumball, right? There’s a mechanism in there that’s spitting out the next gumball that’s sitting ready to be spat out. And that’s what our brains do. And there’s a whole chapter in my book about how our brains are just like gumball machines. And that’s what our brains do; they process that evidence that comes in, and they spit out beliefs, right? And that’s where I got to—

52:00

Stephan Kinsella: You don’t—but you describe a gumball machine in terms of—I don’t know, random or stochastic process?

52:12

Steve Mendelsohn: No, no, absolutely not, or mechanical, no, it’s not a random—a gumball machine is not random. If you know exactly where every gumball is in a gumball machine, and you understand its mechanism for operation, absent quantum mechanical effects, you can predict exactly the sequence of colors. No one ever knows that’s—no one ever knows where every gumball is, like, that’s a theoretical possibility. My point is, when you’re designing a machine, but you don’t need to, you just basically—you use statistics, is my point, use statistics to say, okay, let’s arrange it this way, they’ll fall down this way or whatever, not statistics, physics. I’m thinking of these—I guess I’m thinking of these machines, these games where, like, there’s all these—that’s not a gumball machine, right? That’s—you mean, like, a lottery? For some reason, a lottery ball went to—my mind went to the machine, like, in the arcade, it’s like a vertical wall where there’s a bunch of pegs, and you drop a disc in—that’s Pachinko, Plinko, it’s the Japanese. When you design the game, you kind of know statistical regularities; you designed it in such a way where it’s not too easy to win, not too hard.

53:28

Stephan Kinsella: Yeah, but in your—in your Newtonian, deterministic world that you believe in, if you knew where you dropped that initial ball and where the pegs are, you’d know where it was going.

53:35

Steve Mendelsohn: I know, I totally agree with that, but the point is, you’re designing this for human people who are going to put a quarter in to play it, and you want to give them a little thrill, a little experience, and, from their point of view, they’re not omniscient. They don’t know where all the particles are, and so, from them, it looks random, and so they’re taking a guess, and whatever. I’m just saying, you use statistics to design these things, but what I’m saying is, you don’t use anywhere near that kind of model to explain other human beings you interact with. And, you know, you view them in terms of purposes, like you assume that people you’re dealing with have some purposes in mind. It’s not random, it’s not random, this ASO process, random or not, maybe it’s random, this ASO process is not random. There are reasons why we come to the conclusions we come to based on our genetics and our history. There are reasons why we have the beliefs that we have, okay? It’s not random.

54:32

Stephan Kinsella: Well, yeah, there’s reasons why, although I will say that, as a determinist, sort of anti-free will type for all my life, basically, I’ve always disliked the sloppy determinism of the people that say things like, oh, well, you were determined because of the way your mother raised you, like these macro-level things. To me, I was always a physics-level guy, like, I think it’s from some subatomic particle level, it’s basically all determined by the four laws of physics, right? Something like that, it’s mathematical, but it’s not because, you know, of the environment in terms of, like, your macro environment, like, oh, you were raised Catholic, or your mother had a guilt complex or something, because that never is rigorous, because you’ll have twins, right? You’ll have twins, and they come out differently, right? They’re not—they’re not the same environment, they’re not the—it’s not the same—only same if you go down to the micro level enough. And my point is, the micro—you have to go very far.

55:36

Steve Mendelsohn: You don’t have to go very far, even for twins, no, well, that’s true, but I still don’t think that’s the explanation. The explanation has got to be further, further down, like, if you want to go to true determinism, but what does it matter for life? So, here’s the point, so I wrote an essay, and I said, and then I read Sam Harris, and he said, yeah, we don’t choose our beliefs, we don’t choose any of our thoughts, we don’t choose our actions, and we don’t. And so, the implications are that it really is unfair to punish somebody for a transgression that that individual could not control at the individual level.

56:25

Stephan Kinsella: The obvious, you know, the obvious counter reply to that—well, go ahead.

56:33

Steve Mendelsohn: Well, if everyone’s determined, and it’s because we’re determined, it’s unfair to punish someone for something they couldn’t have chosen to not have done, we can’t choose not to punish them either.

56:47

Stephan Kinsella: Well, if we punish them, it’s because we had no choice, but it was predetermined, but so, so you’re trying to have it both ways, in a way.

56:53

Steve Mendelsohn: Well, no, I’m not. I read Sam Harris, and in Sam Harris’s book “Free Will,” he talks about this, and that was new evidence that I acquired, and that new evidence made me also believe—

57:06

Stephan Kinsella: It’s not evidence, I disagree. Of course, it’s evidence; it’s what somebody told me. You just read an—you read words from someone, yes, that’s—that’s upon which most of our beliefs are based, words that we hear and read from others. So, that’s things you perceive with your senses, or that you can replicate. So, I perceive words, I hear words, that’s a perception. I mean, what are you talking about? You list—list your beliefs, okay? Do you believe that Seattle’s the capital of the state of Washington?

57:37

Steve Mendelsohn: Sure.

57:37

Stephan Kinsella: Why do you believe it? Because somebody told you that. You don’t know—I don’t know if that’s true, anyway, but I think it is. But, in any case, that’s a—when you say you don’t know, that’s a whole question about the theory of knowledge.

57:50

Steve Mendelsohn: Well, see, all I’m saying is, most of what we believe and most of what we know is based solely on testimonial evidence, not perceptual evidence. Testimonial evidence—what Sam said is not testimonial. I agree with you that, in a courtroom, when someone gets on the witness stand, and they testify to what they witnessed, and they say, this is what happened, that is a type of evidence. It’s probative, if you, as you might want to call it, as being—yeah, by the way, were you a philosophy school too, or just a law school?

58:22

Stephan Kinsella: I was only in that one class, but it’s too—you don’t have to explain that. The reasoning by some philosopher or thinker, I wouldn’t call that evidence, but I know what you mean. I think you’re using the term way more broadly than I would use it.

58:35

Steve Mendelsohn: Okay, I’ll accept that, but the problem is that can lead to equivocation because you’re sort of adopting the logical positivist, empiricist mindset when you keep boiling everything down to evidence, but then you have to broaden the term of evidence so much to make that fit into your expanded—I’m just talking about what our brains chew on. Our brains chew on our perceptions, and they chew on what we’ve heard. By the way, do you mean our brains or our minds? This is another whole topic.

59:05

Stephan Kinsella: Well, it is, and it’s where my book starts. My book starts there. Would you agree there’s a conceptual distinction between brain and mind?

59:11

Steve Mendelsohn: Yes, except for the fact that the mind is generated by the brain. The mind does not exist separate from the brain. The mind, the consciousness, what we call our consciousness, is just another type of thinking, just like beliefs and feelings and emotions. It’s the product of our brains. So, that’s where—in philosophy, they call that an—some call it an epiphenomenon, epiphenomena. Fine, I don’t—ask me how it’s created. I know that it’s created in me because I feel it. Point is, conceptually, the word mind or the concept for mind refers to a different phenomenon or entity in nature than the concept of brain, right? But I don’t believe mind—but you can’t change your brain. I believe that my consciousness is, as you say, an epiphenomenon. I do not believe that my consciousness exists or will exist separate from my brain. When my brain stops functioning, my consciousness will disappear.

1:00:04

Stephan Kinsella: I agree with that, of course, okay, but you and I agree with that, but most people or theists and others who, even are atheists, maybe, but stick to theists, believe that our soul, our consciousness, our spirit exists separate from our bodies and will continue to exist. And so, it’s easy for them to believe in free will because, number one, they believe that there’s this separate entity, not an epiphenomenon, but a phenomenon, a thing called consciousness, that—

1:00:38

Steve Mendelsohn: Forget the term, forget the term. I don’t think—I don’t think it makes—no, your terms are fine, but I don’t think it makes it easier. I think they think it makes, but it’s so much easier. It’s sort of like when you say, when, where did the universe begin? You and I would say, we don’t know, and they would say, oh, well, it started with God. And then, if you say, well, where did God start, they say, I don’t know, so they push the problem back.

1:01:05

Stephan Kinsella: No, they don’t. They say God always existed. They don’t say, I don’t know, well, whatever, but so we can say that about the universe. Listen, I didn’t—

1:01:10

Steve Mendelsohn: I didn’t write “Shallow Drafts” to convince theists that we don’t have free will. I wrote “Shallow Drafts” to convince my fellow atheists that we don’t have free will. And, as I was saying, it’s easy for theists to believe in free will because they believe that this consciousness that exists separate from our body, our minds separate from our body, and they believe in miracles, so they believe that this non-material, non-physical thing called consciousness can somehow modify and modulate and affect the neurons and the protons in our brains.

1:01:56

Stephan Kinsella: I agree, they think there’s a—they think—so, this is where I was going to go with that God analogy. They believe in a type of ontological dualism, I would call it. So, they think—or maybe more than dualism, but they think there’s two realms of reality. There, there’s a spiritual realm, but they also think there’s a connection between the spiritual realm and the physical realm, like, so they think, like, there’s a soul up there in heaven, right, that’s somehow connected to a body, somehow, right, like, right, whatever, the details are boring. If—but the point is, you never escape the dilemma of free will because, even if you—it doesn’t matter what the realm is. I mean, maybe, maybe our realm is really spiritual. I mean, if you look at the atoms, we’re really empty space all the way down, so maybe we are spirits in a certain sense. So, it doesn’t matter if you transform or imagine the second realm of spirits. Now, your word miracle is interesting because, to my mind, the word miracle is similar to the word faith. That’s one reason I have trouble with you using it as a substitute for knowledge because you’re using it as trust, and trust is a perfectly fine way of acquiring knowledge from other people who are experts in something, have studied something. A miracle is the suspension of physical processes, right? It’s—faith is the belief in something with no reason.

1:03:26

Steve Mendelsohn: No, it’s not—happening of something with no causes, same thing. You’re—I have faith that Shakespeare wrote Hamlet. I don’t know that Shakespeare—but that’s not what the word means.

1:03:37

Stephan Kinsella: It is, it’s the—but the point—say you have—you have a good reason to believe that, that’s what I would say.

1:03:44

Steve Mendelsohn: I’m saying, what I’m saying is that my brain performs the exact same process in going from my evidence about Shakespeare to my conclusion about Shakespeare as the psychological process that takes me from evidence for or against the existence of God to a conclusion. Dude, you could say my brain performs the same experience when I experience an endorphin rush when I’m parachuting out of an airplane because it’s all mechanical. You’re acting—things that, that, right, they’re not—they’re not the same.

1:04:21

Stephan Kinsella: They are the same, the process, but—but by that—but by that reasoning, the thing that happens in a cricket’s brain is the same as happens in your brain because they’re all causal. I mean, you’re omitting too many fine nuances that distinguish things when we talk, conceptual reason.

1:04:34

Steve Mendelsohn: I don’t know whether crickets have consciousness or not. Maybe they do, maybe they don’t, I don’t know. I assume, frankly, that you have consciousness. I don’t know that to be the case, but I assume that since you and I are both being, you know—so what does it mean, you know it, in the sense of you have a reason to be certain about that, you have certain—well, I’m confident, not certain, but I’m confident, I know. So, I know, so you want to do everything on a spectrum, like degrees. That’s—this is why you won’t say, you know there’s not a God. You want to say, well, you’re like Harris and these four horsemen guys who—oh, well, so evidence for God. Hey, Steve, there never could be evidence for God, you know that.

1:05:11

Stephan Kinsella: Of course there could be. How could there be evidence for God? How could there be evidence for an omnipotent, immortal being? How would he know he’s immortal? If you got struck by lightning for saying that, that would be evidence for God. It wouldn’t be conclusive, it wouldn’t be proof, but it would be evidence for, huh?

1:05:30

Steve Mendelsohn: Well, that’s where we disagree. I don’t think that—I think the idea of God is totally impossible because part of God’s definition is he knows, say, he’s—he’s omniscient, so he would have to know he’s God, which means he’d have to be immortal, he’d have to know he’s immortal, he’d have to be omnipotent and know he’s omnipotent. But the problem is, even if you were omnipotent and even if you were immortal, you could never know that because tomorrow there could be a super God above you that was yanking your strings the whole time, which, by the way, is one of the early Christian beliefs that some of these Christian heretics believe, that Paul hijacked the faith, and that all the Christians were worshiping this sort of fake under-God who thought he was God, but there’s another God above him. But you can never—you can never be surprised at the lengths to which these mystics will go. They will come up with all kinds of crazy, and the Christians are not even the worst. I mean, I’ve been reading about Islam lately. If you read into, like, the—the Thirteens and Islam, Islam is even crazier, and, of course, Judaism has its own, and all—they all do, they all have their crazy stuff.

1:06:54

Stephan Kinsella: Yes, sir, incredible to me. They will just make up one thing after the other, yes. So, let me just—well, okay, so maybe, maybe God’s possible, maybe God’s not possible. You and I believe God does not exist, and you say you know God doesn’t exist. You’re not persuaded—

1:07:06

Steve Mendelsohn: No, I believe—I believe—I have beliefs. I don’t—just not sure, right? I’m not sure. I’m not sure that Shakespeare wrote—possible there could be a guy that knows he’s going to live forever. You think that’s possible?

1:07:20

Stephan Kinsella: Yeah, I think that’s possible. How—how could you—how could you know you’re going to live forever, seriously? Tomorrow hasn’t come yet. How do you know you’re going to be alive tomorrow? You and I don’t know an asteroid’s not going to wipe out the Earth tomorrow, right? We don’t know that gravity is going to stop working tomorrow. We don’t know that.

1:07:37

Steve Mendelsohn: True, true, I believe that that’s not true. I believe that that’s not true. I don’t—I don’t know, I don’t know, I—we’re going to have to agree to disagree about whether God is even possible, okay?

1:07:49

Stephan Kinsella: Yeah, so, basically, you’re the theist here.

1:07:56

Steve Mendelsohn: No, no, hang on, I’m moving over because the sun is getting in the way. I used to be a theist. I used to be a theist, and then the evidence that I had in my possession changed over time, and my brain automatically and involuntarily switched from me being a theist to an atheist. That happened over time, automatically, involuntarily. Agree that I’m right right now, and we’ll be done with it.

1:08:19

Stephan Kinsella: Oh, if I only could, I would, so. But let me go back to the—let me go back to—maybe in five minutes, you’re going to change your mind. Let me just go back to justice for a second. So, I said that, at the individual level, it’s unfair to punish somebody for transgressing when they had no free will. By the same token, it’s unfair to reward somebody for doing good if they had no free will. It’s unfair to do so when—

1:08:45

Steve Mendelsohn: There is a—in a limited—what—who does that? Who rewards for doing well? Well, your boss, if you do a good job, he gives you a raise. So, you’re basically trying to come up with an argument as capitalism—

1:09:00

Stephan Kinsella: Go ahead, no, no, you’re missing my point. My point is that there’s an inherent unfairness to treating people better or worse based on their actions, yeah, over which they had no free will, no conscious control. Again, whether that’s deterministic or random, it doesn’t matter. But, like Sam Harris, I think that there is a societal justification for punishing transgressors and rewarding good doers because we want to encourage them, and we want to encourage others and discourage them, and—

1:09:33

Steve Mendelsohn: Always been part of the argument, that’s—that’s, like, for centuries, that’s been part of the argument, right? But not the part that says that it’s inherently wrong to do that at the individual level, right?

1:09:46

Stephan Kinsella: What’s the difference, whether you think it’s inherently wrong or not, or whether you just don’t like—you, Steve Mendelsohn, don’t want people running around raping and murdering and pillaging and looting?

1:09:57

Steve Mendelsohn: But I do think that having that appreciation of the lack of free will will temper and modify and reduce the punishments and reduce the rewards, compassionate, yeah, make us more compassionate, absolutely.

1:10:16

Stephan Kinsella: And, yeah, but you still—you still keep evading the difference. I mean, you’re talking about treating people, but treating is action too, and so the people that are treating are determined too. So, I don’t know what you’re—are you saying, I want you people to choose to listen to me, therefore be nicer to criminals?

1:10:28

Steve Mendelsohn: I’m talking because I read Sam Harris, and that tipped my scale, and whatever’s motivating me automatically and involuntarily to talk now is spreading that word to others. And if it has the effect of having them automatically, involuntarily change their minds about these issues, that’s the way that’s the way this whole process works, people communicating with one another, and that’s how evidence changes over time, and that’s how beliefs change over time.

1:10:58

Stephan Kinsella: By the way, just to let you know, I agree with almost everything you’ve been saying. I agree with all this. I’m just giving you sort of a devil’s advocate, but no, that’s fine. I agree that we should—although, from a criminal point of view, I would be more on the macroscopic level. I would say, listen, almost like, almost everyone you hear of that is a horrible psychopath or sociopath or criminal, they’re almost always, like, from a poor family, they were abused by their parents, there’s always a reason, there’s always a cause, right? Or almost, even a physical brain defect, yeah. Now, that doesn’t mean that we shouldn’t incapacitate some people. I do think that, like, I mean, I’ve written stuff on this, there’s different theories of punishment, whether it should be restitution, retribution, rehabilitation, incapacitation. I tend to think incapacitation is the most justifiable, and self-defense, restitution, rehabilitation, retribution, no, they’re less. And I actually think in a libertarian, stateless, free market order, you would tend to have a voluntary system without even any prisons, mostly, and you would rely upon voluntary ostracism and things like that. There’s a whole literature on this, which is fascinating, but it’s about giving people an opportunity to reintegrate back into society, pay your debts, do what you got to do, apologize.

1:12:19

Stephan Kinsella: Yeah, I don’t know if I’ve talked to you about this before, but there’s something about this, the Jewish idea of—what do you call it—repentance, yeah, which the Christians sort of—to the Christians, like, remember that Black church that was shot, the Black Christian church that was shot up by this white racist guy a few years ago?

1:12:45

Steve Mendelsohn: Yeah.

1:12:45

Stephan Kinsella: And all the Black people, they gave—they forgave him, like, well, they—he didn’t ask—he didn’t ask for forgiveness, right? No, he didn’t even ask for it. Like, I love the Jewish idea that, okay, you have to, like, admit what you did wrong, admit the harm you did, offer something to make it up, and humbly ask for, you know, repent and ask for forgiveness, and offer some kind of—you know, to me, that makes total logical sense. And I think that’s roughly the way a justice system would work. Now, I do think there would be some people that would be the supermax type of D.C. criminals that would be—you’d either have to just kill them, or they would just be killed by the family of the victims, you know, and no one would turn an eye, or they’d be ostracized or outcast to Coventry or to Australia, you know what I mean, something like that. But other than that, the whole penal system is totally screwed, and I—so I basically agree with you on slightly different reasons, but, yeah, but it’s not—I wouldn’t say it’s because people, you know, if you rape and murder a young child or something horrible, even if there’s an excuse or a reason for it, it’s sort of like when the family dog mauls the baby, you got to put the dog down.

1:13:54

Steve Mendelsohn: Even if—well, as I write in my book, when the lion kills a zookeeper, why do we have to put the lion down? That’s what lions do, lions are—

1:14:16

Stephan Kinsella: Behind that, but I think—I think, I don’t know about that, but I do think if you have a pitbull that kills a baby, yeah, but you’re not doing it for retribution, you’re not doing it to punish the dog, you’re doing it to prevent the dog from hurting others, and that’s the same thing, retribution, as Sam Harris—retribution is not a valid reason for punishing. It’s not to punish the past activity; it’s to prevent future bad activity.

1:14:49

Steve Mendelsohn: Although there is a book, it’s an interesting book, it’s—the title is called “Getting Even,” and that’s—

1:15:02

Stephan Kinsella: Woody Allen’s book?

1:15:02

Steve Mendelsohn: No, it’s not, it’s another guy, it’s a—it’s a philosopher, political philosopher, but he explains why, even though liberal-minded people like us, yeah, might tend to think retribution is kind of retrograde and not really the humanitarian or the social or the civilized way of dealing with crime, there are actually reasons that—

1:15:34

Stephan Kinsella: Retribution has been and maybe could be justified as being integrated into the system, something to do with, it’s like catharsis and all this kind of stuff. It makes you feel better, yeah.

1:15:45

Steve Mendelsohn: Yeah, I guess, well, it makes the victims feel better. There are some victims who want to see their daughter’s murderer executed in the electric chair, right?

1:15:53

Stephan Kinsella: Right, and who are we to say that it doesn’t actually give them some relief? I’m not saying the cost is worth it. I think the cost is not worth it.

1:16:05

Steve Mendelsohn: Yeah, it’s not dismissible, I think. Well, that’s where the tempering of punishment and reward come in as a result of appreciating this lack of free will that we all have. I agree with you, I think that appreciating our influences in life, like I said, most people that are psychopaths, you can point to something that happened to them when they were children, absolutely, yep, yep.

1:16:29

Stephan Kinsella: Which is one reason I’m against spanking. I don’t know if you are, but I’m against corporal punishment and all these types of ways we raise our children. There’s a whole movement in libertarianism called peaceful parenting, and they—I’ve become more and more an adherent of that, yeah, well, makes sense, mostly because of my Montessori stuff early on, but, yeah, I think if you spank your children as a way to get them to do what you think is right, and you’re supposed to be their protector, and you’re the big, powerful parent adult, what do you expect it’s going to do to them psychologically? Now, I don’t think it’s the end of the world, I know, but, you—I was spanked a few times, and, as I say, I turned out okay, but, you know, there’s probably rape victims who turned out okay, but that doesn’t mean it’s okay, right?

1:17:26

Steve Mendelsohn: Right, the question is, is it the right and moral way to—and it’s the same thing as the punishment system, by the way, is, it’s like, is punitive—are punitive, negative measures the right way to rear children? Anyway, I think if we want fewer psychopaths and sociopaths, we should not traumatize them when they’re young. That’s got to be part of it.

1:17:46

Stephan Kinsella: Yeah, I’m with you. It makes it difficult to figure out how to tread, though, right? If you’re constantly worried about what the lasting implications of everything that you do might have, it gets to be very—

1:17:59

Steve Mendelsohn: Well, yeah, and that’s—that’s a different concern. I mean, of course, that’s the way life is, that everything you do has an opportunity cost, which means that it forecloses some possibilities in the future, right? And as you go through life, then you’ve now foreclosed, like, you and I will never be on the Olympic team doing something because—

1:18:17

Stephan Kinsella: Anything, yeah, we’re not 21 years old or whatever, you know, we’re not going to be medical doctors now because we’ve already foreclosed that option by the paths. But I’m talking about—I’m not talking about personal opportunities. I’m talking about the effect that you have on others, you know, when you’re raising your kid, and you’re deciding, okay, do I give in and give him the bubble gum now, or do I not? What’s the lasting impact that’s going to have on this kid?

1:18:49

Steve Mendelsohn: Well, and I’m not saying that you shouldn’t punish your kids because it will have an impact, because everything you do has an impact. I’m simply saying, the science of child rearing and the science, or whatever you want to call it, the morality of the situation militates against a punitive method, just like what you’re saying. I mean, but—and, but—and again, that has to be based on statistics, right? You have to look at what has happened in the past to this evidence thing—stop me, the nature of—you’re the one who was talking about Plinko.

1:19:31

Stephan Kinsella: I’m the one saying that, well, that was a—that’s a physical system. To determine whether spanking—to determine whether spanking is good or bad, you got to look at people who’ve been spanked and who haven’t and then look and see what the effects are, huh?

1:19:38

Steve Mendelsohn: I agree that can help, but, no, to me, it’s more of—it’s more of a humanitarian thing. It’s—no, you just made an argument that we shouldn’t punish people for committing crimes because they don’t really choose to do the crimes, it’s unfair, it’s unfair to them at the individual level to do so, yes, the societal level, a justification. I mean, why a parent spanks their children, because they say the kid did the wrong thing, he needs to be punished to learn his lesson, right? So he won’t do it again.

1:20:08

Stephan Kinsella: Yeah, but the kid probably did what was natural at his stage of development, was it? Absolutely, was, because he doesn’t have free will either.

1:20:20

Steve Mendelsohn: No, but he didn’t have free will, he didn’t have free will either. Doesn’t matter whether we have free will or not, we still respond to stimuli and respond to environment.

1:20:32

Stephan Kinsella: Absolutely, absolutely, yep, can’t help it, exactly, no free will. I think we’re—we’re pretty much in agreement, okay, we got to sort it out, I think so.

Compatibilism and Daniel Dennett

1:20:46

Stephan Kinsella: I do want to mention compatibilism because you used that term earlier, and that’s not the context that I’ve heard it used in discussing free will. When Daniel Dennett talks about compatibilism, he’s talking about determinism and free will being compatible, and that is what they do is they conflate free will with freedom and they talk about autonomous beings. So, that’s not free will. Free will isn’t freedom from influence of others. Free will is the ability for your consciousness to control your behavior, and I think—I think that might be right. I haven’t read—I read Sam Harris’s footnoted criticisms of Dennett on that, but I haven’t read Dennett himself on compatibilism, and I know that the standard philosophical defense of compatibilism is—it’s all over the map, number one, and it’s not the same as mine. Like I said, I’ve tried to cobble together something based upon my appreciation of dualism, which is the Mises idea that we understand different phenomena in the universe by different modes of cognition and reasoning. So, we argue about economic and teleological phenomena using deductive reasoning from the inside. We argue about and understand causal laws, the physical laws of the world, using the scientific method, to put it crudely. Well, speaking of Daniel Dennett, can I read to you the epilogue from “Shallow Drafts”?

1:22:32

Steve Mendelsohn: Sure.

1:22:40

Steve Mendelsohn: On February 9th, 2017, I went to the Free Library of Philadelphia to hear Daniel Dennett speak about his new book, “From Bacteria to Bach and Back: The Evolution of Minds.” Professor Dennett had just finished discussing the illusion of consciousness when the moderator opened the program to questions from the audience. I was lucky enough to be called on first. Although I had decided what I was going to ask Professor Dennett a day or two before the program, I still fumbled my delivery. I started well enough. Speaking of illusion, I said, do you still believe—I mean, does your brain still automatically, involuntarily make you believe that you have free will, notwithstanding their shared—as two of the four new atheists, along with Richard Dawkins and the late, great Christopher Hitchens, Professor Dennett and Sam Harris have had some heated disagreements about free will. Bottom line, Sam says no, and Dan says yes. I must say that I found Professor Dennett’s answer to my admittedly obnoxious question rather disingenuous. Basically, his answer was something to the effect of—is this—who’s this, is this you talking, this is me, this is my book, I’m reading, I was there.

1:23:45

Stephan Kinsella: I know, I’m looking, I got your book on the screen, yeah, page 207. I asked him a question, I said, right now, does your brain—and then he responded, it depends what you mean by free will. If you mean the kind of free will that implies that we are not responsible for our actions, then who would want to believe in that kind of no free will?

1:24:07

Steve Mendelsohn: Yeah, I wish the moderator had given me an opportunity to respond to his answer, and if I had had such an opportunity, I wish that I had thought fast enough to come up with the following response, but he did not, and I did not, so I’m left with writing it here. That’s very disingenuous of you, Danny, I would have said. I’m not a big fan of cancer and my own mortality, but just because they both have unpleasant implications, that doesn’t mean that cancer doesn’t exist or that I’m not going to die. Would you, as one of the four new atheists, accept as ingenuous the following argument from a theist: if you mean the kind of world without a God, then who would want to believe in that kind of world?

1:24:55

Stephan Kinsella: By the end, I agree, yeah, got it on the screen here, yeah, I agree with you, by the way, I agree totally. Thanks for indulging me. This is—but this is the problem with my—I’ve had with these guys, they’re all—I’m lumping them together, but they’re all scientistic, in my sense, like, they’re all monist, they’re all ultimately—well, Harris tries to be philosophical, but they’re all ultimately empiricist, right? And that’s my main problem, is there’s no appreciation for this role of reason as a source of knowledge and a contextual appreciation of how we acquire certainty in life, right, in knowledge. I think I can work with an empiricist because they, by and large, stumble towards the right things, except when they get caught up in the latest hysteria, like global warming or COVID or something, you know, or eugenics. But, by and large, they’re steered in the right direction by reality, the laws of reality.

1:26:12

Steve Mendelsohn: What can you say? Well, here’s what I say. I quote—it is, I quote Richard Dawkins numerous times in my book. This is his statement: if something is true, no amount of wishful thinking can undo it. So, if we don’t have free will, that might not be comfortable, that might not be comforting, but just because it’s not comfortable doesn’t mean it isn’t true. And no amount of wishful thinking, same thing with God, same thing with death. I want to believe in a world without God, yeah, by the way, that’s not the actual end of my book. Keep going a couple pages later, and you’ll see—now you have to go 30 more pages down. I see the joke, I see the joke, there it is, yeah, that’s my favorite joke. Did you hear about the one-armed fisherman caught a fish this big?

1:27:02

Stephan Kinsella: Well, you know, the other joke about—there’s a—how do you get a one-armed guy caught in a tree to get out of the tree? Ask him to clap.

1:27:08

Steve Mendelsohn: What? Yeah, you wave—give him a high five, wave to him, yeah.

1:27:13

Stephan Kinsella: Okay, very good, politically incorrect as always. Alright, I think we’ve done enough damage today. How about this, are you okay with it?

1:27:19

Steve Mendelsohn: I’m—I love it. Well, I’ll record it—I mean, it’s recorded, if it worked right, if not, we’re going to have to do the whole thing again, take two. They won’t know that this is already take two, we did this all—no, you got to watch—you got to trust—do you ever watch science fiction or television?

1:27:37

Stephan Kinsella: Well, it depends what you mean, but no, not much. You don’t watch, like, Netflix series?

1:27:43

Steve Mendelsohn: I watch Fox News every once in a while, that’s—

1:27:51

Stephan Kinsella: You got to watch, trust me, Steve, trust me, you got to watch “Devs.” What’s it—what’s it called? “Devs,” D-E-V-S, oh, not Deb, not Eugene V., no, “Devs,” it means developers, but it actually means something else. Okay, what is it on, Netflix? You said it’s—

1:28:05

Steve Mendelsohn: On Hulu, oh, okay, I have to get my son to show how to—free will, it’s literally about quantum computing, free will, physics, choice, determinism, that’s it, but in a weird science—it’s crazy. That’s when people—people ask me whether my book “Shallow Drafts” is fiction or non-fiction. I say it depends who you are, we have to wait and see.

1:28:35

Stephan Kinsella: Right, right, okay, well, why don’t we do this? I’ll stop—I’m going to stop now, say goodbye to Kinsella’s people.

1:28:45

Steve Mendelsohn: Bye, thank you, Kinsella people.

1:28:52

Stephan Kinsella: Alright, stop sharing. I stop recording—oh, no, I didn’t, I stopped sharing, hold on, I didn’t stop recording yet, hold on, I didn’t do anything.

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  1. See Method for revising a program to obtain compatibility with a computer configuration:

    “What is claimed is:

    1. In a data processing system having a storage for storing computer programs, including an installed version of an operating system and at least one application program that knows it is compatible with a second version of the operating system that differs from the installed version of the operating system, and a processor for running the computer programs, a computer implemented method comprising the steps of:

    reporting the second version as the version of the operating system that is installed to the application program so that the application program believes it is compatible with the version of the operating system that is installed; and
    running the application program on the processor.” And: Computer input switching device: “5. The switching device of claim 3, wherein the controller is further configured to: declare itself to each of the plurality of computers in such a way that each of the plurality of computers believes that it is connected to a keyboard, a mouse and the absolute pointing device.” System and method for bucking a stem: “7. The method according to claim 6, wherein the conveyor is encoded with a conveyor encoder that is connected to a computer so that the computer knows the location of the conveyor, the movable sensor is encoded with a movable encoder connected to the computer so that the computer knows the location of the movable sensor, the location of the fixed sensor is known by the computer, and the method further comprises using a computer to calculate the travel distance and the sensor distance by input from the conveyor encoder and the moveable encoder.” Ims call establishing method and electronic device and user equipment thereof: “20. The UE of claim 14, wherein the processor knows that the electronic device supports the IMS service according to a specific field in a packet from the electronic device.” [↩]

  2. See Remembering Tibor Machan, Libertarian Mentor and Friend: Reflections on a Giant, the section “Free Will/Downward Causation”: Harris: “The illusion of free will is itself an illusion.” [↩]
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KOL292 | What It Means to be an Anarchist-Libertarian

by on August 4, 2020

Kinsella on Liberty Podcast, Episode 292.

This was my appearance recently on a Brazilian podcast. I believe they are adding subtitles in Portuguese. For now, here is the audio, and the current version of the youtube video is below. Their shownotes (roughly translated):

“Visconde de Mauá Study Group

The Libertarian Study Group of Fortaleza, Visconde de Mauá, is pleased to present a lecture with another of the great names of Libertarianism in the world, the Author and lawyer Stephan Kinsella.

At this event, we discussed ideas about what it means to be a libertarian and its practical application in everyday life.

Kinsella is the author of an extensive work on libertarianism including the works: Estoppel: A New Justification for Individual Rights, New Rationalist Directions in Libertarian Theories of Law and What is Libertarianism. which have become essential works for understanding libertarianism, especially in their application in law, these works are extremely relevant!”

Youtube below:

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KOL291 | LocoFoco–NOT talking about “legal positivism”

by on June 17, 2020

Kinsella on Liberty Podcast, Episode 291.

This is my interview by (really: discussion with) my old friend and underappreciated stalwart libertarian thinker and writer Timo Virkkala. This is one of the early episodes of his new podcast, LocoFoco, and were were apparently going to talk about legal positivism and perhaps argumentation ethics, but we got detoured onto tangents for almost two hours, about a variety of issues–covid, riding dirt bikes, and so on. Good guy. Very smart. Underappreciated. Check out his new podcast, LocoFoco.

https://soundcloud.com/locofoco-net/not-talking-about-legal-positivism-with-stephan-kinsella

Update: the raw feed was a video skype, which Timo edited for his podcast. The raw video is posted below, in which you can briefly see my new poodle puppy Bella Kinsella:

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Der Volkswirt: gegründet 1926

by on June 13, 2020

Der Hoppeninator sent me this. I can’t read civilized languages, so I can only guess what this is about. From a magazine Wirtschafts Woche, apparently discussing the issue of whether state-granted patent rights are “necessary” for there to be innovation, in particular to produce a Covid-19 vaccine. It apparently references counterarguments by me and even somehow mentions Rothbard.

Geistiges Eigentum

Update: A partial translation by my friend Aaron Kahland:

“The American patent attorney, Stephan Kinsella calls for an end to state protection for intellectual property. Intellectual goods are, in contrast to physical property, not scarce goods. For example, a countless number of companies could produce medicines using the same recipe without that formula being denied to the original inventor. Therefore, in the case of idea-goods (don’t think there is a term in English for this) there is no need for property laws to prevent consumption via rivalry (of that property): Patents and copyright law are (he quotes you here) ‘cannot be justified in being protected by the state via monopoly rights to generate artificial scarcities where none existed before.’

“Furthermore, these restrict the property rights of others. For example, pharmaceutical companies cannot produce medicines protected by patents, singers are unable to make commercial use of their voices by singing songs of other artists. In short, patents and copyright rights create (quotes you again) ‘controlling and joint-ownership of the physical property of others.'”

 

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KOL290 | Liberty412: On A Coronavirus Vaccine, Anarchy In Our Lifetime, IP, and More

by on June 11, 2020

Kinsella on Liberty Podcast, Episode 290.

This my appearance on the Liberty412 podcast, with host Mike Cuneo. We discussed a variety of topics, from the philosophy of property rights and the problem with IP, to coronavirus, racism, the prospects of liberty and anarchy, activism, and the like. We also detour into other issues like the Fermi Paradox and theories about the Industrial Revolution.

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KOL289 | Scottish Liberty Podcast: Discussing the Mossoff-Sammeroff IP Debate, Take 2: A Sober Conversation…

by on June 1, 2020

Kinsella on Liberty Podcast, Episode 289.

[Update: Transcript appended below]

This is my appearance on the Scottish Liberty Podcast from May 30, 2020, with hosts Antony Sammeroff and Tom Laird. We discussed IP and related matters, including Sammeroff’s recent debate on the topic of IP with pro-IP Randian law professor Adam Mossoff. See various links, embeds, notes below. This was the second take, and entitled “A Sober Conversation with Stephan Kinsella…,” because we had previously recorded a discussion on May 24, 2020, in which I was a bit drunk and went off on a rant. The episode was entitled “Under the Influence… of Stephan Kinsella… Against Intellectual Property”. We then recorded this current episode on May 30, 2020.

[Update: I recently (March 2021) realized I never posted the initial episode, so have just posted it as KOL326 | Scottish Liberty Podcast: Discussing the Mossoff-Sammeroff IP Debate, Take 1: Under the Influence…]

See various links, embeds, notes below.

Youtube of the current discussion:

Youtube of the initial discussion, now posted at KOL326:

Antony’s previous debate with Mossoff:

In his remarks, Mossoff mentioned this paper by Stephen Haber as supporting the empirical case for patents (funny, I thought the Objectivists had principles): Stephen Haber, “Patents and the Wealth of Nations,” 23 Geo. Mason L.Rev. 811 (2016). I have read through it as much as I can stand and provide my critical commentary here:  “The Overwhelming Empirical Case Against Patent and Copyright”–see in particular note 3 and accompanying text.

❧

Transcript

Scottish Liberty Podcast: Discussing the Mossoff-Sammeroff IP Debate, Take 2: A Sober Conversation With Stephan Kinsella (May 30, 2020)

[Transcript of “Scottish Liberty Podcast: Discussing the Mossoff-Sammeroff IP Debate, Take 2: A Sober Conversation (May 30, 2020)]

00:00:01

ANTONY SAMMEROFF: Greetings people of planet Earth.  It must be episode 156 of the Scottish Liberty Podcast with me, Antony Sammeroff, and that ranty, ranty man, Tom Laird, back with us again.

00:00:15

TOM LAIRD: Thank you.

00:00:15

ANTONY SAMMEROFF: Sorry.

00:00:16

TOM LAIRD: I’m free.

00:00:17

ANTONY SAMMEROFF: He’s free.  The excellent, the extraordinary Stephan Kinsella.  Don’t mispronounce it Stephen.  Don’t be that guy.  Don’t be that guy.  Only an idiot would do that.  Thank you for joining us.

00:00:33

STEPHAN KINSELLA: Glad to be here with all four of us.  You said there was you, Antony Sammeroff, Tom, and me, so that’s four.

00:00:39

ANTONY SAMMEROFF: Excellent.

00:00:41

STEPHAN KINSELLA: I only see three people though.

00:00:43

ANTONY SAMMEROFF: So we’re going to talk about – you only – for those tuning in on Facebook and YouTube see that I kind of look weird because I’m trying this digital background.  But Zoom thinks that my face is part of the background, so I look…

00:00:57

STEPHAN KINSELLA: I think you’re triggering a lot of light-epilepsy people right now.

00:01:00

TOM LAIRD: I think it’s because your head looks like a planetoid.

00:01:02

00:01:04

ANTONY SAMMEROFF: I am the moon, the orbits, the Earth.

00:01:07

STEPHAN KINSELLA: He looks like a Marvel character like Ego the Living Planet or something.

00:01:12

ANTONY SAMMEROFF: So I guess we’re going to talk about IP and stuff like that.

00:01:17

TOM LAIRD: Whoa.

00:01:17

ANTONY SAMMEROFF: That’s crazy.  As some people know, probably heard a couple of weeks ago, I was debating this Adam Mossoff guy.  And there may have been some conversation that we had once before, but we don’t talk about that anymore because…

00:01:32

TOM LAIRD: Did he laugh at any point during the…

00:01:34

00:01:37

ANTONY SAMMEROFF: But let’s just say that there were some things that could have been said in that discussion that we never speak of – we don’t talk about anymore that weren’t discussed.  So I guess a good place to start would be what – you said one of the things annoying about Adam Mossoff is he never actually defines IP. So what – how would you – how do you define IP?

00:02:02

STEPHAN KINSELLA: Well, so this is – all right, the definition is intellectual property refers to a set of legal rights that – it’s like an umbrella term that covers four or five different types of statutory – mostly statutory rights, which are all not really related.  So it basically just is a term that people came up with to lump together some different types of law like the patent system, which covers inventions, and the copyright system, which covers artistic and creative works, and then the trademark system, which covers sources of goods and names, brand names, things like that, and then the trade secret system, which has some rights related to keeping secrets that you want your employees not to tell other people, things like that, and then maybe one or two other special things in modern times.

00:02:57

So they’re always – in a way they’re loosely related, and the reason the term bothers me is because it’s a propaganda term.  It was a new term that was invented I think in the 1800s when these new statutory systems, which were independent, the patent system and the copyright system, say, in the US, 17—I think—90, right after the Constitution – the US Constitution was ratified in 1789.  The very next year the Congress started enacting patent and copyright laws.  And they were thought of and characterized as monopoly privilege grants, and some people were in favor and some were opposed.  But no one had any doubt that they were just special monopoly privilege grants by the state for a particular purpose to incentivize innovation or something like that, which is why they only lasted in the beginning for about 14 years, like a finite time.

00:03:59

They were temporary things sort of like infant industry protections or tariffs, how they protect local industries.  No one thinks of these things as natural rights or property rights.  So then the free market economists in the 1800s started getting alarmed at the rise over the world, in the modern world, of the prevalence of patent and copyright, these monopoly privileges.  And so the people that were entrenched in industries depending upon these by now, the publishers, inventors of light bulbs, and these kind of new industries, things like this – they started defending these systems not on the utilitarian grounds, which is really the main justification given, but saying that, oh no, they’re not artificial monopoly privileges because everyone was getting skeptical of monopolies, even natural monopolies or free market monopolies or government-granted monopolies, whatever.

00:05:06

So they didn’t want to call them monopolies.  They didn’t want to call them what they are, which is government-granted privileges.  So they started calling them – they said, no, they’re property rights, and everyone said, well, if it’s a property right, as Antony pointed out in his opening comments in the debate, there’s not a scarcity thing.  Like there’s not a possibility of conflict.  Anyone can use these ideas at the same time, so how is it a property right, and why does it only last for 17 years, 14 years?  And nowadays copyright has been extended from the original 14 years to 100+ years.  It’s crazy.

00:05:43

TOM LAIRD: Wow.

00:05:43

STEPHAN KINSELLA: Why would – if it’s a property right, why would it expire at a certain arbitrary time?  And so the counter to that was, well, it’s a property right, but it’s a special type of property right.  It’s an intellectual, so they added the word intellectual to explain why it’s different and it has to be treated differently in the law.  But they want to call it a property right, which Mossoff did repeatedly.  He just kept saying it’s a property right because you can license it.  It has an economic value.  You can sell it.  But that is just not an argument for why the law is a good idea.  I mean you could – I mean honestly you could make the same argument about child slavery in the antebellum south in America.

00:06:25

ANTONY SAMMEROFF: That’s a good example.

00:06:26

STEPHAN KINSELLA: They were – slaves were property.  They could be traded.  They had a market value.  They contributed to the operation of plantations.  And you could ask all kinds of questions like instead of coming up with an argument justifying slavery and instead of responding directly to someone who explains why slavery is immoral and wrong, you could just come up with a fake rhetorical question.  And you could say but who would pick the cotton, which is not really a sincere question because that’s not really what they’re asking.

00:07:05

If you say, but who would pick the cotton, what you’re really saying is we all take it for granted that the cotton has to be picked.  That’s our ultimate value, so whatever you propose, you’re going to have to guarantee that the cotton will be picked.  So unless you can prove to me that the – your free market system abolishing slavery is still going to result in cotton being picked, you haven’t satisfied your burden of proof to me to get rid of slavery, which is exactly what Mossoff and these guys are saying when they say things like, well, how would you have – how would a novelist make money?  How would a pharmaceutical company recoup their cost without IP law?  So they ask this question, but the question is a loaded question because it takes for granted some assumptions that I don’t share and that free market economists don’t share because we don’t think there’s a guarantee to a profit, and there’s no guarantee to recoup the costs of your investment.  I mean what the hell is that?  So one reason, and my last thing, and I’m going to stop – shut up in a second because I talked over you guys, and I ranted.  I kept changing my subject many times.  I was so irritated because…

00:08:18

ANTONY SAMMEROFF: I didn’t notice.

00:08:19

STEPHAN KINSELLA: Well – he has – he poses as – he doesn’t – so he acts like we’re all friends, like we’re on the same side.  Like you and he, it’s a jolly little friendly debating club.  But it’s not – I mean the reason I got so annoyed by his laughing at the absurd examples people will say – so someone will say, well, maybe someone will use trademark, and they will get a trademark on COVID.  And then he laughs, and it’s like, yeah, but this is – you’re laughing as if you’re in on the joke.  But you’re really in support of a legal system that does lead to these absurd consequences.

00:09:13

And I gave up cataloguing on – I had a website – I had a post which I would update every few months.  It was called the Trademark, Copyright, and Patent Horror Files.  I just gave up updating it because every month there’s just another insane example, someone going to prison for uploading a Wolverine movie, people dying of Fabry’s disease because there’s only one manufacturer of the drug because they have a patent on it, the guy that invented RSS, which we’re benefiting from by podcasting and all this stuff, Aaron Swarz committing suicide because he was facing basically a life in prison for uploading some academic articles to the internet using a Columbia University internet connection.  And you can dismiss these examples, and then so Mossoff’s reply would be something like – every time you would come up with an example, Antony, he would say something like, well, there’s abuses in regular property law too.  Or it’s not perfect either, or there’s gray areas too, or the courts might get it wrong from time to time.

00:10:24

So he keeps wanting to push it back into this analogy or metaphor and to show that it’s like property rights, which is just – he’s actually kind of correct.  Lawyers are good at making money.  They will adapt to a system, and they will – and then the business people will find a way to profit off of the given legal rules.  I’m sure that people made money off of selling uniforms to the Nazi guards for the concentration camps during the Nazi German period.

00:10:57

TOM LAIRD: Yeah, Hugo Boss.

00:10:58

STEPHAN KINSELLA: Okay.

00:10:58

ANTONY SAMMEROFF: There was a…

00:11:01

STEPHAN KINSELLA: Volkswagens and chemical suppliers, Zycon, the whole deal.  It’s like…

00:11:06

TOM LAIRD: IBM.

00:11:06

STEPHAN KINSELLA: People make money.  So what?

00:11:10

ANTONY SAMMEROFF: There’s plenty of corporations and…

00:11:11

STEPHAN KINSELLA: So what?

00:11:11

ANTONY SAMMEROFF: There’s a couple of things there.  I mean a lot of things that have been considered to be public goods have been shown to be able to provide – be provided by the market.  I mean obviously people would think how is a radio station going to charge its customers, but they put ads on?  I think the argument that he might have made against your – because one of my arguments would have been I couldn’t throw it in because it was strapped for time.  But it’s like, look.  Millions of people are dying in Africa because they can’t ship generic cheap medications because of copyright and patent laws – patent laws rather.  Millions of people are dying, and I think his argument was, well, you could say the same.  There’s billionaires in the world, and we could just say millions of people are dying because we don’t shoot Jeff Bezos down to $1 billion and give the rest of his money to Africa.

00:12:10

STEPHAN KINSELLA: Well not – so not just that, but if you take this argument – I mean, first of all, what is an objectivist?  Because objectivists used to be kind of principled.  They were minarchists.  Okay, let’s grant them that.  I can forgive Ayn Rand and her followers of their minarchism.  But at least they were serious minarchists except for the IP issue.  That was their big mistake I think, but they at least had principles.  But when did this principle come about that the way we evaluate whether we ought to have a law or whether it’s a good law is whether or not some policy goal is reached like enough – so, for example, you could argue, like some people do, like literally and some free-market types do.  I can send you links to this.  It’s astounding.

00:12:53

Instead of having or in addition to having – it depends upon who you talk to – instead of having a patent system, which gives some kind of property rights-like incentive system allegedly to people innovating because they’re able to recoup their costs by basically using the force of the government to stop competition for 17 years, so that’s the idea.  You could have government subsidies of innovation.

00:13:22

Now, I think even Terrence Keeley, who is a friend and pretty good on this and Boldrin and Lavine who are the kind of free market utilitarian guys who are argue the empirical argument against patent and IP in their book Against Intellectual Monopoly.  Even they sort of lean because they have these utilitarian or consequentialist leanings.  And they’ll say, well, it would be more efficient or maybe better if the government just subsidized innovation with basically a system of prizes or awards, which they do already, by the way, with the military industrial complex and with the National Science Foundation like the US.  And I mean they’re already doing that, but the point is this.  According to the theory, this utilitarian theory of IP advocates like Alex Tabarrok and Richard Epstein, these kind of guys and the – even the more mainstream guys like Stiglitz and these guys – they think that if – with no patent law, let’s say, you’d have some innovation.

00:14:31

They’re not dishonest or stupid enough to say that no one would ever invent anything, or they wouldn’t say that no one would ever, ever paint a painting or write a song or write a novel without copyright law.  What they say, the more honest ones – they’re a little bit more sophisticated – is they say that there’s a certain amount of production, but it’s an underproduction because they believe in this public goods argument, this market failure argument basically.  They think that the existence of this free rider problem and the inability to recoup your costs because people can copy – compete with you too easily because they have to copy your formula or whatever instead of making a new factory that competes with your car factory.

00:15:14

They have to – all they have to do is copy the formula, which is not true by the way.  This is not – you can’t just compete with someone by copying what they did.  This is also all false.  But the point is they think that there’s a suboptimal amount of production of intellectual goods in a state of nature, let’s say, or even in a minarchist government with no IP law.  But you can go – you can increase that amount by having a reasonable amount of patent and copyright protection.  But if you go beyond that, then you start hurting it.  So they think of this bell curve idea, and there’s an optimum, and most of them have this intuitive sense that we’re too far on the wrong side of it.

00:15:52

If you ask Mossoff, he probably would admit that 130 years for copyright term when it used to be 14 is maybe a little bit too long.  He might say that.  He might even admit that 17 years for a patent is too long for some industries.  But he probably doesn’t want to cede the ground right now, and some people in his camp are so consistent and principled they basically advocate infinite or perpetual terms.  But they’re the ones that are consistent like Lysander Spooner and some Randians that I know.  They actually advocate – and J. Neil Schulman, my friend who died last year.  They advocated basically infinite terms at least for copyright if not for patent.

00:16:36

TOM LAIRD: But it would seem absurd to me.  For example, I could decide that I’m going to go out tomorrow and I’m going to sell a whole load of sandwiches.  So I sit in my house.  I buy the bread, and I buy everything, and I make a whole shitload of sandwiches.  I go out in the street.  I set up my stall, and lo and behold, who’s just set up a stall 10 yards down the road from me?  Oh it’s Sammeroff, and he’s managed to source his bread cheaper than I did, and he managed to source his ham cheaper than I did, and he’s selling the sandwiches cheaper than I did, and suddenly I’m at a loss because nobody is buying my sandwiches.  Somebody should have to recoup.  How do I recoup the cost of making all those sandwiches?

00:17:16

STEPHAN KINSELLA: Right.

00:17:16

TOM LAIRD: Or you don’t.

00:17:17

STEPHAN KINSELLA: And the honest answer to that question is when you say this people think you’re being a smartass or you’re being – but the answer is you’re business – your failed business model is not my problem.  I mean…

00:17:30

TOM LAIRD: Correct.

00:17:30

STEPHAN KINSELLA: The point of law and justice in libertarian theory is to favor a set of conditions that give everyone security of property rights that would generate a free market and probably capitalism of some type if it was allowed to flower.  And then within that system, it’s up to you to figure out how to make a profit.  Let me finish that thought, but let me return to one thing I forgot to finish.

00:17:57

So the point I was making about this bell curve idea is that even according to the best interpretation of these utilitarians, which I think Mossoff really is even though – so Richard Epstein is more like an honest advocate of IP law from a utilitarian perspective and Alex Tabarrok, these kind of guys.  But Mossoff pretends like he think it’s a right or a natural right, which is, by the way, dishonest and wrong.  It’s wrong. I won’t say it’s dishonest.  His interpretation of Jefferson and Locke – I think if you look at the scholarship.  There’s a guy named Ronan Deazley.  He may be Scottish.  I’m not sure.  But the literature is pretty clear that no one thought of IP rights as natural rights.  And just because you can call them a property right and then – that doesn’t mean it is.

00:18:45

But here’s my point.  Even the best interpretation of this argument that we need to have some limited term of monopolistic protection of your ideas so you can recoup your cost and so there’s a bell curve.  It’s the maximum.  The point is – so imagine this pharmaceutical example that they keep throwing out.  And that was the whole impetus of the debate was about the development of drugs, and let’s get back to that too in a second.  Let me keep – I need a device that can help me unstack my stuff like in a reverse Polish notation, fourth language or something.  I can remember where I left off and recourse myself.

00:19:23

But the – so the point is according to, say, Mossoff’s theory and all of his colleagues’ theory, you’d have an underproduction of, say, innovation in pharmaceuticals if you don’t have a patent system because there are just some drugs that are too expensive to do R&D on that you might lose money on.  And if you – at the margin, if you can’t get a few extra hundred million dollars because of – with a patent protection safety valve plus this – what did you call it, Antony?  Green – something green feeling or green.

00:20:00

TOM LAIRD: Evergreen.

00:20:01

ANTONY SAMMEROFF: Evergreening.

00:20:02

STEPHAN KINSELLA: Evergreening.  By adding new improvements or using the FDA system itself to sort of extend your patent even when the patent is expired.  Like that drug patent that this guy got in the US about three years ago, and he raised the price by 10,000%.  Everyone accused patents of that, but it was already off of patents, but it was still protected by an FDA monopoly, which is like the patent.  So there’s ways of basically you’re right.

00:20:28

Anyway, the point is even according to Mossoff’s theory, there are some pharmaceutical innovations at the margin even with a patent reward being added on that won’t get made.  So logically the government should come in and have a trillion-dollar bonus system to give people rewards, which the government is flirting with doing right now with all these companies searching for vaccines.  They’re talking about, well, we have to incentivize them, and so in other words, what if the incentive provided by the patent system, which is at best an extra incentive on top of the free market incentive, what if that’s not enough?  So there’s always innovations that we’re missing out on because the government is just not doing enough to tweak things in the failures of market – free-market capitalism.  But, to be honest, does that sound like an argument Ayn Rand would be making?  I mean she was the ultra capitalist.  What the hell is this stuff, this market failure stuff?

00:21:31

ANTONY SAMMEROFF: The same sword slices both ways as well because you can say, well, without the guarantee of a patent who’s putting up the money to research that drug.  But the same argument goes the other way.  Well, whether patent, who’s going to bother to put up the money to research that drug when someone might just beat them by a couple of weeks?

00:21:52

STEPHAN KINSELLA: Well, that was the thing…

00:21:54

ANTONY SAMMEROFF: That’s a deterrent.

00:21:54

STEPHAN KINSELLA: So you brought that up, and he didn’t address – so…

00:21:58

ANTONY SAMMEROFF: He squirmed out of that kind of by saying, well…

00:22:01

STEPHAN KINSELLA: Yeah.  So right now, we have, what, 200 companies around the world, maybe more.  They’re all searching for a vaccine.  Now, why are they doing it?  I don’t know.  Is it humanitarian?  Is it eleemosynary?  Is it for profit?  Is it in the hopes that they will be the first and get a patent?  I mean I’m not actually even clear, but the point is, like you said, what if there’s the 201st company that’s like fuck it.  I’m not even going to try because even if I put all this money into it, if someone else files the patent first then I won’t be able to do even what I’ve invented.  And so it clearly – you can imagine cases where it dissuades innovation.  But back to, Tom, your example about the sandwich shop or something, so here’s the essence I think of one of the mistakes that’s made by the IP guys.

00:22:54

And see, here’s what annoys me is that they – people like them will call people like me a commie or a socialist.  If you’re against IP, it’s because you’re for idea communism and because you don’t appreciate the importance of the intellect and all this stuff.  It’s like, you know, I don’t believe that I should own my wife or my son’s love for me or the memories of my grandfather.  But because I don’t think I should own them doesn’t mean I think they’re not important.  It’s just – there’s a – so that’s number one.  Just because something is not an ownable, tradable good doesn’t mean that you don’t value it.  I mean we value – I mean the Randians value abstract philosophy and physics research, but those things are not covered by the patent system.  Or mathematics, right?  Oh so does that mean that because they would agree that the patent system doesn’t cover mathematical algorithms, the laws of physics and philosophical research, because they’re too abstract to be covered, does that mean that they don’t value philosophy, math, and physics?  No.  So the whole – that whole premise is ridiculous.

00:24:01

But – so here’s the fundamental point.  The example you gave is normal free market competition, and what we sometimes forget is that, yeah, we all cheer on a harmonious system of rules that allows us to live in society with each other.  And then it generates the possibility of cooperation, living in civilization with other people, the division of labor, trade, and yes, competition and the possibility of profit and rising standards of living, all that kind of stuff.  But one thing that we can sort of lose sight of is that profit is an unnatural thing because the natural rate of profit, the market is always tending towards some kind of equilibrium.

00:24:46

It’s never reached because it’s always changing.  It’s dynamic, but whenever you make a profit that’s like an unnatural thing.  Anything that’s above the natural rate of interest is sort of unnatural, and what you’re doing is you’re sending a signal out by the price system to the world because everything you do is public when you have a market.  It’s all public.  Hey, this guy has a sandwich shop or a pizza delivery shop or a new way of doing A, B, or C making vehicles that are self-powered, something like that.  If it’s profitable, that means that you’re pleasing your customers, which is a good thing.

00:25:23

But everyone knows that this is short-lived.  You can’t rely upon a God-given right to have this 28% profit margin for the next 1000 years because there are going to be competitors that will see what you’re doing.  And they will mimic you, and they will start, what we call it, competing with you.  And we’re all used to that, but the thing is we all think – we all see a certain amount of friction in that process because, for someone to – Antony to come up with a competing sandwich shop, he has to hire people, come up with a design, rent the shop, come up with the capital to do it.  It might take him a couple of years, so for awhile you have sort of this – it’s easier for you to make a higher profit than it will be later.  That’s just the way it works.

00:26:14

TOM LAIRD: Kind of mating season I believe they call it.

00:26:16

STEPHAN KINSELLA: But what the IP guys think is that for some industries, a much heavier percentage of your – of the value proposition that you’re counting on is based upon a simple design or a replicable pattern or information as opposed to scarce resources that are part of your capital goods and machinery.  So in other words, if you’re a millionaire because you sell Harry Potter novels, then it’s true that the value of the paper on the books is pretty small compared to what you can sell the impatterned book for.  That is, a book with the ink arranged in a certain way to spell certain words that people want to buy.

00:26:58

And the ideas – so here’s the idea that the IP guys are saying.  They’re saying that in the normal free market competition can be tolerated because it’s not that easy to compete with people, and so you have a resting period.  You can make a new idea, and if it works you can make some profit for awhile, and you can just take a breath and sigh and relieve yourself and just I can make money for awhile before I have to worry about these irritating competitors.  But if you’re making something that is easier to replicate like a pharmaceutical allegedly, which again is not that easy to replicate, or a book or a song, something that other people can easily compete with, they get nervous.

00:27:48

In other words, they think if it gets too easy to compete with you then the government needs to come in and slow down competition.  They need to put barriers – this is exactly why they – the more honest ones, they call this IP law is the imposition of artificial scarcity.  So in real property and in scarce things, tangible objects, there is actual scarcity, and it results in this slower competition process and results in the jerky world that we live in where profit is possible.  You can maintain it for awhile, but then gradually your profit margins get eroded down to the natural rate of interest, and people compete with you, and you have to keep innovating and pleasing your customers and staying on top of things.  But for goods that are more intellectual-based or pattern-based, it’s just too easy.  That’s just intolerable.  It’s just too easy for people to compete with us, so we need to impose a scarcity where none exists in the realm of ideas to make it work more like the tangible world of trade that we’re used to.

00:28:58

TOM LAIRD: Well, even with…

00:28:58

STEPHAN KINSELLA: So they’re basically trying to take half of human action.  Human action is the use of scarce resources, which are naturally scarce and we have to economize, and the use of ideas and information that makes us more profitable and use things more efficiently over time.  They’re trying to hamper the second part, which is naturally infinite and abundant.  They’re trying to intentionally hobble it just so that it resembles the other, which is why Mossoff says that it’s a property right.  He’s right.  The government has treated it like a property right.  It’s possible for the government to do that.  Congratulations.

00:29:37

TOM LAIRD: But that’s kind of actually – kind of also creeps in on what you call physical trade and everybody’s job is suddenly – oh mine’s special.  Yeah, I get it.  We should have a free market, but when it comes to this particular thing that I do, that’s kind of different and I need tariffs to protect myself.  Everything else – everybody else’s job I understand.  Definitely there should be competition.  But in what I do, that’s really special, and that needs protected.  And I think it’s just an extension of that to artistic types, and the artistic types have got their special thing that you don’t understand and that needs to be protected.  It’s different.  And I think Ayn Rand was one of them.  Because she was a writer, she was – she wanted her books to be protected, and because Ayn Rand said it, the objectivists believe it.  It’s really that simple because whatever Ayn Rand said is the word of God.

00:30:41

STEPHAN KINSELLA: I mean what if – let me ask.  What if a poet told Adam Mossoff right now because do you think poets make any money now under a copyright system?  Poets don’t make any money.  Everyone knows that.  Okay, maybe they do, but do you know how they do?  By becoming songwriters or something.  They basically use their skills in another – they find a way.  They leverage it.  But the point is copyright law doesn’t guarantee that everything is going to be successful.

00:31:07

Okay, if I write a book of poetry, I can use copyright law to sue someone and use the power of the court to prevent them from copying it, like anyone really wants to anyway.  But copyright law doesn’t guarantee that poets make any income.  So what if some hippy-dippy poet guy told Mossoff, well, under the system right now of western capitalism where everything is profit-oriented and people only care about blah, blah, blah, your copyright system doesn’t guarantee me an income.  But you don’t think poetry is not important, do you?  So why don’t we have the National – I don’t even know, the National Endowment for Humanities should give grants to deserving poets and people of merit so that this work is not lost for the ages, blah, blah, blah.  I mean…

00:31:57

ANTONY SAMMEROFF: Don’t give them ideas, Stephan.

00:31:59

STEPHAN KINSELLA: You know what?  Everything I say they actually already say, so I’ve got a couple I’ve thought of, and I’m afraid of posting some of them because I might give them my ideas.

00:32:08

ANTONY SAMMEROFF: So it’s particularly interesting from the Randians because Atlas Shrugged is absolutely full of examples of inferior businessmen running to the government to get protections on their industry.  One of the interesting things is after the debate someone posted to me on Twitter most charitably, hey, Antony, if you don’t believe in intellectual property, why do you have books on Amazon?  I didn’t give the question an honest answer because I didn’t think it was an honest question.  I think the guy was…

00:32:42

STEPHAN KINSELLA: It’s not.  It’s not.  It was confused at best.

00:32:42

ANTONY SAMMEROFF: The guy was just kind of being a dick.  But – well, it doesn’t look very good to me if I don’t have books on Amazon.  That’s one of the main places where people search your name, but hey, people don’t actually know how hard it is to get your books to people.  If someone is going to fucking forge copies of Universal Basic Income – For and Against and go and sell them like they do in – where I was in India, lots of copies of well-known books stacked up to sell people.  They reprint them.  Hey, that was good for me.  I’d like the word to get out to as many people as possible.  I – Nine Inch Nails managed to make a profit when this whole Napster started – thing started by connecting with fans, and they just released (indiscernible_00:33:31) released a dual-case box set thing.  And if you were a super fan, you could get an exclusive performance for a couple of grand and stuff like that.  So people find ways to…

00:33:43

TOM LAIRD: They just have to box a bit more clever.

00:33:45

ANTONY SAMMEROFF: People – yeah, people need to find ways to monetize things.  They found ways to monetize the radio era waves.  If you’ve written a great book and lots of people read it, you can crowd fund it and say, do you know what?  Realistically I need 80 grand to take the – to take a year and a half off to write this book, and people will find ways.

00:34:05

STEPHAN KINSELLA: There’s a great quote by Francis Ford Coppola who’s – the – is he The Godfather guy or one of these guys.

00:34:13

TOM LAIRD: He’s The Godfather and Apocalypse Now.

00:34:15

STEPHAN KINSELLA: So he’s got this kind of offhand comment about when you try to make it as a new young hustler or artist, maybe you wake up at 4 in the morning and you write your novel for three hours.  And then you go to work for your day job.  And so basically he was saying that maybe one method is just be your own benefactor.  I mean that’s what I do.  Everything I – like this podcast.  I’m not getting paid for this.  Why am I doing this?

00:34:43

ANTONY SAMMEROFF: Why the fuck are we doing it?

00:34:44

00:34:46

STEPHAN KINSELLA: But that’s the point.  This should be impossible according to these guys that think everything has to be – it’s part of – everyone has a complex life, and they support their own values.  They go to church or they go to museums, or they go to an art show, and they basically have a job doing this during the day, and they make – and they combine their activities.  And they basically subsidize things that they like.  There’s a breakdown between consumption and leisure.

00:35:14

But let me go back to your Atlas example because this is interesting.  For some reason The Fountainhead is the first book I read that sort of got me on this road.  But now I can’t stand The Fountainhead because everything about it drives me nuts.  It’s not libertarian.  It’s basically a weird, narcissistic guy who hates his clients and won’t listen to what they want and quasi-rapes a woman and also engages in intellectual property terrorism.  He blows up this – someone else’s property.  Okay, granted it’s a state-sponsored project, but he was involved in it, so if anything, he’s guilty.  I mean – but so the whole thing is not libertarian at all.

00:36:01

TOM LAIRD: I think Antony’s friend called it the book in which everybody in it’s a dick for no apparent reason.

00:36:06

STEPHAN KINSELLA: Right.  I mean the only thing about it is it does teach some young people who are looking for some excuse to be – to stand up for themselves and to be individual.

00:36:19

ANTONY SAMMEROFF: The best review I saw on Amazon was someone who’s like, I’m an architect, and due to this shitty book there’s so many people that commented in the architecture field willing to do whatever they want.  And it’s just drawn a bunch of assholes to become architects.  There’s also parts that I love in The Fountainhead.   But I still don’t see why Howard Roark couldn’t have just built one or two shitty buildings to make himself a millionaire.  And then he could make all the crazy modern art that he wanted.  It’s really funny because Ayn Rand hated Schoenberg, the atonal composer.  She just hated atonal music.  But if she had actually taken the time to study the philosophy of atonal music when it came out, it was literally the philosophy of Howard Roark.  It was like all…

00:37:07

STEPHAN KINSELLA: That’s interesting.

00:37:08

ANTONY SAMMEROFF: Their ideology was all about that not staying where the movements – not stagnating in music, moving things forward.  Their music was like Howard Roark’s crazy buildings that no one liked because they’re literally monstrous.

00:37:27

STEPHAN KINSELLA: Well, to her credit and to her followers’ credit, they’re a little bit vague about – they’re not insistent that her aesthetic theory is like an ironclad part of her – like her core philosophy is just the formative branch as you know: ethics, metaphysics, what, epistemology, and politics.  But aesthetics, sort of like her romantic realism and all this stuff, they sort of admit that that was more of her opinion than really…

00:37:55

ANTONY SAMMEROFF: Yeah, but I mean I saw her in an interview saying something – I think it was realism.  It wasn’t art.  And she said, and I can explain to you why it’s not art.  So she did actually believe that.  I think romantic…

00:38:07

STEPHAN KINSELLA: Well, no.  She did think that – she thought art was a selective recreation of reality, so I guess realism would be if there’s nothing selective about it, you’re not selecting anything.  Like a photograph – some people argue that photographs shouldn’t have had copyright protection because you’re just depicting a fact about the universe.  But then people started saying, well, there’s some original skill involved in selecting the angle and the lighting and the shutter speed and the film grain or whatever.  I think it’s all nonsense, but no.  So let me just – but on Atlas, Atlas is way better I believe.

00:38:44

It’s got a few pro-patent themes, but they’re kind of muted, and they’re not dominant.  Atlas is way more libertarian and a way better book from our point of view I think than Fountainhead.  But there’s a couple of interesting things about it.  So she does have a couple things where the government is portrayed as evil because they’re taking Rearden’s patents for his Rearden medal.  But – and that echoes what Mossoff was sort of saying about the – some of the pharmaceutical patent issues.  But when he was talking about the Wright Brothers example and he was trying to say that that example has been debunked, and we can get into that if you want.  I think is entire explanation for that is just fallacious.

00:39:33

00:39:36

TOM LAIRD: You can expand on that if you want.

00:39:38

STEPHAN KINSELLA: It’s a loaded – so what Antony pointed out was this commonly given example that the US aviation industry was delayed and impeded for a decade or two.

00:39:52

TOM LAIRD: As was the car industry.

00:39:53

STEPHAN KINSELLA: Right because of patent battles by the Wright Brothers and things like that.  And by the time of World War I, the French and I think he even mentioned the Turks, which I didn’t know about, they had already been more advanced because they weren’t subject to US patents, you see, so it’s a regional system.  It’s a national system.  Anyway, so – and then apparently what I’m gathering – I don’t know the history in detail of this, and the guy is talking on it like Antony and Mossoff are not really deep patent law experts.

00:40:23

So I’m not sure exactly, but I think what you were saying – I think what happened was probably around World War I or something after that, Roosevelt or whoever was in charge – they came together and they had some regulation or some law where they basically forced what is like a compulsory patent license on the industry until the ‘70s.  Okay, and Mossoff sort of refers to that as like, oh so the Roosevelt administration, which was socialist, came up with this fake story to justify taking their property.  But you understand that the government has been granting these patent privilege monopolies, and if the government restricts their scope, that’s not taking a property.

00:41:09

It’s reducing an unjustified privilege they had granted before.  And furthermore, he mentioned right after that that – like the US aviation industry continued to be the pioneer of the world for decades.  Presumably I think he means after World War I until the ‘70s, but that was during the period where the patents were, according to him, obliterated.  So it’s like, well, how could the US industry be so innovative for 40 years, 50 years if the patents had been hobbled by Roosevelt?  It’s like the whole story makes no sense.

00:41:48

But on Atlas let me just say one thing.  You have at the end, if you remember, this Judge Narragansett writing – he’s basically writing the new constitution for the free world, for Galt’s Gulch, which is kind of minarchist, which is always glossed over by Randians.  But it’s basically he’s taking the American constitution and he’s editing it, like striking out a word here or there.  But that would be copyright infringement according to strict Randians.  You’d be stealing someone else’s property, number one.  And number two, by the way, by that same logic, if you are such an America-phile like Rand was and you think that the US constitutional system was so genius and gave us these – this brilliant system of government that has allowed us to be wealthy – well, theoretically the founding fathers or whoever the guys you want to give credit for coming up and basically inventing this new system, they own it.  They have a copyright or a patent in that system, and they have a right to charge everyone who’s using it a royalty, which we would normally call taxes.

00:42:59

So basically the entire Randian idea on copyright could justify taxes because government gives us all these great things.  Why should the government – by the way, why should the government be nonprofit?  The whole idea is stupid.  Why should the government be a minimalist government that just takes in barely enough to survive?  Why shouldn’t they charge the going rate for their services because they own it?

00:43:20

And the other thing was, if you remember, in Atlas Shrugged, remember the whole little mid-story with Dagny and Hank, and they hired that physicist guy who eventually left and got recruited by Galt, the younger guy, because they found Galt’s old machine in that abandoned 20th century motorcar.  And they paid him to try to reverse engineer it, which, by the way, would be another violation of intellectual property or patent rights according to Rand’s stuff because they’re taking an invention that Galt created and they’re just tinkering with it, and they’re learning from him.  They don’t have the right to do that.  So there’s a lot of examples in Atlas Shrugged where she just – if she was applying her own IP law consistently, you couldn’t have even had that plot to dice.

00:44:06

TOM LAIRD: It’s not like Dagny Taggart invented railways.

00:44:10

ANTONY SAMMEROFF: If there was IP on railways then Dagny Taggart wouldn’t have been allowed to make her own rail lines.  It’s a weird idea that just because one person comes up with something everyone else suddenly needs to alter their behavior.  We’re not allowed to – it’s like – it’s a weird view.  So everyone else is not allowed to use their own property the way they see fit because someone did something first.

00:44:38

STEPHAN KINSELLA: And the argument I hear often, which drives me insane – so first of all, let’s just talk about patents because copyright is different because it is true that most copyrighted works are – they’re original because – in other words, it would be unlikely someone would write exactly the same novel later.  However, everything is influenced over everything else, so nothing is 100% original.  But copyrighted works I would say are original.  But for patented works, most inventions come about when their time has come, and they’re basically inevitable, and they can only come about at a certain time in history when the preconditions are ready for it.

00:45:18

ANTONY SAMMEROFF: The material forces of production are sufficiently mature as Mark Twain said.

00:45:24

STEPHAN KINSELLA: You couldn’t have a transistor invented by the Greeks, but in 1950, someone is going to invent the transistor.

00:45:31

ANTONY SAMMEROFF: Right.

00:45:33

STEPHAN KINSELLA: So – and this is a good thing about human society, by the way.  But what drives me nuts is if you say something like, well, what’s wrong with – what’s wrong if I learn from other people and imitate them and compete with them and use a similar design that they’re doing like for a smartphone or for the idea of a four-wheeled automobile or a four-legged stool, whatever, a kite, an airplane, light bulb?  The answer will be this kind of snarky, smartass retort, and they’ll say something like just come up with your own idea.  And I’m like, well, is that a directive?  Is that supposed to be an argument?  Is it a question?  Is it serious?  I mean the question is what is wrong with copying what you learn from other people that they basically broadcast to you by making their ideas public?  What’s wrong with it?  And the answer, just come up with your own idea, is not an answer.

00:46:36

I mean if you just think about the implications of this it would basically kill human life.  Like what if only Ford and his heirs could have a four-wheeled car or Mercedes or whoever came up with it first?  And so everyone else just come up with your own car.  Just make one with six wheels, or if the railroads now have a certain width of their wheel spacing because of the Roman chariots from 2000 years ago, just come up with your own system.  So then all the railroads in the world would have different spacings, and they would not be compatible with each other.  You – everyone has to have a different size of cargo crates, the ship containers that they put on the ships because you can’t use exactly what I did.  Just come up with your own.  It’s like, well, it’s not even an argument.

00:47:28

TOM LAIRD: Well, I mean the automobile one is a good one because I know Henry Ford was locked up in court for about 20 years trying to get his vehicle onto the market because some asshole had just – it was just – he looked at carriages, and he thought – and he looked at steam engines.  And he thought, well, somebody some day is going to put the steam engine and the carriage together, and you’re not going to need horses anymore.  So he basically scribbled down – I can’t remember the guy’s name.  He basically just scribbled down his idea of a horseless carriage, which there was nothing behind.  He had no idea how to make it.  He had just done this drawing and patented it, and Ford and other automobile manufacturers had to pay this guy loads of money just so that he would release.

00:48:21

STEPHAN KINSELLA: And people don’t – they don’t understand.  I mean capitalism is so – and the free market is so powerful that we’re surviving even now with the hundreds of millions of people that we’ve just artificially unemployed because of the COVID lockdown crap.  There’s all these regulations and these implicit taxes people pay, and the little people don’t see it.  They don’t understand all the royalties and all the buyoffs and all the regulatory fees and higher costs at Apple and motor companies that they have to pay just to stay in existence.  And people just get used to it.  They absorb the costs.  They’re paying the cost of course because the price of their goods is higher, or the innovation is lower, one way or the other.

00:49:07

But if you just imagine also every year, every month probably, at least every few years, there’s an innovation like in automobiles or trains or airplanes, something that is pro-safety oriented, like the idea of these windshields that have this plastic layer in the middle that doesn’t shatter or just seatbelts or…

00:49:28

TOM LAIRD: Airbags.

00:49:29

STEPHAN KINSELLA: Airbags, anti-lock brakes.  A lot of these things are actually patented, and for awhile, your competitors – they literally cannot put that innovation into their own car because it would be illegal, and therefore, some people die.

00:49:48

ANTONY SAMMEROFF: It’s funny.  You probably technically can’t even put it in your own car.

00:49:55

STEPHAN KINSELLA: No, you can’t.  This is the – and this is more because of copyright than patent because right now you have people – because everything is computerized now.  So if you buy a tractor or something or a big truck it comes with software, and that’s protected by copyright.

00:50:09

ANTONY SAMMEROFF: Oh geez.

00:50:10

STEPHAN KINSELLA: And so now the manufacturers like John Green –or not – John Deere tractors.  They’ve been suing people that modify their own tractors just to keep them up to date with the latest techniques or something like that because they’re basically violating the Digital Millennium Copyright Act, which – as an anti-circumvention procedure, which means that you can’t use a technology device to reverse engineer some copyrighted code even if it’s not copyright infringement.  So that’s how crazy it is.  Even if it’s not copyright infringement for you to do what you’re doing because it’s fair use or something like that, you still can’t circumvent the protection that was built in to try to stop copyright infringement.  And you have crazy things like that, and you have – who’s the big – Monsanto or it’s the big agricultural company in the US.  They sue people for – like if you’re a farmer and your neighboring farmer has some seeds that are patented seeds that he planted and he bought.

00:51:15

TOM LAIRD: It’s Monsanto.

00:51:16

STEPHAN KINSELLA: And the wind carries some of those seeds onto my property, and so my property is now growing some of these genetically modified patented seeds from Monsanto.  They can send the government goons out and burn your fields down or force – it’s insane.  It’s totally insane.

00:51:36

ANTONY SAMMEROFF: So…

00:51:37

STEPHAN KINSELLA: And this is what these guys support.  This is what gets me.  This is what they support.  I mean – and these are not just anomalies.  These are not just hard cases.  This is the essence of what IP law means.  It means that you can stop someone from using their own private resources as they wish even though they’re not committing a tort against anyone else.  And this is the dishonest argument that – I don’t know if Adam raised that in his debate with you.  But his type will always say – they’ll say, well, you’re objecting to IP law because it limits what you can do with your own property.

00:52:14

But all property rights do that.  That’s the next argument that they always use.  So in other words, and then they’ll come up with the tired refrain.  Well, my property – your property right and your fist ends where my nose begins.  But that is sort of a dishonest or at least it’s a mistaken argument because the whole argument assumes property rights.  It assumes you have a property right in your nose.  What that argument really means is that you do have the right to use your resources as long as you don’t invade other people’s property rights.

00:52:51

And if you do, then that’s the tort that you’re committing.  And the problem is what you’re doing is your action.  So the fact that I can’t swing my fist at your nose is not a limitation on the property rights in my first.  It’s a respect for the property rights in your nose, and it means that there are some actions I can’t commit.  So when you look at it like that, then the question would be, okay, if I see someone doing something like making a better mousetrap or making an airplane or making a pharmaceutical and if I use my own resources to duplicate something similar to that and sell it on the market, what action did I commit that violated the borders or committed a trespass against any of your property?

00:53:36

And you can’t find anything because there’s no – that’s why the legislation had to invent these things because there weren’t parts before.  That’s why patent and copyright didn’t come out of the common law.  And then the retort will be something like, well, it is a violation of your property.  It’s a violation of your intellectual property rights.  So you can see that their whole argument is circular because their question is to show why they should be regarded as a property right.  You can’t just say the government defines it as a property right, and therefore, it’s a trespass which justifies calling it a property right in the first place.  Their whole argument is totally circular and loaded.

00:54:15

00:54:17

ANTONY SAMMEROFF: So real quick before we finish up, I guess I’ve got two questions.

00:54:21

TOM LAIRD: Hey, I haven’t told my Lynyrd Skynyrd story yet, so anyway, get on with it.

00:54:25

ANTONY SAMMEROFF: Well, we’ll save that for the end, everyone who wants to hear his Lynyrd Skynyrd story.  First one is I guess you said to me in a private chat that Rothbard’s views on copyright were confused as on IP.  It would be interesting to hear just a little bit about that.  And the other question, as you said, that the debate wasn’t really a conducive environment to explore these issues.  So second question is if it was a – if I were in a conducive environment, is there anything that you’d add that you haven’t already that I could have said that I didn’t?

00:55:03

STEPHAN KINSELLA: I mean I’ve – so I’ve meandered over the years with debating and discussing and talking, say, for the last 20 years.  And so I’ve stumbled across different ways of approaching the issue or formulating it, and it depends upon the audience of course.  But the only way you can really do it is to summarize the principled case.  You have to explain what are we doing here.  What’s the whole purpose of this endeavor to why do we care about justice?  What is justice?  What are property rights?  Why do we have them?  What is their nature?  Think about it, think about it, and think about it.  And then what are IP rights?  Think about what they really are, which most people don’t quite understand because they’re not specialists, and this is an arcane area of law.

00:55:52

So have to explain that, and then you say, okay, now think about the original purpose of law that we talked about?  Does this make sense?  Can it be justified?  No.  So you have to build a systematic case, and that’s hard to do in 10 minutes.  You can do a sketch of it in 10 minutes.  But most people’s eyes glaze over, and they don’t understand half the terms you’re using.  So the only way to do it is to have an hour-long or a three-hour-long or six-hour-long.  So it’s difficult.  So I guess the best thing to do is to shoot holes in the case of other people and to try to make it clear who the burden of proof is on.  I thought you did a reasonably good job of that in what you were doing because you at least focused upon the distinction between scarce resources and non-scarce.

00:56:41

And so that was the fundamental point, and again, he never addressed that point, and he never did address the COVID point, like well, what if there are people that are not looking now?  Or what if there are people that are shut out that are looking now, and they find something because someone else gets a patent first?  I guess his answer was this Mayflower answer that, well, whoever gets to the New World first should get it.  That’s just part of capitalism, but that’s not a justification for this system.

00:57:10

Now, on the Rothbard question, so if you view IP rights as a unitary whole, which I do not because I think they’re all distinct.  And this is – again, part of the problem is you have to explain what’s wrong with the patent system, what’s wrong with the copyright system, what’s wrong with the trade secret system, what’s wrong with the trademark system, what’s wrong with defamation law.  They all have their own distinct – it’s like just because I’m against the drug war doesn’t mean that I’m also against having an American-type foreign policy.  They’re – you have to analyze each issue separately.

00:57:49

But because our opponents have lumped these things together, we have no choice but to use their term and then to try to find common features, which they’ve done, and to try to say, well, here’s what’s wrong in general.  But then that makes your case more abstract.  So I believe defamation law, which is not typically regarded as – by law professors as a type of IP law.  It should be because it’s very similar to trademark law.  They both are about protecting reputation rights.  They both are protecting some kind of intangible value that is not a scarce resource, your reputation.  So – and not coincidentally, the Randians support defamation law as well as trademark law and other types of IP law.

00:58:37

Now, Rothbard, to his credit, was completely against defamation law.  I think if he had been more consistent, he would have seen that this would also be a good argument against trademark law.  Now, trademark law is not one of the two big evils, so I don’t think he ever focused on trademark law.  He mostly talked about patent and copyright.

00:58:57

Now, on patent law, he said he opposed it.  His reasons were a little bit – they weren’t horrible reasons, but they weren’t the main issue.  But basically he thought patents distorted the – or he called it – I think he used the word skewed.  It skewed the – it skewed innovation and research like from protectable inventions to – or I’m sorry.  From unprotectable inventions like abstract ideas in physics or mathematics to practical gizmos that you could protect.

00:59:28

And there’s probably something to that.  So it has a distorting effect on the research and development industry just like the trademark and the copyright industry have a distorting effect upon culture because, for example, you can’t protect fashion rights exactly like in purses.  So what does Louis Vuitton do and Christian Dior?  They put their logos on their designs because that’s protectable by trademark.  So you see the Louis Vuitton logo, and you’ll see the Christian Dior logo on their purses and their dresses because – now, maybe that’s a good idea.  Maybe it’s not.  But I have a suspicion that these things like this happen in response to the legal system itself.  Like designers think how can we stop these knockoffs?  We can’t stop them with any kind of fashion copyright because it doesn’t exist.

01:00:22

So anyway, all these things distort society, and that – distortion means it changes things, and it makes things more inefficient and makes us more impoverished, and it harms us in one way or the other.  So Rothbard did see that problem with patents.  I don’t – he never did quite identify the ultimate problem with patents, which was the scarcity argument, and I’m not sure why.  I think it’s probably – so to simplify things, my three great thinkers would be Mises, Rothbard, Hoppe.

01:00:54

So Mises was this genius with Austrian economics and praxeology.  And he did emphasize scarcity, although he didn’t emphasize knowledge too much.  But he recognized it, but if he had focused more on the role of knowledge as the other half of action, I think even he was skeptical of patents, but he sort of was mainstream on that issue.

01:01:14

ANTONY SAMMEROFF: Wrong reading liberalism.  It sounds like – it sounded like liberalism, that Mises was against patents.  He mentions them as something that could prevent normal competition.

01:01:27

STEPHAN KINSELLA: He saw the drawbacks of patents, but he also admitted that, okay, on the other hand, there’s these other arguments.  And so I think he was a little bit vague.  Now, Hayek was even slightly better on this.  He saw the danger of impeding the spread of knowledge, which is what IP does, especially patents.  He has this great phrase.  Oh, I’m forgetting the phrase.  It’s in one of my blog posts, a fund of experience or something like that, like this amazing depth of technical and causal and engineering and other knowledge that we have inherited as humans from past generations.  And it makes us richer because the set of recipes and knowledge and ideas that we can dive into to make our use of scarce resources more efficient always increases over time.

01:02:20

I think actually this is the explanation of human progress, which is why I am so adamantly opposed to IP because one-half of human action is something that’s an infinitely spreadable resource that can keep building over time and can spread instantaneously across the globe.  Hayek even recognizes that it’s one explanation for why what we call developing or backwards societies can catch up so quickly—China or whatever—because all they have to do is just replicate the ideas that we have that some other country pioneered first: Europe or Britain or the West, America.

01:03:01

And so it didn’t take China that long to start catching up because now they can make iPhones, and they can make supersonic jets and things like that because they have the recipes.  And we use things that Chinese inventors invented 2000, 5000 years ago too.  But Rothbard’s problem was he had this cursory – I think it’s his chapter in Ethics of Liberty.  It’s called “Knowledge” – I think it’s called “Knowledge: True and False” where he attacks defamation law.  But then he goes into copyright and patents, and what he does is he basically – he redefines the word copyright to mean what he calls common law copyright.  But he redefines it in a way that is basically based on contract, but it would include what patents cover.

01:03:53

So it’s – Rothbard’s word, copyright, means what in his mind is a contractual system among people where they agree to sell something to someone else, which could be an invention, not just a copyrighted work, so some kind of device with a pattern in it, which I guess could be a book.  But I think the example he gives is a mousetrap, which is an invention.

01:04:16

But – and then you reserve the right to copy it, so it’s this kind of contorted contract argument, which doesn’t work in the end.  But the point is in the actual law there is actually such a thing as common law copyright even though I earlier said copyright had to be invented by statue and by legislation – not invented.  But it only arose because of legislation, which is true.  Copyright is based upon the Statue of Anne of 1710 and then the US constitution and then western – European systems after that.

01:04:51

However, there was some doctrine called common law copyright, but it had nothing to do with contract, and it had nothing to do with what Rothbard thinks.  It was basically a type of trade secret right.  It basically was this kind of right that said if you had a manuscript in your desk drawer of an unpublished work that you have written and someone else steals that piece of paper and they publish – they try to publish it first, you could go to court and get an order against them to stop it.  Now, that’s not what copyright law is, and that’s not what Rothbard meant by common law copyright.

01:05:29

And you could justify that by saying that, well, if you steal someone’s piece of paper, then it’s a type of trespass, or it’s a violation of contract or some kind of breach of trust, something like that.  And anyway, that refers to a world before things were digital anyway.  People don’t have manuscripts in their desk drawers anymore that aren’t published, and people publish their – so the whole idea is totally convoluted.  So Rothbard ends up saying that you could justify what he calls common law copyright, and that would include inventions.  But you couldn’t justify modern copyright and patent statutes.

01:06:06

TOM LAIRD: Right.

01:06:06

STEPHAN KINSELLA: So he just didn’t really drill down to solve this problem completely, and the problem is the way he worded it.  Nothing he says is really that wrong except for his reservation of rights idea and the way he thinks you can extend contract to get some kind of quasi-property right in patterns of information.  That’s his mistake I think.  That’s a mistake – a genuine mistake he makes.  And I think it’s basically incompatible with his other argument in the same book against reputation rights.  So it was just – he just didn’t see it because I mean he wasn’t a legal – he wasn’t a lawyer.  He wasn’t a legal scholar, and he only could go so far.  It’s not – I mean for me this is not a bashing or criticism of Rothbard at all.  The problem is you have other people that say even Rothbard, your anarchist hero, supported copyright.

01:06:57

ANTONY SAMMEROFF: Well, that’s…

01:06:58

STEPHAN KINSELLA: And I’m like, no, he didn’t.

01:06:59

ANTONY SAMMEROFF: Right.  And that’s not even an argument because people can make – people like to say, well, Adam Smith said these non-free market things.  And it’s like, yeah, Adam Smith didn’t have the benefit of Adam Smith.

01:07:12

STEPHAN KINSELLA: Exactly, exactly.

01:07:13

ANTONY SAMMEROFF: To improve on his ideas.  Hoppe – has Hoppe accepted your views on – has he adopted your views on copyright?  Has he adopted your views?

01:07:24

STEPHAN KINSELLA: Yeah, he has, and he – that’s what I was going to say.  My three greatest thinkers are Mises, Rothbard, Hoppe, and Hoppe was able to build upon Rothbard’s radicalism and his radical libertarianism and his own extension of Mises’ economics and Mises’ own praxeology and Mises – like the – probably the one advantage Mises has over Rothbard is that Mises did focus more on scarcity than Rothbard seems to in Rothbard’s writings.  And Hoppe picked up on that and integrated the scarcity part in his – so Hoppe is like a more neo-Kantian, Misesian, scarcity-emphasizing, Austrian like Mises combined with Rothbard’s improvements on and more radical political stuff.  So it’s the combination of that.

01:08:23

So Hoppe, like in 1988 – this was quite interesting.  I didn’t really come to my own views until around 1993 or 1994 when I was a brand new baby IP lawyer.  In 1988, there was a panel discussion at Mises Institute event, and I think on the panel was Rothbard, Hoppe, who was newly arrived to the US, and Rothbard’s new – what’s the opposite of mentor?  Mentee?  Protégé?

01:08:55

TOM LAIRD: I call it…

01:08:56

STEPHAN KINSELLA: Protégé.  Let’s say protégé.  And David Gordon and I think Leland Jaeger.  I think those four were up there.  And someone asked a question of Hoppe – now this is before IP was even an issue because this is before – the internet – as you guys know, the internet basically started in 1995, something like that.  And that’s when digital information started being tradable and shareable, and that’s when everyone started freaking out about copyright, like thinking it’s more important or starting worrying about it, one way or the other.  No one was paying attention to IP law before that.  It was just like this arcane thing that – like tax law or states law or immigration law.

01:09:35

So this is before this even – was even a topic.  I mean Rothbard had only barely mentioned this in that little chapter I mentioned in The Ethics of Liberty, which I think was published in ’82 the first time.  So Hoppe was certainly aware of what Rothbard had written, and Rothbard was sitting right next to him.  And someone asked him – they said something like what about property rights in ideas?  And Hoppe just like off the cuff said, well, if it’s an idea, then it’s not – if you can copy it, it informs your action, and you’re not trespassing on anyone’s property, so that’s it.  He instantly saw to the core of the issue.

01:10:17

And that’s because he had a really clear focus on basically praxeology and the importance of scarcity, like its role in human action.  Scarcity means that what you’re doing in an action is you’re employing a scarce means, but the employment and the decisions about what to do is guided by knowledge.  So he recognized instantly and intuitively that these are distinct things and that – so basically his answer was no.  So he’s written explicitly since then that he agrees 100% with what I’ve written, which was basically built upon his stuff and Mises and other people’s writings.  So he is 100% on board with my views on all of this.

01:11:02

ANTONY SAMMEROFF: Excellent.  Last question of the day.  Tom, tell your Lynyrd Skynyrd story.

01:11:10

TOM LAIRD: Well, as you can see, I’m wearing my Skynyrd t-shirt, which I bought about – I don’t know – a long time, over 20 years ago now.  It was in the 90s at the Royal Concert Hall in Glasgow, and I wanted to buy a t-shirt after.  The gig was great.  Hughie Thomasson of The Outlaws was playing guitar with them back then.  I think he’s dead now; Rickey “Rattlesnake” Medlocke from Blackfoot.  So it was a great gig, and I wanted to buy a t-shirt.  So I go back to where the official t-shirts are.  And they’re lousy.  They are really boring, overpriced t-shirts.  They don’t even have tour dates on them.  They’re just generic t-shirts, and then you’re talking mid ‘90s at about 25 bucks – the equivalent of 25 bucks a t-shirt.

01:11:56

So that was really expensive.  So fuck that.  I’m not buying a t-shirt.  I don’t care.  I’m not paying that, almost the same price as the concert ticket.  So I went outside, and there’s a guy standing with these knockoffs, and they were great.  It had the cover the Twenty’s album on it, and on the back it’s got the Lynyrd Skynyrd with all the tour dates on it.  And there were 5 – it was £5 a t-shirt.  I don’t know how the guy made any profit, but that’s not my problem, for his £5 a t-shirt.

01:12:24

And it’s lasted for years.  And the question is, what did Lynyrd Skynyrd lose out of that?  Well, first of all, fuck them.  If they couldn’t be bothered to provide a quality product for their fans, I’d have paid a premium but not that much for a premium.  Secondly, how did they lose?  If I didn’t buy the official t-shirt—I was never going to do that—and I didn’t buy the knockoff, they’ve lost twice because now I’m not going everywhere advertising Lynyrd Skynyrd on my t-shirt and telling myself about the great gig.  So they haven’t lost anything in that interaction whatsoever.  They were never going to make any money because I wasn’t going to buy that t-shirt at that price.  So that’s my knockoff story.

01:13:12

STEPHAN KINSELLA: That’s – so – go ahead.

01:13:15

ANTONY SAMMEROFF: So you did forget about the part of the story where you went out on tour playing Lynyrd Skynyrd songs at the same setting and the same night as them and everyone stopped coming out to see Lynyrd Skynyrd and started to see your band instead.

01:13:26

TOM LAIRD: That would have been consumer fraud if I pretended that I was Lynyrd Skynyrd.

01:13:30

STEPHAN KINSELLA: Well, that’s the other thing.  Cover bands don’t hurt their – I mean I don’t know if you’ve noticed this.  You seem to be even more of a live music and rock fan than I am, and I like all that stuff too.  But it seems to me that like in the beginning of the internet and cell phones and all this, all these artists freaked out, and they had all these signs up banning people from recording their shitty 28 kbps recordings from an iPhone in the audience.  But it seems to me like in the last 10 years they’ve relaxed a little bit because they’ve realized it really doesn’t…

01:14:07

TOM LAIRD: Bands bootleg their own gigs now.

01:14:10

STEPHAN KINSELLA: Well, that’s what I’m saying.  I mean you always had a few outliers like the Grateful Dead that always encouraged it, or they didn’t give a crap.  But the official initial response was kind of a panic and a freak-out, and then all these bands say no video cameras allowed.  And now everyone’s got a video camera in their pocket, and they’re like – they’ve given up, and they know it doesn’t really hurt them.

01:14:31

ANTONY SAMMEROFF: And it’s good if people are posting it to their Instagram Story or their Facebook.

01:14:36

STEPHAN KINSELLA: Well, yeah.

01:14:36

ANTONY SAMMEROFF: It’s free…

01:14:39

STEPHAN KINSELLA: Well, there’s a guy named…

01:14:38

TOM LAIRD: People who bought bootlegs bought the albums anyway.  Fans bought the stuff anyway.

01:14:45

STEPHAN KINSELLA: Well, I think that’s true, although I think that argument probably can tail off after awhile because…

01:14:51

TOM LAIRD: Okay.

01:14:52

STEPHAN KINSELLA: That was more true in the – like nowadays no one buys – I don’t think people like – that was probably true 7 years ago or 10 years ago when people were still buying CDs, and they still buy merch – merchandise and all that.  But I think nowadays people don’t – I don’t think people buy music.  I don’t think they even pirate music anymore because who wants to carry around a thumb drive with 17 petabytes of all the world’s music when you can just stream everything from Spotify?

01:15:17

ANTONY SAMMEROFF: Yeah, and people listen on YouTube, and they’ve found a way to monetize that because they put ads on the – ads – which is really annoying when you get a 15-second ad on a 3-minute song.  It’s like fuck you.

01:15:28

STEPHAN KINSELLA: They – and I think a lot of that is, again, the cultural distortion cause of a copyright.  A lot of these models would be different I believe without copyright because the reason YouTube can get away with that is because they can strike – they strike down videos that are unauthorized and that don’t agree to the advertising stuff.  And they do that because of the six strikes law, and that’s because of the copyright law, and that’s because the artist ultimately – like without copyright law, you’d probably have lots of free alternatives that just ignored all this crap.  And they wouldn’t do that, but they probably wouldn’t be as good or as curated, so you would pay something for something that’s fine and clean and simple.  But what’s interesting about I think what you’re pointing out is I think that the emergence of digital copying basically—torrenting, encryption, the internet, file sharing—basically has made copyright almost unenforceable.

01:16:36

So there is copyright now.  It does have a big effect on the big players, but there’s – everyone can pirate movies and songs and paintings, and everyone knows this, and you can’t stop it.  It’s just like – it’s like playing whack-a-mole.  So copyright ultimately is unenforceable because of technology, which to me is a good thing.  It would be like if there’s a way to evade taxes or to get marijuana or cocaine or something with complete impunity from the government, like totally hidden from their purview.  That would be a good thing.

01:17:10

TOM LAIRD: Bitcoin.

01:17:10

STEPHAN KINSELLA: Bitcoin.  Now, in the field of the production of physical goods, I think that something like that might be happening that will undermine patents, sort of like digital technology has undermined copyright.  So the ability of making one-of-a-kind – like just-in-time delivery or like your shirts, the t-shirts, you can just print a book from Amazon, or you can get a shirt made from – with only 10 copies made.  It’s not a big deal.  And in the future I think 3D printing will become more and more sophisticated.

01:17:51

And so as 3D printing becomes more of a real force, I think that’s going to undermine the patent system because then people will be able to have a printer in their basement or down at their co-op’s house down the street.  And they’ll be able to get a pirated file of a design of something and just go print whatever they hell – they can print their own iPhone or something eventually.  And they won’t need permission, and the patent holders won’t be able to stop it.  So I think that those are two good things is that the ways the international trade and the just-in-time delivery system and manufacturing on demand and 3D printing and torrenting and encryption and file sharing and maybe Bitcoin to some degree.  It’s all helping to undermine these horrible, archaic, wealth-destroying systems.

01:18:36

ANTONY SAMMEROFF: All right, well, thank you for re-joining us on the show for round two, great speaking to you and you guys at home.  Tune in soon for more.

01:18:47

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“The Monopoly on Violence” Documentary

by on June 1, 2020

A new libertarian documentary was released yesterday by Stateless Productions (with a talented team including Peter R. Quinones, of the Libertarian Institute, Robert Beeler, Chris Cofer, and others): The Monopoly on Violence. It was released for streaming and download yesterday, May 31, 2020, and is available on Youtube etc. (see embeds below).

[Update: now available on Amazon Prime]

The documentary features a number of anti-state thinkers (many of them Austrian anarcho-capitalists), including Ron Paul, Tom Woods, Dave Smith, and yours truly.

Teaser trailer:

Full documentary:

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Knowledge, Calculation, Conflict, and Law

by on May 29, 2020

Note: An updated and revised version of this article is included as chap. 19 of Legal Foundations of a Free Society (Houston: Papinian Press, 2023).  Text from ch. 13 appended below.

***

Stephan Kinsella, “Knowledge, Calculation, Conflict, and Law” (review essay of Randy E. Barnett, The Structure of Liberty), Quarterly Journal of Austrian Economics 2, no. 4 (Winter 1999): 49–71 [pdf].

The second edition of Barnett’s book, published in 2014, concedes one of my criticisms (of his use of liberal instead of libertarian and several instead of private property:

Were I writing the book today, however, I might change one term. I might use the term “private property” rather than the term “several property” that I borrowed from Hayek, who himself borrowed it from Scottish Enlightenment thinkers. I preferred “several property” because it emphasized the need to recognize jurisdiction over resources among the several or many individuals and associations that comprise a society. Were property held in the private hands of a very few, this type of “private property” would not address the problems of knowledge and interest. But in the interest of clarity and the avoidance of jargon, “private property” would have been clearer and, I now think, preferable.

TEXT FROM CHAPTER 19

19

Knowledge, Calculation, Conflict, and Law

 

Originally published as Stephan Kinsella, “Knowledge, Calculation, Conflict, and Law,” Q. J. Austrian Econ. 2, no. 4 (Winter 1999): 49–71, a review essay of Randy E. Barnett, The Structure of Liberty: Justice and the Rule of Law (Oxford: Oxford University Press, 1998). In this chapter, I have updated the references to refer to the second edition, The Structure of Liberty: Justice and the Rule of Law, 2d ed. (Oxford: Oxford University Press, 2014), hereinafter cited as Structure (apparently no changes were made to the main text, so the page numbers between the first and second editions are in most cases the same).

 

PERVASIVE SOCIAL PROBLEMS

Libertarian theorists have made significant contributions to the fields of economics, politics, and philosophy. Intimately bound up with libertarian and political theory is the question of what laws and legal systems are appropriate. Law and legal theory, therefore, have also been subjected to libertarian scrutiny. One might even say libertarianism is all about law: which laws are just, which are not. The writing in this area, however, is usually focused on narrow legal topics, such as contract or constitutional law.[1] Moreover, many libertarian authors are economists or philosophers who are not sufficiently familiar with the workings of real legal systems; others are not completely or consistently libertarian in their approaches.[2] Jurisprudence has yet to receive the attention it deserves from libertarians (and, one might say: vice-versa).

The publication of Randy Barnett’s latest book, The Structure of Liberty: Justice and the Rule of Law, helps to fill this lacuna. Barnett, as a former criminal prosecutor and now law professor at Boston University School of Law,[3] is intimately familiar with the operation of the American legal system and also with the arcana of academic jurisprudence. His libertarian credentials are also impeccable: he has published important libertarian-oriented works on topics as diverse as contract law, constitutional theory and natural rights, restitution and criminal law, and drug prohibition.[4] Barnett was thus well-positioned to write The Structure of Liberty, the first broad and systematic treatise on legal theory written from a thoroughly libertarian perspective.

Barnett’s aim in this ambitious book is to determine the type of legal system, laws, and rights which are appropriate given the widely-shared “goal of enabling persons to survive and pursue happiness, peace, and prosperity while living in society with others.”[5] Happiness, peace, and prosperity are fine principles to select and quite compatible with libertarianism, but Barnett does not attempt to try to justify these basic norms or values. His argument is thus hypothetical and consequentialist, though not, he maintains, utilitarian.[6]

According to Barnett, the goals of social happiness, peace, and prosperity cannot be achieved unless society’s politico–legal system somehow solves certain problems which stand in the way of this happy state. These are “the serious and pervasive social problems of knowledge, interest, and power.”[7] Libertarianism enters the picture because the libertarian (Barnett prefers the term “liberal”) conceptions of justice and the rule of law provide the “structure of liberty” that addresses these problems. These principles include the “natural background rights to acquire, possess, use, and dispose of scarce resources (and other rights as well).”[8] Barnett’s argument thus proceeds by showing how and why libertarianism is the best way to overcome the problems of knowledge, interest, and power.[9]

THE FIRST-ORDER PROBLEM OF KNOWLEDGE

Parts 1, 2, and 3 of the book respectively describe the three fundamental problems and how they are solved by libertarian rights and institutions. Barnett’s first topic, discussed in Part 1, is the problem of knowledge, which is broken down into separate first-order, second-order, and third-order aspects.

The first aspect—basically the Hayekian “knowledge problem”[10]—concerns how individuals make “knowledgeable” use of physical resources.[11] This analysis starts out by presuming that an individual needs to “be able to act on the basis of [his] own personal knowledge,” and “when so acting [he] must somehow take into account the knowledge of others.”[12]

Alas, this is difficult to achieve, because such knowledge is “dispersed” or “fragmented,” and each individual has “ever-changing and potentially conflicting personal and local knowledge of potential resource use.”[13] Each person is thus rendered “hopelessly ignorant” of the “knowledge of others.” So the alleged problem is this: given the dispersed, often inaccessible, and potentially “conflicting” nature of such knowledge, how can individuals act on the basis of their own knowledge while avoiding conflicts over resource use? And how can they take into account the knowledge of others?[14]

According to Barnett, libertarian rights are necessary because they facilitate the sharing and dissemination of knowledge.[15] They include the natural rights of “several” property (Hayek’s term for private property), Lockean first possession (homesteading), and freedom of contract.[16] If individuals are accorded these rights, the first-order problem of knowledge is solved. One of the main ways this happens is that prices arise under such a private-property order, and prices themselves convey, in “condensed” form, personal and local knowledge.

Knowledge vs. Calculation

There is, unfortunately, much to be desired in Hayek’s emphasis on the role of knowledge in the economy, as opposed to Ludwig von Mises’s stress on the more fundamental role of money prices in economic calculation.[17] Hayek’s and Mises’s differing views have been improperly conflated,[18] and Barnett makes the same error by attributing to Mises Hayek’s views on the information-conveying role of prices.[19]

What, then, are the differences between Mises and Hayek on the role of prices in the economy? Hans-Hermann Hoppe has ably summarized Mises’s original calculation argument as follows:

If there is no private property in land and other production factors, then there can also be no market prices for them. Hence, economic calculation, i.e., the comparison of anticipated revenue and expected cost expressed in terms of a common medium of exchange (which permits cardinal accounting operations), is literally impossible. Socialism’s fatal error is the absence of private property in land and production factors, and by implication, the absence of economic calculation.[20]

The theories of Hayek on which Barnett and others have relied, however, downplay calculation and appraisement in favor of communication of knowledge. For Hayek, as Hülsmann notes:

… the impossibility of socialism stems from its inability to communicate dispersed knowledge…. [I]nformation about the particular circumstancesof time and place can never be centralized. It necessarily exists in dispersed form and yet it can be communicated by the market prices of capitalist societies. Only capitalism is thus capable of solving the knowledge problem.[21]

But any informational function of prices is, at best, only secondary in comparison to the primary role of private property and money prices. The fundamental economic role of private property, along with money prices arising from exchanges of such property, as Mises showed, is to permit economic calculation. And, socially speaking, private-property rights serve to prevent conflict over resources. This is why private-property rights serve Barnett’s goals of peace and prosperity: private property rights permit conflicts to be avoided (peace) and allow genuine, free-market money prices to form which can be used for economic calculation and hence rational resource allocation (prosperity). Concentration on the information-conveying role of prices instead of calculation obscures this role.[22] For example, Hayekians claim that prices “contain” economic information in “condensed” (or encrypted, encoded, or abridged) form.[23] Barnett follows the Hayekians when he states that “the knowledge-disseminating function of prices is largely unknown … the knowledge embedded in prices is not explicit…. It is encoded knowledge.”[24]

There are several problems with viewing prices as encoding information. For one thing, concepts such as encoding, encryption, and the like imply an encoder—a person who actively and consciously encodes information in some communication medium, in accordance with some encoding scheme (i.e., the code). Yet there is clearly no intentional encoding of whatever knowledge may be embedded in prices; there is no encoding scheme and no way to decode the information. I buy a car for $30,000 because I think it is worth it, not to convey some secret message to someone.[25] Knowledge that I paid this price for the car does not reveal any information about the underlying objective conditions that give rise to this price (e.g., the intensity of my demand or the relative scarcity of the car). Such knowledge reveals only that I valued the car more than $30,000, and the seller had the opposite valuation.

Prices result from the subjective evaluations of goods by seller and buyer, but prices are exchange ratios. Besides these ratios, what other information could money prices communicate? What information can a mere price ratio convey? Take Hayek’s famous tin example, which assumes:

… that somewhere in the world a new opportunity for the use of some raw material, say, tin, has arisen, or that one of the sources of supply of tin has been eliminated. It does not matter for our purpose—and it is significant that it does not matter—which of these two causes has made tin more scarce. All that the users of tin need to know is that some of the tin they used to consume is now more profitably employed elsewhere and that, in consequence, they must economize tin. There is no need for the great majority of them even to know where the more urgent need has arisen, or in favor of what other needs they ought to husband the supply. If only some of them know directly of the new demand, and switch resources over to it, and if the people who are aware of the new gap thus created in turn fill it from still other sources, the effect will rapidly spread throughout the whole economic system and influence not only all the uses of tin but also those of its substitutes and the substitutes of these substitutes, the supply of all the things made of tin, and their substitutes, and so on; and all this without the great majority of those instrumental in bringing about these substitutions knowing anything at all about the original cause of these changes.[26]

In this example, what information, exactly, is supposed to be conveyed by prices? Let us explore the possibilities. Can the original cause of the price increase (i.e., the change in demand or supply) itself be conveyed via prices? Well, no. Prices are the result of action. Thus, action that changes the prices must already be informed by knowledge.[27] Entrepreneurs first see the changed conditions and then bid prices up or down. They do not learn about the changed conditions from the resulting prices. Rather, they cause the prices to change, based on their appraisement of tin and knowledge or judgment of underlying conditions. Hayek seems to recognize that those entrepreneurs who “know directly of the new demand, and switch resources over to it” do not learn from prices, but rather help to form prices based on their own preferences, knowledge, evaluations, and judgments.

What about users of tin who merely observe the change in prices paid for tin—do these persons learn anything, from observed past prices, about the underlying conditions or “original cause” of the change in prices? No, because any of a variety of causes results in higher or lower prices (e.g., changes in demand by buyers or sellers, decrease in supply, changes in demand for money on the part of sellers or buyers, etc.). For these reasons, Hayek says that mere users of tin do not know “anything at all about the original cause of these changes.”

Then what possible information can prices convey? Hayek writes: “All that the users of tin need to know is that some of the tin they used to consume is now more profitably employed elsewhere and that, in consequence, they must economize tin.”[28] But the users do not need to know this; if tin is scarcer, there is less of it to go around.[29] Whether the prospective users know of the increased scarcity or not, they cannot use what does not exist. Their plans will have to conform, sooner or later, to this increased unavailability of tin.

At most, one could argue that the existence of prices enables prospective users to recognize the good’s relative scarcity somewhat earlier than they would in the absence of prices (that is, sooner rather than later). And even this cannot be stated to be true as an economic law, simply because all prices are speculative and based on entrepreneurial judgments and anticipations about future (uncertain) conditions. An entrepreneur, for example, may bid the price of a good up based on a mistaken judgment about relevant future conditions, such as supply and demand. What do prices then convey in such a case—misinformation?

In any event, even granting that observers can learn of relative scarcity of a good from prices, emphasis on this aspect of prices distracts from the crucial role that prices play in economic calculation. That is, even if prices do tend to help users to become aware of a good’s relative scarcity somewhat earlier than they would otherwise, it is not this function of prices which addresses the insurmountable problems of production and human action that are faced in the absence of private property. The fundamental problem faced by acting man is not the fact that information is dispersed.[30] Rather, it is deciding how to rationally allocate resources in the face of an uncertain future and given the subjective nature of value, which makes it impossible to compare alternative projects or plans in the absence of a cardinal set of prices.

Thus, as Rothbard explains, “what acting man is interested in, in committing resources into production and sale, is future prices.”[31] The primary role of prices in a productive, advanced economy is not to communicate information, but to serve as the starting point for estimating what future prices will be.[32] The forecasted future prices are then used to quantitatively compare various projects and to select the most profitable—and thus most value-productive—use of resources under consideration.[33] Prices are thus important because they serve as an accessory of appraisement. “Current” (immediate past) prices tell only what the current price structure is, and thus serve as a basis for forecasting what the future array of prices will be, given the current starting point. Thus, present prices “can have no communicative function because they are only the, if indispensable, starting point for our understanding of the future.”[34]

The problem faced in a society without libertarian property rules is that there can be no money prices and there can thus be no economic calculation. Talk of a knowledge-disseminating role for prices is flawed and misses the point. Accordingly, Hoppe concludes that “Hayek’s contribution to the socialism debate must be thrown out as false, confusing, and irrelevant.”[35]

Barnett on Knowledge

Barnett’s attempt to make knowledge the central inquiry, instead of calculation, scarcity, and interpersonal conflict, leads, not surprisingly, to confusion. Barnett maintains that the problem to be solved is “potentially conflicting personal and local knowledge of potential resource use”[36] or conflicting “preferences.”[37] He then claims that private property and related liberal rules would minimize such conflicts, because it would lead to you “taking into account” my information and vice-versa, and to a general spreading of information (in “encoded” form).

As an example, Barnett hypothesizes that “there is a particular tree between my neighbor’s house and mine.”[38] One neighbor wants to keep the tree; yet the other wants to cut it down because it blocks his view of the sunset. Although Barnett acknowledges that it is these proposed actions (keeping the tree; cutting it down) which conflict with each other, he awkwardly and unnecessarily tries to fit this within the knowledge framework. He writes:

In my example, my neighbor and I both have personal knowledge of how the tree affects the view from our respective windows. My neighbor and I have personal knowledge of each of our preferences concerning the use of this particular tree. Finally, and most significantly, these preferences conflict or, more precisely, each of us subjectively prefers to use the tree in physically incompatible ways…. Notice that there is no problem of scarcity in the absence of an incompatibility of subjective preferences.[39]

Now assigning property rights to the tree, as Barnett advocates, does solve the problem of conflict over use of the tree: Whichever neighbor owns the tree gets to decide whether to cut it down or not. But this solution has nothing to do with knowledge—except to the extent that non-owners must of course know someone else owns the tree in order to avoid conflicts over use of the tree.[40] The true way to avoid conflict is to establish, and promote respect for, property rights, not to disseminate “local” knowledge or information about others’ preferences.

Barnett’s account implicitly recognizes this. He says, for example,that the “radical dispersion of knowledge … leads to a knowledge problem when people seek to act on the basis of their differing knowledge in incompatible ways.”[41] Note that the phrase “on the basis of their differing knowledge” is completely superfluous here; if it is eliminated, then this says that a problem arises “when people seek to act—in incompatible ways”—that is, when there are conflicting actions in the use of scarce resources. But conflicts are not caused by lack of knowledge, and thus cannot be solved by the spreading of knowledge. Conflicts arise because of the fundamental fact of scarcity and the lack of property rights allocating control of resources to specified owners.[42] That is why property rights are the only way to prevent conflicts over scarce resources.

Why would anyone think knowledge could prevent conflict? Even omniscient actors, who are fully aware of each other’s preferences and intentions, may struggle for control of a given scarce resource. If lack of knowledge is the reason for conflict over the tree in Barnett’s tree example, surely the two neighbors would be able to learn of each other’s conflicting preferences—by speaking with or watching each other—more easily than they learn similar facts in “condensed” form from the general price system! How will prices tell owners who owns the tree, i.e., who may control it? In fact, the existence of prices presupposes a system of private property, which itself already resolves conflicts over the use of scarce resources. As Hoppe puts it, “[p]rivate property is the necessary condition—die Bedingung der Möglichkeit—of the knowledge communicated through prices.”[43] In any private-property system, whether or not prices have yet arisen, the private-property rules themselves suffice to promote peace and cooperation.

And a deeper difficulty looms in Barnett’s account. For how can knowledge, or even preferences, of two individuals “conflict”? If we use the term “preference” in the precisely defined meaning it has in praxeology, where it concerns only one’s demonstrably preferred use of one’s own property,[44] there can be no conflict in preferences. The non-owner simply cannot have demonstrated preferences with regard to his neighbor’s property, because these preferences would have to be demonstrated in action with another’s property, which is prohibited. And if, instead, Barnett means only to use “preferences” in some colloquial, imprecise sense, how can information prevent conflicting preferences? In this loose sense of preference, individuals can have different preferences, even if they are “aware” of the other’s wants. And such a casual conception of preference cannot hope to be used to establish a rigorous case for private property, anyway.

Libertarians (and Misesian–Austrians) recognize that it is only actions that can conflict; it is the very possibility of conflict over the use of things that renders these things scarce resources and thus possible economic goods. Again, when the rubber hits the road, Barnett recognizes this truth: he notes that “there would be no knowledge problem with respect to resource use in the absence of scarcity.”[45] He also notes that:

The actions of some, not their preferences, are what interfere with the ability of others to pursue happiness by acting on the basis of their own personal and local knowledge. What is sought is a social order in which such knowledgeable actions by everyone are possible.[46]

Thus, when he actually has to formulate operational rules for guiding conduct, Barnett appropriately focuses on conflicting actions directed at scarce resources and shows that property rights are necessary to prevent such conflicts. Talk about knowledge and preference conflicts, and about the need for “knowledgeable actions” (instead of successful action), is superfluous and distracting window dressing.

Instead of the misplaced emphasis on knowledge, Barnett could have more straightforwardly noted that there indeed is a problematic potential for interpersonal conflict over scarce resources (including one’s body), which would interfere with his assumed goals of peace and happiness. He could then have argued that private-property rights and the libertarian principles of self-ownership and Lockean homesteading solve this problem of interpersonal conflict.[47] Libertarian homesteading and property rules give rise to peace and prosperity, because in such a system conflicts can be avoided and prices can arise to allow economic calculation and thus rational resource allocation.

In fact, this more direct approach could have led Barnett to recognize that it is possible to give much more than a merely hypothetical or consequentialist defense of libertarian principles by using Hoppe’s pathbreaking argument that advocacy of any social ethic other than private property contradicts peace- and happiness-conducive norms such as cooperation and conflict-avoidance, which are necessarily presupposed by all participants in argumentation.[48] In fact, in other writings Barnett argues, in a way compatible in approach with Hoppe’s argumentation ethics, that those who claim that the U.S. Constitution justifies certain government regulation of individuals are themselves introducing normative claims into discourse and thus cannot object, on positivist or wertfrei grounds, to a moral or normative criticism of their position.[49]

What about the goal of prosperity? Here Barnett could have pointed out, following Mises, that the private-property order and its accompanying price system also permits economic calculation and thus is the only way to achieve this goal. “Knowledge” would have been recognized as merely a technical problem that confronts any individual when choosing means to achieve certain ends and when deciding which ends to pursue.[50]

As for the right to contract (contractually transfer resources to others),Barnett provides a Byzantine argument that such a contract-based system is desirable because it requires the buyer to take the current owner’s knowledge “into account.”[51] Barnett also favors freedom of contract because it allows a price system to emerge, which serves as a powerful engine for the encoding and transmission of knowledge. Again, knowledge need not be even mentioned to support the institution of contracting. First, Barnett has already argued that the rights to homestead and use property are necessary to solve conflicts and promote prosperity. But the right to contract is implicit in the rights to acquire and use property. This is because if one has the right to acquire property, one has the right to abandon it (i.e., one has to be permitted to get rid of it, e.g., give it to another). And if one has the right to use property, this implies that others cannot take the property without obtaining the owner’s consent.

Second, as Barnett notes, the right to exchange titles to property allows a price system to arise. Yet as already noted, the price system promotes Barnett’s goal of prosperity not because of knowledge dissemination but because of the crucial role of prices as accessories of appraisement. Third, permitting contractual transfer of resources promotes prosperity because both parties to a voluntary exchange are made better off.[52]

Thus, it is the potential for interpersonal conflict and lack of objectively and justly defined property rights that endangers liberty, peace, and prosperity, not ignorance of others’ preferences and local knowledge. Barnett’s various “knowledge problems” are therefore better reformulated as “conflict problems.” Libertarian principles would then be seen as ways to promote harmony and prosperity and to avoid conflict, instead of remedying the non-problem of deficiencies in knowledge.

THE SECOND-ORDER PROBLEM OF KNOWLEDGE AND THE RULE OF LAW

“The second-order problem of knowledge is the need to communicate knowledge of justice in a manner that makes the actions it requires accessible to everyone.”[53] This is where the rule of law comes in. The rules of justice (i.e., substantive laws concerning private-property rights, etc.) must be adequately communicated to individuals so that they can serve as guides to action and thus prevent conflicts. To ensure adequate communication, various “formal” requirements must be satisfied. These formal requirements—the rule of law—govern both the form of laws and processes by which they are generated and promulgated.[54]

For example, rules of conduct must be communicated ahead of time (ex ante); and they must also be sufficiently concrete to be applied in a variety of situations. These and other considerations lead to the conclusion that laws must be: “(a) general rules or principles that are (b) publicized, (c) prospective in effect, (d) understandable, (e) compossible, (f) possible to follow, (g) stable, and (h) enforced as publicized.”[55] Otherwise, a rule cannot serve as an operational guide to conduct or will not be just.

Abstract Rights and Legal Precepts

As Barnett insightfully explains, principles such as private property, first possession, and freedom of contract are very abstract, and thus cannot serve to guide conduct except in relatively rare situations.[56] (Barnett refers to such abstract natural rights as “background” rights, as opposed to the actually existing or enforced laws or rights, which he refers to as legal rights. It is background rights to which legal rights should conform.)[57] Thus, any legal system must develop a body of specific or concrete legal rules or principles, based on or at least compatible with more abstract background rights. Barnett refers to the particular, concrete rules or principles that serve as guides to action as legal precepts.[58]

This analysis is on the mark, because it is true that legal principles must be known (communicated or published) and operational (sufficiently concrete) if they are to be used to avoid conflicts. The common tie between Barnett’s second-order and first-order problems is therefore not knowledge but rather conflict-avoidance. A private-property order helps to avoid conflicts because each scarce resource is assigned a specified proper owner (reformulated first-order analysis). For conflicts to actually be avoided by individuals respecting these rules, however, the various rules as well as actual property boundaries must of course be known: I cannot consciously avoid trespassing on your property unless I know it is property and that trespassing is impermissible.

As a practical matter, this requires the rule of law be followed and that legal rules be concrete enough (Barnett’s legal precepts) to serve as operational guides to action. This problem is in a sense inherent in the very idea of a private-property order, because the latter cannot exist if no one knows what conflict-avoidance rules to follow, but it is a real problem nonetheless and deserves the attention Barnett gives it.

THE THIRD-ORDER PROBLEM OF KNOWLEDGE
AND THE COMMON LAW

What kind of legal and political system guarantees (or at least makes it possible) that the rule of law will be followed? How will concrete legal precepts be developed? (Barnett does not ask how the abstract natural or background rights are to be developed; presumably through the writings of academic specialists like Barnett.) Clearly, some institutional means of providing such concrete private-property rules is needed. This is where a decentralized law-generation process such as the common law steps in.

In chapter 6, Barnett expands the conception of the rule of law to include the way in which a body of legal precepts is developed. According to Barnett, the “third-order problem of knowledge is the need to determine specific action-guiding precepts that are consistent with both the requirements of justice and the rule of law.”[59] Again, I would characterize this as related to conflict-avoidance rather than knowledge. In order to avoid conflicts, concrete private-property rules must be developed by some institution, and the institution must be such that the rules developed are just.[60]

Barnett first maintains that there are limits to the ability to deduce specific legal precepts from abstract principles of justice (natural rights), in part because many sets of legal precepts are consistent with the general parameters of the abstract principles of natural rights.[61] He argues that a common-law type decentralized legal system, unlike law professors and philosophers, can develop legal precepts, because, in such a system, they gradually develop and evolve from the outcomes of thousands of actual cases.

Yet, Barnett does not provide a rigorous argument showing where the exact limits of the ability to deduce concrete rules are. He evidently feels that the more abstract principles can, for some reason, be established by armchair theorists. If denizens of the ivory tower can do this, why can they not deduce or establish more concrete rules by simply considering more and more contextual facts?[62] In the Roman law system—a somewhat decentralized legal system superior in many ways to the common law—Roman jurists (jurisconsults) helped develop the great body of Roman law by providing opinions on the best way to resolve disputes. These disputes were often purely hypothetical or imaginary cases, in which the jurists asked, “Under such and such a possible or conceivable combination of circumstances, what would the law require?”[63] It is conceivable that a large part or even all of the legal code existing in a given society can be “deduced” in this fashion and then these rules applied like precedents to actual controversies as they arise. As a libertarian (and, I confess, a lawyer), I must say that I believe I would be more comfortable living under a set of concrete rules deduced by libertarian philosophers than the (perhaps more concrete) set of rules developed under the actual common law, although, as noted, there are limits to armchair theorizing.

Still, Barnett’s argument in favor of a common-law system makes sense, even to libertarians who favor a deductive approach to rights.[64] Legal rules must be concrete in the sense that the rules must take into account the entire relevant factual context. Since there are an infinite number of factual situations that could exist in interactions between individuals, a process which focuses on actual cases or controversies is likely to produce the most “interesting” or useful rules.[65] It probably makes little sense devoting scarce time and resources to developing legal precepts for imaginary or unrealistic scenarios. If nothing else, a common-law type system that develops and refines legal precepts as new cases arise serves as a sort of filter that selects which disputes (i.e., real, commonly-encountered ones) to devote attention to.

Barnett thus makes a convincing case that, in a decentralized legal system such as the English common law (or the early Roman law, the Law Merchant, and even modern arbitral systems)—especially one in which judges or arbitrators attempt to apply fundamental notions of justice to concrete situations—it is reasonable to expect a body of concrete legal concepts and precepts to develop which are more or less compatible with fundamental notions of justice.[66]

 

If and when unjust legal precepts do arise, they are not necessarily permanent, because a common-law process allows them to be modified or replaced when this becomes apparent. However, unless it is clear that a given legal precept is inconsistent with justice, then there should be reluctance to jettison established legal rules or precedents. This thus gives rise to the legal doctrine of stare decisis (or jurisprudence constante in continental or civil-law systems).[67]

This leads Barnett to make the provocative (for libertarians) argument that the “legal rights generated by a sound legal process may even be entitled to presumptive legitimacy”[68] and thus can even assist in determining the content of our background rights. We can always subject concrete legal precepts developed by courts to the scrutiny of the more abstract principles of justice and natural rights. This can help identify legal precepts “that are … inconsistent with either justice or the rule of law or both.”[69]

One question that bears exploring in this regard is exactly how libertarian are the abstract principles of justice that have been followed throughout the ages by judges and jurists of the common law, Roman law, and Law Merchant? In other words, just how libertarian are the legal precepts actually developed historically, and just how strong is the presumption of legitimacy which is to be accorded to these extant bodies of law? Which concepts of the common law are illiberal enough, when compared to Barnett’s carefully-developed abstract principles of justice, to overcome the presumption of legitimacy? And how did the common law happen to employ more or less correct abstract principles of justice even before modern libertarian theory? Are these principles intuitive? Was it luck? Natural selection? Barnett does not answer these questions, but cannot be criticized for not doing everything.[70] Libertarian law students and scholars looking for topics to research, pay heed!

PROBLEMS OF INTEREST AND POWER

After discussing the problems of knowledge (better characterized as conflict-avoidance, as noted above), Barnett turns to problems of interest and power. The problems of interest concern how individuals balance questions of incentive, compliance, and partiality in access to resources. The problems of power are the possibility that there will be error and abuse in applying or enforcing legal precepts. Barnett elaborates on these challenges, and shows how each of them is addressed by the libertarian conception of justice and the rule of law.

Most of Barnett’s arguments concerning interest and power are more straightforward than those regarding knowledge in Part 1, even where Barnett tries to support his arguments by referring to various knowledge-related aspects of the issue at hand. Barnett’s discussion of the “problem of partiality,” however (the first problem of interest), seems overly muddled due to the preoccupation with knowledge. Barnett claims that there is a “partiality problem” which “arises from the fact that people tend to make judgments that are partial to their own interests or the interests of those who are close to them at the expense of others.”[71] This partiality “leads to a tendency to favor ones own interest”; partiality “is judgment affected by interest.” Maybe I am slow, but I cannot see what is the alleged problem here. This seems to be nothing more than the unavoidable fact of self-interest. Of course people are “partial” to themselves. What is wrong with this? I see no need for people to take “into account the partial interests of others.”[72] So long as others’ property rights are respected, it seems to me that one ought to be able to be as “partial” as one likes without others complaining about it.

Barnett’s discussion of the other problems of interest and the problems of power, though, are much more fruitful and less tainted by the occasional and vain attempt to link it to the Hayekian knowledge paradigm. For example, it is certainly true that the incentives which are provided under capitalism are very useful and are missing under socialism.[73] And there is indeed a need to ensure compliance [74] with private-property rules, e.g., by using force for self-defense, restitution, and punishment.[75] I see no strong reason to call these problems of “interest,” although the label seems harmless enough.

And (Part 3), there are indeed dangers involved in the use of power, such as the possibility of error in enforcement and punishment[76] and abuse of the power of law enforcement.[77] Many of Barnett’s arguments here are very insightful and persuasive (some discussed below), although again, I find most of them to be so despite the superfluous comments on knowledge. In fact, I found the last half of the book,[78] which bears less and less on the knowledge paradigm introduced at the beginning, to be the most fascinating and best part of the book (plus the discussion of the common law in chapter 6).

Restitution vs. Retribution

One interesting argument that Barnett makes, with regard to enforcement error and abuse, is that all criminal justice should be restitutive, not punitive or retributive. As I have argued elsewhere,[79] I believe Barnett is mistaken that retribution (punishment) violates the rights of (actually guilty) aggressors.[80] However, in keeping with his consequentialist approach, which avoids questions of justification of fundamental norms, Barnett does not pretend to make a strong theoretical case for the rights of aggressors to be free from punishment.[81]

Indeed, most of Barnett’s concerns regarding punishment are warranted: he opposes it because he believes it may deter crime less than would a restitution-based system and also because the unavoidable possibility of error can lead to “infliction of harm on the innocent.”[82] Like Barnett, I am concerned about the unavoidable possibility of mistakenly punishing the innocent, and thus admit the appeal of a restitution-based system in order to avoid punishing innocents. Moreover, Barnett makes a powerful and original argument for why the standard of proof should be higher if a victim seeks to punish a purported aggressor rather than merely obtain restitution.[83] Thus, a victim seeking to punish the aggressor must prove guilt beyond a reasonable doubt, whereas the lower standard of preponderance of the evidence is more appropriate for a civil trial for damages. It is therefore more costly to seek punishment than to seek restitution. For this and other reasons, restitution would probably become the predominant mode of justice in a free society.

Nevertheless, acknowledging (and justifying) the theoretical legitimacy of punishment can be useful. For example, punishment (or a theory of punishment) may be utilized to reach a more objective determination of the proper amount of restitution,[84] because a serious aggression leads to the right to inflict more severe punishment on the aggressor, which would thus tend to be traded for a higher average amount of ransom or restitution than for comparatively minor crimes.[85] Especially offended victims will tend to bargain for a higher ransom; and richer aggressors will tend to be willing to pay more ransom to avoid the punishment the victim has a right to inflict, thereby solving the so-called “millionaire” problem faced under a pure restitution system (where a rich man may commit crimes with impunity, since he can simply pay easily-affordable restitution after committing the crime).

Moreover, even if punishment is banned (de facto or de jure) and is not an actual option—because of the possibility of mistakenly punishing innocents, say—an award of restitution can be based on the model of punishment. To-wit: a jury could be instructed to award the victim an amount of money it believes he could bargain for, given all the circumstances, if he could threaten to proportionately punish the aggressor. This can lead to more just and objective restitution awards than would result if the jury is simply told to award the amount of damages it “feels” is “fair.” Barnett nowhere specifies any objective standards or criteria by which a judge or jury is to determine the amount of restitution a victim is to receive for a non-economic crime like murder, rape, and the like. He specifies only that the aggressor must “compensate” the victim for the “harm caused,” to “restore” the victim.[86] Thus, a retribution-based system, even if used only as a model to help determine the amount or standard of restitutive damages, supplements Barnett’s theory of a restitution-based justice system.

Preventative Force

Barnett makes a convincing case that the principle of “extended self-defense” justifies imprisoning (sometimes for life) those who have made a sufficiently unambiguous communication of a threat to another.[87] Because of the possibility of enforcement abuse and rule of law considerations, however, Barnett would limit this remedy to those persons who have communicated a threat to others by their past criminal behavior (i.e., those who have been convicted, perhaps multiple times, of a crime), and only if the previous crimes were proved beyond a reasonable doubt.[88]

This limitation on the principle of extended self-defense seems to me to be unduly restrictive, however. In my view, a threat can be viewed as a species of the crime of assault. Assault is defined as putting someone in fear of receiving a battery (physical beating).[89] A threat should count as a type of assault because the threatener puts the victim in fear of receiving a battery and also deliberately increases the likelihood of physical harm befalling the victim. As explained elsewhere,[90] assault may be punished because this is the only way the victim can reciprocate and put the aggressor–threatener in a like state of fear. I see no reason to allow extended self-defense only where the aggressor has previously been convicted of a crime. Even the first crime is a crime.

 

POLYCENTRISM—I MEAN, ANARCHO-CAPITALISM

One of the best parts of The Structure of Liberty is its argument in favor of anarcho-capitalism. It is marred by its strict avoidance of the more appropriate terms anarcho-capitalism or anarchy; Barnett for some reason prefers to describe anarcho-capitalism as a “polycentric constitutional order,” presumably to avoid unduly alienating statist readers. (If he feels polycentric is a better term than anarcho-capitalism, he does not offer reasons.)

Barnett notes that various types of structures have been tried “to deal with the problem of enforcement abuse by a coercive monopoly of power,” i.e., government, including elections, federalism, and free emigration. Yet, he recognizes, these have failed to keep government in check. Thus, he argues that each of these three principles “reflects a more fundamental principle that needs to be more robustly incorporated into institutional arrangements: reciprocity, checks and balances, and the power of exit.” [91]

Barnett elaborates on these in chapter 13, one of the best in the book. He notes that two constitutional principles are sufficient to achieve a polycentric order: nonconfiscation and competition. Under the former, “[l]aw-enforcement and adjudicative agencies should not be able to confiscate their income by force, but should have to contract with the persons they serve.” Under the latter, they “should not be able to put their competitors out of business by force.”[92] As is clear to libertarians, adherence to these two principles would indeed result in the anarcho-capitalist society, for no government can exist without the ability of a coercive monopoly over its services.[93]

Barnett makes several excellent points in chapter 13. He notes, for example, that if an individual refuses to contract with any legal system, force can still be used against him if he harms others. “The justice of using force against such a person is based on the fact that he or she violated the rights of the victim, not that he or she consented to the jurisdiction of a court.”[94] It is refreshing to see this point emphasized, because many advocates of anarcho-capitalism seem to feel that an aggressor can be punished by a defense agency only if the aggressor somehow previously consented to the jurisdiction of the agency (if he did not consent, the only permissible remedy is presumably ostracism).

Another excellent point concerns the likelihood of a polycentric order actually embodying liberal norms. Barnett sensibly points out that:

… it is difficult to imagine a society that did not adhere to some version of a liberal conception of justice ever accepting a polycentric constitutional order in the first instance. A societal consensus supporting these rights and remedies would seem to be a precondition for ever peacefully ending [monopoly government power]. And, once adopted, the inherent stability of the robust “checks and balances” provided by a competitive system is likely to preserve this initial consensus.[95]

Finally, my favorite part of the book is the well-written, thoughtful, and imaginative chapter 14, “Imagining a Polycentric Constitutional Order: A Short Fable,” in which Barnett speculates on what a possible polycentric-ordered society might look like and how it might function. I mean, an anarcho-capitalist society.

TERMINOLOGY

It is clear that Barnett is a libertarian and that The Structure of Liberty is thoroughly infused with libertarian principles with regard to rights, government, and economics. He even goes so far as to advocate a polycentric—i.e., anarcho-capitalist—system. But one irritating aspect of the book is the unconventional and idiosyncratic use of terminology. Some of these terms seem to be used to try to avoid alienating statists. It is understandable—but ultimately futile, in my view—why Barnett might want to soften the blow of loaded terms like libertarian and anarchy and use the kinder, gentler (but blander, less descriptive, and more misleading) terms liberal and polycentric instead. In my view it is preferable to call a spade a spade.[96] We won’t fool anyone into supporting anarcho-capitalism by using a fancier term.

Some of the terms employed, such as “several property” and “polycentric” order, clearly reveal the Hayekian influence on Barnett; otherHayekian terms such as “spontaneous” and “coordination” are also sprinkled throughout the book. Nothing seems to be gained except confusion and lack of clarity by replacing perfectly good terms like private property and anarcho-capitalism with inferior terms, or even with equally conceptually valid terms.[97]

Barnett also uses the expressions “background rights” instead of natural rights, and “legal precepts” instead of “concrete legal rules” or some other such descriptive term. I must admit that I like having a term for operational, concrete legal rules as distinct from more abstract principles; and “legal precepts” seems, I suppose, as good as any. But “background rights” does not seem to be an improvement over terms such as natural or moral or individual rights (or just plain “rights”). However, these quibbles mainly relate to Barnett’s strategy or style, not to the substance or soundness of his arguments.

PROBLEMS WITH THE PROBLEMS

A consequentialist analysis can be valuable, but one difficulty with Barnett’s account is that he presumes that the universally shared goals of peace, prosperity, and happiness can be achieved if only we solve three main problems (of knowledge, interest, and power). I have already explained that the Barnettian problems of knowledge are better reformulated as aimed at conflict-avoidance, and thus peace (and perhapsat enabling economic calculation, and thus prosperity). A deeper question is why are these the only problems that get in the way of our goals? Why are these three problems exhaustive? What about other purported problems harped on by communitarians, socialists, or other consequentialists, such as inequality and poverty, commercialism and consumerism? Barnett’s considers this issue,[98] but provides only a brief and somewhat unconvincing argument that addressing these other problems with legal coercion would undermine the “foundations” of the “structure of liberty” and thus prevent the three fundamental problems from being solved.[99]

CONCLUSION

As is often the case in a review of this sort, many of my comments have been critical, but this should not give the impression that I find fault with the bulk of Barnett’s work. I have focused primarily on the aspects with which I disagree, and have emphasized economic calculation and the Hayekian knowledge paradigm, and have largely omitted discussion of the many valuable ideas in The Structure of Liberty. In fact, I have profited immensely from many of Barnett’s previous theories, such as his views on constitutional interpretation, contract theory, and his tantalizing suggestion that there should be a presumption against the legitimacy of government statutes in derogation of common law or liberties—a “presumption of liberty.”[100] Most of these are not included or discussed at length in this treatise. Luckily, Barnett’s next book is reportedly The Presumption of Liberty: Restoring the Constitution.[101]

The Structure of Liberty is an important new work by one of libertarianism’s most significant and thoughtful legal scholars. Its primary substantive deficiency is its over-reliance on the Hayekian knowledge paradigm, but the work nonetheless arrives at the private-property norms that address the more relevant issue of interpersonal conflict. The book is full of subtle insights regarding standards and burdens of proof, restitution, the workings of the common law, and the operation of anarcho-capitalism. It is must-reading for all those seriously interested in libertarian theory.

[Notes; some formatting, such as italics, is missing from the notes]

[1] Williamson M. Evers, “Toward a Reformulation of the Law of Contracts,” J. LibertarianStud. 1, no. 1 (Winter 1977; https://mises.org/library/toward-reformulation-law-contracts): 3–13; Randy E. Barnett, “A Consent Theory of Contract,” Colum. L. Rev. 86 (1986; www.randybarnett.com): 269–321; idem, Randy E. Barnett, “Getting Normative: The Role of Natural Rights in Constitutional Adjudication,” Constitutional Commentary 12 (1995; http://www.randybarnett.com/pre-2000): 93–122; idem, “The Intersection of Natural Rights and Positive Constitutional Law,” Conn. L. Rev. 25 (1993; www.randybarnett.com/pre-2000): 853–68; Lysander Spooner, “No Treason No. 4: The Constitution of No Authority,” in The Lysander Spooner Reader (San Francisco, Calif.: Fox and Wilkes, 1992; also available at http://www.lysanderspooner.org/works); and Robert W. McGee, “The Theory of Secession and Emerging Democracies: A Constitutional Solution,” Stanford J. International L. 28, no. 2 (1992; https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2177439): 451–76.

[2] Various works with at least a semi-libertarian approach to legal and constitutional theory include Marshall L. DeRosa, The Ninth Amendment and the Politics of Creative Jurisprudence: Disparaging the Fundamental Right of Popular Control (New Brunswick, N.J.: Transaction Publishers, 1996); Raoul Berger, The Fourteenth Amendment and the Bill of Rights (Norman, Okla.: University of Oklahoma Press, 1989); Robert H. Bork, The Tempting of America: The Political Seduction of the Law (New York: Free Press, 1990); William J. Quirk & R. Randall Bridwell, Judicial Dictatorship (New Brunswick, N.J.: Transaction Publishers, 1995); Bruno Leoni, Freedom and the Law (Indianapolis: Liberty Fund, expanded 3d. ed. 1991 [1961]; https://oll.libertyfund.org/title/kemp-freedom-and-the-law-lf-ed); F.A. Hayek, Law, Legislation, and Liberty, 3 vols. (Chicago: University of Chicago Press, 1973, 1976, 1979); Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain (Cambridge, Mass.: Harvard University Press, 1985); idem, Simple Rules for a Complex World (Cambridge, Mass.: Harvard University Press, 1995); idem, Principles for a Free Society (Reading, Mass.: Perseus Books, 1998). Richard Epstein has contributed enormously to libertarian and legal theory, but is not a completely consistent libertarian and is certainly not an anarcho-capitalist. He also favors intellectual property. See Kinsella, “KOL364 | Soho Forum Debate vs. Richard Epstein: Patent and Copyright Law Should Be Abolished,” Kinsella on Liberty Podcast (Nov. 24, 2021). Moreover, Epstein adheres more to mainstream, neoclassical economics, in which interpersonal utility is both relevant and comparable (see, e.g., Simple Rules for a Complex World, p. 141), than to Austrian economics, which does not suffer the many theoretical deficiencies of neoclassical economics, e.g., interpersonal utility comparisons, logical positivism and scientism, etc.

[3] As of 1999. At present (2023), Barnett is a law professor at Georgetown. http://www.randybarnett.com.

[4] See, e.g., Randy E. Barnett, “Getting Even: Restitution, Preventive Detention, and the Tort/Crime Distinction,” Boston U. L. Rev. 76 (February/April 1996; www.randybarnett.com/pre-2000): 157–68; idem, “Consent Theory”; idem, “Natural Rights and Positive Constitutional Law”; idem, “Getting Normative”; idem, “Necessary and Proper,” UCLA L. Rev. 76 (1997; www.randybarnett.com/pre-2000): 745–93 and others cited in the Bibliography to Structure. See also idem, Randy E. Barnett & John Hagel III, eds., Assessing the Criminal: Restitution, Retribution, And the Legal Process (Cambridge, Mass.: Ballinger, 1977); Randy E. Barnett, The Rights Retained by the People: The History and Meaning of the Ninth Amendment (George Mason Univ. Press, 1991)

[5] Structure, p. 23.

[6] Ibid., pp. 8, 12, 17–23, esp. 22–23.

[7] Ibid., p. 3, emphasis added.

[8] Ibid., p. 16.

[9] Structure contains excellent summaries provided throughout the book at the end of many chapters and sections.

[10] F.A. Hayek, “Economics and Knowledge” and “The Use of Knowledge in Society” in Individualism and Economic Order (Chicago: University of Chicago Press, 1948; https://mises.org/library/individualism-and-economic-order). I explain my disagreement with the Hayekian “knowledge” approach in the “Introductory Note” to Part III.C of “Legislation and the Discovery of Law in a Free Society” (ch. 13).

[11] Structure, p. 29.

[12] Ibid., p. 36 (emphasis added).

[13] Ibid., p. 40.

[14] Ibid., p. 36.

[15] Ibid., p. 44.

[16] Ibid., p. 83.

[17] This has been pointed out in recent debates among Austrian economists, published primarily in the pages of the Review of Austrian Economics. See Jörg Guido Hülsmann, “Knowledge, Judgment, and the Use of Property,” Rev. Austrian Econ. 10, no. 1 (1997; https://mises.org/library/knowledge-judgment-and-use-property): 23–48; Hans-Hermann Hoppe, “F.A. Hayek on Government and Social Evolution: A Critique,” “F.A. Hayek on Government and Social Evolution: A Critique,” in The Great Fiction: Property, Economy, Society, and the Politics of Decline, Second Expanded Edition (Auburn, Ala.: Mises Institute, 2021; www.hanshoppe.com/tgf); idem, “Socialism: A Property or Knowledge Problem?”, in The Economics and Ethics of Private Property; Joseph T. Salerno, “Ludwig von Mises as SocialRationalist,” Rev. Austrian Econ. 4 (1990; https://mises.org/library/ludwig-von-mises-
social-rationalist): 25–54; idem, “Mises and Hayek Dehomogenized,” Rev. Austrian Econ. 6, no. 2 (1993; https://mises.org/library/mises-and-hayek-dehomogenized): 113–46; idem, “Reply to Leland B. Yeager,” Rev. Austrian Econ. 7, no. 2 (1994; https://mises.org/library/reply-leland-b-yeager-mises-and-hayek-calculation-and-knowledge): 111–25; Jeffrey M. Herbener, “Ludwig von Mises and the Austrian School of Economics,” Rev. Austrian Econ.5, no. 2 (1991; https://mises.org/library/ludwig-von-mises-and-austrian-school-economics):33–50. For recent, related papers less critical of Hayek’s position, see Steven Horwitz, “Monetary Calculation and Mises’s Critique of Planning,” History of Political Economy 30, no. 3 (1998; https://perma.cc/9HXZ-T36L): 427–50 and Bruce Caldwell, “Hayek and Socialism,” J. Econ. Literature 35 (December 1997): 1856–90. For further discussion, see “Legislation and the Discovery of Law in a Free Society” (ch. 13), the “Introductory Note” to Part III.C. See also Kinsella, “The Great Mises-Hayek Dehomogenization/Economic Calculation Debate,” StephanKinsella.com (Feb. 8, 2016); “Introductory Note” to Part III.C of “Legislation and the Discovery of Law in a Free Society” (ch. 13).

[18] Salerno, “Mises and Hayek Dehomogenized.”

[19] Structure, p. 54, n. 21.

[20] Hoppe, “Socialism: A Property or Knowledge Problem?”, p. 255.

[21] Hülsmann, “Knowledge, Judgment, Property,” p. 23, emphasis added.

[22] Leoni seems to similarly attribute Hayekian knowledge-related concepts to Mises:

[T]hat the central authorities in a totalitarian economy lack any knowledge of market prices in making their economic plans is only a corollary of the fact that central authorities always lack a sufficient knowledge of the infinite number of elements and factors that contribute to the social intercourse of individuals at any time and at any level.

Leoni, Freedom and the Law, p. 89 et pass.

See also “Legislation and the Discovery of Law in a Free Society” (ch. 13). As noted in the “Introductory Note” to Part III.C, in the original 1995 article upon which that chapter is based, I, too, influenced by Leoni, conflated Hayekian and Misesian ideas in overstating the analogies between central economic planning and central law-creation. See also note 63, below, and accompanying text, concerning the possibility of deducing more concrete legal principles from (themselves deduced) abstract rights.

[23] The term “data compression” is often used synonymously by engineers with terms such as data encoding or encryption, so I suppose it is only a matter of time before Hayekians say that prices convey, in “compressed” form, fragmented and dispersed local knowledge of the particular circumstances of time and place.

[24] Structure, p. 54.

[25] The encoding metaphor seems to be a pseudoscientific and scientistic attempt to give this kind of economic theorizing a patina of scientific respectability by borrowing engineering terminology. It is scientistic because, in vainly trying to borrow natural sciences terminology, there is an assumption that only the “hard” or natural sciences have true validity. It is akin to using such inapt phrases as the “momentum” of the leading team in a basketball game, the “energy” of crystals and astral forms, or, even worse, “revving the engine” of the economy. Both economics and ethics can be sciences, but not in the same way as the causal, natural sciences. On scientism and empiricism, see Murray N. Rothbard, “The Mantle of Science” in Economic Controversies (Auburn, Ala: Mises Institute, 2011; https://mises.org/library/economic-controversies), and Hans-Hermann Hoppe, “In Defense of Extreme Rationalism,” in The Great Fiction. On epistemological dualism, see Ludwig von Mises, The Ultimate Foundation of Economic Science: An Essay on Method (Princeton, N.J.: D. Van Nostrand Company, Inc., 1962; https://mises.org/library/ultimate-foundation-economic-science); idem, Epistemological Problems of Economics, 3d ed., George Reisman, trans. (Auburn, Ala.: Mises Institute, 2003; https://mises.org/library/epistemological-problems-economics); and Hans-Hermann Hoppe, Economic Science and the Austrian Method (Auburn, Ala.: Mises Institute, 1995; www.hanshoppe.com/esam).

[26] Hayek, “The Use of Knowledge in Society,” p. 85 (emphasis added).

[27] In other words, the prices generated on the market are past prices, which are always the outcome of action, not its cause. Hülsmann explains that “all information that this action was based upon had to be acquired beforehand. The price itself could not have communicated the knowledge that brought it [the price] about.” Hülsmann, “Knowledge, Judgment, Property,” p. 26. With regard to the tin example, “tin does not become scarcer and then this fact can come to be known to someone and lead to adaptations. Rather is it the other way around. The very fact that demand increases means that someone already knows of a more value-productive employment of tin.” Ibid., p. 28.

[28] Hayek, “The Use of Knowledge in Society,” p. 85 (emphasis added).

[29] Notes Hülsmann in “Knowledge, Judgment, Property,” p. 28:

An increased scarcity of tin implies that some market participants who otherwise could have benefited from tin are now of necessity prevented from using it. If a quantity of tin is sold, then the seller cannot sell it again, regardless of the exchange rate. There is simply no more of this left.

[30] In fact, as Salerno points out in “Reply to Leland B. Yeager,” p. 114–15, “dispersed knowledge is not a bane but a boon to the human race; without it, there would be no scope for the intellectual division of labor, and social cooperation under division of labor would consequently, prove impossible.”

[31] Murray N. Rothbard, “The End of Socialism and the Calculation Debate Revisited,” in Economic Controversies. As Mises notes: “Appraisement is the anticipation of an expected fact. It aims at establishing what prices will be paid on the market for a particular commodity or what amount of money will be required for the purchase of a definite commodity” (emphasis added). Ludwig von Mises, Human Action: A Treatise on Economics, Scholar’s ed. (Auburn, Ala.: Mises Institute, 1998; https://mises.org/library/human-action-0), p. 329. “The essential elements of economic calculation are speculative anticipations of future conditions,” and the entrepreneur calculates based on “an understanding of future conditions, necessarily always colored by the entrepreneur’s opinion about the future state of the market.” Ibid., p. 349.

[32] See Hülsmann, “Knowledge, Judgment, Property,” p. 44, discussing the secondary importance of any possible information communicated through prices. But as Mises points out, in an intriguing and neglected passage, future prices are not only not dependent on past prices, but in principle could be forecasted by entrepreneurs even before there are existing money prices. As Mises writes:

If the memory of all prices of the past were to fade away, the pricing process would become more troublesome, but not impossible as far as the mutual exchange ratios between various commodities are concerned. It would be harder for the entrepreneurs to adjust production to the demand of the public, but it could be done nonetheless. It would be necessary for them to assemble anew all the data they need as the basis of their operations. They would not avoid mistakes which they now evade on account of experience at their disposal. Price fluctuations would be more violent at the beginning, factors of production would be wasted, want-satisfaction would be impaired. But finally, having paid dearly, people would again have acquired the experience needed for a smooth working of the market process.

Mises, Human Action, chap. XVI. Some people, who are anti-bitcoin, etc., are alarmed by this comment by Mises, since it undercuts their view of the nature and function of money and prices, but I think it gets to the heart of the matter: that all action is aimed at changing the future, which is uncertain; and it is future (uncertain) prices which are used in economiccalculation. See Kinsella, “Human Action and Universe Creation,” StephanKinsella.com (June 28, 2022). “Current”—or, immediate past—prices cannot determine future prices, but they can serve as a starting point, an “accessory of appraisement,” since it can be easier to take stock of the current price array and envision the change, the delta, between now and the future, based on one’s forecast of how human interactions will change, than to forecast a future price starting from chaos. But in principle, there is no reason an actor in a barter society could not forecast the emergence of money in the near future and try to predict the prices that would emerge thereafter. This Gedankenexperiment helps to highlight that prices do not convey knowledge or information, but rather reflect the knowledge, preferences, forecasts, and judgments of actors.

[33] Barnett gives an example of a consumer using prices to decide whether or not to purchase an airline ticket to fly to France. Structure, p. 55. But this example ignores the role of prices in entrepreneurial appraisal in favor of its economically less essential role in consumer choices. See Ludwig von Mises, Economic Calculation in the Socialist Commonwealth (Auburn, Ala.: Mises Institute, 1990 [1920]; https://mises.org/library/economic-
calculation-socialist-commonwealth), pp. 4–6, 24. As Rothbard notes, “consumers goods are not the real problem…. The real problem … is in all the intermediate markets for land and capital.” Rothbard, “The End of Socialism and the Calculation Debate Revisited,” pp. 56–57. He goes on: “the crucial decisions in the capitalist economy are the allocation of capital to firms and industries.” Ibid., pp. 58–60. See also Mises, Human Action, p. 325: “The driving force of the market process is provided neither by the consumers nor by the owners of the means of production … but by the promoting and speculating entrepreneurs.” See also Salerno, “Ludwig von Mises as Social Rationalist,” pp. 45–46.

[34] Hülsmann, “Knowledge, Judgment, Property,” p. 47. Horwitz also notes that current “prices … do serve as the starting point for the next round of entrepreneurial appraisement,” but then adds, “because they do provide (imperfect) information about scarcity, wants, and opportunity costs.” Horwitz, “Monetary Calculation and Mises’s Critique of Planning,” p. 441. The latter part of the sentence seems to be superfluous and not logically connected to the first. Current prices are the starting point in appraisement because today’s prices will change in various ways to result in future prices, which are of interest to entrepreneurs. For a discussion of the connection of current prices to previous prices, see Mises’s regression theorem (Human Action, p. 405 et pass.; idem, The Theory of Money and Credit (New Haven: Yale University Press, 1953), pp. 408 et seq.) and Murray N. Rothbard, Man, Economy, and State, with Power and Market, Scholars ed., 2d ed. (Auburn, Ala.: Mises Institute, 2009; https://mises.org/library/man-economy-and-state-power-and-market), chap. 4, §5.B.

[35] Hoppe, “Socialism: A Property or Knowledge Problem?”, p. 259. See also Rothbard, “The End of Socialism,” p. 66: “the entire Hayekian emphasis on ‘knowledge’ is misplaced and misconceived;” Hülsmann, “Knowledge, Judgment, Property,” p. 39, discussing “the irrelevance of knowledge problems;” and Salerno, “Ludwig von Mises as Socialist Rationalist,” p. 44: “[t]he price systems is not—and praxeologically cannot be—a mechanism for economizing and communicating the knowledge relevant to production plans. The realized prices of history are an accessory of appraisement.” See also related quotes in “Legislation and the Discovery of Law in a Free Society” (ch. 13), at n.68.

[36] Structure, p. 40

[37] Ibid., p. 38. One wonders why Barnett does not refer instead to “problems of preference.” But this may have been a more obviously faulty notion, as it does not garner automatic respectability due to association with Hayek and other intellectuals.

[38] Ibid.

[39] Ibid.

[40] See note 58, below, and accompanying text, discussing the boundary-defining role of property rights and its relation to Barnett’s second-order problem of knowledge.

[41] Structure, p. 41.

[42] Hayek’s model leads Barnett into further error, as can be seen in his statement that “there is no problem of scarcity in the absence of an incompatibility of subjective preferences.” Ibid., p. 38. But this gets it backwards. We cannot even meaningfully say that preferences “conflict” unless they are manifested in conflicting actions regarding the use of particular scarce resources. Thus the concepts of scarcity and conflict are more fundamental than the notion of conflicting preferences or knowledge. On the theory of demonstrated preference, see Rothbard, “Toward a Reconstruction of Utility and Welfare Economics,” in Economic Controversies; and Mises, Human Action.

[43] Hoppe, “Socialism: A Property or Knowledge Problem?”, p. 258.

[44] Rothbard, “Toward a Reconstruction of Utility and Welfare Economics.”

[45] Structure, p. 37.

[46] Ibid., p. 43. Barnett’s conception of rights is also consistent with this emphasis on scarcity and action (p. 77). “[R]ights are construed as enforceable claims to acquire, use, and transfer resources in the world-claims to control one’s person and external resources.” Such rights are thus operational and can serve to guide action so that conflicts are avoided. See also pp. 100–101.

[47] As Hoppe does. See Hans-Hermann Hoppe, A Theory of Socialism and Capitalism: Economics, Politics, and Ethics (Auburn, Ala.: Mises Institute, 2010 [1989]; www.hanshoppe.com/tsc), p. 157; “What Libertarianism Is” (ch. 2).

[48] Hoppe, A Theory of Socialism and Capitalism, p. 157 et pass; “Dialogical Arguments for Libertarian Rights” (ch. 6). Hoppe’s discourse ethics would appear to be a natural complement to Barnett’s own views and previous writings, especially given that Barnett has in the past been heavily influenced by Hoppe’s mentor Rothbard, who claimed that 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.” See Murray N. Rothbard, “Beyond Is and Ought,” Liberty (Nov. 1988; https://perma.cc/6HMQ-7CVQ): 44–45, 44, discussed in “Dialogical Arguments for Libertarian Rights” (ch. 6), n.15.

[49] Barnett, “Getting Normative,” p. 100. See also idem, “The Intersection of Natural Rights and Positive Constitutional Law”; and Structure, p. 122 et seq., following Fuller in arguing that the common law usefully requires parties to state their claims in terms of rights, thus necessarily asserting (presupposing) some principle or standard by which the claim of right can be tested.

[50] Hülsmann, “Knowledge, Judgment, Property,” p. 44. The need to acquire knowledge faces even Crusoe alone on his island, who has no need for private property rules because there are no other people and thus no possibility of interpersonal conflict.

[51] Structure, pp. 53–54.

[52] Rothbard, “Toward a Reconstruction of Utility and Welfare Economics.”

[53] Structure, p. 85.

[54] Ibid., p. 84.

[55] Ibid., p. 107.

[56] Ibid., pp. 84–85, 94–97, and 109–117.

[57] Ibid., p. 16.

[58] Ibid., pp. 94–95. On the objective function of property rules, see Hoppe, A Theory of Socialism and Capitalism and idem, The Economics and Ethics of Private Property: Studies in Political Economy and Philosophy (Auburn, Ala.: Mises Institute, 2006 [1993]; www.hanshoppe.com/eepp); “Selling Does Not Imply Ownership, and Vice-Versa: A Dissection” (ch. 11), at n.16; “Legislation and the Discovery of Law in a Free Society” (ch. 13), n.147. See also Structure, p. 101: “Only a general reliance on objectively ascertainable assertive conduct will enable a decentralized system of rights to perform its allotted boundary-defining function.”

See also Saúl Litvinoff, The Law of Obligations: Part I: Obligations in General, 2d ed. (St. Paul, Minn.: West Publishing Company, 2001), §1.9 (footnotes omitted):

… the law of obligations is one area of the vast region of the law of patrimony, which comprises, precisely, property and obligations.

The theory of obligations appears as a peculiar intellectual phenomenon in the evolution of legal thought. No doubt, it belongs together with the law of obligations but the theory does not reach as far as the law itself. The theory of obligations concerns itself only with an analysis of the component parts, the blueprint, of a certain mechanism, but without exploring the ways in which that mechanism works in concrete situations. Thus, the theory of obligations concerns itself with contract as the general scheme of all sorts of accords of the will of parties, without looking into the variations to which that scheme is susceptible according to the different needs it must satisfy. The theory leaves these variations to be explored elsewhere, in the sphere of special contracts, or contracts in particular, such as sale, lease, loan, and the many others that exist.

[59] Structure, p. 108.

[60] Just rules are those that conform to the type of private-property order that serves to permit conflict avoidance and enable prosperity. As Hoppe has shown, such a private-property order is based on Lockean type homesteading since the first-possessor rule is the only objective rule that can be intersubjectively and universalizably agreed upon by potential disputants. See Hoppe, A Theory of Socialism and Capitalism, p. 157.

[61] Structure, pp. 109–11.

[62] But see Kinsella, “The Limits of Armchair Theorizing: The Case of Threats,” Mises Economics Blog (Jul. 27, 2006).

[63] James Hadley, Introduction to Roman Law (Littleton, Colo.: Fred Rothman, 1996; https://archive.org/details/introductiontoro029387mbp), p. 66. Hadley notes that “A recent able lecturer on ancient law, Mr. Maine, finds in this fact an explanation of the more thorough scientific development which distinguishes the Roman law from the English.” Ibid. On the use of hypotheticals by Roman jurists, see also the following sources, quoted more extensively in Kinsella, “Roman Law and Hypothetical Cases,” StephanKinsella.com (Dec. 19, 2022): H.F. Jolowicz & Barry Nicholas, Historical Introduction to the Study of Roman Law, 3d ed. (Cambridge, U.K.: University Press, 1972), pp. 95 & 97; Bruce W. Frier, The Rise of the Roman Jurists (Princeton, N.J.: Princeton University Press, 1985), pp. 163–71, esp. p. 167; W.W. Buckland & Arnold D. McNair, Roman Law and Common Law: A Comparison in Outline (Cambridge, England: University Press, 2d ed., revised by F.H. Lawson, reprinted with corrections 1965), pp. 6–15, esp. p. 9; Peter Stein, Roman Law in European History (Cambridge University Press, 1999), pp. 8–9, 18, and 67–68; A. Arthur Schiller, Roman Law: Mechanisms of Development (Mouton Publishers, 1978), § 137; Alan Watson, “Justinian’s Corpus Iuris Civilis: Oddities of Legal Development; and Human Civilization,” Lecture 2 in Authority of Law; and Law: Eight Lectures (Stockholm: Institutet fr̈ Rẗtshistorisk Forskning, 2003; https://perma.cc/2BD5-4P4K), p. 65; James Gordley, The Jurists: A Critical History (Oxford University Press, 2013), p. 17; John P. Dawson, The Oracles of the Law (Thomas M. Cooley Lectures, Ann Arbor: University of Michigan Law School, 1968), pp. 116–17, 63–64, 71–72 (commenting on the use of hypotheticals in the Roman law as well as English common law); Barry Nicholas, An Introduction to Roman Law (Oxford University Press, 1962), pp. 33–34; Alan Watson, Roman Law and Comparative Law (University of Georgia Press, 1991), pp. 261, 250–51; and Wolfgang Kunkel, An Introduction to Roman Legal and Constitutional History, J.M. Kelly, trans (Oxford University Press, 1966), p. 86. I cite so many sources here because the comments of these various authors on the issue of hypothetical cases do not always seem fully consistent with each other, though the overall general thrust in this regard seems clear.

[64] Hoppe, A Theory of Socialism and Capitalism, p. 157; Murray N. Rothbard, The Ethics of Liberty (New York: New York University Press, 1998); “A Libertarian Theory of Punishment and Rights” (ch. 5); “Dialogical Arguments for Libertarian Rights” (ch. 6).

[65] This is analogous to Mises’s method selecting certain empirical assumptions (e.g., assuming there is money instead of barter) to develop “interesting” laws based on the fundamental axioms of praxeology, rather than irrelevant or uninteresting (though not invalid) laws. See Mises, The Ultimate Foundation of Economic Science, p. 41; idem, Epistemological Problems of Economics, pp. 14–16, 30–31, 87–88; idem, Human Action, pp. 64 et seq. See also Hoppe, A Theory of Socialism and Capitalism, p. 142, as quoted in “Causation and Aggression” (ch. 8), n.4. See also “A Libertarian Theory of Punishment and Rights” (ch. 5), n.36.

[66] Barnett does note the similarity between common law and civil law systems. Structure,p. 116 n.10. The civil law was derived from principles developed in a common-law fashion in the Roman law. It is the Roman law, more than the more positivistic and legislation-worshiping civil law, that bears a similarity with the common law. For further discussion on decentralized legal systems and related matters, see “Legislation and the Discovery of Law in a Free Society” (ch. 13), at n.153.

[67] See “Legislation and the Discovery of Law in a Free Society” (ch. 13), n.43; also Gregory Rome & Stephan Kinsella, Louisiana Civil Law Dictionary (New Orleans, La.: Quid Pro Books, 2011).

[68] Structure, p. 22, emphasis added; also p. 130. For conventional views regarding the duty to obey laws promulgated by the state, see M.B.E. Smith, “Is There a Prima Facie Obligation to Obey the Law?,” Yale L. J. 82 (1973; https://perma.cc/MF3A-LBEV): 950–76 and Leslie Green, “Who Believes in Political Obligation?” in For and Against State, John T. Sanders & Jan Narveson, eds. (Lanham, Md.: Rowman and Littlefield, 1996), p. 15.

[69] Structure, p. 110.

[70] But see his discussion at ibid., pp. 122–23.

[71] Ibid., p. 136.

[72] Ibid., p. 137.

[73] Ibid., chap. 8.

[74] Ibid., chap. 9.

[75] Ibid., pp. 176, 184, 191.

[76] Ibid., chaps. 10 and 11.

[77] Ibid., chap. 12.

[78] Ibid., chaps. 9–15.

[79] “Inalienability and Punishment: A Reply to George Smith” (ch. 10); for more on the theory of inalienability, including discussion of Barnett’s views in this regard, see “A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability” (ch. 9). See also Walter E. Block, “Toward a Libertarian Theory of Inalienability: A Critique of Rothbard, Barnett, Smith, Kinsella, Gordon, and Epstein,” J. Libertarian Stud. 17, no. 3 (Spring 2003; https://perma.cc/79AC-34BZ): 39–85, and my discussion of Block’s views in “Selling Does Not Imply Ownership, and Vice-Versa: A Dissection” (ch. 11).

[80] For justification of the right to punish aggressors, see “A Libertarian Theory of Punishment and Rights” (ch. 5); “Dialogical Arguments for Libertarian Rights” (ch. 6); and Hoppe, A Theory of Socialism and Capitalism, p. 157 et pass.

[81] As Barnett acknowledges, “this analysis cannot conclusively prove that no combination of compensation or punishment can ever address effectively the compliance problem.” Structure, p. 237. And further: “I do not claim to have completely demonstrated this proposition [that justice requires restitution, no punishment] either in my earlier writings, or in this book.” Ibid., p. 185 n.36. See also pp. 228 & 320, and p. 321: “If men were gods, then perhaps imposing rewards and punishments on the basis of desert would be a workable theory.” Also: “It has been noted that one who wishes to extinguish or convey an inalienable right may do so by committing the appropriate wrongful act and thereby forfeiting it.” Randy E. Barnett, “Contract Remedies and Inalienable Rights,” Social Pol’y & Phil. 4, no. 1 (Autumn 1986; https://perma.cc/P8JL-KAT2): 179–202, p. 186, citing Diane T. Meyers, Inalienable Rights: A Defense (New York: Columbia University Press, 1985). As I noted in “Inalienability and Punishment: A Reply to George Smith” (ch. 10), Smith is incorrect in claiming that Barnett’s writings support Smith’s view that all rights, even those of a murderer, are inalienable. See George H. Smith, “A Killer’s Right to Life,” Liberty 10, no. 2 (November 1996; https://perma.cc/AF2J-RAL9): 46–54. For more on forfeiture or waiver of rights, see also Herbert Morris, “Persons and Punishment,” in On Guilt and Innocence: Essays in Legal Philosophy and Moral Psychology (Berkeley: University of California Press, 1976), pp. 31, 52, et pass., discussing the right to bodily integrity and the waiver of this right; also “A Libertarian Theory of Punishment and Rights” (ch. 5), n.88 and Appendix: The Justice of Responsive Force.

[82] Structure, p. 228, emphasis added; also pp. 197, 228.

[83] Ibid., p. 212.

[84] On the issue of determination of the proper amount of damages, see Bruce L. Benson, “Restitution in Theory and Practice,” J. Libertarian Stud. 12, no. 1 (Spring 1996; https://mises.org/library/restitution-theory-and-practice): 79–83, and Murray N. Rothbard, “Punishment and Proportionality,” in The Ethics of Liberty (https://mises.org/library/punishment-and-proportionality-0), pp. 88–89.

[85] For further discussion of criminals buying their way out of punishment, see “Inalienability and Punishment: A Reply to George Smith” (ch. 10); “A Libertarian Theory of Punishment and Rights” (ch. 5); Rothbard, “Punishment and Proportionality,” pp. 86, 89; Roger Pilon, “Criminal Remedies: Restitution, Retribution, or Both?” Ethics 88, no. 4 (July 1978): 348–57, at 356.

[86] Structure, pp. 159, 185.

[87] Ibid., pp. 186–91.

[88] Ibid., pp. 213–14. See also idem, “Getting Normative,” p. 157. One problem with Barnett’s solution here is that, under his restitution-based system, previous crimes would have been proved by some standard less than the “beyond a reasonable doubt standard,” such as the “preponderance of the evidence” standard, and thus it would be very difficult to jail threatening individuals.

[89] Louisiana Criminal Code §36 (https://www.legis.la.gov/legis/laws_Toc.aspx?older=75&level=Parent); Black’s Law Dictionary (1994, p. 114; defining assault); Mason v. Cohn, 108 Misc. 2d 674, 438 N.Y.S.2d 462 (N.Y. Sup. Ct. 1981; https://casetext.com/case/mason-v-cohn-1) (defining assault). The Louisiana Criminal Code defines assault as “an attempt to commit battery, or the intentional placing of another in reasonable apprehension of receiving battery.” A battery is defined as “the intentional use of force or violence upon the person of another; or the intentional administration of a poison or other noxious liquid or substance to another.” Louisiana Criminal Code § 33. Assault can thus also include an attempted battery (which need not put the victim in a state of apprehension of receiving a battery—e.g., the victim may be asleep and be unaware that another has just swung a club at his head, but missed.

[90] “A Libertarian Theory of Punishment and Rights” (ch. 5).

[91] Structure, p. 256.

[92] Ibid., p. 258.

[93] Charles Murray, What it Means to Be a Libertarian (New York: Broadway Books, 1997), p. 64, makes a similar point when he argues that citizens should be able to opt out of certain government programs.

[94] Structure, p. 278.

[95] Ibid., p. 281–82.

[96] See Ayn Rand, “Introduction,” in The Virtue of Selfishness: A New Concept of Egoism (New York: Signet, 1964), p. vii:

The title of this book [The Virtue of Selfishness] may evoke the kind of question that I hear once in a while: “Why do you use the word ‘selfishness’ to denote virtuous qualities of character, when that word antagonizes so many people to whom it does not mean the things that you mean?” To those who ask it, my answer is: “For the reason that makes you afraid of it.”

Rand also unabashedly, and admirably, proclaimed herself to be a radical for capitalism.

[97] In the second edition of Structure, Barnett grants that the use of the term “several” in the first edition was a mistake:

Were I writing the book today, however, I might change one term. I might use the term “private property” rather than the term “several property” that I borrowed from Hayek, who himself borrowed it from Scottish Enlightenment thinkers. I preferred “several property” because it emphasized the need to recognize jurisdiction over resources among the several or many individuals and associations that comprise a society. Were property held in the private hands of a very few, this type of “private property” would not address the problems of knowledge and interest. But in the interest of clarity and the avoidance of jargon, “private property” would have been clearer and, I now think, preferable.

Structure, p. 330–31.

[98] Structure, pp. 325–26.

[99] For a similar critique of Barnett’s argument in this regard, see Lawrence B. Solum’s review of The Structure of Liberty (first edition), “The Foundations of Liberty,” Mich. L. Rev. 97, no. 6 (May 1999; https://repository.law.umich.edu/mlr/vol97/iss6/26/): 1780–1812, at 1791–92.

[100] Barnett, “Getting Normative”; idem, “Natural Rights and Positive Constitutional Law.”

[101] Since the original review was written, this book has indeed been published; see Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty, 2d ed. (Princeton University Press, 2013).

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KOL288 | Libertarianism Q&A AMA Coronavirus edition #2

by on May 18, 2020

Kinsella on Liberty Podcast, Episode 288.

Installment #2 in my impromptu Zoom session with whoever wanted to join. Got a bit more hang of how to record everyone in gallery mode, and so on. As last time, just a few of us talking random libertarian topics. Next time will give more advance notice and maybe have a slightly bigger audience.

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KOL287 | Libertarianism Q&A AMA Coronavirus edition #1

by on May 16, 2020

Kinsella on Liberty Podcast, Episode 287.

I decided to try an impromptu Zoom session with whoever wanted to join, in part to test Zoom and my tech skillz. Just a few of us talking random libertarian topics. No big whoop. May make this a more regular thing once I get the hang of it.

 

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KOL286 | Tom Woods Show: On Coronavirus, My Road to Libertarianism, and the Good and Bad in Ayn Rand

by on April 10, 2020

Kinsella on Liberty Podcast, Episode 286.

This is my umpteenth appearance on The Tom Woods Show, “Ep. 1629 Kinsella on the Coronavirus, His Road to Libertarianism, and the Good and Bad in Ayn Rand“. From Tom’s show notes:

Libertarian legal theorist Stephan Kinsella and I discuss his road to libertarianism (of the Rothbardian kind), where he thinks we need more work, the rights and wrongs of Ayn Rand, and more. And yes, some discussion of the virus….

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KOL285 | Disenthrall: Contracts with Stephan Kinsella

by on March 18, 2020

Kinsella on Liberty Podcast, Episode 285.

I appeared today on the Disenthrall.me Youtube channel, host Patrick Smith, to discuss libertarian contract theory (Contracts with Stephan Kinsella). We talked about the standard legal view of contracts, the Rothbard-Evers title theory of contract, applications such as bitcoin “smart contracts” and intellectual property, the idea of breach of contract, liquidated damages clauses, and so on.  (I was previously a guest — KOL264 | Disenthrall: Stephan Kinsella on Tim Pool Subverse and Trademark.)

From Disenthrall’s shownotes: “In response to a viewer request we bring you a deep dive into Libertarian contract theory. What are contracts? Why are contracts? What are NOT contracts?”

Patrick is apparently taking over Anarchast, on which I’ve been a guest in the past, so we may be doing an episode on that channel soon.

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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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