Writes Objectivist Diana Hsieh:
Would Jesus have blown up a housing project for the poor to protect his intellectual property, as Howard Roark did? Of course not!
I think she’s right! Apparently she is under the delusional belief that admitting and praising the IP terrorism of The Fountainhead actually helps her case.
I will collect here links to various articles or discussions about how authors, etc. can make money without relying on the copyright monopoly model. Please feel free to email suggestions or add them to the comments; I’ll update this post from time to time.
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See my comments in the last post at the end. Thoughts? Very speculative, but the kind of ideas I’ve been mulling over for some time:
http://blog.mises.org/13370/seinfelds-elaine-is-anti-ip/comment-page-1/#comment-705228
Jay Lakner July 26, 2010 at 11:24 pm
Ok let’s try this again, but with a different approach.
An author, let’s called him Adam, wishes to sell his book but he only wants official copies to be in circulation.
His intent is to prevent people from duplicating his book.
The means by which he tries to achieve this intent is by selling each copy with a contract whereby the buyer is prohibited from performing actions that duplicate the book.
A careful study of cause and effect demonstrates that if nobody violates the contract, then his intented aim will be fulfilled.
One of the buyers of the book violates the contract and spreads copies out to others.
A third party, who I’ll refer to as Patrick, finds one of these copies in his possession.
Patrick knows that the only reason this copy exists is because of a previous violation of contract.
Patrick knows that Adam’s intent in forming the contract was to prevent free copies from circulating.
Patrick knows, through cause and effect, that had no violation of the contract originally occurred then Adam’s intent would have been realised.
Patrick knows, through cause and effect, that if he were to further duplicate this copy, the result would be in violation of Adam’s intent.
With all this knowledge of the situation, is Patrick allowed to duplicate his copy?
An otherwise peaceful action can be illegal if the actor has knowledge of certain criminal actions that preceded it. The intent to copy is not illegal. However the intent to copy, in knowledge of the contract violations that preceded it, could very well be considered illegal.
Stephan Kinsella July 27, 2010 at 12:42 am
“The means by which he tries to achieve this intent is by selling each copy with a contract whereby the buyer is prohibited from performing actions that duplicate the book.”
There are two ways to view a contract: 1. it’s not a prohibition. It’s just a title trasnfers, where the buyer agrees to pay damages to the author Adam IF he copies the book. 2. Adam retains ownership of the book and only leases it to , or gives parital ownership of, to the buyer, retaining most rights, so that it’s trespass (a crime) if the buyer uses the physical book still owned by Adam, in ways that Adam does not consent to.
“A careful study of cause and effect demonstrates that if nobody violates the contract, then his intented aim will be fulfilled.”
Unrealistic. First, suppose Adam reads the book in his living room and across the street, a neighbor with a telescope photographs every page. well here the buyer didn’t “duplicate” it, so he is not in breach, and the neighbor has no contract.
Second, no author just wants to stop mere literal duplication; this is why derivative works are included in the copyright statute and why copying covers more than literal duplication but also the general plot, characters, etc. So suppose the Buyer is discussing the plot with someone, or maybe does a book review. this is not duplication. Yet now the info is out there sufficient to enable third party to make a sequel, which would violate copyright, but would not be any contract breach.
Your example is so sterile that at most it achieves something fairly useless for authors–that’s why they insist that the law cover not only literal copying, but duplication more broadly considered as well as derivative rihgts.
I would say that according to interpretation 2 of the contract Patrick knows he holds in his hands property of Adam and that he is not permitted to do X Y and Z wiht it. So he may not duplicate it.
However, this is not a good hypo. A better one is if the Buyer puts the information on the internet. If Patrick sees it then, he is not committing trespass on Adam’s property because he is not handling the book. And it only takes one person to do this and the genie’s out the bottle. Furhter, as I said, all this only goes to literal copying but I assure you the pro-IP fascists do not want this limited right only. It’s not sufficient for their copyright monopoly schemes and they know it.
Further, if Patrick first saw information in the book before being aware of who owned it, then any information he already got, he is free to use, since he did not get this by trespass.
Jay Lakner July 27, 2010 at 1:26 am“Unrealistic. First, suppose Adam reads the book in his living room and across the street, a neighbor with a telescope photographs every page. well here the buyer didn’t “duplicate” it, so he is not in breach, and the neighbor has no contract.”
I’m first only looking at the most extreme and simplified case. If I can find a justification for preventing third parties from duplication in a simple case, then and only then will I bother to look at more complicated examples.
Therefore, let’s assume that the contract stipulates that the buyer may only view the book in an enclosed windowless room. Also let’s assume that the contract stipulates that the buyer may not discuss the book with anyone.
“I would say that according to interpretation 2 of the contract Patrick knows he holds in his hands property of Adam and that he is not permitted to do X Y and Z wiht it. So he may not duplicate it.”
It seems I didn’t make the situation clear enough. My apologies. In my example, Patrick holds an illegitimate copy of the book. I’m asking whether he can duplicate this copy … even with full knowledge of the crime committed to bring this copy into existence and full knowledge of the contractual agreement between Adam and the buyers.
“Further, if Patrick first saw information in the book before being aware of who owned it, then any information he already got, he is free to use, since he did not get this by trespass.”
Like I said, Patrick hold an illegitimate copy of the book but he has full knowledge of who the original author is and full knowledge of the original contractual arrangement between Adam and the buyers.
“However, this is not a good hypo.”
Like I said, I’m presenting a very extreme, yet simplified case. I’m trying to discover whether it is at all possible, even in extreme cases, to justify preventing third parties from copying a book.
Stephan Kinsella July 27, 2010 at 7:41 amI’m first only looking at the most extreme and simplified case. If I can find a justification for preventing third parties from duplication in a simple case, then and only then will I bother to look at more complicated examples.
The problem is that the simple case is not enough, since all you need is one way out and then the game is over.
Also let’s assume that the contract stipulates that the buyer may not discuss the book with anyone.
Ahhh, but this is not a use of the book. This is something the buyer does afterwards. This is an attempt to control his actions by contract. This can only be contract type 1 that I specified above, not contract type 2. That is, the buyer can agree to pay money damages to Adam IF HE discusses it with someone. But technically speaking his discussing it with a third party is not any type of trespass (I discuss this in detail in http://www.mises.org/journals/jls/17_2/17_2_2.pdf ).So, this is one huge problem. In fact if buyer has a photographic memory there is no way to prohibit him from writing down a copy of the book using his memory. All you can do is impose a fine on him for doing so. It cannot be regarded as trespass. (This is assuming rights are inalienable, as Rothbard said, and that contracts are merely transfer titles to alienable proper rather than “enforceable promises”.)
It seems I didn’t make the situation clear enough. My apologies. In my example, Patrick holds an illegitimate copy of the book. I’m asking whether he can duplicate this copy … even with full knowledge of the crime committed to bring this copy into existence and full knowledge of the contractual agreement between Adam and the buyers.
Okay, I did miss that. I didn’t read closely enough. I thought it was the same copy C1 purchased. Okay: So Adam sells legitimate copy C1 to Buyer B1. Buyer B1 slaps it on a photocopier and makes bootleg copy C2. Patrick finds C2.Okay, there are two ways now to interpret this.
First, let’s assume that the copying was an actual prohibited use of C1. This means it was like a type of trespass. I suppose–and here I’m being generous in your favor–we could assume that Adam and B1 have various subsidiary title transfers, one of which is something like this: “B1 has no right to use Adam’s book C1 except to read it; he may not duplicate it; if B1 attempts to duplicate C1, this is regarded as trespass, and further, B1 hereby transfers to Adam the title to any bootleg copy thereby produced.”
[one problem here is that B1 could use Patrick’s property to make C2, so that the title transfer back to Adam would not work. But skip this for now.]
Then B1 is in possession of two physical objects, C1 and C2, each of which is owned by Adam. So then Patrick is in possession of C2, and we resume where I left off earlier just as when Patrick was handling C1.
The other way to interpret it is that by making C2, B1 owes money damages to Adam, but C2 is not Adam’s property. In this case, there are no restrictions whatsoever on Patrick [unless we assume that in addition to money damages, B1 agrees to a type of title transfer whereby he retains ownership of C2 and only grants patrick readin-rights, etc., and/or C2 is transferred in title to Adam… but this is like the above case.]
Like I said, I’m presenting a very extreme, yet simplified case. I’m trying to discover whether it is at all possible, even in extreme cases, to justify preventing third parties from copying a book.
I think it is: where the phyiscal object is still owned by the author, and the third party is aware of this. In this case his use of the book in ways not permitted by the owner is arguably a trespass, much like if you rent a Hertz car for normal vacation purposes and then you use it in a way not permitted by the rental contract, this is (or should be) viewed as a type of trespass (misuse) of the other’s property.
I have considered this possible contractual mechanism long ago, and concluded it’s flaccid because there are still too many ways for the information pattern to leak. Once this happens there is no more “hook” to ensnare third parties.I think a better contractual scheme would be to try to get a large swath of society contractually part of some copyright regime. For example all the big media companies band together to do something like this: every DVD, CD, you purchase; every MP3 song you download from iTunes or elsewhere; every movie theater ticket you purchase-they all come with a contract that says: “buy buying this I hereby agree to abide by the rules of the Copyright Regime for life, said rules specified in detail at [URL].”
And then at the site, it tries to set up a set of penalties (damages) if you violate the “private copyright” “rights” of any of the Cartel’s content creators. So, imagine this cartel has signed up 100,000 various creators–artists, musicians, actors, film studios, etc. So every Lady GaGa CD, every Sony movie, etc.–they are all part of this. If you want to EVER buy just one of these services or products of a member of the cartel legitimately–say, go to a movie, buy a licensed Teeshirt, buy a DVD, rent from Netflix, download a movie from pay per view, and so on–you have to agree to the Private Copyright Rules. One you do this (let’s assume the validity of such a contract even though I think it is not obvious that it is valid), now you are stuck. Even if you don’t see Star Wars but are aware of the plot, you can’t make a movie based on the general plot or character because you have now agreed that, IF you do this, you automatically trigger a payment of a million dollars damages to George Lucas. Etc.Instead of Walter Block’s Murder Park, it’s like IP World. The problem is you only need a couple of holdouts who just refuse to partake of any of this cartel’s merchants. Then one of them bootlegs the Lady GaGa song, and puts it on the Internet (assuming the ISP has not also become part of this cartel!). Now, consumer who have not yet signed away their IP freedom by signing the cartel’s contract, can use the bootleg stuff instead. You can imagine the amount of bootleg material available like this, growing over time–just as is happening now if you compare Pirate Bay to legal distribution channels. And thus, there would be less incentive for consumers to join the draconian private IP cartel, and they would get less customers and a reverse snowball would happen; it would shrivel and die.Maybe. And/or, the Cartel would have to impose VERY LIGHT and reasonable restrictions in its IP Contract–maybe it lasts for only a year or five (your membership in it); maybe the IP protection lasts only a year or three; maybe it covers only literal infringing, not all these crazy derivative rights; maybe the damages are reasonable and are tantamount to the price you would pay to purchase the song rather than $10,000 per song as is the case now.
If THIS were the fine print, maybe you would be okay with signing it since it’s minimal and reasonable, temporary etc. Not draconian.I would view this as analogous to the media companies now, lowering the price of song downloads to a nickel, movie downloads to a buck, book downloads to fifty cents, and so on — to rates at which they make about the same profit per copy sold as they did in the past with physical media, assuming increased volume because of the lower price — in effect passing on the savings of the omitted physical media cost to the consumer. If media companies did this now, it would gut the need for piracy. But they are too stupid and dinosaur like to do this. So they feed piracy.
Anyway, I do imagine that various cartels like this would be attempted in a free market and they should be permitted to try–antitrust law should not stop any such collusion, of course. I just don’t think it would work, in the end, to set up any kind of society-wide draconian IP system like we have now. It would have to be limited in reach, time, duration, scope, and penalty, to have a chance of having any traction. but if it was, it could possibly form a little bubble where the content companies make some money off of the set of consumers they have brought into this bubble. I just think it’s better to do it by the power of attraction, like google does with its ecosystem or like Apple does with its ecosystem, say, than by strong arm tactics.
I’ve thought about all this a long time but haven’t written much about it yet since this is so speculative. Thoughts?
Good stuff: Open Letter to Journal Reviewers.
Dear Reviewer,
Thank you for taking the time to serve as a reviewer for the journal to which I have submitted my paper. Thanks, too, for agreeing to serve as the reviewer of my submission in particular. When we serve as reviewers, we do the profession a great service. The integrity of our profession in large measure depends on competent and conscientious blind review. So, once again, I thank you very much.
However, I have noticed in recent years a marked decline in the quality of the referee reports I have received in response to my journal submissions. Now, of course, maybe the way to explain this is that the quality of my work has declined in recent years. I suppose that’s possible, but I don’t think this could explain the phenomenon– I’ve seen and received high-quality reviews of poor submissions. These are reviews that, despite the ultimate negative judgment regarding the submission, nonetheless do a good job of explaining the weaknesses of the paper, point to definite defects, raise well-targeted objections to actual claims made in the paper, and give a detailed assessment of where the paper’s argument stands vis-a-vis the state of the art in the literature. In short, a high-quality review is a review of the submitted paper, not an opportunity for the reviewer to react to or muse over the paper’s topic.
So I offer a few simple steps that I urge you to consider taking in preparing your review:
1. Give a definite judgment. If the paper is hopeless, say so. If the paper needs significant revision before it could be even in the ballpark of publishibility, say that. If the paper is out of touch with the current literature, say (roughly) what that literature is. If the paper is sound, but not that interesting, say it. And be clear about whether you recommend R&R rather than conditional acceptance. And so on.
2. Before launching into your critical analysis of my paper, provide a paragraph summary of what you take to be its main thesis and argument. This is easy to do, and it’s a great help to the author (I suspect it helps the editor as well). It helps the author to see whether your ultimate judgment regarding the paper is based on a sound reading of it. It helps the author to gauge whether he or she has been clear enough in writing it. Sometimes reviewers reject papers that they misunderstand, and sometimes this misunderstanding is due to the author’s carelessness in framing the paper. Sometimes reviewers misunderstand the paper in such a way that their critical comments are entirely beside the point. Sometimes a R&R decision is based on reviewers who misunderstood the paper; in this case, their suggestions for revision are really suggestions for writing a different paper. And it takes authors a lot of time to figure out how to interpret a reviewer’s comments. A lot of time could be saved if you just state up front what you understand the paper to be about. It’s easy.
3. In giving your critical analysis, you should of course be as forceful as possible, no matter what ultimate decision you recommend. But please be as specific as possible. When you attribute to the author a claim that you think is objectionable, identify the place in the paper where the author makes the claim. And whenever possible, quote what the author actually says. Do not relay on your impressions or your rough sense of what the author claims.
4. Review the paper that the author has written. Whether you believe that some other approach than the one the author has taken is superior is irrelevant. In fact, it’s not clear what one means by terms like “approach,” “methodology,” “discourse,” or “tradition.” It is not clearly a criticism of a paper to say that the author “should consider joining a different conversation.” Nor is it yet a criticism of a paper to say that the author “is dealing with a narrow range of interlocutors.” These remarks are little more than cryptic snobbery unless you say something about how the range of interlocutors is unduly narrow or that the “conversation” that the author is engaging in has been exhausted or proven fruitless. In other words, resist the compulsion to go “meta.” A review for a journal submission is not the place to take out your aggressions concerning the state of the profession. If you can’t do this, you should decline invitations to review.
It seems to me that these steps don’t demand too much. They can be easily satisfied in the usual a three to five paragraph review.
Sincerely,
Author
As a supplement to the post The L. Neil Smith – FreeTalkLive Copyright Dispute:
My reply to Cathy, Neil Smith’s wife: http://forum.freekeene.com/index.php?topic=3502.msg39201#msg39201
Cathy, my only focus here is the claim that IP is justified. Neil’s latest articles is not a clear argument in favor, but it seems to rest on the idea that you own any pattern you create. But this is not a libertarian principle and in fact if people owned patterns they created then it would undermine all property in physical things. He implies we would have no innovation without IP–which is clearly untrue. We might have less, but not zero. So then the argument is we need IP to make sure we have more innovation. How do we know the value of that additional innovation is worth the cost of the IP system? How we do know even that higher level of innovation is enough? Some–even libertarians–think it’s not so they go even further and support tax subsidized innovation awards to spur even more innovation.
I am a patent lawyer, and a libertarian (and a huge fan of your husband’s novels). I used to be pro-patent, but when I searched for a more solid foundation for it, I finally realized I couldn’t, and that the reason was I was trying to justify the unjustifiable. Granting rights in ideas really means giving the idea-creator a veto-right over how other people use their own bodies and property. It’s simply unjustifiable. You do not own “whatever” you “create”–you own scarce resources for which you or an ancestor in title were the homesteader. [continue reading…]
see KOL059 | Libertarian Parenting—Freedomain Radio with Stefan Molyneux (2010)
Update: my TLS blogpost Stefan Molyneux’s “Libertarian Parenting” Series; and my post Montessori and “Unschooling”.
FDR1689 Libertarian Parenting – A Freedomain Radio Conversation with Stephan Kinsella
Posted: Thu, 1 Jul 2010 15:00:00 GMT
Two libertarian parents discuss how to best raise confident and freethinking children, including discipline without aggression, Montessori education, resolving conflicts and teaching skepticism and rationality.
No, not Obama: Bill Clinton, who was, after all, the nation’s first black president. Here he is, as I predicted here.
The Supreme Court handed down this term’s final four decisions today: Christian Legal Society Chapter v. Martinez, on public university limitations on a Christian student group’s rights of association; the McDonald v. Chicago case incorporating the Heller gun decision against the states (Huebert’s discusssion); Free Enterprise Fund v. Public Co. Oversight Bd. (a Sarbanes-Oxley decision); and Bilski v. Doll, a much-anticipated patent case.
Patent law is mind numbingly arcane, technical, and boring, so let me simplify as much as possible. This case was about what the legal test should be to determine whether certain processes can be possibly eligible for patent protection. For typical practical technical or industrial processes, it’s not a difficult question. But for “business-related” methods, such as the one here–which had to do a way for commodities buyers and sellers in the energy market to hedge against the risk of price changes by following a certain mathematical formula–the question gets trickier. Courts are leery of opening the door all the way because then we’d be swamped in even more ridiculous patents than we are now (such as the attempt by Dustin Stamper, President Bush’s Top Economist, to secure a patent regarding an application for a System And Method For Multi-State Tax Analysis, which claims “a method, comprising: creating one or more alternate entity structures based on a base entity structure, the base entity structure comprising one or more entities; determining a tax liability for each alternate entity structure and the base entity structure; and generating a result based on comparing each of the determined tax liabilities”).
The Court of Appeals for the Federal Circuit (CAFC) tried to do this by adopting a more rigid test than had been used before. They said that a process could be patented only if it (1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing–this is the “machine-or-transformation test.” Based on this test, the claimed business method was rejected. The problem is, this test is not in the Patent Act. So the Supremes had to take a crack at it. Now I have mentioned this case before, in The Arbitrariness of Patent Law; Supreme Skepticism Toward Method Patents; and Radical Patent Reform Is Not on the Way. This is one of these cases that had patent lawyers crying crocodile tears, gnashing their teeth, acting as if this was just part of the terrible and radical–radical!–movement to scale back patent rights. Anyway, I predicted:”I suspect the Court will choke back a bit on software and business method patents–but not too much.” It was obvious from the oral arguments that the Court saw how ridiculous it would be to have an open test that allowed a lot more types of processes be eligible for protection. You could have patents on anything. So they want to choke back on this, and so did the CAFC. Unfortunately, the patent law is there. And the judges have to interpret this mess. It’s not their fault, really. I don’t blame them for this impossible task. As I noted in a recent post, [continue reading…]
From my facebook status: “Now that Sen. Byrd, who apparently never held a real job, has assumed room temperature, I hope Obama says something nice about his fellow state-critter, so that we can do a blogpost with the headline FIRST BLACK PRESIDENT EULOGIZES KLANSMAN.”
As noted on my media page, I’ll be delivering a speech entitled “How Intellectual Property Hampers Capitalism” at the Mises Institute Supporters’ Summit 2010, Oct. 8-9 2010, Auburn Alabama. The conference’s theme is “The Economic Recovery: Washington’s Big Lie.” There’s a dynamite list of speakers.
Boy, buddy, and Louie von Mises
My 6 year old boy is begging me to come. I may bring him, but told him we had to bone up even more on Austrian economics if he is to come with me to Auburn. So today in the pool we spent about 45 minutes going over time preference and interest, and a central lesson of Hazlitt’s Economics in One Lesson (also in Bastiat’s The Law, if I’m not mistaken–we almost named our new poodle Bastiat, but instead named him Louie von Mises), which is the idea that benefits of state spending are visible but the costs are unseen. We also went over what makes a law a good or bad law, with examples such as laws against: murder, using drugs, committing suicide, committing robbery, not paying taxes, offering to pay someone less than a minimum wage (he’s already well on his way to libertarian radicalism). He got them all right (no offense, most of my family, friends, and co-workers).
From a comment on the Mises blog from a while back:
[update: Mises on God]
Stephan Kinsella March 11, 2005 at 2:34 pm
One thing to keep in mind is there is a difference between being immortal and knowing you are immortal. I have noted this before (where, I cannot find) regarding Ayn Rand’s views about the nature of value. In Virtue of Selfishness she writes:
It is only the concept of ‘Life’ that makes the concept of ‘Value’ possible. It is only to a living entity that things can be good or evil. … To make this point fully clear, try to imagine an immortal, indestructible robot, an entity which moves and acts, but which cannot be affected by anything, which cannot be changed in any respect, which cannot be damaged, injured, or destroyed. Such an entity would not be able to have any values; it would have nothing to gain or to lose; It could not regard anything as for or against it, as serving or threatening its welfare, as fulfilling or frustrating its interests. It could have no interests and no goals… Only a living entity can have goals or can originate them. And it is only a living organism that has the capacity for self-generated, goal-directed action.
(See this Randian essay on related matters: “Why An Immortal God Cannot Value And Therefore Cannot Love or Know Purpose” by Anton Thorn.)
The problem here, it seems to me, is the assumption that IF you are immortal, then you would be absolutely sure of this fact. Because the argument seems to rely not so much on *being* immortal, but in believing you are immortal. (I think the argument is fallacious in either case.)
What really matters, for action, is what one believes to be the case. This seems to me to apply to Rand’s hypo about “valuing” as much as it does this little discussion about time preference. Now in my view, we would still have time preference, and still value, even if we were immortal and knew it.
But even from the perspective of those here arguing about whether immortality affects time preference (or, in Rand’s case, the capacity to have values), the focus has to be on what the actor thinks or believes, not on what is really the case. Suppose A is immortal but does not know it. He only knows he is older than others and has not yet died. He assumes he has some weird gene that makes him live longer but he has no way of knowing or proving he is really immortal. In this case, he would not act as if he is immortal (whatever the implications of that are) since he does not think he is.
Also assume this: A is not immortal but falsely believes he is. Presumably he would act as if he is immortal. But note: today, many people, e.g. Christians, do in effect believe they are immortal; they believe they don’t really “die” but their soul goes to heaven and exists forever. These people evidently are (from their point of view) immortal, yet still value, and still have time preference.
So clearly, this entire focus on “immortality” is doubly mistaken. First, it is not immortality that matters–it is one’s beliefs about one’s own mortality. And second, apparently even a belief in immortality does not undercut the capacity to have values of time preference.
***
I really think a big flaw in this entire hypo is that no one can ever know they are immortal–even an immortal person could not know it. In fact, it’s probably impossible to be immortal anyway, given entropy and the universe’s ultimate collapse.
***
A related, but better, argument, is that of Mises, when he argues that God cannot act (and so the concept is incoherent). See, e.g., Mises in UFOES:
Natural theology saw the characteristic mark of deity in freedom from the limitations of the human mind and the human will. Deity is omniscient and almighty. But in elaborating these ideas the philosophers failed to see that a concept of deity that implies an acting God, that is, a God behaving in the way man behaves in acting, is self-contradictory. Man acts because he is dissatisfied with the state of affairs as it prevails in the absence of his intervention. Man acts because he lacks the power to render conditions fully satisfactory and must resort to appropriate means in order to render them less unsatisfactory. But for an almighty supreme being there cannot be any dissatisfaction with the prevailing state of affairs. The Almighty does not act, because there is no state of affairs that he cannot render fully satisfactory without any action, i.e., without resorting to any means. For Him there is no such thing as a distinction between ends and means. It is anthropomorphism to ascribe action to God. Starting from the limitations of his human nature, man’s discursive reasoning can never circumscribe and define the essence of omnipotence.
And in Human Action:
Scholastic philosophers and theologians and likewise Theists and Deists of the Age of Reason conceived an absolute and perfect being, unchangeable, omnipotent, and omniscient, and yet planning and acting, aiming at ends and employing means for the attainment of these ends. But action can only be imputed to a discontented being, and repeated action only to a being who lacks the power to remove his uneasiness once and for all at one stroke. An acting being is discontented and therefore not almighty. If he were contented, he would not act, and if he were almighty, he would have long since radically removed his discontent. For an all-powerful being there is no pressure to choose between various states of uneasiness; he is not under the necessity of acquiescing in the lesser evil. Omnipotence would mean the power to achieve everything and to enjoy full satisfaction without being restrained by any limitations. But this is incompatible with the very concept of action. For an almighty being the categories of ends and means do not exist. He is above all human comprehension, concepts, and understanding. For the almighty being every “means” renders unlimited services, he can apply every “means” for the attainment of any ends, he can achieve every end without the employment of any means. It is beyond the faculties of the human mind to think the concept of almightiness consistently to its ultimate logical consequences. The paradoxes are insoluble. Has the almighty being the power to achieve something which is immune to his later interference? If he has this power, then there are limits to his might and he is no longer almighty; if he lacks this power, he is by virtue of this fact alone not almighty.
Are omnipotence and omniscience compatible? Omniscience presupposes that all future happenings are already unalterably determined. If there is omniscience, omnipotence is inconceivable. Impotence to change anything in the predetermined course of events would restrict the power of any agent.
Action is a display of potency and control that are limited. It is a manifestation of man who is restrained by the circumscribed powers of his mind, the physiological nature of his body, the. vicissitudes of his environment, and the scarcity of the external factors on which his welfare depends. It is vain to refer to the imperfections and weaknesses of human life if one aims at depicting something absolutely perfect. The very idea of absolute perfection is in every way selfcontradictory. The state of absolute perfection must be conceived as complete, final, and not exposed to any change. Change could only impair its perfection and transform it into a less perfect state; the mere possibility that a change can occur is incompatible with the concept of absolute perfection. But the absence of change—i.e., perfect immutability, rigidity and immobility—is tantamount to the absence of life. Life and perfection are incompatible, but so are death and perfection.
The living is not perfect because it is liable to change; the dead is not perfect because it does not live.
I.e., God cannot act. Yet part of the idea of God is that he does act. So, it’s an incoherent idea.
Update: See also The Scarcity of Time:
In the comments to this post on time preference, I pointed to a confusion in Ayn Rand’s use of the example of “an immortal, indestructible robot” to show that only “life” makes the concept of “value” possible. Her basic idea was that an immortal, indestructible robot “would not be able to have any values; it would have nothing to gain or to lose; It could not regard anything as for or against it, as serving or threatening its welfare, as fulfilling or frustrating its interests. It could have no interests and no goals.”
The problem here, as I see it, is the assumption that if you are immortal, then you would necessarily know this to be the case. The argument seems to rely not so much on being immortal, but in believing you are immortal. Suppose A has secretly been granted immortality, but he does not know it. Wouldn’t he have values still, in Rand’s paradigm? And what about mortal A who delusionally believes he is immortal? According to Rand, he would have no values (but this seems to be belied by experience–both insane, and sane, people, who believe in a version of immortality nevertheless seem to have values, even in Rand’s loose sense; and they certainly demonstrate that they value things, when they act).
Re-reading Hoppe’s A Theory of Socialism and Capitalism today, as is my wont, I notice Hoppe argues (p. 9) that one reason acting necessarily imposes costs is that we only have one body so can only do one thing a time with it. Regarding time, he notes:
And I would be restrained by scarcity in another respect as well: as long as this scarce resource “body” is not indestructible and is not equipped with eternal health and energy, but rather is an organism with only a limited life span, time is scarce, too. The time used up in pursuing goal A reduces the time left to pursue other goals.
Notice the similarity to the indestructible robot idea above. In this case, I think Hoppe is correct that our lives are finite and “The time used up in pursuing goal A reduces the time left to pursue other goals”, which means that time is, indeed, scarce. This is one factor that enters into our decisions as real, live acting humans in the real world of time scarcity.
It seems to me that this is not only because our bodies are “not indestructible,” but also because someone could never, even in principle, know that his body was indestructible. For even if one somehow were magically given immortality and lived from day to day unchanging for thousands of years, how could one be sure that this would last forever? So it seem to me that even if a person was truly immortal and indestructible, time would be scarce for him, since he would not know he was immortal.
Conversely, this would imply that religious people who claim to believe they will live forever in the afterlife either do not view time as scarce, or that they do not really believe what they claim to.
In this connection, see also Mises’s comments on how the concept of action would apply to God:
Scholastic philosophers and theologians … conceived an absolute and perfect being, unchangeable, omnipotent, and omniscient, and yet planning and acting, aiming at ends and employing means for the attainment of these ends. But action can only be imputed to a discontented being, and repeated action only to a being who lacks the power to remove his uneasiness once and for all at one stroke. An acting being is discontented and therefore not almighty. If he were contented, he would not act, and if he were almighty, he would have long since radically removed his discontent. For an all-powerful being there is no pressure to choose between various states of uneasiness; he is not under the necessity of acquiescing in the lesser evil. Omnipotence would mean the power to achieve everything and to enjoy full satisfaction without being restrained by any limitations. But this is incompatible with the very concept of action. … The paradoxes are insoluble. Has the almighty being the power to achieve something which is immune to his later interference? If he has this power, then there are limits to his might and he is no longer almighty; if he lacks this power, he is by virtue of this fact alone not almighty. [emphasis added]
(See also the discussion of the theological implications of Mises’s views here and here.)
[From my Webnote series]
I believe I read long ago some intriguing analysis linking legal positivism with logical positivism—showing the commonalities and interrelationships. But I’ve long lost this reference and have not been able to find exactly what I’m looking for. If anyone knows of any good discussions about the links between legal positivism and logical positivism, I’d appreciate you sharing it.
I think it’s time for some libertarian to set the record straight on legal positivism, and to do this right I think its connections to logical positivism need to be analyzed as well. For legal positivism, as a libertarian this issue has always frustrated me. The natural law types seem to take a bizarre stance on it, speaking in overly metaphorical, colorful, non-rigorous, almost mystical language. For example they talk about how law and morals cannot be separated, which seems like a nonsense idea in the first place. A strict interpretation of this would mean we cannot even identify existing positive law as law if it is not just law (to make this worse, the standard of “just” for most natural lawyers is not libertarian; it is more procedural and/or religious/statist).
The common law court/militia nut types exemplify this by capitalizing the word “Law” when they speak of “just” or “valid” laws. They say that law is not a Law if it is not just, and so on—they say “an unjust law is no Law at all!” (“lex iniusta non est lex“)—which seems needlessly semantically disingenuous and crankish to me. I’ve always thought that of course we can identify something as a law even if it is unjust, and thus we can and should distinguish between just law and unjust law (not that just any dictate of a state is law–as even H.L.A. Hart shows in The Concept of Law–some decrees can be so arbitrary and unlaw-like as to not even be law, but that does not mean that every law that is, is just). I’ve always thought that what is unlibertarian about legal positivism is not the idea that law can be “separated” from morals (i.e. that we can identify something as a law, even if it’s a bad law), but rather the assumption that law can be, or even must be, issued by some sovereign–namely the state, or its legislature. (And to be honest, I have always thought that natural law is legal positivist in this sense as well, by just pushing the ultimate law-maker back from the human legislature to God; but to my mind, the very idea that justice, goodness, true law can be decreed by any entity, even God, is fallacious and contrary to the notion or rightness and justice itself.) And I have an inkling that this form or aspect of legal positivism–the idea that law or morals can be issued by decree of some authority–the part I view as unlibertarian–is somehow linked with logical positivism/monism/empiricism/scientism. But I have struggled to make this connection just right in my mind, though I feel that it is there; and I believe I have read something on this by some acute observer in the past–some normal commentator, not even some libertarian with an axe to grind. [continue reading…]
Stephan 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).
My Failed Libertarian Speaking Hiatus; Memories of Mises Institute and Other Events, 1988–20192025
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