Лібертарі зазвичай мають спільні погляди на широке коло практик та принципів. Тим не менш, досягти консенсусу щодо визначальних характеристик лібертаріанства, або щодо його рис, які вирізняють його з поміж інших політичних теорій та систем, наразі не так вже й просто.
Існує безліч різноманітних формулювань. Стверджується, що лібертаріанство — це про права особистості, права власності[1], вільний ринок, капіталізм, справедливість, або принцип ненападу. Проте, не будь-що з переліченого підходить. Капіталізм та вільний ринок змальовують каталлактичні умови, що постають (чи є прийнятними) в лібертаріанському суспільстві, але вони не розкривають інших аспектів лібертаріанства. А права особистості, справедливість, та ненапад зводяться до прав власності. Як пояснив Мюррей Ротбард, права особистості є не що інше, як права власності.[2] Справедливість же, в свою чергу — це коли кожен отримує належне йому (визначене його правами).[3]
This is Episode 50 of the Patterson in Pursuit podcast, where host Steve Patterson interviews me about Hans-Hermann Hoppe’s argumentation ethics.
[Update: He does a breakdown of our discussion in Episode 63.]
Patterson’s description:
If we choose to argue, have we presupposed an ethical framework? Is “self-ownership” a concept that cannot coherently be doubted?
To help me answer these questions, I’m joined by one of the most prominent supporters of “argumentation ethics” – the theory that says ownership is inescapable, and as soon as we choose to argue, we’re committed to a set of ethical values.
Update: Here are his videos, of our interview, plus his followup. I append transcripts for each below.
Summary (Grok)
Steve Patterson interviews Stephan Kinsella on Hans-Hermann Hoppe’s argumentation ethics (Patterson in Pursuit, Episode 50; KOL218). Patterson is already a libertarian and likes rationalist arguments, but he is not convinced that the premises are inescapable.
Kinsella first restates libertarianism before justifying it. He treats it as a political or meta-ethic about what the law should be, not a full personal morality. The non-aggression principle is shorthand for property rules that assign control of scarce resources, including bodies, by original appropriation, contract, and a few supplementary rules such as restitution. Those rules are symmetrical: force is a response to force. Minarchists and “rule of thumb” liberals, he says, are really allowing some aggression against innocents. Randians are closest but wrong on intellectual property and anarchism.
On hard cases, such as grabbing a child or a distracted adult out of traffic, Kinsella denies that these are exceptions to rights. Consent can be implicit in guardianship, custom, and background communication; a rescuer may also accept a small risk of liability. Borderline cases need judgment, as in Randy Barnett’s distinction between abstract rules and legal precepts. Every legal system has them.
He then rejects the usual justifications. Natural-law and Randian arguments run into the is-ought gap unless they already assume shared values, as in Roderick Long’s “since-then” move. Utilitarianism cannot rank utility and still does not show why taking from Bill Gates is rightful. Hoppe’s alternative is that truth claims can be settled only in argumentation, an idea drawn from Jürgen Habermas and Karl-Otto Apel and turned toward rights with Mises and Rothbard. Argumentation presupposes peace, honesty, and respect for each speaker’s bodily integrity, hence self-ownership. Because it is a real activity, it also presupposes standing room and other scarce means. Property includes a latecomer rule, so the earlier user has the better claim. A socialist ethic contradicts those presuppositions and cannot be justified. The norms are not causal walls: you can violate a right, but you cannot justify the violation. Bob Murphy and Gene Callahan’s objection that the norms hold only during the argument fails, Kinsella says, because argument aims at conclusions that apply outside it.
Patterson accepts the conclusions and the control shown in speaking, but not the step to ownership. Control or possession is not a right; rights may be useful concepts, like chess rules, without being inescapable. He can affirm possession and still deny legitimate ownership, or treat ownership as an agreement he may break. Counterexamples such as a tax on the tall, or transfers from low-IQ to high-IQ people, are meant to keep ownership while dropping libertarian conclusions. His sticking point is inescapability. He is partly drawn to ethical nihilism, with love and social flourishing as the real good if people adopt ownership rules.
Kinsella answers that an actual dispute is already about who the owner is, so skepticism about the concept drops out once a claim is made. Argumentation’s presuppositions come first; intelligence, race, or sex cannot then subtract rights from people capable of acting and arguing. Universalizability rules out particularistic reasons such as “because I am me.” He also says hostile libertarian critics already believe socialism is unjustifiable and that justification is argumentative, so they are attacking Hoppe for saying what they believe. The theory is less a conversion tool than an account of why competing systems cannot be justified. Empathy and social life explain why people argue; economic confusion and the state explain why they miss anarchism.
Patterson closes unconvinced but not hostile: proponents overclaim certainty, critics dismiss too fast, and some presuppositions of argument are still worth examining.
Grok summary: where I push back against or disagree with some of his overly metaphorical or platonist or equivocal or reificationist arguments or assertions or assumptions—
You never name those faults, but you do push back on the moves that come closest: the game metaphor, rights as “just a concept,” and the love-and-flourishing substitute for an inescapable norm. Patterson is the one pressing the equivocation. You mostly defend the leap rather than concede it.
The clearest case is the game and “just a concept” exchange, after 55:02 and into Debating Argumentation Ethics. He says rights are concepts we act as if we have, like chess-tournament rules: consistent, useful, not inescapable. You answer that calling it a game “implies a type of moral cynicism or moral skepticism that I don’t have,” and that “do rights exist” and “it’s just a concept” are “fraught with difficulty” because they play “into scientism.” You send him to concept formation, Rand’s in particular, and say that calling something “just a concept” is “kind of misleading.” That is a direct rejection of his conventionalist, anti-reification framing. You do not say he is reifying anything. You say he is deflating a real conceptual category into a optional game.
Right after that, he says he can coherently affirm possession of his body in argument and still deny legitimate ownership. You treat that as a refusal to make the normative claim the activity already requires. Then, when he says ownership is only a socially useful agreement he may follow or not, you answer with the angelic-beings picture: floating above “silly humans” and calling the dispute “game play” does not describe an actual conflict, because the parties “both actually are claiming ownership of that resource” and cannot claim it while denying the concept. Again, you are rejecting his metaphor and his skepticism, not accusing him of Platonism.
Near the end, under Kinsella’s Defense, he grounds ethics in ethical nihilism plus one value: if people treat ownership like chess rules, society flourishes and individuals can love, and “love is the good.” You say, “Yet I would even myself disagree with what you just said,” and recast argumentation ethics as a demonstration that socialism cannot be justified, not as a persuasion trick or a love-maximizing convention. That is the plainest disagreement with his substitute foundation. You also tie rights to empathy and evolved social nature there, which is your own psychological grounding, not a correction of a reification in his.
You do not catch him in an equivocation. The equivocation challenge runs the other way. At 55:02 he asks how control of vocal cords becomes legitimate ownership, then “controller rather than an owner,” then “is the claim then that ownership is inescapable, or is it that control is inescapable?” You distinguish possession from ownership and Crusoe’s control from rights against other people, 1 but you do not grant that the argument equivocates. You treat the dispute as already a dispute about who the owner is.
Elsewhere you disagree with him, but not on these grounds: the street rescue is “the wrong way to look at it,” a rule of thumb is only a gloss on permitting aggression, and political ethics are overlapping sets rather than a subset of ethics. None of that is aimed at metaphor, Platonism, equivocation, or reification.
These are Stephan Kinsella’s comments as Steve Patterson retells them in the Episode 63 breakdown. Patterson is paraphrasing the Episode 50 exchange, not quoting it line by line.
On the bus rescue, Kinsella says consent has to be communicated in a public language, and language is not only words. Norms and customs fill in the background. A distracted man about to walk into a bus is not wearing a “do not rescue me” sign, so he has not changed the default presumption. Most people would assume he consents to being grabbed. If that assumption is correct, the grab is consented to and is not a rights violation.
If the assumption is wrong, Kinsella’s fallback is that the rescuer knowingly takes a small risk of legal liability and hopes for forgiveness. He also says the pedestrian, by his own conduct, puts neighbors in a split-second bind, so the uncertainty is his fault. Later denial does not erase the consent already communicated. Someone who truly refuses rescue has to signal it, as with a do-not-resuscitate marker.
He adds that these cases are almost always on someone’s property. The owner’s rules, even implicit ones, decide the issue. The street-and-mist hypothetical leaves out whose land it is.
On assumed consent opening the door to abuse, he grants the danger and treats law as the art of applying rules to concrete cases while guarding against slippery slopes. Common-law self-defense is his example: you need not wait for the bullet if someone is about to shoot, but the criteria are strict — immediate, direct force, as a reasonable person would read it, not a toy gun you should have recognized. Juries and custom tighten the standard over time.
When Patterson says blurry cases show the non-aggression principle is not a black-and-white absolute, Kinsella points to Randy Barnett’s distinction in The Structure of Liberty between abstract rules and legal precepts. The rule can be arrived at in the armchair, or codified after many cases. Applying it still needs judges and facts. Every legal system has continuum problems. A dictator can give bright-line answers, and those answers need not be just. Borderline cases are not, on this view, a special defect of libertarian law.
Steve Patterson: Are there some ethical truths that are inescapable whenever we argue? Do we presuppose a set of values? And if so, do those values push you towards libertarian political conclusions? These are the questions I’m trying to answer on the 50th episode of Patterson in Pursuit.
Hello, my friends. Welcome to the show. I’m Steve Patterson, your host. Today we’re talking about political philosophy, political ethics, and we’re talking about a specific idea that I’ve gotten lots and lots of requests to cover. I am persuaded by libertarian ideas, really rather extreme libertarian ideas, and the natural question arises: why? What’s the justification for libertarian conclusions?
Now I have my own set of justifications, but I know lots of libertarians who are persuaded by what is called argumentation ethics, which is an attempt to make a rationalist argument for a particular set of ethical values. By rationalist I mean there are certain foundational principles that we discover that are inescapable, and then we use logical deduction to see what follows from there.
Now if you guys have been following my work, you know that sounds like it would be a natural fit within the worldview that I’m trying to create, but I struggle with accepting some of the foundational premises that are presented by people arguing for argumentation ethics. So I’ve gotten lots of requests from people saying, bring on Stephan Kinsella. He’s one of the more prominent libertarians who is a vocal proponent of argumentation ethics. So he and I had a fantastic conversation on the subject.
Now in the course of this interview, given that my guest and I are both on the same page on large parts of our political theory, if you’re not already down with libertarianism you probably won’t find those persuasive at all. So this is definitely a little bit more inside baseball for those who are more disposed towards libertarian conclusions. But even if you’re not in the libertarian bandwagon, I’m sure this conversation will elicit some insightful thoughts in your mind.
There are lots of show notes for this particular episode, so if you want to learn more about argumentation ethics, check out stevepatterson.com/50. That will link you to Stephan Kinsella’s page, some of the arguments from a gentleman named Hans-Hermann Hoppe, who gets a lot of credit for coming up with argumentation ethics, at least in this form. You’ll also find a link to the sponsor of this episode.
Defining Argumentation Ethics
0:28
Steve Patterson: Argumentation ethics is an attempt to ground libertarian ideas in a kind of inescapable rationalist framework, that there are these ethical principles that you cannot escape, just kind of like the principle of the law of logic, that you can’t argue that existence doesn’t exist. There are just certain inescapable things that you have to acknowledge if you’re going to be rational. And then supposedly the argument goes, there are also inescapable ethical truths, that if you discover what they are, they lead you to kind of libertarian conclusions.
Episode Sponsor Segment
2:44
Steve Patterson: Which is the company currently in the process of changing the world, Praxis. If you are like me and you’re in school right now, let’s say you’re getting your undergraduate degree, and you are unsatisfied with your college experience because the professors, maybe they don’t know what they’re talking about, or not making good arguments, your peers have heads full of cobwebs, you are frustrated with the amount of busy work and inertia in the academic system, take heart, my friend. Praxis is made for you.
If you want to stop wasting your time in academia and you want to go straight into the real world to get actual relevant job training and get paid off the get-go, the Praxis program is a three-month boot camp where you learn relevant things about the world that are applicable to your job, and then it’s followed by six months of a paid apprenticeship. And you make enough money getting paid at this apprenticeship where you can fully pay for the cost of the Praxis program. So it is massively superior, in my mind, to going and getting your degree in college. So if that sounds like you, check out stevepatterson.com/praxis, P-R-A-X-I-S.
So I hope you enjoy my interview with Stephan Kinsella, who is a patent attorney, libertarian legal theorist, and one of the things that he’s written that I very highly recommend is a book called Against Intellectual Property. I haven’t done an episode on intellectual property yet on this show. I certainly will do one in the future, and maybe I’ll have Stephan back on the show to talk about it. But it’s become kind of standard canon in a lot of libertarian circles, and for good reason.
Fun and arbitrary trivia fact about my guest’s name today. If you’ve seen some of his writing, his author name is sometimes N. Stephan Kinsella. Hmm, what does the N stand for? Well, you’re about to find out.
Interview with Kinsella
3:56
Steve Patterson: Mr. Norman Stephan Kinsella, welcome to Patterson in Pursuit. It’s a pleasure to have you on the show.
Stephan Kinsella: Thanks. Glad to be here.
Steve Patterson: So I get a lot of requests from people to talk to different thinkers, and a big part of my audience is they come from a libertarian background. And when talking about libertarian issues, libertarian ethics, there’s this one concept that always comes up: argumentation ethics. And when I talk to people about it and they say, man, you got to have Stephan Kinsella on the show. So it’s a real delight to have you on.
I want to be totally in the rationalist ethics camp, and I’m hoping that after the course of this conversation I’ll be there. So what I’d like to start is, for all the listeners that aren’t already kind of in the libertarian circle, argumentation ethics is an attempt to ground libertarian ideas in a kind of inescapable rationalist framework, that there are these ethical principles that you cannot escape, just kind of like the principle of the law of logic, that you can’t argue that existence doesn’t exist. There are just certain inescapable things that you have to acknowledge if you’re going to be rational. And then supposedly the argument goes, there are also inescapable ethical truths, that if you discover what they are, they lead you to kind of libertarian conclusions. Is that a fair kind of summarization of the approach?
Stephan Kinsella: Yeah, perfectly right. Perfectly good.
Steve Patterson: Okay, so let’s start with that, just working through the basics. What then is this, the inescapable argument that leads us to some kind of ethical rationalist framework?
Stephan Kinsella: All right, so let me give a little background first, which is that this is a theory that was pioneered by Hans-Hermann Hoppe. And actually he would be your best guest on this, right? I mean, he is the guy that originated this theory in the mid-’80s. But I’m probably, next to him, the one who’s written the most about it. And he and I, I’ve also written a kind of a complementary theory of rights, which I came up with on my own. It kind of inspired by his, called estoppel. And I don’t know if we’ll get into that or not.
But so, before you start talking about the best proof of rights or libertarian principles, I think it’s, but we need to have an idea of what we’re, with what the whole subject matter is like. What is it we’re interested in? So first, I think it helps to clarify basically what we conceive of as libertarian principles. What are they, before we say that then how they’re justified, and what it means to justify, and what other approaches have been.
So if you want to do it that way, I can just kind of lay out.
Steve Patterson: If you think you can, yes. Then if you need to.
Stephan Kinsella: Okay.
Core Libertarian Principles
6:19
Stephan Kinsella: The way I conceive of libertarianism in its most sort of distilled form is, it is a, you can call it a political ethic. You can even call it a meta-ethic, because it’s really not a set of rules about how we should personally live, but it’s a set of rules about what the law should be.
Steve Patterson: Okay.
Stephan Kinsella: Okay, so, and this is what Douglas Rasmussen and Douglas Den Uyl, that’s how they characterize rights in the book Liberty and Nature. They’re Den Uyl, American libertarian philosophers. Anyway, you don’t have to view rights that way. That’s how I view them.
But in the non-aggression principle, I believe is core to what we believe, but I think it’s just a shorthand version of what we believe. It’s not an explanation of it. It’s just a shorthand. And what it really means is this. In the case of your body, in the case of any scarce resource, there could be possibly conflict between human actors, and property rules are just arrived at in society as a means of identifying who is the one person that has the right to control that resource, so that conflict can be avoided in the use of those resources.
Steve Patterson: Okay.
Stephan Kinsella: Okay. Now that’s basically what any legal system is. Even the socialist legal system specifies owners of resources, okay, whether it’s human bodies in the case of slavery, or someone in prison, or whether it’s other resources, and they’re like land or cars or food, things like that.
So the libertarian view is that we assign those resources in accordance with basically the simple principles of contract and first ownership, which is sort of Lockean in principle. So if something is unowned, the first person to start using it is the owner, until he transfers it voluntarily to someone else, which is what contract is. So with a couple of supplementary rules, right, like if you hurt someone and you owe them restitution, then they can take some of your property in that case. Okay.
But generally speaking, you can find out who the owner of a resource is by asking who has it now, who had it first, and was there a contract. So those simple principles give rise to them what we call the non-aggression principle. I think we call it the non-aggression principle because in the case of someone’s body, if you attack someone, that’s what the term aggression usually means, like attacking, physically attacking someone else’s body. That’s held to be a violation of their property right in their body. And then by extension we would say something similar happens if you use another piece of property they own without their permission. Okay, that’s trespass, but we lump it in with the concept of aggression as a type of shorthand.
Steve Patterson: Okay.
Stephan Kinsella: Okay, so basically you get from this the standard libertarian rules. If you notice, there’s a type of symmetry and a type of reciprocity in these rules, in that you are entitled to do to someone only what they did to you. Because if someone is not violating my property rights, I’m not entitled to violate their property rights. Okay, so if someone is publishing pornography or smoking marijuana, they’re not invading my property rights, and so I’m not entitled to use force against them, which means any law against those activities would be unjust.
I can insult them. I can berate them, because I’m not violating their property rights either. So there’s a symmetry. But if someone attacks me physically, they have used force against me, and now I’m entitled to use force against them, defensively, or even after the fact for restitution, or even for retribution, some would argue. Okay, so you see, again, there’s a symmetry there. And I think this is what libertarians like. That’s why we always have this sort of scalpel. Like every time a normie, we call him, right, a normal person, replace the law, you know, let’s just tax people, or let’s just ban this practice, we say, well look, you’re using force against them. Did they use force themselves first? Did they initiate force? And if they didn’t, there’s an asymmetry there, and that’s why we say that law is unjust.
Steve Patterson: Okay. This is, this NAP?
Stephan Kinsella: Yeah.
Steve Patterson: Yeah. This strikes me as kind of a Kantian principle, that there’s a kind of universal aspect to this way of conceiving about political ethic. Is that fair?
Stephan Kinsella: Well, I, it may be compatible with Kantianism, but all I’m doing right now is trying to sort of observe what libertarians say, and kind of condense their principles into more of a, just to figure out what their principles are, and just to restate them in a, you know, concise fashion. Okay, so I’m just trying to restate what they believe, not to justify it yet. Okay. I think you have to understand what they are before you start talking about what it means to justify.
I mean, so from your perspective, would you say that is roughly a summary of what the core of the principles are that most libertarians believe?
Symmetry and Reciprocity
10:27
Steve Patterson: I would say from my experience that encompasses at least half of the kind of arguments that I encounter when talking with libertarians. It comes back to that notion of reciprocity, almost getting at a Golden Rule mentality. Do unto others as you would have them do unto you, except kind of as a basis for a legal system. You know, don’t hit people, don’t take their stuff, and they’ll do the same to you.
I do think there’s another group of people that approach it just from purely kind of consequentialist ends, and they say, well, the only reason we’re into this libertarianism stuff is because it results in human flourishing, something like that. I find maybe.
Stephan Kinsella: Yes, yeah, a third or so, maybe a little bit more than that approach. Yes.
Steve Patterson: Yes. Okay.
Stephan Kinsella: Well, okay, look, but again, I think you’re talking about justifications more than the principles that they believe. I think, and personally, I don’t really, I’m not really persuaded that there’s a strong gulf between consequentialism and sort of a principled or deontological approach. I think they’re just different ways of looking at the same world. So I’m not surprised that they’re the same. But anyway, the point is, the typical libertarian, whatever his, even if he’s, I don’t know what the word would be, an atheist or agnostic in terms of, he has no grounds for his principles whatsoever, but he believes in the libertarian principles. He believed, you will hear libertarians, whether they’re consequentialist or not, they will routinely say, you may not initiate force. Just by saying the words, and you may not initiate force, there’s a, you’re recognizing implicitly a symmetry there, right? You can only use force in response to force.
Steve Patterson: Yeah.
Stephan Kinsella: So you can use force in response to force, but if someone’s not using force against you, you can only do other things that don’t result in force. So that symmetry is just present in libertarian ideas. I’m not really saying the justification is there. This is just what libertarians do believe.
Steve Patterson: Yes. Yeah. If we take it from that standpoint, that is pretty much ubiquitous, that I think every libertarian would agree with that notion.
Stephan Kinsella: Yes. And then you have to unpack what it means to say initiate force, because if I walk across your lawn at 2:30 in the morning when you’re sleeping, it’s not really the same as aggression, like me punching you in the head. It’s, we only call it aggression or force, I think, by analogy, because it’s a trespass. It’s a use of, the general case is this. It’s a use of someone else’s resource without their permission. That is, whoever owns the resource, including human bodies. If someone else invades the physical borders of that property or uses it without their permission, that is what is trespass, or that is what is aggression in a generalized sense. So this is just what libertarians believe.
Now I don’t know if you take your average liberal, or your average conservative, or fascist, or egalitarian, or environmentalist, and if you ask them, state what you believe, they could state it. And then if you said, now provide a justification, I don’t know if everyone walking around the earth is walking around with their set of beliefs in their back pocket and their set of justifications in their other back pocket. A lot of people don’t have justifications, or they’re not clear ones. And some libertarians don’t really have a justification. It’s just they think it comes out of their Christian faith, or they take it on faith, or they just have a personal preference.
Steve Patterson: Yes. And I think the way that you stated that earlier, probably most people in general, not just libertarians, would agree with this intuitive notion of, yeah, okay, I shouldn’t aggress on other people. I think that’s, not maybe not everybody, but I think a whole lot of people, even if they don’t consider themselves libertarians, would agree to that principle, at least.
Stephan Kinsella: Yeah. And I think that actually the justification project is not necessarily one that we even have to do. Some people are interested in it, and the reason is because one thing we libertarians can do is simply identify the fact that most fellow humans that live in society do believe in our core notions. Okay, however vaguely, however inconsistently, they do believe that basic idea: you shouldn’t hurt other people, right? And so the entire libertarian project, in my view, can be thought of as simply adding a little bit of economic literacy to the mixture, and consistency, right?
Steve Patterson: Okay.
Stephan Kinsella: And in fact, when you said most libertarians would agree with the principle as I specified it, I actually think that’s not quite true, because non-anarchists, that is minarchists, don’t quite believe that. So you could say that the principled, consistent libertarian believes that aggression is never justified. It is impossible to justify.
Steve Patterson: I think where the split comes with is when it’s treated as an absolute versus a principle. I think pretty much everybody would agree that the non-aggression principle is a good rule of thumb. I think where you get very strong disagreement is if that’s kind of an absolute thing, or if that’s.
Stephan Kinsella: Oh yeah, if it’s a rule of thumb. Well, right, it would, like Robert Nozick called side constraints. So rights are side constraints on what you can do, that they just cannot be violated. No, well, it would say they cannot be violated, but they may not be violated, right?
Steve Patterson: Right.
Stephan Kinsella: But so I would, yeah. So when you talk about it as a rule of thumb, that’s just a way of sort of putting a nice shiny gloss on what you’re really saying, which is, I’m against aggression most of the time, or some of the time. And you’ll see conservatives, and even liberals sometimes, will explicitly say something like this. They’ll say, well, we agree with you libertarians that liberty is an important value. We just don’t fetishize it, right? What they mean by that is like the Supreme Court doing some balancing tests of competing interests. You know, they want to take liberty into account, but it’s just one of many values, right, which is just a pretty way of saying, in some cases we’re willing to condone or commit or authorize the use of aggression against you if we don’t agree with you. Like, I’m going to bash you in the head in the end.
So in the end, even a minarchist ultimately is like this. They’ll say, look, I’m with you 99% of the way. I agree that most aggression is wrong, but we still need to tax people and blah blah blah for a minimal whatever. It’s like, yeah, but that is actually aggression.
Steve Patterson: Yes, but I think they would probably say, then I am not an absolutist on the principle, that I’m with 99%. It’s not, they would say it’s probably not a criticism of my ideas just because I give these little.
Stephan Kinsella: No, but when they say they’re not an absolutist, what they mean is they’re not against aggression. Okay, they don’t have a principled opposition to aggression. They think that in some cases it is permissible to initiate the use of force against innocent people. That is what they’re saying.
Now the Randians had this complicated dodge, right? They’ll look into context and all this kind of crap, and they’ll say that, well, properly understood in context, we need a government as the rational framework for our rights, and therefore it’s not really aggression, even though it is. So, you know, actually the Randians I think have a lot of good points, but their two main failings are on intellectual property, which is their worst, and on anarchy, which I think they’re quasi-anarchistic. They just don’t realize it. If you read the end of Atlas Shrugged, it’s basically anarchistic. So Rand was really wrong on anarchism and on IP. Other than that, a lot of her stuff I think is good.
Justification of Principles
15:25
Steve Patterson: But I ask you, so on that point, if I were to say something like, as a general rule, you know, I don’t support aggression against people that aren’t being violent, but I’ll make some exceptions. So I could say something like, you know, I don’t think you should put your hands on other people when they don’t give you permission to do that, but if somebody’s running out in the street, I might actually do that.
Stephan Kinsella: Yes.
Steve Patterson: So I would give an exception. Are you saying that that demonstrates that I support violence, or that that’s a reasonable exception to make? So I think most people kind of view it like that.
Stephan Kinsella: Yeah, I don’t, I think that’s wrong. I think that’s the wrong way to look at it.
Steve Patterson: Okay.
Stephan Kinsella: First of all, I don’t think that, no, I don’t think there are any exceptions. If there’s an exception, then there’s one of two things going on. And remember, that’s one reason I earlier said I think rights are meta-normative principles, or they’re principles. They’re not principles that directly govern individual behavior.
This is a brief aside, but most people, if you press them, and if you go through this, and I think most people, most libertarians, would, most normal people treat ethics and political ethics as sort of the same sets. So if they see something that they believe is wrong, like racial discrimination, then why not have a law against it, right? Or if they think it’s wrong to abuse your body with drugs, why not have a law against it? So they see these sets as the same.
Most libertarians, if you ask them, they would see the set of political ethics as a proper subset of ethics. So that is, everything that’s a rights violation is immoral, but not everything that’s immoral can be made illegal, right?
Steve Patterson: Okay.
Stephan Kinsella: Now most people don’t ever get to the point of trying to formalize it like that, but I think if you press them they would agree with that.
Steve Patterson: So you think that with the case of the pulling the guy from the street, that that would be a circumstance of immorality but not illegality, or vice versa?
Stephan Kinsella: No, because I actually disagree with this subset notion. I think that the sets are overlapping sets. Okay, because again, because I think the principles of libertarianism, while they can inform your personal ethics, they’re not the same as. Okay, so just because we say as a community of people that it’s a rights violation to do X doesn’t mean that it’s immoral for you to do X. For example, for the exact same reason that it’s not always moral to be within your rights.
If I insult my grandmother, or if I don’t let a starving neighbor come onto my property, you know, the neighbor whose kid has been wounded in a car wreck, I just won’t let them come into my house for ten minutes to call an ambulance. I can do that and be within my rights. If I see a stranger drowning in a pond, I don’t have a positive legal obligation to rescue them unless I pushed them in, but that might be totally immoral, refusing to help them, even though I’m not violating their rights.
But by the same token, it could be that it is not immoral in some cases to violate rights. The case of a friend about to commit suicide and you use force to prevent them, although there’s a different argument that that’s not even an exception that needs a justification.
So let’s give a couple of cases. The kid, the grabbing the kid, right? I don’t even think that’s a violation. I don’t think so. You said violence earlier. Of course libertarians are not against violence. We’re against the initiation of violence, right? And that’s again just a compact way of saying you can’t use someone’s property without their consent.
Now a minor is considered to be not fully compos mentis, right? So he has guardians that make decisions for him and on his behalf. And those guardians don’t have to be only his lineal parents. They can be others in the community that we assume the parents would consent to them doing some things in that emergency situation. So I think that in the case of saving the child, that the child is consenting to it, because his guardians would of course implicitly grant consent to that kind of action.
Steve Patterson: Okay.
Stephan Kinsella: What if, just like that’s like an adult that’s on his smartphone, you know, surfing. I’ve noticed on the sidewalks, people bump into you when they’re looking down at their smartphone. But if somebody’s, an adult’s on their smartphone and the bus is coming, and you go, hey buddy, and you grab them. I think in a case like that, it’s such an emergency situation, we don’t have time to have a conversation with someone and find out whether they really want to commit suicide, or whether they would consent to being briefly jostled to save their life.
So all you can do in the split second is try to use the crude language that we have, which is social conventions, right? Because this is all a matter of, when we talk about consent, consent has to be communicated by a public language. But language need not only be words, right? You could have two people that don’t even speak the same language get along with each other. So there’s always a background assumption of norms, customs, and things like that that inform language.
So I think when you see someone, a regular businessman on their cell phone, about to walk into the face of a bus that’s coming, and he’s obviously distracted, the assumption is that he’s implicitly communicating by his existence in a society like that, right, without walking around with a sign saying, hey, if you see me about to die, don’t rescue me. So he’s not changing the default presumption of what communication is, right? So basically my point is, most people would assume that the guy would consent to being rescued.
Steve Patterson: Okay.
Stephan Kinsella: So I think that’s the best solution. And I can’t imagine a jury punishing the guy, and you can’t even imagine a victim wanting to go after his rescuer. In the rare case when it was, he would probably himself be laughed out of court, or ignored, or looked at as a, you know, a troublemaker or something like that.
And but even if we say it’s an act of aggression to rescue your friend committing, who wants to commit suicide, because you think he’ll see reason in the light of day, right, or rescuing this businessman about to walk into the face of an Apache helicopter or whatever, even in that case, what you could say is the rescuer is willing to take the risk of some slight legal liability in order to do a good deed for someone else, and so he just hopes for forgiveness.
Steve Patterson: Okay.
Stephan Kinsella: And you know, that’s one way to approach that issue as well.
Steve Patterson: Okay, so let me ask you just on that question, then we’ll get to the argumentation ethics justification part.
Stephan Kinsella: Yeah, justification.
Steve Patterson: So would you say that if we’re going to be really strict in our analysis of rights, that in the case of pulling the guy, you know, out of the street so he doesn’t get hit by the bus, technically speaking that would be a rights violation, but it wouldn’t be something that’s immoral, and it would be under the assumption that the person would have permitted it, but if we’re going to be technical, it still is a rights violation?
Stephan Kinsella: No. If the assumption is he would have permitted it, and that assumption is correct, then it’s not a rights violation, because it’s consented to. So it’s not a rights violation based on the assumption of consent.
Steve Patterson: Because that seems like a dubious, if I could say, oh, I thought you consented to take my television.
Stephan Kinsella: All right, but I thought you consented to me taking your television, you know. Well, I think opinions among libertarians would vary on that. Okay, you could look, you could say there’s maybe three distinct views there. I mean, I have my own view. I lean a certain way. And by the way, I think these, we can from our armchair lay out different rules, but we’re not doing this completely in a vacuum. We’ve sort of seen these things play out through history, so we sort of have a, we see how society would tend to solve these things. And I think that’s probably what would happen in a pure private law society.
So in other words, I think that even if we have different arguments right now, you know, one or two of them is going to be settled on over time, and then you’re walking into this community and you know what the background expectations are in this respect.
In any case, I think that, so you could argue, you could do it like you did. You could say that, as the rescuer, I’m assuming the guy will retroactively say he consented and everything will be fine. There’s like a 99.9% chance, so I’m taking a very small risk that I am violating, like, in other words, it’s epistemologically or systemically unknowable whether I’m violating his rights. I can’t know until after the fact. But I’m going to take the chance. That’s one way of looking at it, and I think in some cases that is what is happening.
I think in the case you mentioned, I personally would just say, look, the guy by his own action is putting his fellow neighbors into a position where they have no choice but to make a split-second decision, and it’s, if anyone, it’s his fault for putting them in that area of uncertainty. Okay, so then we have to say, well then, what was communicated, if anything was communicated? I would say that there is actual consent. And even if the guy later says, look, I don’t want to ever be rescued, I’m a 1% minority outlier, or a one out of a million outlier, I think we say, well, you’re just wrong. You did consent. If you don’t want to consent, you need to have some kind of special clothing, that, you know, do-not-resuscitate type idea. You can’t expect everyone in society.
And by the way, this also, we never specify whether the property is public or private when we talk about these things. Sort of like we imagine this sort of this ghostly realm of non-vaguely specified walking ground, that’s, you know, there are mists everywhere and no one owns that, you’re just apt to be buffeted. But in reality you’re always, especially in the libertarian society, you’re always in a private property setting. So either you’re on his property, or he’s on your property, or you’re on the shopping mall’s property, and there are already some rules laid down for this kind of behavior, if only implicit rules. So really the result might be the rules of the property owner.
Steve Patterson: So if we were to take that line of reasoning, though, couldn’t you see in a line of argument that said, you know, oh, I groped you inappropriately because I assumed that you were consenting based on, you know, your behavior and something like that? Doesn’t that kind of open up the door to all kinds of claims of?
Stephan Kinsella: Yes, doesn’t it? It does. But I think that’s why the law is the sort of the art of actually making concrete decisions about concrete cases, right, by applying rules to them. And you have to take into account the dangers of how just a rule that could lead to a slippery slope.
So, you know, for example, in the common law, and I think most libertarians would agree, that you don’t have to respond, you don’t have to wait for someone to physically attack you before you respond. If someone is in a context where they’ve indicated they want to shoot you, and they raise their weapon, and they cock the trigger, and it looks like they’re about to pull the trigger, and they have every intention of doing so as far as you can tell, then you don’t have to wait for the bullet to start heading your way. You can raise your gun and shoot them first. That’s preemptive, right, preemptive force. But the common law has drawn a very strict set of criteria around when you can actually say. It has to be an immediate, direct force, something that’s like the reasonable everyday man would interpret that way, et cetera, right?
Look, if the guy’s a raving lunatic, or he’s got a red tip on a plastic pistol where you should have known, then you wouldn’t be. So these, they do require judgment of the jury, or the community, or the judge, and over time these standards do develop, and people start adjusting their behavior to be guided by them.
Steve Patterson: So in those circumstances, it doesn’t seem like, when it’s clear-cut, it seems like the rule is something that emerges, or it’s something, you know, we’re talking about a reasonable man, that.
Stephan Kinsella: I think that’s correct.
Steve Patterson: But it lacks the kind of argumentative power of saying this is the black and white rule.
Stephan Kinsella: It does.
Steve Patterson: So if that’s true in those circumstances, why wouldn’t somebody just say, well, that’s true of all law. All law is, all property rights and rules are just kind of communally agreed to?
Stephan Kinsella: Well, that’s a, let’s, that’s a whole different issue, getting into the social contract and those kinds of issues. And I would do two things here.
Number one, I would say, well, Randy Barnett, in his book The Structure of Liberty, he talks about this. He’s an anarchist, a libertarian scholar, and what he tries to do is say that he distinguishes between abstract rules and legal precepts. Now abstract rules are these things we would come up with from our armchair, okay, or at least we would find them deductively after seeing inductively many cases over the centuries, and we sort of, you know, get rid of the inconsistencies and formalize and codify it. But when you have to apply them to particular cases, that’s more of a concrete case, and you have to have judges and all these people take the facts into account.
But the point is, compare this to any other system. I mean, any system, whether it’s socialist or welfare state or democratic, any type of political legal system is going to have to deal with borderline cases, continuum issues, right? And just because those exist in life, and just because libertarianism doesn’t have a deductive answer you can always answer from your armchair, doesn’t mean it’s an inferior theory, because every theory has these issues.
You could have a dictator, a Führer, just decide everything. It would be totally black and white. Just come to him and he’ll give the answer. A wins, B wins, C wins, he wins, that’s it. I mean, you would know who the owner is and who the winner is. It would be bright line, we would call it, but it wouldn’t be just, or wouldn’t you have a reason to think it’s just?
Steve Patterson: Okay.
Natural Law vs. Utilitarianism
34:03
Steve Patterson: So this is a perfect segue into part two, talking about justification. So we have the general intuition about non-aggression and respecting other people’s property, and now we want to seek the justification through argumentation ethics. So how, make that transition for me. How do we do?
Stephan Kinsella: Yeah, so let’s talk, so let’s talk about, like we said earlier, maybe not everyone has a justification, or there’s only vague, or I would say the prevailing view among most people is that it’s either common sense or it’s pragmatic, right, or it’s based upon common sense morals, or even religious morals. Basically the natural law way of thinking versus the pragmatic, utilitarian, or consequentialist way of thinking, right?
So I would say that, in the first, I would say the libertarianism started in the mid-’50s, right, with Ayn Rand and Leonard Read and Rothbard and these guys, and the modern libertarian movement. And for the first 30 or so years of the movement, maybe first 30 or 40, probably the prevailing ethos would have been the Randian one, which is more of a natural law one, right, which is the idea that certain natural principles of ethics or morality in the universe, and this is whether you’re an atheist or not, by the way. The non-atheist maybe have an easier time of that, because they think that God basically sets up what’s right and wrong. It’s sort of somehow in the structure of reality. But the more secular natural law types think it’s just inherent in reality or something like that.
And their argument is something like, humans have a nature, the way, by the way, we’re organized, and our social nature with each other, and the laws of economics, these all combine to say that, you know, you just shouldn’t, you shouldn’t do basic things. And like I said, libertarianism just makes those more consistent and applies a little economic logic to it. And you’ll even hear the term like, oh, you know, the basic laws of nature are engraved on your heart. This line is used sometimes.
You know, there’s a doctrine of the law that ignorant of the law is no excuse, which in today’s legal system is a travesty, because there are so many laws no one knows what these fake laws are. All right, so ignorance of the law should be an excuse. But in a natural law system where the only thing that’s illegal is, you know, rape, murder, crime, I mean, sorry, theft, then it’s okay to hold someone liable for those actions even if they claimed they didn’t know, because you say everyone knows this. It’s written on your heart, man. Everyone knows that you shouldn’t hurt other people, right?
So that’s one kind of argument. I don’t really know what they’re drawing on. Are they saying God put that in your heart, or it’s just common sense? So they don’t. But this more strict version of natural law says that because of our nature we shouldn’t do certain things, right? Certain things are conducive to your flourishing, like you were getting at earlier.
The problem with this argument from the Hoppean point of view, and the Kantian point of view, and the Humean point of view, I should, I’m not sure about, Humean for sure, is the is-ought gap, right? So is the idea that you cannot get an ought, or a normative, or a moral statement, just from your statement of facts. You have to have an ought somewhere inserted, right? So you can’t say, because man is what he is, therefore he should do X, right? That’s, and I agree with that. I think the is-ought gap is logically unbridgeable. I do agree with Hoppe on this.
Now some of the more sophisticated Randians, like Roderick Long, they try to get around this by what they call an assertoric hypothetical. I don’t know if you’ve heard of this, assertoric hypothetical. They say, no, it’s not an if-then, it’s a since-then. So it’s like, since we all agree with the following principles, therefore, which I think is perfectly valid. Most people do believe in certain core principles. You could say, since you and I both agree that we want humans to flourish, since you and I both agree that you shouldn’t hurt people without a good reason, therefore, you know, then you conclude, you go on your libertarian and your economic reasoning.
It would be very similar to going to a Star Trek convention, and, you know, it wouldn’t make sense for two people at a Star Trek convention to argue that people shouldn’t like Star Trek, because they are all, they’re both fans already, right? All right, so you say, look, since you and I are both Star Trek fans, I think that this movie is better than the other one, or whatever, right? But if you’re talking to a non-Star Trek fan, they say, I don’t like movies at all, I don’t like Star Trek, so I don’t think either one’s better. We don’t have to decide, right?
But if you’re talking the same fundamental language, which I’ve called something called Grundnorms, after Hans Kelsen, and Grundnorms are like sort of core basic ethical or legal principles. It’s analogous to the a priori type, or basic truths that I think you’ve talked about as well, you know, just the kind of core logical truths that we can identify about reality and build up from there. There’s sort of like fundamental elemental principles.
In any case, the problem with the Aristotelian approach, I believe, is that you have to introduce an ought somewhere, and then is it just arbitrary? Is that just subjective preference, whatever? So Hoppe, the argumentation ethics approach, is a different one.
And let’s talk about consequentialism. So consequentialism is just the idea that we ought to adopt rules that, well, utilitarianism is a sub of consequentialism, I believe, right, and that says you should adopt a rule that benefits, that does the greatest good for the greatest number, right? And I think, I don’t think we need to elaborate the problems with that. Like, just from Austrian economics, right, the problem that you can’t quantify preference or utility, sorry, and you can’t intersubjectively compare it. And anyway, the statement is just arbitrary. You’re just stating that this is preferable. Let’s say it would help a thousand people to give them a million dollars each by robbing Bill Gates of it. It might be true, but why is it right to rob from Bill Gates? It still doesn’t answer that question. So it sort of makes it, makes that more, it makes it a hidden moral leap.
Steve Patterson: Okay.
Stephan Kinsella: Now I think we’re ready to talk about argumentation.
Steve Patterson: Because if you want, yes.
Stephan Kinsella: So what Hoppe did. So Hoppe, you want a little background on Hoppe, where he came from and how he arrived at his ideas?
Steve Patterson: Well, I think we should just go straight into the argument.
Stephan Kinsella: Given, okay.
Steve Patterson: I’ve still got lots of good questions for you.
Stephan Kinsella: So, okay. All right.
The Argument for Rights
40:20
Stephan Kinsella: So Hoppe’s argument is this. The only way to justify propositional truth, that is, claims about the universe that are true, is in argumentation. And he believes that there’s what we call an a priori of argumentation. He draws upon Jürgen Habermas, who’s a famous socialist German philosopher. It was his PhD teacher, actually, and Karl-Otto Apel, who was a colleague of Hoppe’s. And this is called a priori of argumentation, or discourse. And the idea is that you could never deny that to be true. You can never deny that all truth claims have to be settled in the course of some kind of discourse, argumentation, because you’d be engaged in a discourse of argumentation in the attempt to say that it’s not necessary to do so.
Okay, so it’s, you can see how it’s similar in structure to some of, like, the Misesian and even Randian type a priori type arguments, and right, like man acts. You can’t deny that man acts, because that’s an action.
Steve Patterson: I said, right, right, right.
Stephan Kinsella: So their basic idea is that anything that we want to decide upon is true, anything that’s a contestable proposition or claim, has to be decided in the course of an argumentation.
Okay. Now Hoppe’s sort of a unique spin on it, after being made aware of kind of Mises’s views on economics and the nature of scarcity in the world, and Rothbard’s views on rights, was that you could fashion this type of argument into a defense of libertarian principles.
Steve Patterson: Okay.
Stephan Kinsella: Okay. Then what he does is he says, so every, you can only know what’s true or not in the course of an argumentation. Now if it’s a disagreement over what a factual matter is, right, like a scientific issue, that’s called a disagreement, and again we have to have discussion in this course to figure that out. But in the case of physical conflict among people, which again is what rights exist for, to solve the problem of conflict in the use of scarce resources, in the situation where there’s conflict, argumentation is designed to determine how to resolve the conflict. That’s what it is.
So whenever we talk about any given law or possible right, that discussion itself has to be done in the course of an argumentation. Okay, so his basic insight is this. Argumentation is not just some free-floating affair. It is a practical affair in the real world, and argumentation itself is not value-free or norm-free, because it has some presupposed norms built into the very structure of argumentation, because of its nature.
Because, so argumentation is, think of it this way in terms of logical subsets. Argumentation is a type of speech act, and a speech act is a type of action. So it’s all in that framework. So you have action, and one subset of action is speech acts. Like, not all actions are speech acts, and not all actions, or some actions are things other than speech acts. You know, if I’m spearfishing, I’m not speaking, right? And if I, and then one type of action is speaking, but not all speaking is arguing. You know, if I’m just having a conversation with you, or if I’m, you know, reciting the lines for a movie play or something, I’m not engaging in argumentation, where I’m not, to have a discussion about a contested issue where we’re trying to figure out what the truth of the matter is, right?
So a proper subset of speech acts would be argumentation, and that’s the one that always has to happen whenever we have a disagreement about what the right or the wrong thing to do is.
Okay, so the kind of general framework is that whatever the normative or the ethical presuppositions of argumentation per se, as an activity, are, then any norm you’re trying to justify would have to be compatible with that. So that’s sort of the core initial insight he has there. If there are some normative presuppositions of argumentation, you could never argue for something that contradicts that, right? It’s just like you could never argue with a fellow Star Trek fan that people shouldn’t be Star Trek fans, in a sense, because they both suppose that they love Star Trek, right?
Steve Patterson: Okay.
Stephan Kinsella: So what are some of those norms that are presupposed with argumentation? Okay, that’s why you have to say, well then, what is argumentation? It’s a practical thing where the arguers are both trying to find the truth, right? That’s number one. Their goal is honesty in truth, and therefore consistency and logical consistency. But also there, you have to draw a distinction between coercing someone and free choice. So that, so one presupposition is that each person is not coercing the other to accept their claim. I’m not saying I think it’s A, you think it’s B, but if you don’t agree with me I’m going to bash you over the head with a sledgehammer at the end, because then I’ll just, I’ll just confess and say you’re right to avoid, but then we’re not engaging in argumentation. It’s just bullying or coercion.
So one presupposition is basically peacefulness. The participants are agreeing to effectively respect the bodily integrity of the other. They are not coercing them.
Steve Patterson: Okay. What about, so let me stop you there. What about if they’re talking, what about if they’re arguing about what happens at the end of their argument? So if they’re arguing, saying, once we stop respecting each other’s rights, or, you know, if you lose this argument I’m going to take your money, or if I lose this argument you take my money.
Stephan Kinsella: Well, first of all, that’s what every argument is about, being outside the argument. So in other words, we’re living in society peacefully or not, whether speech flowed. Now we’re living together in some kind of community, in society, right, and then a dispute arises. I mean, we’re going about our business, non-argumentative. We’re not engaging in argumentation all the time. Most of, you know, we’re making, well, but the point is, the entire reason that you engage in a normative argumentation is to settle something that will be true after the argumentation is over. So you get the argument, you have a conclusion. You are trying to come up with a principle that would apply outside of the field of argumentation.
So that’s one criticism of this approach that Bob Murphy and Gene Callahan and others have made. They say, well, it’s only true during the argumentation. It’s like, and as Hoppe points out in his recent talk on this, if that were true, well then so is your criticism. In other words, your criticism of my argument, it’s only true while you’re making the criticism, and as soon as you’re done talking we go back to the point, we go back to the status quo where my argument was right.
I mean, whenever we have a discussion, we’re always trying to come up with rules and facts that apply outside of. You know, if you and I want to discuss whether the moon is made of cheese or not, we’re not trying to figure out whether the moon is made of cheese for the duration of our argument. We’re trying to find out whether it’s really made of cheese.
Steve Patterson: Okay. So let me rephrase that, and if I do it incorrectly, then correct my error. So to the extent that one is engaged in true argumentation, you might say it is by definition something that is inescapably peaceful. Now that doesn’t mean you’re restricted from knocking the other person on the head. It just means that by definition, if you’re doing that, you have, you’re not arguing.
Stephan Kinsella: Yes. And it means you can’t, and it also then, it means you can’t justify it. It doesn’t mean you can’t do it. It just means you can’t justify doing it. So this way you have to distinguish in a binary way. Whether, you know, establishing that there’s a right doesn’t mean it’s going to be respected. It just means the action that violates the right can’t be justified.
So if I’m a person and I want to use your body or your property without your express consent, right, against your oppositional claims, I’ve got two choices. I can either just do it anyway, right? I can, and give up the attempt to reason, or I can justify it. But to justify it I have to be able to give reasons in an argumentation.
Now from the point of view of the other person, you view people in two categories, either like animals, or what Hoppe calls technical problems, or as rational people. If they’re rational people, they’re willing to consider evidence and arguments, right, and reason, and respect your right to bodily integrity during the course of an argument, at least. Okay, so you have to treat. So just because there are some people that are criminals out there, in a sense, doesn’t mean argumentation ethics is wrong. It just means that it is possible to violate a right. These are not physical causal walls that can’t be violated, like gravity. They are normative laws that tell you what actually is justified. It doesn’t mean that it actually can’t occur.
Steve Patterson: Okay.
Stephan Kinsella: But we’ve missed a second, so let me just finish quickly and we can go. So you can see how this rendition of the argumentation ethics approach so far, you can see how bodily rights come out of that, right? So basically you have to respect each other’s bodily integrity, which implies that you both are recognizing your self-ownership and the other person’s self-ownership, which is one of the core libertarian principles.
Steve Patterson: Okay.
Stephan Kinsella: But the other part of libertarianism is also the right of libertarians to own things outside their body, private property, resources that they appropriate. And then Hoppe’s argument goes on to extend it to that case, where he points out that argumentation, it’s not just your body. This is a practical affair in the real world. You had to actually get there. You have to survive. That requires resources. You have to be standing somewhere when you make your argument, right? So there’s all these uses of resources that are also presupposed in the course of argumentation. And, you know, 95% of the time the argument is about one of those resources.
So, okay, the dispute is about, you know, who gets to control this bank of the river, who gets to control this field, who gets to control that plow that I made and that you took from me, things like that. So when two people enter into a discourse about that, they are both presupposing, number one, their self-ownership, which implies certain rules, right? It implies this sort of first-come rule, first come, first served rule. In other words, one inherent aspect of the entire notion of property rights is the idea that a latecomer has to have inferior rights to an earlier comer.
If you think about the very nature of property, it has to have this latecomer rule embedded in it, because if latecomers don’t have worse claims, and by latecomer I mean, someone currently is recognized as the owner or the possessor of something, a latecomer, someone who comes on the scene after and claims superior rights to the resource. Okay, if latecomers did not have a worse claim, you could not have property rights at all, because it would just be a world of might-makes-right, and you would again be back to the pre-law, pre-right situation.
So the latecomer rule has to be embedded in any property ethic. Whoever the owner is has a better claim than someone who comes later and just says, I want it because I prefer to have it. So therefore, when you have two people asking to be assigned the ownership rights of a resource, they’re recognizing the principle of ownership, which recognizes the principle that earlier users have a better claim than latecomers. And then the dispute becomes a factual matter about which one was the latecomer in this particular case. Whoever the evidence indicates had a better claim would be recognized as the owner.
Steve Patterson: Okay.
Stephan Kinsella: Okay, so that is how the, I think that is sort of the essence of the argumentation ethics approach. Now the point you brought up about what after the argumentation ends, those are sort of later criticisms that came, and that have been dealt with sort of in an elective response-reply type fashion. But the basic core of the argument is that all normative claims have to be settled in an argument, and argumentation itself is a peaceful, cooperative activity in which bodily integrity, or self-ownership, and the right to control resources which are necessary for the argumentation even to have happened, are presupposed. And therefore any ethic that you propose during an argument that is contrary to these things could never be justified. There’s a practical or performative contradiction, Hoppe would say.
Steve Patterson: Okay.
Stephan Kinsella: And therefore, if you advocate a socialist ethic, then you’re advocating something that’s incompatible with the presuppositions of your argument, and it’s just a contradiction. And therefore no socialist ethic could ever be advocated. It could never be justified.
Steve Patterson: Beautiful. Okay, so that is a, I think that’s a great summarization.
Debating Argumentation Ethics
47:38
Steve Patterson: Now I want to ask you some of my skeptical problems with this, and I’m ready to be convinced, because I love the conclusions. I love that it’s rationalist, which I’m very disposed towards that type of reasoning. But here’s one of the areas that I don’t see the connection.
Okay, so I am totally on board that in the process of arguing, you are inescapably in control of your lungs, your vocal cords. You’re demonstrating some kind of control over yourself when you argue. How does that get you, though, to the concept of legitimate ownership? So if I were to say something like, it is true that in the process of arguing you must have control over your vocal cords, but that doesn’t mean there’s any such thing as property. There’s no such thing as legitimate property ownership, or anything like that.
Stephan Kinsella: Well, so here’s where I think we have to really grapple with the distinction between causal laws, or the, you know, the factual world, and normative things. When we establish a normative rule, it’s not like a law of physics where you can’t violate it, right? What are we really asking? So what does ownership really mean? And this really gets back to justification.
So if I say I have a right to do something, what I mean, what I really mean, and this is where I think you have to get more technical. I think what you’re apparently saying is that someone else’s propositional argument, that what you’re doing is wrong, cannot be justified. That means they can’t give a coherent argument against it. Okay, that’s a little bit tight. I think that’s really how you have to unpack the nature of what rights are.
But you have to remember that in a society where there is the actual factual possibility and reality of conflict, whenever people come together to try to find a rule or a norm to solve this conflict, the entire endeavor of that argumentation is an attempt to find an owner. Now an owner means someone who’s going to be recognized as having the right, the superior right, to control the resource. So that’s what they’re trying to find out.
Steve Patterson: What if it was just about, yeah, what if it was about trying to find a controller rather than an owner? So not somebody that has a right, just somebody that actually physically gets that resource.
Stephan Kinsella: But well then, I think language here is maybe the problem, because if you just want to ask who the, so in the law we distinguish between possession and between ownership. So a simple way to look at it, not exactly technically accurate, but would be, possession is the actual control of something, right, and ownership is the right to control. So you could, in that sense, you could distinguish between an owner and a possessor.
So if I have a knife and I’m the owner of the knife and possessor, and you take the knife from me, you steal it, now you possess the knife, but I still own it, right? So, but if he’s just, so if the dispute is a factual dispute about who is the possessor, well, that’s just not normally interesting. I mean, why would you have a dispute about, so you took my knife and we go to court to ask who has the knife? You see what I’m saying?
So what you’re trying to do is, you’re trying to, when you say we just want to know who is the controller, I think you’re really talking about ownership, because we wouldn’t really ask who is controlling it factually right now. It’s going to be obvious who controls it. There wouldn’t be a dispute if someone didn’t have control of it and someone else wanted it.
Steve Patterson: So is the claim then that ownership is inescapable, or is it that control is inescapable?
Stephan Kinsella: Well, or possession is. Yeah, control or possession correspond to the Austrian, Mises’s, or the praxeological concept of action, right? When in action you employ means, employ scarce means, to achieve ends. Employing means is the dominion or use of something in the world that causally interferes with the way the world works to get you what you want, right? That is the use of something. That is what employment of means is. So that’s just a, so for example, Crusoe on a desert island, right? He engages in human action. He doesn’t own anything, because there’s no other people he would have a right claim against. He controls some things. He might build a hut, so he’s got use of these things and control. I mean, he might leave his fishing net on the other side of the island, and it’s not within arm’s reach, but he can go use it when he needs. It’s available for his use.
When other people arrive on the scene, then there’s an additional problem he has to face. Well, there’s additional benefits he gets, too, right? He has companionship. He has division of labor. He has the possibility of trade, cooperation, et cetera. But he faces an additional problem. There’s one more danger in the world now that he has to face. Before, he only had to face tigers and mosquitoes and starvation and droughts and all this stuff, right, and disease. But now he’s also going to face the possibility that there’s another human actor whom he may have conflict with, who may want some of his resources.
So he wants to possess and control a resource, but he wants to do so in a peaceful and quiet way, where he doesn’t have conflict with his neighbor, so that they can have trade and harmonious relationships instead of continually physically fighting each other. So if other people feel the same way, they come together in society and they attempt to come up with property laws, property rights. See, that’s what, when you say ownership and all that, really means is a property right. And every time we say the word right, a property right, all rights are property rights. All laws are based upon some implicit conception of property rights. All political theory, all legal theory, it all comes down to property rights. Who has the rightful ownership or control of a given resource?
Steve Patterson: Okay. So is the claim then that really, even more fundamental than ownership being inescapable, is the claim that rights are inescapable?
Stephan Kinsella: Well, ownership means property rights. And whenever we have a normative dispute about a conflict over a resource, the participants in the dispute, and everyone who’s paying attention and arguing about it, they are all themselves talking about property rights. They’re just disagreeing over who should be the owner of a resource. But none of them can dispute the concept of ownership.
Steve Patterson: So you could have people.
Stephan Kinsella: Go ahead.
Steve Patterson: Well, I was going to say, you could have people that are not interested in this process, and these are basically renegade outlaws, or renegades.
Stephan Kinsella: And again, you just have to treat those people as a technical problem. They’re like very smart monkeys. They’re just like smart monkeys. And so that’s how, in fact, that’s how I view the state. You know, that’s how I survive in my mind as a libertarian. I just view the state as a type of force we have to deal with.
Steve Patterson: So how would you deal with the claim, then, that there’s no such thing as rights, or that rights, so this is kind of halfway my position, that rights, yes, concepts that, yes, look, if everybody agrees to play by the game of acting as if we have rights. While I love the conclusions, I think it’s a very logically consistent theory, but that still doesn’t get you to this inescapability, if rights are just a concept.
Stephan Kinsella: I thought you were going to say, if everyone agrees to play by the game as if we have rights, then effectively we do, because that’s what I would say, in a sense. And I wouldn’t disparage you by calling it a game, though, right, because that implies a type of moral cynicism or moral skepticism that I don’t have.
So the entire question, do rights exist, yeah, things like this, I think that’s fraught with difficulty, because it plays into scientism a bit, like you’re trying to treat rights, and when you say it’s just a concept. Well, let’s be crystal clear. All of these things, right? I think then you have to have a whole theory of concept formation and epistemology, which is why I mentioned to you, previous to our conversation, a lot of Rand’s approach to concept formation, and the way she just approaches knowledge, I think is one of the best that I’ve seen. I don’t know if you have to go that way.
But so I would view that, I would just try to look at this simply and realistically and clearly, and have clear terms. So I would say that we are rational beings, right, and we have the ability to have knowledge about the universe, that is, factual knowledge and other knowledge. And our minds are complicated enough where we grasp so much. I mean, look, we have perceptual data. That’s all we have, I believe, the five senses, as far as we know. And our brains integrate those percepts, as Rand would say, into concepts, and the concepts lead to higher-level thinking. And then to communicate this and to think with others and to make it more streamlined, we have language. So you have language that has words that correspond to concepts. So to say something is just a concept is kind of misleading.
Steve Patterson: I mean, well, so let me give you an example, though. So if I were to say something like, if I go to a chess tournament, there are rules of the game I have to follow. There’s good social rules if I want to participate, and I want to participate because I like going to chess tournaments. But the rules aren’t something that are inescapable. I can just not follow them. I can reject them consistently. And that sounds like the claim is that with the argumentation ethics, it’s not something that is escapable in the same way as the rules of a chess tournament are.
Stephan Kinsella: It’s not escapable, because all truth claims have to be decided, or decidable, in argumentation. And therefore, if there are any particular ethics that come with argumentation as an activity, then that does limit the universe of possible claims that could ever be justified.
Steve Patterson: If you accept that there are such things as rights. I mean, is the, what is the, so.
Stephan Kinsella: Okay, okay. Yeah, well, I look at it the other way. I think rights sort of as an outcome of a way of thinking about what’s justified. That’s just a conceptual term we have applied to it. So for example, the entire libertarian claim could just boil down to, you can never justify aggression. Okay, let’s just assume we know what aggression is. Aggression cannot be justified. Now what that means is, aggression can’t be argumentatively justified, because every justification has to be done argumentatively, right?
Steve Patterson: Okay.
Stephan Kinsella: So when you say aggression can’t be argumentatively justified, what you’re saying is that actual people engaged in an actual argument are making certain presuppositions, as a nature of the activity, the argumentation. That means it is literally and logically impossible for them to justify certain normative claims that would contradict the presuppositions of the argument.
So to my mind, the only disagreement really that is left, if I say someone like you could have, like, as a libertarian, is, do you believe that argumentation necessarily has certain normative presuppositions or not? So like in the Murphy-Callahan debate that I had, they seem to, they seem to agree with me that they agree that argumentation has some normative presuppositions. They weren’t clear about what they were, and I don’t think they understood the implications of them saying that. But once you admit that, the game is over.
Steve Patterson: Well, so let’s say I don’t admit that.
Stephan Kinsella: So if you don’t admit that, and that’s where the real dispute lies, right? But if you don’t admit that, so then I would, you know, logically classify people into different camps. And then at that point, I mean, if you don’t even want to argue at all, then you’re just a brute. I mean, I just have to treat you as a technical problem, right? Just like, you know, I can argue with an IRS agent about why taxation is wrong, and he can basically agree with what I say, but say, anyway, pay your taxes. I’ve just got to regard him as a threat and keep an eye on him, right? I got to keep my hand on my wallet.
Steve Patterson: Well, so I can say coherently, though, that in the process of arguing you demonstrate possession of your body, but I can also coherently say, in the process of argument, there’s no such thing as legitimate ownership.
Stephan Kinsella: Yeah, yeah, I think, yeah, I get what you’re getting at. What you’re, I think what you’re thinking is that you don’t have to make any normative claims when you argue.
Steve Patterson: Let me ask you, though. So when we’re talking about, you were talking about justification, and you said rights are kind of an, maybe an outgrowth of justification, or something that follows from justification. Where do you get this concept of justification? Well, if I’m a justification skeptic and I say there’s no such thing as any kind of objective justification, how would you respond to that?
Stephan Kinsella: Well, then you would lose in court. If you really don’t want to object to my taking your property, then I’ll just take it. Well, but if you want, in other words, if you want to mount, if you want to mount the sense of, you’re right. If you want to take my stuff, or if you want to keep your stuff, and we have a contest, then you’re in effect saying, I’m the owner, not you. You can’t, it’s not like saying, but you’re the case, if you accept this idea of ownership.
Steve Patterson: But if I’m an ownership skeptic, and I say all ownership is, as a concept we come up with in our mind, because it benefits society if we all agree that there’s such a thing as ownership, that, right, I’m kind of acknowledging that there is such a thing as a concept of ownership that has logical implications if you agree to it. But I’m saying really it’s just, it’s kind of an agreement that sometimes I’ll follow and sometimes I won’t.
Stephan Kinsella: Well, I guess you could. It’s convenient to come up with a situation where we’re like these angelic beings floating up in the clouds, just having an abstract argument about what these silly humans down on the earth, squabbling over resources, are arguing about, right? And you can say, well, I just, it’s just game play. It’s a game. I’m going to reject it. But the point is that in any actual dispute about the natural conflict over any actual resources, the two or more people that are part of the dispute both actually are claiming ownership of that resource. Okay, so I don’t see how they can claim ownership of it and then deny the concept of ownership.
Steve Patterson: Okay. Okay, so what about this? How about this example? Is it possible for me to, so I’m going to try to coherently argue, including the concept of ownership, but get to a non-libertarian conclusion. Let’s say that I say everybody that is under four feet tall, oh, yes, or everybody who is over six feet tall, I’m taking 30% of their income. That’s not a libertarian principle. Is that incorrect?
Universalizability of Norms
1:04:34
Stephan Kinsella: Yes, and we didn’t get into that at all. That is the core part of Hoppe’s argument. So what he goes into in his argument, and this is where he gets a little Kantian, right? He says that there’s something called the universalizability requirement. Okay, when you’re in a sincere, honest discussion about what rules are going to be the adopted and just rules, you have to adduce reasons for your position. They cannot be just arbitrary.
Okay. Now to me, this is something I think it took me a while to realize, because it’s kind of subtle. But people sometimes will say something like, well, what’s the argument for the universalizability principle? Yeah. Okay, in the, the universalizability means you can’t have what was the opposite, which is called particularistic rules. A particularistic rule is like what sort of what you just said. It’s saying like, okay, you and I both want ownership of this house. My argument for why I get it is because I’m me and you’re not. See, that’s a, that’s particularistic. So you’re not giving a reason, what Hoppe would call grounded in the nature of things, some objective reason that we can both point to and see as the explanation.
Steve Patterson: So let’s make it so, universal. We’ll say all people over six feet tall, because of their superior ability to see over obstacles. That’s the universal rule, and they’re not talking about individuals, though I happen to qualify. Would that be incoherent?
Stephan Kinsella: Well, I don’t, I mean, I think personally that I don’t see that winning over people in arguments, because it’s, you are finding a distinction between people, but it’s a distinction without a difference. In other words, there’s no connection between that ability and the ability to own a resource.
So I would say this. I don’t think we have time to go into this whole thing, but there is an entire aspect of the argument that deals with the need for making universalizable norms. So as Hoppe, so let me give the example Hoppe, he gives the example of, you can avoid the particularistic fallacy, so to speak, by just being clear. You could say something like, all redheads, right? Then it’s, but then it’s just arbitrary. And to the extent your rule is arbitrary, you are literally not giving a reason. And if you’re not giving a reason, you’re not engaging in argumentation.
Steve Patterson: Okay. Essentially. Yeah, I’ve got a better one for you. So unless this is much more controversial. Let’s say everybody with an IQ under 80, they owe 50% of whatever they make to people with IQs over 120. Now the reason is because the people with the higher IQs can more accurately, you know, and make sounder investments, which makes everybody wealthier, and then other people would just squander their money. So that’s at least a line of argument that doesn’t seem totally arbitrary.
Stephan Kinsella: Well, or just take it to the extreme. Yes, you can, we can have slavery. You could have subsistence labor. The superior people own the inferior people because they know better than the worse. I mean, you could take this to the extreme, right?
I think the problem with those arguments is they’re incompatible with the more basic presuppositions that already have to be agreed to, which is basically, any person, like they say, that’s capable of engaging in argumentation, they have that kind of rational capacity, right? They’re basically a human actor in the world. Any person that is capable of being an actor, and that is capable of being the first appropriator and user of a resource, has a better claim than anyone else. And that basic argument does not depend upon their quantity of intelligence. It just depends upon them being an actor. So sort of a binary thing. Once you’re in the group, you have full rights.
Steve Patterson: I mean, I also, for you, I think that’s the assistance, but why would that be superior in any way to me just saying, you know, seizing everything, because you said, except I say.
Stephan Kinsella: But because it’s primary. So in other words, it comes first, and it’s the presupposition that we’re basing everything on. So if you come up with a second criterion, it’s got to undermine and undercut the first one, right?
So in other words, it’s just a fancy way of saying, I agree that for purposes of, for there to be argumentation, there has to be human life. For there to be human life, humans have to employ scarce means in the world. For them to employ scarce means in the world, someone has to be the first user of a resource, right? For someone to be the first user of a resource, he has to be free to take it and start using it. For there to be ownership, the latecomer principle applies, which means that, you know, the person who first used a resource has a better claim to it than anyone else.
So we agree to all this, and then you say, yeah, but we’re still going to take it from the guy anyway, because he’s stupider. I mean, that’s usually what you’re saying. So it’s just a contradiction of all the essential presuppositions that you’ve come up with. In other words, if you introduce a distinction.
I mean, how about a more realistic example? Blacks, or women, at certain times in history, and in certain cultures even still today, are considered to be inferior to men, or to white men, right? And therefore the standard arguments that we came up with only apply to, like, white men, or something like that, right? Women don’t have the right to engage in contract. They don’t have the right to buy property, et cetera. I mean, this is an actual argument used. And the arguments that the women are the frailer sex, blacks have a lower IQ, they’re not as evolved, whatever the arguments are, right?
But I think with these kind of grand questions, we have to really sit back and say, all us, gets really enlightened, liberal-thinking, realistic people, is this a serious argument? Are we really saying they’re not human actors? Are you really saying that it’s impossible to imagine a black man alone on an island surviving and acting as a human, employing scarce means, or a woman? Yeah, it’s just an arbitrary distinction that is not grounded in the nature of things, that everyone that’s a potential arguer could in principle agree to as being fair.
Steve Patterson: Well, I find it, I mean, I find it persuasive, and I find the conclusions persuasive. But the thing that, that’s the sticking point for me, is the notion of the inescapability of it. So I agree, I ain’t going to persuade a lot of people to say, oh, we’re going to give these exceptions for women and they don’t qualify. Totally not. Well, swayed anybody.
Kinsella’s Defense
1:11:19
Stephan Kinsella: Let me ask you, let me give you one thing I haven’t gotten to yet, and see what you think about this. Okay, especially when I deal with libertarians who are skeptics of argumentation ethics. Not skeptics, really. I understand people being skeptical, because this entire area is confused and difficult. But people that are outright hostile to it drive me nuts, right? So because here we have, you know, we don’t have a case where I’m talking to my neighbor who’s like, you know, a normie, and I’m trying to say, look, let’s go back to principle. You agree with me that you should be fair to people and you shouldn’t hurt people, right? Now if you just apply economic logic, you could, some, and then I try to persuade them to be a little bit more consistent, right? Whatever.
I’m already talking to a fellow libertarian, you, and sometimes a fellow anarchist, which I think you probably are, right?
Steve Patterson: Yep.
Stephan Kinsella: And so now, either you yourself have a justification for your normative views, or you don’t. Okay, if you don’t, then what is the big fuss about? So you have these libertarians walking around with no good argument for their views, and they’re upset that someone thinks that they do. I mean, what’s the difference, really? I mean, basically in your view, everyone’s walking around, it’s just like this nihilistic desire to smash people, that, like, I don’t know, I don’t know, you don’t either, so shut up, you know.
Steve Patterson: I’m definitely partial, at least, towards nihilistic ethics, with some exceptions. But what’s interesting, though, is I also see from the opposite point of view that, as annoying as those extreme, like, anti-Hoppeans are, though, it’s also on the other side, that people who take argumentation ethics and say there’s literally no coherent way to argue against these libertarian conclusions, and I don’t, they try to bash that over the head. I don’t find that productive either.
Stephan Kinsella: Wait a minute. Wait, you lost me. So you’re, the Hoppeans lose you, or the anti-Hoppeans?
Steve Patterson: No, no. It’s, I see it from the other side as well, from the Hoppe, I don’t want to say all Hoppeans, but there is definitely a flavor of argument when people take this as something true, not just in rationalist ethics, but in all types of rationalist history. Yeah, yeah, yeah. You say, you know, you can’t defeat me. There’s no coherent argument against it, and if you disagree with any part, it’s because you’re stupid. I think that also, this.
Stephan Kinsella: Yeah, I wouldn’t disagree with you on that, as a tactical or strategic matter. But here’s the thing. Let’s suppose that, let’s suppose you are a libertarian. Okay, that means you do believe, and I don’t think most libertarians are like totally ethical relativists, right? They actually do believe that their libertarianism is superior in some way to competing ethics, right?
Steve Patterson: Right.
Stephan Kinsella: I don’t, they might not be able to adduce reasons for it, good reasons, but they do think that they’re there, right?
Steve Patterson: Right.
Stephan Kinsella: Which means that they effectively do believe that an argument for socialism is wrong for some reason, right?
Steve Patterson: Right.
Stephan Kinsella: They do believe that an argument for socialism is incoherent for some reason. They do believe that already. Almost every libertarian, even non-Hoppeans, implicitly believes that libertarianism is the only justifiable argument. And then, and because it is true that all justification has to be done argumentatively, they believe that libertarianism is the only one that’s argumentatively justifiable. So they must believe, to some degree, that an argument for socialism is argumentatively incoherent. And yet they attack Hoppe for basically saying that. Do you see? So it’s kind of bizarre to me that people who basically agree with what he’s saying, attacking for saying what they believe, right?
Steve Patterson: And I think it, I think it’s about that, the rationalist, like for me at least, because I place such high value on rational reasoning. I think it’s exactly, it’s the most profound way of reasoning. Those initial steps, before you get to, you know, if we agree on ownership, then X, Y, and Z follow, is just getting to that agreement on ownership. Is that something that’s truly inescapable? That’s where I think, you know, there’s needs to be, there’s a lot of room.
Stephan Kinsella: Okay, the most despotism here.
Steve Patterson: Yeah.
Stephan Kinsella: Oh, I totally agree. So, but let me, from your point of view, let’s say you do believe libertarianism is the most coherent, intellectually defensible, justifiable, you know, ethical position. So you have to believe that socialism is not intellectually defensible, right?
Steve Patterson: Yeah.
Stephan Kinsella: So.
Steve Patterson: I would, here’s the way that I would put it, because I’m partial towards the ethical nihilism, with, there’s one big exception, with my caveat, that I think it is the case that if people in society agree to principles of ownership and understand them almost identically as we understand the rules of chess tournaments, then society flourishes. Yes, you get a maximization of not just peace, not just prosperity, but the ability for individuals to love, which that is my, that is my ethical value, where I think that is, that kind of grounds my ethics, is love is the good. And so that system which maximizes the love is the good system.
Stephan Kinsella: Yet I would even myself disagree with what you just said. And let me make one other point. I think that the Hoppean argumentation, I think, is really meant as a way to strategically persuade people. It’s not that kind of argument. As I said, most people, look, society couldn’t exist, in my view, without people mostly being decent and seeing these things practically, intuitively, in other ways.
I was a libertarian before I read Hoppe. It’s just that when I read it, I was like, oh, this is so, it makes so much sense, and it was like intellectually pleasing to me as someone interested in the theory of things. You follow me?
Steve Patterson: Yeah.
Stephan Kinsella: I don’t know if you’ve had a bunch of socialists out there doddering along, and they read Hoppe’s argumentation ethics in 1988 Liberty magazine, they go, oh, now I’m going to be a libertarian. But that’s really more a question of how to persuade people, or tactics, or strategy, or psychology, or something like that. So it’s not that this is supposed to open people’s eyes, but it is supposed to be a way to demonstrate to libertarians why it, like, why it logically is that no one is able to defend a system competing with ours. No one’s able to justify socialism. It’s just contrary to the nature of things.
I mean, I’m not able to justify socialism given the presuppositions of this type of universal ownership principle. Yes, but the thing is, when they engage in argumentation as a peaceful activity, these peace people do, and they come together, they’re trying to be civilized, they’re trying to respect each other, they’re trying to find a way to work with each other in this world of possible conflict. And the people that are trying to do that, now I believe that it’s because of evolution and psychology. I mean, humans, because of the way we evolved, we have a social nature, but there is an advantage to being in society with each other, communities. But that gives rise to the possibility of conflict, and it gives rise to human feelings of empathy.
So I think that, for example, and I think the free market enhances empathy, but empathy, to my mind, is the kind of root source of rights, in the sense that it makes us value other people, not just ourselves. But to the extent you value other people, that’s, these are the type of people that engage in these inquiries in the first place. I mean, even our opponents are basically civilized, so they recognize the Grundnorms, the basic norms that we do. They just go way off track, I think, because there’s so much baggage, and there’s so much economic illiteracy, and there’s so much confusion, you know, about individualism versus the collective goods and things like that, right?
One of the biggest problems is the state is viewed as this kind of background entity, to be this, separate from us, that is necessary and permanent and has to be taken into account, and there are special rules for the state, right? That lets people use the state as a safety valve for all the things they don’t understand. They just shove it into the state. In their personal lives they would never rob their neighbor, right, but they will consent to the state robbing their neighbor.
Steve Patterson: Yeah. I think when you expand on even kind of common-sensical ethical intuitions that people have, do you think it leads to some kind of a, some version of an anarchism, even though people don’t immediately see that’s where it leads? But this has been an awesome conversation. I have enjoyed it. We can do it again any time on another topic, if you like.
Stephan Kinsella: Excellent.
Closing Thoughts
1:21:12
Steve Patterson: All right, that was my conversation with Mr. Norman Stephan Kinsella. I hope you guys enjoyed it. Wherever you fall on this particular argument, I hope that clarified things.
I think many proponents of argumentation ethics are a bit too strong-headed in how certain and complete and absolute and unquestionable the ideas are. And I think many people who criticize argumentation ethics are a bit too quick to do so. I think there’s some middle ground here. I’m definitely not totally on board yet, but I think there is some truth to be discovered when at least thinking about some values that we demonstrate that we presuppose when we’re in the process of argumentation.
So though I’m not a rationalist ethicist yet, I’ve got an open mind, and I’m still ready to be persuaded. Obviously there’s a lot more to say on this issue, but not today. That’s all for me. I hope you guys have a great week.
Hello my friends and welcome to the 63rd episode of Patterson in Pursuit. This week is going to be an interview breakdown of Episode 50, which was my conversation with Stephan Kinsella about the non-aggression principle and argumentation ethics, two fundamental ideas in libertarian political theory.
Now, because that conversation lasted about an hour and a half, I’m not going to go through both of them on this interview breakdown. I’m actually going to break this breakdown into parts. This week is going to be about the non-aggression principle. And if you’ve never heard of the non-aggression principle before, don’t worry. It’s simply the principle that it is not legitimate to initiate the use of force against a non-aggressor. In other words, don’t use force on people that aren’t using force.
The Non-Aggression Principle 0:51
Kind of sounds like the Golden Rule. I think it’s a pretty good idea. That’s what we’re talking about this episode. At a future unspecified date I will break down the part on argumentation ethics. That second part will take a little bit longer, because it was the majority of our conversation and because there’s quite a lot to say on the topic.
The non-aggression principle is a fantastic topic in its own right. I love talking about it, love thinking about it. It comes up all the time when talking about political theory, especially to those who are of the libertarian disposition, which I unabashedly am. So hopefully this conversation will spark some good dialogue amongst those who are listening to the episode.
There’s actually a split in the libertarian community between people who are non-aggression principle absolutists — and I don’t mean that in a pejorative way — who think that there are no exceptions to the non-aggression principle, and libertarian non-aggression principle 99ers. Maybe I would be in that group. And there is a group of people that thinks the non-aggression principle is not so important. But most of the time, if you’re talking to libertarians, they’re going to have favorable things to say about the non-aggression principle, whether or not they treat it as some absolute thing or a pretty good rule of thumb.
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Using the Crude Language of Social Conventions 2:54
All right, so where I want to start this interview breakdown is where the actual interview started. We didn’t jump right into argumentation ethics. First we talked about the non-aggression principle.
If I were to say something like, as a general rule, you know, I don’t support aggression against people that aren’t being violent, but I’ll make some exceptions. So I could say something like, you know, I don’t think you should put your hands on other people when they don’t give you permission to do that. But if somebody’s running out in the street, an adult’s on their smartphone and the bus is coming, and you go, “Hey buddy,” and you grab them, I think in a case like that, it’s such an emergency situation. We don’t have time to have a conversation with someone and find out whether they really want to commit suicide or whether they would consent to being briefly jostled to save their life.
So all you can do in the split second is try to use the crude language that we have, which is social conventions, right? Because this is all a matter of, when we talk about consent, consent is, um, it has to be communicated by a public language. But language need not only be words, right? You could have two people that don’t even speak the same language get along with each other. So there’s always a background assumption of norms, customs, and things like that that inform language.
So I think when you see someone, a regular businessman on their cell phone and about to walk into the face of a bus that’s coming, and he’s obviously distracted, the assumption is that he’s implicitly communicating by his existence in a society like that, right? Without walking around with a sign saying, “Hey, if you see me about to die, don’t rescue me.” So he’s not changing the default presumption of what communication is, right? So basically my point is, most people would assume that the guy would consent to being rescued.
The Absolutism of the Non-Aggression Principle 4:42
Okay. Now I actually agree with this position, though I think it challenges the idea of the absolutism of the non-aggression principle. If already we’re saying, well, there are norms and conventions, that we assume somebody has this set of beliefs, we assume they would have consented. Well, I think that’s true. I think that’s also an argument to say, well, therefore this non-aggression principle is not absolute.
Most people in almost every circumstance would say, “Hey, if I don’t give you permission, don’t put your hands on me.” Yeah, we would all agree to that. And then maybe they have a little asterisk by it, and we’d say, “Except if I am walking out in the middle of the street, you may shove me out, and even if it breaks my arm when you shove me, if you save my life, you know, that’s okay.” It’s true. It’s a social convention, and it’s true that in law I think it would be recognized as such. But I think it also challenges the idea that the non-aggression principle is something without any exceptions.
But even if we say it’s an act of aggression to rescue your friend who wants to commit suicide, because you think he’ll see reason in the light of day, right, or rescuing this businessman about to walk into the face of an Apache helicopter or whatever, even in that case what you could say is, the rescuer is willing to take the risk of some slight legal liability in order to do a good deed for someone else, and so he just hopes for forgiveness. Okay? And you know, that’s one way to approach that issue as well.
The Preservation of Justice 6:06
Now this is an interesting idea. I’ve had several conversations with libertarians who espouse this way of thinking about justice, that a rescuer would take on some small amount of legal liability, that technically the person who is rescued could still sue because there was a rights violation. And this is the question that I have for those individuals.
I grant that it helps with consistency of legal principle. I grant that. However, here’s the question. What benefit is there to keep open the possibility of a lawsuit when somebody has been forcibly rescued from the middle of the street? Why would such a legal system be preferable over one which says, “Hey, the non-aggression principle is great, but there are a couple of limited exceptions”? Why would we want to keep open legal liability for a rescuer just for the sake of what?
Now Stephan Kinsella didn’t give this response. I actually don’t know if I asked that directly. But another prominent libertarian who I’ve spoken with privately about this has said it’s about justice, that the reason we keep open that legal liability is for the preservation of justice.
Now I don’t have a belief in this kind of existence of cosmic justice, that even if it’s a net negative in society, if in emergency circumstances you can be sued by somebody that you rescued just because there’s a rights violation — let’s say they’re poor and they want to extort you for as much money as they can — even if that sounds shitty and it might make you less likely to rescue somebody in a dire circumstance, for the sake of justice we should be in that legal system.
Now again, I don’t know if Stephan Kinsella has that belief, but this is a position that I frequently encounter. And I want to know, what is the benefit of preserving that type of legal consistency at all costs? We must be consistent even when it might result in an outcome that we think is, quite frankly, unjust.
Now I do want to add here, I’m not somebody with a position that thinks there are no absolutes, there are no principles without exception. I’m just saying I don’t think the fundamental principle is the non-aggression principle, precisely because just around the edges, in 1 percent of cases or less, you do have these circumstances where it seems very clear to me a just legal system is one that contains exceptions for putting your hands on somebody else.
A Just Legal System and Assumed Consent 8:33
Would you say that if we’re going to be really strict in our analysis of rights, that in the case of pulling the guy out of the street so he doesn’t get hit by the bus, technically speaking that would be a rights violation, but it wouldn’t be something that’s immoral, and it would be under the assumption that the person would have permitted it? But if we’re going to be technical, it still is a rights violation?
No. If the assumption is he would have permitted it, and if that assumption is correct, then it’s not a rights violation, because it’s consented to.
So it’s not a rights violation based on the assumption of consent? Because that seems like a dubious — if I could say, “Oh, I thought you consented to me taking your television,” you know.
Well, I think opinions among libertarians would vary on that. So I just want to be clear about that position. Again, he’s saying it’s not a rights violation if there’s the assumption that the individual would have consented to it, and that that assumption is correct.
Now again, I think both of those claims are debatable. On the one hand, that you can just assume that an individual consents to putting your hands on them. And second, that it should be up to the person who was rescued from the street whether or not it’s going to be a rights violation.
I prefer a third option, which is to say, even in the case where somebody is trying to commit suicide and trying to be in the middle of the street, but you see them at the split second and you save them by shoving them, it is not a rights violation. I think to rest this question in the hands of the person who’s assuming the other person would consent, or waiting to hear whether or not the rescuee wanted to be saved, I don’t like either of those options. I want a third one.
And even if you agree with Stephan Kinsella here, it makes the non-aggression principle a lot less simple and straightforward. So it’s no longer just “don’t initiate force against a non-aggressor.” It’s also, what we mean by aggressor depends on you trying to guess somebody else’s consenting about you using some kind of physical force on them in certain circumstances. But sometimes it could be wrong.
You could say there’s maybe three distinct views there. I mean, I have my own view. I lean a certain way. You could say that, as the rescuer, I’m assuming the guy will retroactively say he consented and everything will be fine. There’s like a 99.9 percent chance, so I’m taking a very small risk that I am violating — like, in other words, it’s epistemologically or epistemically unknowable whether I’m violating his rights. I can’t know until after the fact, I see, but I’m going to take the chance. That’s one way of looking at it. And I think in some cases that is what is happening.
I think in the case you mentioned, I personally would just say, look, the guy by his own action is putting his fellow neighbors into a position where they have no choice but to make a split-second decision, and if anyone, it’s his fault for putting them in that area of uncertainty. Okay? So then we have to say, well, then what was communicated, if anything was communicated? I would say that there is actual consent. And even if the guy later says, “Look, I don’t want to ever be rescued, I’m a 1 percent minority outlier,” or a one-out-of-a-million outlier, I think we say, well, you’re just wrong. You did consent. If you don’t want to consent, you need to have some kind of special clothing, that do-not-resuscitate type idea.
Is It a Rule of Thumb? 12:02
Now again, this might be correct in a sense, that indeed by walking in front of a bus you have put your fellow humans in an awkward legal and moral circumstance. However, I think again it implies that the non-aggression principle is a rule of thumb and it’s not some absolute thing. Because now he’s saying, well, just by kind of virtue of existing, you have consented that other people can put their hands on you if they’re trying to save you, even though you’ve never done that explicitly. And if you disagree with that principle, you now have the obligation to wear some kind of a shirt, or notarize everybody, to say, “Hey look, I’m one of those weird people that, you know, I don’t want to be resuscitated. I don’t want to be saved from the buses. If a piano is dropping, you know, don’t shove me out of the way.”
But where does that come from? That sounds like a positive legal obligation to me. And now we have to seek out justification for why exactly it’s the case that indeed you have a responsibility to signal to other people how much of a social contract you’re agreeing to and how much you’re disagreeing to.
And another issue with this is, once you start going down the line — I mean, I would say we’re talking about exceptions here — once you start going down this road, there’s all kinds of continuums and gray edge cases that are going to keep cropping up. Which isn’t a problem for a theory which treats the non-aggression principle as a fantastic rule of thumb, but I think it is a problem if you want to treat it as something that’s absolute.
Private Property and Competing Legal Systems 13:35
Now he did add something I thought which is a really good point here. And by the way, this all also — we never specify whether the property is public or private when we talk about these things. Sort of like we imagine this sort of ghostly realm of a vaguely specified walking ground that’s, you know, there’s mist everywhere and no one owns it, you’re just happy to bump into. But in reality you’re always, especially in the libertarian society, you’re always in a private property setting. So either you’re on his property, or he’s on your property, or you’re on the shopping mall’s property, and there are already some rules laid down for this kind of behavior, if only implicit rules. So really the resort might be to the rules of the property owner.
Now this idea I think has a lot of legs, because it’s true, in conversations with people when we’re talking about legal theory, it’s often not specified whose property that we’re on. And I think private property ownership solves a whole bunch of problems in political theory in general. There’s a whole host of issues that are caused by the existence of public property in the first place, that if we just privatize property, I think lots of things get resolved.
But there’s still a question of what a geographic location’s set of legal norms are. So it may be that on my property I have some slightly different rules, on your property you have some slightly different rules. But it’s most likely that the societies that would emerge in a kind of libertarian system would agree on some basics. I think we’re getting at the basics.
So say we’re talking about two store owners’ properties in our libertarian paradise. Store A, and the property of store A, is owned by somebody that’s a non-aggression principle absolutist, and he’s got all the legal rules that we’re talking about in this interview. Property B is somebody like me, a non-aggression principle enthusiast with exceptions. The question is, which land do you think has a better system of rules? Is it that which says, “Hey, you now have a true legal obligation for saving somebody from the bus that was going to hit them. Even if it’s a small chance that somebody will sue you over it, they still could”? Or is it a superior legal system to say, “No, you were trying to save somebody in an emergency circumstance. We have a different set of rules that apply in emergencies”?
In my evaluation, I side with property owner B. Now don’t get me wrong. I’m not saying that I think it should be illegal for a property owner to have his specific set of rules on his land. So I’m not saying that the non-aggression absolutists shouldn’t be allowed to set up such a legal system, right? This would be a consistent libertarian position, is to say, “Hey, you can set up whatever rules you like on your property. I’ll set up whatever rules I like on my property. Businesses will set up whatever rules they like on their property.” And we’re going to have some kind of norms that will emerge out of that system.
We can still have, I think, smooth functioning through different legal systems, just like we do when people engage in international trade. Trading across borders means you’re going to be using different legal rules, and yet the system works out because people have a mutual interest to agree on a particular set of rules.
This is kind of a side point, but it’s really interesting, the idea of competing legal systems. I think just like we should have competition in the production of shoes, I do think we should have competition in the production of law. And if in some world people are able to make their own legal libertarian systems, or authoritarian systems, or whatever it is, I think I would be most attracted to that which says non-aggression principle 99 percent of the time, with some exceptions.
Preemptive Force 17:03
So if we were to take that line of reasoning, though, couldn’t you see in a line of argument that said, you know, “Oh, I know I groped you inappropriately because I assumed that you were consenting based on, you know, your behavior,” and something like that? Doesn’t that kind of open up the door to all kinds of claims of assuming consent?
It does. But I think that’s why the law is the art of actually making concrete decisions about concrete cases, right, by applying rules to them. And you have to take into account the dangers of having just a rule that could lead to a slippery slope.
So, you know, for example, in the common law, and I think most libertarians would agree, that you don’t have to wait for someone to physically attack you before you respond. If someone is in a context where they’ve indicated they want to shoot you, and they raise their weapon, and it looks like they’re about to pull the trigger, and they have every intention of doing so as far as you can tell, then you don’t have to wait for the bullet to start heading your way. You can raise your gun and shoot them first. That’s preemptive, right? Preemptive force.
But the common law has drawn a very strict set of criteria around when you can exercise it. It has to be an immediate, direct force, something that the reasonable everyday man would interpret that way, et cetera, et cetera, right? Like if the guy’s a raving lunatic, or he’s got a red tip on a plastic pistol where you should have known, then you wouldn’t be. So these do require judgment of the jury, or the community, or the judge. And over time these standards do develop, and people start adjusting their behavior to be guided by them.
Blurry Cases and Who Counts as an Aggressor 18:54
So once again, I agree in practice that we have systems in common law that are to deal with these kind of edge cases. But again, it seems like that challenges the notion of the absolutism of the non-aggression principle. What do we say? Well, you can have a preemptive strike. Somebody’s raising their gun at you. You’re justified in shooting them before they shoot you. But what if the gun has a plastic tip on it? Well, then now you’re no longer justified in doing that. But what if somebody is colorblind? They didn’t know it was a plastic tip. Well, now are you justified? Well, what if somebody did know it was an orange-tip gun, but they just read a news article of a malicious criminal who’s shooting people with an orange-tip gun. He thought, “Oh man, I thought that was the guy,” so he shot him instead.
Now if you think there’s some clear-cut answer here, I think you’re going to be disappointed. There’s all kinds of crazy blurry cases that we can come up with, to say, “Oh, this person’s clearly an aggressor, this person’s clearly not an aggressor.” I don’t think it works out.
Now then again, you could say something like this. The non-aggression principle is clear. It’s absolute. Don’t initiate force against a non-aggressor. But where all the ambiguity comes into play is not in that principle. It’s in interpreting what is an aggressor, what is force, what is a non-aggressor. Does this person qualify as an aggressor or a non-aggressor? And that’s where all the blurriness is.
One way or another, I think we have to give up the notion that the non-aggression principle is just this simple thing that’s clear-cut and absolute, because you’ve got to have discussions in crazy circumstances where somebody forcibly shoves somebody else because they think a bus is going to hit them, but they didn’t know that the bus was actually going to stop at the red light and not hit them. Do they qualify as an aggressor or not?
If the criteria for determining who an aggressor is is the application of force against somebody that has not consented, well, that fails. You have exceptions to that rule. Unless of course you want to say, well, you see, it’s not actually physical force when you shove somebody out of the way under these particular circumstances. Now we’re saying that doesn’t qualify as force. That’s some other just transmission of physical energy. But it just kind of keeps kicking the can down the road.
I think perfect, absolute, black-and-white rules in law, I think, is pretty much impossible to find.
Absolute Black-and-White Rules 21:18
So in those circumstances, it doesn’t seem like, when it’s clear-cut, it seems like the rule is something that emerges, or it’s something, you know, we’re talking about a reasonable man.
I think that’s correct, but it lacks the kind of argumentative power of saying, “This is the black-and-white rule.” It does.
So if that’s true in those circumstances, why couldn’t somebody just say, well, that’s true of all law? All law, all property rights and rules, are just kind of communally agreed to?
Well, that’s a whole different issue, getting into the social contract and those kinds of issues. And I would do two things here.
Number one, I would say, well, Randy Barnett, in his book The Structure of Liberty, he talks about this. He’s an anarchist libertarian scholar. And what he tries to do is say that he distinguishes between abstract rules and legal precepts. Now abstract rules are these things we would come up with from our armchair, okay, or at least we would sort of find them deductively after seeing inductively many cases over the centuries, and we sort of, you know, get rid of the inconsistencies and formalize and codify it. But when you have to apply them to particular cases, that’s more of a concrete case, and you have to have judges and all these people taking the facts into account.
But the point is, compare this to any other system. I mean, any system, whether it’s socialist or welfare statist or democratic, any type of political legal system is going to have to deal with borderline cases, continuum issues, right? And just because those exist in life, and just because libertarianism doesn’t have a deductive answer you can always answer from your armchair, doesn’t mean it’s an inferior theory, because every theory has these issues.
You could have a dictator, a Führer, just decide everything. It would be totally black and white. Just come to him and he’ll give the answer. A wins, B wins, C wins, D wins. That’s it. I mean, you would know who the owner is and who the winner is. It would be bright-line, we would call it. But it wouldn’t be just, or wouldn’t you have every reason to think it’s just?
No Criticism of Libertarian Legal Systems 23:22
I felt like that was a bit of a dodge, because my point is to say, hey, if you’re saying we’ve got these kind of communally agreed-to rules that emerge out of common law, that sounds like we’re saying, okay, the non-aggression principle isn’t 100 percent absolute. We have other principles that we use to judge what should be just and unjust, legal or illegal. And his response was to say, okay, yeah, but that’s no criticism of libertarian legal systems, because all legal systems are going to have this problem. The socialist legal system doesn’t solve these problems.
And I agree with him. Socialism doesn’t solve these problems. And I agree that, yeah, all legal systems will have these edge cases. But my point is directed at this idea of founding the legal system on the inviolable principle of non-aggression. My point has nothing to do with libertarian systems in general, or how they compare to socialism.
Now that’s where our conversation about the non-aggression principle ended. I’ll just say a couple more things on this subject.
A More Fundamental Principle 24:21
I said earlier that I’m not claiming there are no absolute principles here. I’m just saying that I don’t think the NAP is the absolute principle. So you might ask, well, what could a more fundamental principle be that might lie underneath the non-aggression principle?
Well, I’ll give you my answer, but you’re not going to like it. This is where I invoke my own personal ethical beliefs. I think that the absolute rule that has no exception is that you are always correct and justified when acting out of love.
Now think about how that principle might lie underneath legal theory. So when we’re talking about pushing somebody out of the way because they’re standing in front of a bus, that physical force would be justified because you’d be acting out of love to save somebody from a spontaneous death. The same goes with all so-called lifeboat circumstances or emergency circumstances.
It just so happens that the principle of love and the principle of non-aggression line up for 98 percent of circumstances. In almost all circumstances, when you act out of love, you’re not going to be forcibly aggressing against somebody. You’re not going to be putting your hands on them. You’re not going to be using physical force or threats of physical force on them.
Now to that absolute principle I can find no exceptions. I think that is the principle that kind of gives rise to all the other principles. Now I said you’re not going to like it. Maybe you do. Maybe if you have some religious beliefs you think that’s nice.
Skepticism, Intention, and Love 25:48
But I know a lot of people who have a very skeptical mindset — I share a very skeptical mindset — who might say, “That sounds like a bunch of fluff, because after all, how do you determine when somebody’s acting out of love and when they’re not?” It’s a really sticky question. I don’t have an answer for it, but I’m just talking about justification for individual behavior. If it can be proved that somebody was genuinely acting out of love, I think that should have some legal say in my ideal legal system.
Now let me give you one more example just to illustrate why this might have some meat to it. Let’s say there’s somebody who has a physical and mental handicap, and they shake their arms. They can’t control shaking their arms. It just so happens that they have a knife. Let’s say for some reason they took a knife out of the cupboard, and then their arms start shaking, and totally accidentally, to no fault of their own, they happen to stab somebody nearby. Should they be legally liable for that stabbing?
Well, I would say it’s really difficult. It’s not so straightforward. And I think it depends on the degree of the severity of their mental handicap. So the intention of the person doing the action has some really central importance to law. Why intention is so important in my worldview is because it’s got this connection to love.
One more example. Let’s say that somebody bakes a pie for the five-year-old neighbor’s birthday, and they bake them a wonderful pecan pie because they’re from down south, and it turns out, unbeknownst to anybody, that that kid had a pecan allergy. So he eats the pie and he dies. Well, is the person who bakes the pie guilty of manslaughter because they accidentally killed somebody, because they baked him a pie for the birthday?
Now if the only metric you have for determining legality is the non-aggression principle, I don’t think you’re going to get the ideal answer. I think in that circumstance I want an exception to the rule. I could see a case to say, “Hey look, I baked the pie for the person. Nobody stopped me. It was of the best intention I had. I didn’t know the kid had a pecan allergy. I can’t afford paying restitution to the family.” I think that talking about intention and acting out of love should be important when we’re talking about legal systems.
Contrast this to somebody that knows that the five-year-old has a pecan allergy, still bakes them the pie, and kills the kid. Well, now that person of course would be legally and morally liable.
Now I recognize that this has its own slippery slope, and it’s got its own ambiguities, because again, how do you know the intention of somebody? Now I don’t have clear answers. But I get to say, because I’m not drawing an absolute legal boundary, I get to say, hey, juries and judges should take into account more than the non-aggression principle. They should take into account intention. Love.
Is justice actually served when the baker of a pecan pie accidentally kills a five-year-old that happens to have pecan allergies? Is justice actually served when that person has to pay up? Or is justice served by saying, no, that was a reasonable accident, that you couldn’t have known the outcome, and therefore you get some kind of exception?
This also depends on kind of which person you’re talking about justice being served, right? If it’s justice to the family, justice to the individual that baked the pie. I can just speak from my own perspective. I want to be in a legal system that says, hey, when we open the book for gray areas and weird circumstances, things aren’t black and white. We’re going to take everything on a case-by-case basis.
Closing 29:27
But if you think I’m totally full of it, and you like what Stephan Kinsella had to say, you didn’t like what he had to say, whatever your perspective, make sure to go to YouTube if you’re not already there and leave a comment. Let’s have a conversation about it. It’s a really interesting topic. And if you enjoyed listening to it, go over to iTunes, leave a rating and a review for Patterson in Pursuit. I’d really appreciate it. It helps the show, and it helps these ideas get disseminated further.
All right, that’s all for me this week. Make sure to tune in for the next couple weeks, because I’ve got some fantastic interviews lined up. Have a good one.
In this interview on the MusicPreneur podcast, libertarian patent attorney Stephan Kinsella delivers a wide-ranging critique of intellectual property (IP) laws—especially patents and copyrights—calling them illegitimate state-enforced monopolies rooted in historical gatekeeping, censorship, and privilege rather than genuine property rights (0:00–10:00). Kinsella traces the origins of copyright to pre-printing-press censorship by church and crown, through the Stationers’ Company monopoly, to the 1710 Statute of Anne, and patents to royal letters patent and mercantilist grants (e.g., the 1623 Statute of Monopolies), arguing that both systems were designed to control knowledge and speech, not to protect creators (10:01–25:00). Using Austrian economics, he explains that property rights exist only for scarce, rivalrous resources, while ideas are non-scarce and cannot be owned; IP artificially creates scarcity, restricting how people use their own tangible property (e.g., a patented mousetrap) and stifling competition and innovation (25:01–40:00).
Kinsella critiques the economic and cultural harms of IP, including inflated prices in pharmaceuticals, litigation costs, and censorship of expression, contrasting these with IP-free industries like open-source software and fashion that thrive on emulation and first-mover advantage (40:01–55:00). He debunks common pro-IP arguments—the utilitarian incentive story, labor/creation-based claims, and personality theories—labeling them flawed, self-serving, or empirically unsupported, and argues that IP is a modern form of mercantilism that benefits gatekeepers (large corporations, Hollywood, Big Pharma) at the expense of creators, consumers, and freedom (55:01–1:10:00). In the discussion/Q&A portion, Kinsella addresses alternatives (trade secrets, reputation, market incentives), the digital age’s erosion of IP enforcement, and why even small creators would be better off without IP, concluding that the system should be abolished entirely (1:10:01–end). This interview is a clear, provocative libertarian takedown of IP, especially valuable for musicians, creators, and entrepreneurs.
0:00–10:00 (Introduction, Kinsella’s background, and the core thesis, ~10 minutes) Description: Host James Newcomb introduces Kinsella as a patent attorney and libertarian critic of IP. Kinsella explains his unusual position: he has prosecuted hundreds of patents for large companies (Intel, GE, Lucent, etc.) while believing all forms of IP should be abolished. He states his central thesis: IP is the “bastard child of the gatekeepers”—a modern continuation of historical censorship and monopoly privilege, not a legitimate form of property. He briefly previews the historical and economic critique to come. Key Themes:
Kinsella’s dual role: patent lawyer who opposes patents/copyrights
IP as illegitimate monopoly privilege, not property
Framing: IP is rooted in gatekeeping (church, state, guilds, publishers) Summary: Kinsella establishes his credentials and the provocative title, setting up IP as a statist, gatekeeper-derived system rather than a natural right.
10:01–25:00 (Historical origins of copyright and patent: censorship & mercantilism, ~15 minutes) Description: Kinsella traces copyright to pre-printing-press church/state control of scribes, then to the Stationers’ Company monopoly (chartered to control printing), and finally to the Statute of Anne (1710), which shifted the monopoly from printers to authors/publishers but remained a state privilege. Patents originated in royal “letters patent” (open letters granting monopolies), abused by monarchs for revenue/favors, leading to the 1623 Statute of Monopolies. Both systems were originally about control, censorship, and mercantilist privilege, not “property rights.” Key Themes:
Copyright as successor to censorship monopolies
Patents as royal/mercantilist grants
Both were temporary privileges, not natural rights Summary: Detailed historical account showing IP began as censorship and monopoly tools of the state and crown, not as recognition of creators’ natural rights.
25:01–40:00 (Scarcity, property rights, and why IP is conceptually impossible, ~15 minutes) Description: Kinsella explains the Austrian/libertarian view: property rights exist only to allocate scarce, rivalrous resources and avoid conflict. Ideas, patterns, and information are non-scarce (infinitely reproducible without depriving others), so they cannot be owned. IP law therefore artificially creates scarcity where none exists, restricting how people use their own tangible property (e.g., ink, paper, machines). He uses the mousetrap example: a patent doesn’t take your mousetrap away; it takes your right to use your own materials to build one. Key Themes:
Property rights exist only for scarce/rivalrous things
Ideas are non-scarce → cannot be property
IP = negative easement / servitude over others’ physical property Summary: Core conceptual critique: IP is impossible in principle because ideas are non-scarce; enforcing IP violates real (physical) property rights.
40:01–55:00 (Economic and cultural harms of IP; modern gatekeepers, ~15 minutes) Description: Kinsella discusses IP’s practical harms: patents distort R&D toward trivial patentable inventions, create litigation wars, raise prices (pharma), and enable patent trolling. Copyright locks up culture, limits remixing/fan works, and creates gatekeepers (publishers, labels, Hollywood). He compares modern IP enforcement (domain seizures, ISP cooperation, warrantless searches) to historical mercantilist abuses, arguing that large corporations are the new gatekeepers using IP to extract rents and suppress competition. Key Themes:
Modern IP = mercantilism 2.0; big corporations as new gatekeepers Summary: IP creates massive economic waste and cultural enclosure, serving corporate gatekeepers rather than creators or consumers.
55:01–1:10:00 (Debunking common pro-IP arguments, ~15 minutes) Description: Kinsella systematically dismantles the main justifications for IP:
Natural rights / Lockean labor theory (flawed metaphor; labor is not ownable; creation is not a source of title).
Utilitarian incentive story (empirical evidence shows IP does not increase net innovation; costs outweigh benefits).
Personality theory (Hegel/Rand; vague and does not justify monopoly).
He also rejects contractual IP schemes (cannot bind third parties) and notes that even trade secrets become problematic when turned into state-enforceable misappropriation causes of action. Key Themes:
Natural rights / labor theory is conceptually confused
Utilitarian case is empirically weak
Personality theory is vague and insufficient Summary: Comprehensive takedown of every major intellectual justification for IP, showing they are either conceptually flawed or empirically unsupported.
1:10:01–end (Digital age, AI, future evasion, and conclusion, ~remaining time) Description: Kinsella discusses how digital technology is eroding copyright (easy copying, encryption, Tor) and predicts that maturing 3D printing + encrypted designs will eventually make patents unenforceable (1:10:01–1:15:00). He notes that AI is already being hampered by copyright threats (training data lawsuits), and hopes the immense value of AI will force society to confront the conflict between IP and human progress (1:15:01–1:20:00). He closes by reiterating that IP is a modern mercantilist gatekeeping system, not property, and calls for its abolition, directing listeners to c4sif.org for more systematic arguments (1:20:01–end). Key Themes:
Digital technology is making copyright obsolete and unenforceable
AI vs. IP: the coming conflict
• • Final call to abolish IP and make it “history” Summary: Kinsella looks forward to technology eroding IP enforcement, highlights the AI-copyright tension, and concludes with a call to end IP entirely.
You’re probably going to disagree with what is said in this episode. In fact, it could very well make you angry. But, as Bob Dylan said, “The times, they are a changin’.”
It’s an issue that I’ve wrestled with over the years and have finally come to the conclusion that Intellectual Property (IP) is detrimental to progress and innovation. While on the surface it appears to protect the rights of content creators to profit from their content, the reality is that the only people who really profit are the “gate keepers” and those who hang out near “the gates”.
I’ve tried to take a “back door” approach with this issue before, thinking that people would somehow be persuaded to see my point of view without actually telling them my point of view. Not surprisingly, the results of that approach weren’t encouraging.
I’ve decided to just come right out and say it.
Intellectual Property is Horrible
The fact of the matter is that just about every way of thinking that was considered set in stone a short time ago is suddenly up for debate once again.
What are the origins of IP? How did it become de facto conventional knowledge in modern society? Is it really the only legalized monopoly in existence?
Enter my guest for this episode, Stephan Kinsella. He’s been a patent attorney in Houston, TX for nearly 30 years. He’s the author of Against Intellectual Property as well as a pamphlet titled, Doing Business Without Intellectual Property.
In this discussion, we discuss why intellectual property (IP) is a hindrance to progress and innovation for musicians, and how MusicPreneur’s can navigate the oftentimes confusing waters of IP.
IP is not compatible with traditional view of property.
World of scarcity – one person can use at a time
Austrian Economics
Mises: Human Action
Act: Human has conception of where he is, what future is coming, anticipates what future is coming. Makes necessary changes…
Informed by your knowledge of what’s possible; tools at your disposal.
Involves employment of scarce resources
Guided by knowledge
Impossible to have monopoly in an idea.
IP Law enforces law with use of force.
Another form of redistribution of wealth.
2 Rules in Acquiring Property
First person to start using it – Homesteading; original appropriation
Purchase materials in a legitimate exchange
How IP came about
Printing press was a threat to established order
Statute of Monopolies
Statute of Anne created copyright
Practical Application – How can musicians maximize exposure while protecting artistic integrity?
Don’t have to have a copyright. Don’t have to register/enforce
Creative Commons
Don’t sign rights away to a studio
SK self-publishing next book
Liberty and freedom available now that hasn’t existed
Profit is an unnatural thing – breeds competitors.
Entrepreneurs need to be aware of how business models can be copied. Some are not viable.
What does the next 10 years hold?
Nothing will change with the entrenched interests. However, it will be more and more easy to get around them. It will “force the establishment to act like entrepreneurs.”
I think that’s a good thing!
What did you think of this episode? What questions, concerns came to your mind while listening? Send me a line and let’s chat about it!
Newcomb: Music. Hello, this is James Newcomb and welcome to episode number 14 of Music Preneur: Making Money Making Music.
[0:15]
Today’s topic is intellectual property, and I’m going to warn you right now: if you think that intellectual property is imperative for civilization to survive, if you think that artists cannot survive or thrive without intellectual property, well, you’re not going to like this episode at all. In fact, you may as well just press stop right now.
But hopefully it will give you at least a little bit of clarity on what is at best a confusing topic, especially in this day and age. So let’s get to it with my guest, Stephan Kinsella. Welcome to the program.
[1:01]
Kinsella: Thanks. Glad to be here.
[1:00] Host’s Position on IP as a Barrier for Musicians
Newcomb: All right. This is Music Preneur: Making Money Making Music, and this is a topic that I have wrestled with over the years.
[1:15]
I’ve come to the conclusion that intellectual property is a huge barrier to musicians monetizing their efforts. It creates a lot of problems for musicians. And I realize that by saying this that a lot of people disagree with me, or maybe I’ve turned them off already.
But you know what? I’m not going to beat around the bush anymore. I tried to deal with this sort of at a back door way, and I say screw it.
[2:02]
The best person that I thought of to tackle this issue and tell us why intellectual property is a hindrance to progress and innovation is Stephan Kinsella. He is the author of Against Intellectual Property as well as a free PDF called Doing Business Without Intellectual Property, and you can get that PDF at musicpreneur.com/resources.
[2:30] IP’s Incompatibility with Traditional Property Concepts
Newcomb: So Stephan, I want to start out with—I guess the major problem with intellectual property is that it really does not fit in with the traditional concept of property as we know it. Do I have that correct?
[2:43]
Kinsella: Yeah, that’s part of the way to look at the problems with it. I am actually a practicing patent attorney, and I’ve done this for 24-something years as my career. I’m also a libertarian, and I’ve always been very interested in property rights and justice and individual rights and also in the creative works—the creations of scientists and philosophers and artists and singers.
It’s not like I’m opposed to these things, but just from what I’ve seen in my career and in my studies of individual rights and property rights and learning a little bit more about the history of how these systems actually work—patent and copyright in particular—I’ve come to the conclusion, and I came to this conclusion twenty-something years ago, that these laws are completely incompatible with justice, with property rights. They should be completely abolished, and they do not achieve the purported functions that most people believe.
[3:59]
People are so used to these ideas—artists are so used to a system that is dominated by and influenced by copyright, especially copyright (we’ll talk about for musicians and for these kind of entrepreneurs, novelists, writers, movie makers, people like that)—that they feel hostile when they hear a criticism of these. They basically think you’re insulting the creative enterprise itself. They think you’re saying they’re not worthy of having property rights—a businessman can have property rights in their land, in their factories and buildings, but artists are not entitled to because they’re not as important. That’s how they take that.
But when you start pointing out all the problems that IP as a practical matter causes the average typical creative person, they start to see yeah, maybe this bargain is not such a good idea.
[5:00] Why Ideas and Patterns Are Not Scarce Property
Newcomb: Well, let’s talk about how intellectual property is not property. The way that I understand it from what you say is that like here I’m holding a pencil right now that I’m taking notes with—this no one else can own this pencil; only I can have possession of it at one particular time—whereas the words that I’m saying right now, well, how can I say that I own those words or how can I say that I own this combination of words? And that’s I guess that’s where we have to start to understand how the concept of intellectual property is problematic.
[5:38]
Kinsella: Yeah, and look, the way I look at it—the way I’ve come to describe it over the years—it’s I sometimes rely upon some of the concepts of basic law (you don’t have to be a lawyer to understand this) and also some of the concepts of Austrian economics. I don’t know if we need to get into Austrian economics here too much—you don’t need to know the works of Hayek or Mises to really understand this; it’s pretty common sensical.
But if you just understand the purpose—like step back and think about man in society, why we have laws, why we have rights, what the function of these things are, what the function of property rights are—you’ll see why patent and copyright are completely incompatible. Just as a patent is like a grant by the state that gives you basically a monopoly over the use of a given invention for roughly 17 years, copyright is a monopoly granted by the state to be the only one who can reproduce and broadcast and copy a creative work like a novel or a song or even software (which was not clear for a while because software has functional aspects, but finally the court said yeah, software is actually subject to both patents and copyrights and trademarks). So it kind of hits all the bases.
[7:02]
The fundamental thing is we live in this world—a world of scarcity. Now by scarcity it’s an economic term; it just means there are things we want to use and we need to use to live: tools, land, food, lumber, things like that, even your body. This just means that only one person can use these things at a time; there’s a possibility of conflict.
But when humans in society see these kind of violent conflicts, some of us prefer to live in a peaceful society or cooperative one where we don’t have these violent conflicts. And the only way to avoid that problem is for people to choose not to do it—which means if there’s a resource or a good that could be used by only one person at a time like your pencil, we have to assign an owner to that thing so we have a rule that everyone in society respects which identifies the person who has the right to use that resource. So that’s just property rights.
[8:00]
So if you wanted to be precise, you wouldn’t say the pencil is property—what you really would say is the pencil is a resource and you have a property right in that resource, or basically you are the owner of that resource. The reason the word property is used is a property sort of means a characteristic right. So when you use a pencil it’s an extension of yourself—you’re closing extent; it helps you extend your influence out into the world.
And for some things that you use all the time it might become very intimately associated with your very being, like your pair of glasses maybe. So you would say these things are a property of that person, and then people start over time calling it his property. And when they say it’s his property what they really mean is this is his characteristic, but they tend to think of property as describing the object itself.
Technically, it’s a resource that’s owned. So the entire property rights system—which is what the whole legal system ultimately is about—simply is there to answer the question: when there’s a dispute between two or more people over who gets to use a type of resource over which there can be disputes, there’s some object, some thing that multiple people want to control (whether it’s someone’s body or someone’s home or someone’s pencil). The property system simply gives us an answer to that question: it says who the owner is, and then we identify the owner and everyone goes away, and the owner gets to use it as he sees fit, and anyone else who interferes with that is then seen as a trespasser or as a criminal.
[9:35]
Okay, so that’s how property rights work. But you’ll notice that that applies only to things that there can be conflict over—these scarce resources. Something like a pattern of information or knowledge that’s in your head is not the same kind of resource.
And this is where a bit of Austrian economics comes into it.
[9:54] Austrian Economics and Human Action Framework
Newcomb: Under the Austrian—I’ll just say one little thing about Austrian economics, not to turn off your guests, although I find Austrian economics fascinating.
[10:06]
Well, I’d like to talk about Austrian economics because if we’re going to tackle this issue then let’s just dive into the woods. First of all, let’s describe Austrian economics and how this more or less leads to this conclusion that we’re talking about.
Kinsella: So Austrian economics has nothing to do with the economics of Austria or Australia—even I think Tom Woods once had a debate about seven, eight years ago with the CEO of AIG, the big insurance company, and about that—it was about the crash or something—and this guy says I don’t know why Woods keeps talking about Austrian economics; Austria has got such a small economy compared to the US. So it’s just one school of economics, like there’s a Chicago School which is associated with Milton Friedman and the monetarists.
There was a number of thinkers and philosophers—they came out of Vienna, Austria, at the turn of the well around the 1900s—and they developed a distinct school of economics. It was started by people like Carl Menger and Friedrich von Wieser and then Ludwig von Mises and Hayek. So it’s just a different type of economics—a little bit different than the Chicago School.
[11:16]
And one strand of that is the school founded and perfected by Mises, and Mises had a unique way of looking at the problems of economics, and that is he calls it human action—human action. And all he did was he carried—in for our purposes we don’t have to get the technical economics but more of the framework of it or the methodology—which is that Mises recognized that humans act, and that there are certain logical implications of that, and that’s how he deduces his body of economic laws.
But what it means to act is for a human being to look around the world and to have some conception of where he is and what the future is—what future is coming—and he anticipates some future that’s coming that will happen without his intervention. In other words, something is coming, something’s going to happen, and I don’t like that—I’m dissatisfied by that—and I am aware enough of the way tools operate, the way my arms can move, the way we can intervene in the physical processes of the world, that I could take an action and change things for the better. So that’s all human action is in general terms.
[12:30]
So if I start feeling hunger, I realize that if I don’t procure some food in about an hour I’m going to be very hungry or maybe I’ll die—I’ll be weak. Right, so that thought frightens me or makes me uncomfortable. So I think well how can I satisfy this? Well, I’ve eaten before so I know I need to eat. Well, how do I eat? I have to find food. Well, how do I get food? I have to maybe make a spear and go spear some fish.
So you think of things like that. Those thoughts are informed by your knowledge of the world, your knowledge of what’s possible, your knowledge of what might be coming, your knowledge of what tools are available that you could possibly manipulate. And then you go out, you make a choice, and you do it.
[13:20]
So you can see there’s two fundamental components to human action—all human action. Number one involves the employment of the scarce resources or means, and number two it’s guided by knowledge. So you have information or knowledge about what you think might happen in the future and about how the laws of physics work—right, how if you sharpen a spear and throw it in the water gravity will take it down and if it hits the fish it will kill the fish and you can catch the fish and you can use fire to cook the fish etc.
So you see all human action—especially successful human action that is an action that achieves what you wanted to achieve—is a combination of knowledge and employment of scarce resources. Now the scarce resources are these things that we talked about before that there could be conflict over those—like only I can eat that fish, only I can use that spear.
So if there’s another person around who wants that spear or wants that fish and he physically takes it from me, I’ve been deprived of the use of it and we might have to fight over it—so that’s violent conflict. Right, so a property rights system emerges among people who prefer cooperation, and it emerges to settle disputes about those resources that we use in action.
[14:39]
But you see that’s only one part of human action. The other part again is the knowledge that you possess. It makes no sense to have property rights for the knowledge because the knowledge is not something people can fight over. My knowledge of how to use a sharp rock to make a spear tip, my knowledge of how to throw the spear at a fish and kill it, is knowledge that anyone else can use at the same time.
There may be thousands of other people who also know how to do this, or they might have learned it from you from observing you. Right, the fact that they copied what you did or learned from what you did doesn’t take anything from you whatsoever—there’s no conflict there. They’re not taking the knowledge from you because you still have that knowledge.
[15:24]
So this is fundamentally why intellectual property rights are incompatible with real property rights—because they attempt to assign property rights in the knowledge part of human action as well as in the scarce resources part of human action. But this literally cannot work.
[15:48] IP as State-Enforced Redistribution, Not True Property
Kinsella: No, look—see, I personally believe as a libertarian that patent law and copyright law should be abolished. I think these laws should not be laws. Okay, so that’s just a normative position.
But I also state as a lawyer and just as an analyst of this kind of a legal system it is literally impossible to have a property right in an idea. So the copyright system doesn’t really grant property rights in ideas—what it really does, and the reason is because all law is backed up by force—that’s physical force. Physical force is always applied to physical things in the world—that is to the scarce resources in the world.
[16:26]
So for example, if a publisher sues a pirate for knocking off one of their author’s books, what they really want is the use of force issued by a state court against the defendant which either takes his money from him (right, and turns it in the form of damages) or maybe puts him in jail—even so puts his body in jail—or issues an order from the court compelling him not to print this book using his printing press. So all of these results are always basically the same as the end result of a dispute over those resources.
So what you could say is that a copyright is really a transfer of money from one person to another—right—so it’s always really a dispute over a resource; it’s just a disguised way of doing it because we call it a property right in ideas. And if you breach that copyright in ideas then the damages would be a payment of money—right—when really we could just reword the copyright law and it could say everyone owns their money unless someone does the following action, in which case they have to give their money to someone else.
So you see it’s just a basis for an excuse to transfer money—it’s really redistribution of wealth which basically socialistic. So it takes property from its legitimate previous natural owner and it transfers it to someone else, just like taxes would do, for example. So in a sense it’s no different than a tax.
[18:02]
Newcomb: Okay, so by having Stephan on this program you’re sort of guessing my political leanings—I tend to be libertarian as well. Tend to be—I am a libertarian. Okay, so I want to play the role of the ignorant plebeian here because I’m more or less am.
[18:25] Addressing Extension of Self and Creator Powerlessness Arguments
Newcomb: You said that—let’s break down what you just said. So you’re saying that the pencil is an extension of myself—it allows me to express myself. Okay, a lot of people will say well that is why we need intellectual property law in the first place—is because well my song that I just wrote, that is an extension of myself. And it is.
[18:57]
But look—and then now let’s take what you said later in your argument: the only way that IP law—how do I want to say this—you sort of assumed that the content creator has absolutely—is completely powerless to do anything to circumvent this. Like you use the example of JK Rowling in another article that you wrote, and in this example like JK Rowling she has—I don’t—I’m trying to find the right words to say this—but you just have this idea that the content creator is absolutely powerless and the only way that they can protect their own content is through this law. But you say that if the content creator takes some pro action they can actually flourish in—in ways that the IP law ensnares them from doing so.
Kinsella: Yep. Well, let’s say—I think I know where you’re heading with some of this. So let’s go back to the pencil for a second. Okay, my argument is not that you have a property right in the pencil because it’s an extension of yourself—what I was trying to explain there is the reason the word property is misused is because we come up with the word—I mean the word propriety just means you’re the proprietor or owner of something—so or who’s the one who properly should be able to use this thing.
So I’m just explaining why the word property has morphed over time and ends up being used to refer to the thing owned itself. The reason you have the right to the pencil is not because it’s an extension of yourself—because you could imagine other extensions of yourself that you don’t have a property right to.
[20:46]
So for example—or characteristics—so let’s say for example you have a certain weight right now—yeah—right—and you have a certain color, maybe you have a certain age—right—and you might have a certain style of laughing. There are many characteristics of you that help define what your nature and identity is, but you don’t own those characteristics. If you owned your weight—I don’t know what it is—but let’s say it’s 173 pounds, that means you would own everyone else in the world that weighs 173 pounds.
So the problem is you can’t own universals or characteristics of things. So it is true the pencil can be considered to be an extension of yourself and that’s why we like to say it’s your property—it’s a property of you. But the reason that you own it is because you have a better claim to it and it’s the type of thing that can be owned.
[21:31]
So one thing I didn’t mention was how we assign these property rights—it’s not just arbitrary. If we want to have a voluntary society that’s cooperative and peaceful and productive and everyone can get along at least possibly, we come up with these property rights to assign the ownership of these possibly disputed things. But those property rights have to be assigned based upon some fair rules—some kind of objective rules that everyone could recognize as being fair.
And those turn out to be only two rules—okay—and creation by the way is not one of them, which I’ll get to. Those two rules are: number one, if it’s an unowned thing just sitting out there—no one’s using it—there is no owner of it, like something in the virgin wilderness—if you are the first person to start using it and do it in a demonstrable way where there’s property boundaries or borders set up around it (you know, you put a fence up around a little hut), now you’ve homesteaded this land—so we call that homesteading or you could call it original appropriation.
[22:36]
So the first way to come to own a resource is to be the first one to own it when it was previously unowned. The only other way to come to own a resource is to acquire one that’s already owned from someone else voluntarily from them—that is by contract or gift or donation. So those are the only two ways to come to own something.
Most people think that creation is mixed in with this or as part or is another way of coming to own resources—like if you make something you should own it. But that—and then they analogize from that—they say well if I make a new horseshoe and I own that new horseshoe, what if I make a new song—like why shouldn’t I own the song? Because you’ve already agreed that people that make things own them.
[23:23]
The problem is that’s actually not true—it is not true that people that make things own them. And let me explain why. Making something just means transforming it or producing a new arrangement of that thing. So to make a horseshoe I need to have some iron or some metal—I also need to have an anvil and a hammer and a fire and some place to make the horseshoes—right—so I already own some kind of resource like iron ore or whatever you’re going to make a horseshoe out of.
Yeah—okay—so I already own this hunk of metal—I don’t know if I found it, I’d mined it myself, or if I purchased it from someone—but I acquired ownership of this ore, and then I used my labor, my effort, my intellect, my ideas, my time to transform it into something that’s better—better for me, maybe better for customers or whatever. When you do that you increase your wealth because the things you have are more valuable now, but you don’t increase your property rights—you don’t add new property rights to the world.
[24:26]
It’s not like you didn’t own the horseshoe before and now you own it—it’s like you own this metal arranged in a certain way and now you still own the metal even though it’s arranged in a different way. So creation is actually not a source of ownership. And this can also be seen if you imagine a thief or an employee—someone who transforms a resource, the raw materials owned by someone else.
So let’s say I sneak into your house at night and I take your stash of iron ore and I make a bunch of horseshoes out of them—does that mean I own the horseshoes? No, because I actually would be a trespasser and you might not have wanted them to become horseshoes—so I might actually owe you damages for trespassing on and ruining your iron ore. Or if you’re an employee working for someone and look—I have a horseshoe factory—I have a thousand employees making horseshoes—I’m just paying them a wage to make the horseshoes; that’s the deal—they’re using my metal, transforming it into horseshoes which I own.
[25:26]
So just because you transform or create something doesn’t mean you own it. And in the cases where it does, it’s not because you transformed it—it’s because you already owned the raw materials that went into it. So this is the reason why the creator of a song doesn’t own the song—because owning the song would mean owning other people’s bodies basically.
Jeez—you could prevent them from singing the song or typing it out on paper. So that’s one way to look at it.
[26:02] Historical Roots of Copyright in Censorship
Kinsella: The other thing is if you realize the nature and the history of these rules—I mean look, copyright came about when the printing press started emerging and the ruling classes—you know, the religion, the church and the state—started getting nervous. Because before they had control over these scribes—these people that had to hand copy everything one by one—and they had control over this through the church.
[26:15]
But now the printing press started threatening this and started threatening to allow mass-produced works to get out into the hands of the people—even if the church and the state didn’t want them to read this stuff—or it wasn’t the approved version. So for a few centuries the state used various mechanisms to keep control of this—it was a type of thought control or censorship.
They had the Stationers’ Company which is the official printing guild in England, and then when that monopoly—that lasted about a hundred something years—started to expire, by then you had the printing industry had built up but they were all in cahoots with the state because they would only print things the government and the church would allow them to print. And if you had to print a book you had to go through the official printing company to do it.
[27:05]
So you see the government and the church kept control of what books were printed using this mechanism. And when the Stationers’ Company’s monopolies started to expire, Parliament established the Statute of Anne—basically started modern copyright. So copyright comes out of the state and the church’s ability to control what could be printed.
So you can see that the roots of copyright lie in censorship, and you can see that it operates this way today. Imagine you’re some artist and you want—you rewrite a new poem, you make a new painting, you photograph a certain scene—even if you photograph it independently and originally—but you stand in the same location that some other photographer did—you take a picture of the same natural items—you could be sued for copyright infringement.
[28:09]
If you post a song on YouTube someone can send a DMCA takedown notice claiming that they own a copyright in some aspect of it and they will be taken down. So if you have a documentary—you want to produce a documentary—it’s almost impossible to do documentaries now without stripping them of lots of content because you can’t get permission from people that have bits and pieces of things you wanted to use in your documentary. So there’s a tremendous hampering of artistic freedom under the copyright system.
[28:49] Boldrin and Levine’s “Against Intellectual Monopoly”
Newcomb: One of one resource that I found very helpful was Against Intellectual Monopoly by Boldrin and Levine—a couple of professors I believe in St. Louis—is it?
[29:01]
Yes—and from what I understand they set out to disprove what you’re saying right now and they were going to I guess prove that intellectual property—the whole concept of intellectual property—is legitimate. And they in their studies—their research—they ended up completely changing course, completely disagreeing with themselves what they had at the outset, and wrote this book called Against Intellectual Monopoly. Do I have that right?
Kinsella: Yeah, that’s right. Let me put this—their work—into context. The way that some of us—probably yourself and me—would approach these type of issues is from more of a rights-based or a principled approach.
[29:40]
So we sometimes talk about what natural human rights are, and this is connected with property rights. And so most of the argument I’ve given is practical, but that’s because property is a practical institution. But we’re explaining basically that a copyright or a patent basically violates someone’s rights—because a copyright prevents me from using my property as I see fit; a patent prevents me from using my property as I see fit.
So that’s a violation of my natural right to property—my natural ownership of my body and myself. That’s one way to look at it. Okay—the prevailing way that most people nowadays look at things is more pragmatic or utilitarian or consequentialist you could say.
[30:27]
Basically people look at the effects of laws and they say well—I mean you and I would say the purpose of law is to do justice and you do justice by protecting people’s rights—you protect people’s rights by identifying what those rights are and all rights are property rights and they should be identified according to the first user principle and contract like I mentioned earlier. So that’s sort of the libertarian analytical approach to this.
But nowadays everything is sort of all soupy and not as precise—people say well we need a law here because we need this effect. So people say well we don’t have enough stimulation of arts so therefore we need the government to have the National Endowment for the Arts and take some money from some people in the form of taxes and then have a government agency that distributes its money to needy artists—right—who otherwise would not have enough money to engage in their projects.
[31:15]
So the argument there is there’s some optimal amount of artistic production in society and we’re below that optimum and the government can use its laws to tweak things to achieve this optimal result. And a similar argument is used nowadays for copyright—even though copyright arose as a method of censorship and thought control—now its defenders who are entrenched in various industries—right—they use these utilitarian justifications.
And so the argument for copyright would be that if you don’t have copyright then it would be hard for some artists to make money because someone could just knock off their work—it would be hard for me to license my music—right—without copyright. Now Boldrin and Levine approach it from that point of view—they’re just utilitarians who look at the law like economists do and they say does this law have the optimal effects that it claims or does it not?
[32:15]
And they were under the assumption—like everyone else is—that you need copyright and patent—they’re like a normal part of a capitalist Western property rights system—that you need that to stimulate the arts and innovation—maybe we can improve it, maybe we can tweak it—but let’s just do a study; let’s see—we should be able to prove that the existence of copyright and patent have benefited society enormously—we should be able to show this.
So they started doing empirical studies—looking for evidence, looking for example, looking for data—and over time they both realized oh my god—patent, copyright—actually deter innovation and they distort the cultural fields and they hamper innovation and they reduce the content and they cause bullying and they extract money from consumers and XYZ. So they basically concluded in their book that copyright and patents should basically—they’re not quite as radical libertarians as you and I are—but they ultimately conclude that patent and copyright do not do what they claim to do and that we’d be better off without them.
[33:32] Practical Advice for Musicians in the Current System
Newcomb: Well, we mentioned earlier JK Rowling and I want to talk a little bit about practical application of how musicians—MusicPreneurs—can work within the system in which we are currently.
[33:46]
And I was just about to say something—well let’s get—well I could take off from what you just said though—I like your description of MusicPreneur because it recognizes the entrepreneurial aspect—right—and what—okay I got it—what I was saying is that people who are still listening to this—they’re—I’m gonna assume that you’re into what we’re saying—may not totally agree quite yet—may you probably want to listen to this again—I’m gonna have several resources for you to read more about it.
But I’m gonna assume that people still listening to this—they want to—they’re here because they want to make some money with their music. And I want to talk about how can we work within the system that we’re currently in—yeah—because copyright—it’s good if you are a major publishing source—not so good if you’re an independent.
[34:40]
So what are some avenues that people can pursue so that they can ensure maximum exposure for their music but at the same time protect their integrity?
Kinsella: Yeah, and here’s where some of the advice and things I’ve seen and come up with—you know—half of it as my lawyer hat and what I’ve seen assisting clients and talking to people who are creators of different types. We have—we have two separate—patents and copyright—let’s stick with copyright here. The way you respond to the patent system is different than the way you respond to the copyright system.
My view is that patents damage us materially more than copyrights do—my estimate is patents probably cost us a trillion dollars or more a year in lost innovation and cost on a worldwide basis. Copyrights don’t cause as much say measurable material harm but I think copyright is even worse than patents because number one the terms last a lot longer—they last over a hundred years in most cases—and it’s being used—it’s used by copyright bullies and by states to restrict like Internet freedom.
[36:12]
If you remember SOPA almost passed a couple years ago and it’s probably gonna pass in some form eventually—piecemeal form—in fact there was the treaty that was the TPP that Trump is apparently against—it Hillary claimed to be against at the last minute—had some SOPA-like provisions in it which would have put them into a treaty with countries that have amounted to forty percent of the world so far.
SOPA was the Stop Online Piracy Act—if that would have been a federal law that made it much easier for companies to basically kick you off the internet for life as a punishment for engaging in piracy—so it would basically restrict Internet freedom or take people’s websites down if there’s an allegation of copyright infringement. So basically in the name of copyright—which is allegedly a property right of creators—you have this being used as an excuse by the state to increase state control and big corporate control of the internet and restrict Internet freedom—which is very dangerous of course.
[37:25]
So the point is copyright—the good thing about copyright is that you don’t have to participate in the system—you do get a copyright automatically—you can’t help it—under federal law and international law as soon as you produce any kind of creative work you have a copyright. But you don’t have to register it, you don’t have to enforce it, and in fact you can use Creative Commons licenses or other mechanisms. In the field of software you can use the software-type licenses and you can participate in a system of open sourcing things.
And I really think—and the other thing you can do is try not to assign your copyrights away to a music studio or one of these publishers—because then you lose control of it—okay—and then they’re gonna use it like bullies and they’re gonna charge crazy prices for your book—they’re gonna make it hard for your name to get out there because piracy is going to be more limited.
[38:22]
So unless you’re really in it solely for the money right now and you have the capacity to make so much money as a legit—as a regular sort of mainstream artist—that even getting only 15% of the royalties—because the movie and the music studios and the book publishers are going to take the bulk of it—right—then I think you’re better off being independent. So my next book I’m going to self-publish—I’m not gonna go to a publisher—because they’re gonna—it would delay me by a year—they’re gonna insist on some changes which I don’t want to make—right—and then they’re gonna publish it for way higher price than I want to—they’re not going to consent to me putting a free PDF online let’s say for marketing purposes or to get my name out there.
There’s just so much liberty and freedom that you have—and especially with the technology now—right—I mean we all heard stories of these guys that are publishing—well if you talk about music itself of course I think we all know by now that a lot of musicians make their money from gigs—right—from concerts. But who’s gonna pay you to do a gig or for a concert if they’ve never heard of you—I mean it’s gonna be a smaller deal.
[39:32]
So I mean most concerts that go to—the musicians have a stack of CDs and yeah they’re selling them—I don’t think they’re making their money off the CD—sometimes they give them away—they want people to know their music—right. So I think it was Cory Doctorow—a science fiction author—who said the real danger that a budding artist faces is not piracy—it’s obscurity.
So it just makes no sense to try to restrict a budding fanbase. So of course these are practical things that you can do—you could also be careful not to assign away your works unknowingly—and then there are practical things you can do—you can use open source music as sort of backgrounds in your podcasts and things like that instead of using a 20-second cut from a popular artist—risking getting shut down or sued by their studio etc.
[40:29]
Newcomb: Yeah—the music that I use for this podcast I just—I know the guy that produced it and I just sent him a message and said hey can I use your song for my podcast—he said sure no problem.
[40:48] Public Domain, Future Abundance, and Distortions
Newcomb: Well you know one interesting thought experiment—it’s a little bit on a tangent here—but it’s a present time you can just use public domain work—which is basically work that’s say more than 70 years old—so a lot of times people use old cartoons and old advertisements and old book manuscripts and classical music from 100 plus years ago because they know that that’s safe—right.
[41:05]
Right—in a way this distorts the culture because we have the last 50 years worth of stuff is like not on the shelf of the tools you can use—so it distorts the culture a little bit. But imagine the world in ten thousand years—okay—let’s just go way into the future. The body—the body of human artistic output that is going to exist on Peta drives—you know—in people’s pockets—it’s gonna be immense.
And even if we still have copyright law which blocks the last 70 years—70 years of music—you’re gonna have 10,000 more years of great music to draw from—so like 99.9% of all human artistic output would be available in the public domain. And so it won’t be as big of a barrier to creative freedom in 10,000 years—right—just the fraction of new stuff will be so much smaller.
[42:00]
Newcomb: You know when I started this business Music Preneur I registered the word Music Preneur along with the tag line “Making Money Making Music” and I didn’t do that because I wanted to prevent anyone else from using that word—if anything the more people that use it the better it is for me because that—the name of my business—and more brand recognition the better as far as I’m concerned.
But the reason that I registered it and register—put in the paperwork in July—here it is January—still haven’t heard from the government—they move at their own special speed—but that’s another story—but the reason that I did it is because I didn’t want someone else to profit off of my success. And what I mean by that is let’s say that this business takes off and it’s worth five million dollars two years from now three years from now whatever—someone could register the word Music Preneur and then contact me and say hey you can’t use that word anymore—if you want to use it you have to pay me seventy thousand dollars a year or a month or something.
[42:59]
Kinsella: Yes—and now you’re getting to—when you say register you’re talking about trademark—which is yet another type of intellectual property right which we haven’t even touched on. Well maybe—maybe we’ll talk about that in the future—yeah we can. And I can just say briefly here that I’m opposed to trademark as well but for other reasons.
I think in today’s climate it makes total sense to register your trademark—but again what you can do with that is trademark—it’s a little bit different than copyright and patent—you don’t have to enforce a patent or a copyright but trademark has the feature where if you don’t enforce it then you could lose it over time. And then again you’re facing the danger that you think you might face before—which is someone else might register that as a trademark and then prevent you from using your own name.
[43:43]
So what you can do is trademark it and then whenever you see someone else using it you just send them a letter and you say you’re using my trademark—I’m happy to give you permission to do so for a dollar a year—you know—or some marginal fee—so that you have an official license—they recognize your trademark but they’re in the clear—you’re not threatening them—and you keep your trademark alive that way. So there are little tips and tricks like that that you can do to navigate within the existing system—right.
[44:18] Property Philosophy: Locke vs. Hobbes, and IP Origins
Newcomb: Well you know you’re the Austrian system of economics and I know I know that this is a music podcast but you know we’re entrepreneurs too—so you have to understand the way things work with economics as well—so that’s why I want to—that’s why I’m not bashful about having Stephan Kinsella on here too because you just have to understand the world if you want to be an entrepreneur.
[44:48]
But the system of property that you’re describing that’s very much in the tradition of John Locke versus like a Hobbes—what’s it—Thomas Hobbes. So where do you think the philosophy behind this intellectual property comes from—is not definitely not John Locke and the founding of America—that’s type of—where does it have its foundation?
Kinsella: Well I think the historical foundation is—in for copyright—was really in this thought-control censorship and in patents it was more protectionism—like the king granting a monopoly to one of his cronies in a given town—like the only guy who could export cheap skins or something—so he just did that to get loyalty from this guy and maybe the guy would give him kickbacks—help him collect taxes—things like that.
But something that Boldrin and Levine were saying—they said that England had these copyright laws but then English/British authors would sell their books in the US or in the colonies where there was no law and they would flourish—whereas in Britain they didn’t do as well.
[45:48]
Well yeah—what happened was—well now we have more of an internationalist system where we have these treaties like the Berne Convention—so all these countries—most of the countries in the world—agree to abide by certain minimum standards—but which is how the US and the copyright—the music industry—Hollywood and the software industry have sort of—in the end the pharmaceutical industry especially—have exported our copyright and patent laws to the rest of the world for the benefit of big American corporations.
But in the beginning—in the beginning of the Industrial Revolution—in the beginning of the United States—we had a copyright and patent system but there were no international treaties—and so we had copyright here but it didn’t extend to foreign authors. So some foreign author—Charles Dickens—his book could be knocked off in the US because he was a foreign author—but it turned out that they did better in markets over here than local authors did because their works were easy to knock off and spread and they could become popular and they gave speaking tours and things like that.
[46:57]
So yeah—and musicians these days—they shouldn’t be worried about people knocking off their music—it’s if anything it’s help—it helps bolster their brand—it helps them sell tickets. I would look at it like this—you know—in a copyright-free world people can copy your stuff without your permission—but they can do that now. I think there is piracy going on right—so we’ve reached a point where it’s not going to ever get harder to copy things—the Internet’s the world’s biggest copying machine and it’s only gonna get easier from here on out to copy.
So authors of works that are easy to copy—someone who makes a movie, someone who does photography, a painting, writes novels—whatever—they’re—they face—they face the fact that it’s easy for people to copy what they’re doing—so that’s a fact—no matter how draconian we make the laws trying to make a few examples out of the few people that we can catch—that’s happening. So they have to face that reality already.
[48:02]
You know I would say that in—in a world—look—artists thrive on freedom—they’re about freedom—they should be for freedom—they should be for justice—right—and just as they have learned from others and always will learn from others and borrow from others—they’re part of an incremental process—they’ve added their small piece to advance whatever they’re doing in their field—but they stand on the shoulders of others and others are gonna stand on their shoulders—this is part of the—you know—the way the world works.
[48:35] Entrepreneurship, Competition, and Profit in a Copyable World
Kinsella: I would also say this—look—an entrepreneur is someone who sees some kind of gap in the market or some kind of way to make money—he invests his time and resources hoping to make a profit. Now in a sense this is an economics insight—profit is an unnatural thing—in other words the more profit you’re making the more you’re going to attract competitors and they’re gonna come in and start competing with you and whittle your profit away down to basically the natural rate of interest in society.
[49:02]
So profit is always an unnatural thing that happens because an entrepreneur spots some anomaly in the market that he can temporarily exploit. So every entrepreneur in the world faces the prospect of competition—they just try to become better or have a better reputation or get there first.
So as a simple example if you know if I notice there’s this craze of taco restaurants spreading around the country—right—like up until now it’s been pizza and hamburgers—but notice that you know hey Arizona they really like those tacos there—so I start a little chain of taco restaurants in—in Texas let’s say—and they’re popular—now I might be the first one and I can charge a lot for the tacos at first—but soon you know someone’s down the street’s gonna—who’s looking for a way to park their money or something to do—they’re gonna say well I’ll start Joe’s Taco Stand—I’ll start competing with this guy—and they start taking some of the business away.
So it’s only a matter of time before there’s lots of them and it’s harder for the original guy to make the same profit he used to—so he’s got to keep innovating or maybe he goes out of business eventually—right. So you have McDonald’s and Burger King in the hamburger industry and you have Taco Bell and Taco Cabana in the taco industry.
[50:15]
The point is every entrepreneur faces the challenge of figuring out how to make a profit even though he’s going to eventually face competition. So in abstract terms that’s exactly the situation of some musician who wants to profit from their work—the only difference is one of degree not of kind—that is it seems to them like it’s easier for people to compete because their product is purely digital and easy to copy—unlike a taco stand where you have to buy a building and it might take a few years to get some investors and build the—you know—hire some employees and start making competing tacos—so it’s not as easy to compete in certain fields where the key aspect of the product is an easily copyable pattern of information on a disc.
And as I said with the internet and with digital technology and with storage becoming cheaper and cheaper and cheaper—copying is just very very easy now—right. So what that means is it’s simply easier for people to compete with you in certain fields if you have a certain business model.
[51:20]
So all this means is it’s up to the musical entrepreneur to recognize this and to try to find a way to make a profit despite the fact that he’s going to have competition. So you know you can—you can sing at a concert and that’s not something anyone else can do—if you’re famous for a given—with a given group of fans—you are the only one they want to hear—right—so you can charge—you could charge a reasonable amount for a concert or for a bar mitzvah or to—to make a song for someone you know for their kid’s birthday—I don’t know—help them do a music video—like Rebecca Black—yeah good luck—yeah.
So the point is it’s not the job of the law and it’s not the job of economists either to tell entrepreneurs how to make money—that’s the entrepreneur’s job—they have to be aware of how different business models can be easily copied or competed with and take that into account—and some business models might not be viable because they’re just too hard to maintain a profit—but that’s always been true in human history.
[52:31] Closing Thoughts: Future of IP in 10 Years
Newcomb: Well Stephan we’re running short on time and but I want to close with just a couple of thoughts from you—we you mentioned earlier ten thousand years—imagine the world ten thousand years from now—this may be a little difficult to do that—but I’d like to imagine you’re well versed in this and judging on what you’ve seen in the past—where do you see the world in ten years from now in the realm of intellectual property?
[52:58]
Kinsella: I don’t see any statutory or legal progress that’s significant in patents or copyrights coming anytime soon—and that’s because the interests are so entrenched. But the good thing is it’s becoming easier and easier to get around these laws. So in the field of copyright number one like I said it’s getting easier and easier to pirate—and that is putting a lot of pressure on publishers to act more like they would have to act in a free market anyway.
It’s also getting easier to encrypt things so that you’re not going to be caught as easily—right—to use VPNs for your dial-up so that you don’t get caught torrenting as easily. And also the spread of—in the software field we saw this earlier—we saw that I’m not really—I don’t really know what percentage—but I would guess maybe half of the software in the US let’s say is probably generated by some kind of open model—it’s not trivial—it’s a lot—it could be even more than half.
[54:03]
That has led to the widespread sort of basically doing an end run around copyright—without copyright the model would still be different—you wouldn’t need a license at all—but you’re emulating more what a copyright-free system would look like. Now in the field of books and music I think you’re seeing in the last 10 or 15 years a similar phenomena slowly starting to happen with the increasing use of Creative Commons to sort of partly open up your work—surf photographers, people’s paintings you know—and the rise of self-publishing which helps get around this—the publishing industry and the gatekeepers—which really are a relic of the old censorship and copyright system.
So I think that the publishing industries are going to start kind of crumbling more and more and you’re gonna have more and more independent artists—so that’s—I see copyright becoming more and more irrelevant because fewer people choose to use it and more people can get around it and evade it.
[55:00]
Newcomb: I put a note saying “forcing the establishment to act like entrepreneurs”—I love that.
[55:06] Episode Wrap-Up and Resources
Newcomb: All right—Stephan—is it stephankinsella.com is the website—great—read if you are interested at all in what he said—I promised that I didn’t get any—I didn’t understand more than 40%—I have to listen to this again myself—so it’s not something that you can just listen to and understand in one take—it takes in some cases many many years to really grasp what we’re talking about here.
[55:37]
So Stephan I want to say thank you for being on the show—hopefully we can do it again if people have some questions that they wanted some clarification on—but really appreciate it—thanks again.
Kinsella: You’re welcome—happy to—good luck with the show.
[55:59]
Newcomb: The show notes for this episode can be found at musicpreneur.com/IP—very easy to remember—musicpreneur.com/IP—it’s going to have an outline of the conversation with Stephan Kinsella and myself and I’m also going to make the PDF Doing Business Without Intellectual Property available right there on that show notes page.
So I hope you enjoyed it—I hope that it at least gave you a bit of a balanced perspective on this topic—I learned quite a bit just listening to Stephan in this interview and I had—and I’ve studied this topic for several years now—so there is always something to learn.
[56:44]
And you know what—if you have questions—if you need clarification on something that Stephan said—send me an email—send him an email—he responds to—he responds to every email I’ve sent him—so I don’t see any reason why he wouldn’t respond to you—I’ll just say that you heard his interview on this podcast and he is more than happy to share his knowledge and provide any clarification.
So I don’t know if—if there’s enough questions then maybe we can have him back on and do a little Q&A on the topic of intellectual property—so that does it for today—I’ve got an exciting announcement that I’m going to share on this Friday’s episode—it’s not quite ready for public consumption yet—but come this Friday it’s going to be ready to go—and it involves a free ebook for you and even an opportunity for you to make a little money as an affiliate with a product—so this is James Newcomb signing off—thank you for listening and look forward to seeing you next time.
The great libertarian scholar Ralph Raico died last month (Dec. 13, 2016). 1
Ralph and I were friends for the last 20 years. I first met Ralph when I started attending Mises Institute events when I was a young lawyer, in the mid-1990s. 2 For many years, he was a fixture at the Mises Institute events I attended. We talked, had lunches, went to dinners together for years. I was at the Mises Institute event in the late 90s, if I recall correctly, that Objectivist George Reisman attended, fresh from his excommunication from the Ayn Rand Institute, where Reisman and Ralph, long-estranged by internecine libertarian squabbles, were reunited and rekindled their friendship. It was a pleasure to see, especially for me, as a former Randian of sorts myself.
In the last few years, Ralph was less mobile, and we would talk on occasion by email, or on the phone. He was supportive of the founding of Hans-Hermann Hoppe’s Property and Freedom Society PFS in 2006, with which I’ve also been involved since its inception, and he was a Senior Fellow at the Mises Institute for many years. [continue reading…]
Rothbard, in The Ethics of Liberty, writes of the disastrous consequences of the fallacious Marxian labor theory of value:
“I am convinced, however, that the real motor for social and political change in our time has been a moral indignation arising from the fallacious theory of surplus value: that the capitalists have stolen the rightful property of the workers, and therefore that existing titles to accumulated capital are unjust. Given this hypothesis, the remainder of the impetus for both Marxism and anarchosyndicalism follow quite logically. From an apprehension of what appears to be monstrous injustice flows the call for “expropriation of the expropriators,” and, in both cases, for some form of “reversion” of the ownership and the control of the property to the workers.[23] Their arguments cannot be successfully countered by the maxims of utilitarian economics or philosophy, but only by dealing forthrightly with the moral problem, with the problem of the justice or injustice of various claims to property.” 1
Rothbard also quite rightly rejected the idea that property titles are to be overturned if we cannot trace title back to Adam, that is, if there is any taint in the “chain of title”—what Jeff Tucker has referred to as “scrupulosity”. 2 As Rothbard wrote in an important addendum to a seminal 1974 paper:
“It might be charged that our theory of justice in property titles is deficient because in the real world most landed (and even other) property has a past history so tangled that it becomes impossible to identify who or what has committed coercion and therefore who the current just owner may be. But the point of the “homestead principle” is that if we don’t know what crimes have been committed in acquiring the property in the past, or if we don’t know the victims or their heirs, then the current owner becomes the legitimate and just owner on homestead grounds. In short, if Jones owns a piece of land at the present time, and we don’t know what crimes were committed to arrive at the current title, then Jones, as the current owner, becomes as fully legitimate a property owner of this land as he does over his own person. Overthrow of existing property title only becomes legitimate if the victims or their heirs can present an authenticated, demonstrable, and specific claim to the property. Failing such conditions, existing landowners possess a fully moral right to their property.” 3
I was a guest recently on Isaac Morehouse’s podcast, “Why Intellectual Property Sucks, with Stephan Kinsella” (Oct. 10, 2016), discussing intellectual property and related issues. Isaac’s description below, along with the transcript.
Is intellectual property law the foundation of an innovative society? Or a racket set up to protect entrenched businesses from competition? Stephan Kinsella joins the show this week to break down intellectual property law.
Stephan is a practicing patent attorney, a libertarian writer and speaker, Director of the Center for the Study of Innovative Freedom (C4SIF), and Founding and Executive Editor of Libertarian Papers.
He is one of the clearest and most compelling thinkers on intellectual property law.
We cover the historical context of IP law, the modern day consequences of copyright and patent monopolies, the flaws in common arguments for intellectual property laws, and more. [continue reading…]
Kinsella on Liberty Podcast, Episode 215. www.stephankinsella.com/kinsella-on-liberty-podcast/
I was a guest recently on the Latter-Day Liberty podcast discussing intellectual property and related issues. Host: Mat Kent.
How could a true libertarian claim to be against intellectual property? Aren’t property rights central to the principles of liberty? Stephan Kinsella joins us to discuss the case against IP and why, as libertarians, we should oppose it.
Here comes a lot of background, just to lead up to a few final paragraphs that get to what I want to say.
As I’ve recounted before, 1 I started my legal vocation and libertarian avocation 2 around the same time, almost twenty-five years ago, in 1992. That year, I started practicing law, and also published my first scholarly libertarian article. 3 In 1994 my wife and I moved from Houston to Philadelphia for a few years, and around that time I started attending Mises Institute and other libertarian conferences. The contacts I was making with various libertarian thinkers and organizations started to increase, partly because of the rise of email and then the Internet around that time. At the time, I would devour everything libertarian-related that I could get my hands onto—The Freeman from FEE; Liberty magazine; Reason magazine; The Free Market, the Journal of Libertarian Studies, and the Review of Austrian Economics from the Mises Institute; Cato Journal; Reason Papers; Objectivity; Jeffrey Friedman’s Critical Review; various other newsletters and journals; and so on. In college I would go to the LSU library and photocopy old Ayn Rand related newsletters. In grad school in London, 1991–92, I found a copy of Rothbard’s Ethics of Liberty in the University of London library. It was then out of print and hard to find. So I paid something like 10p a page to photocopy it by hand, vellum bound it, and for years that was my main marked-up copy of that classic text, until the 1998 edition was released by the Mises Institute with an amazing introduction by Hans-Hermann Hoppe. 4
Yeah, I was that kind of geek. Copying Ayn Rand newsletters and Rothbard books from college libraries. But I somehow got a normal woman to marry me anyhow.
From the late 1980s to the mid 1990s, I talked with a large number of libertarian thinkers, by email, phone, in person, or even by regular snail mail. As I noted in The Genesis of Estoppel: My Libertarian Rights Theory, in law school I had become fascinated by Hoppe’s “argumentation ethics” defense of libertarian rights. This led to my exploring related material by a number of thinkers, including libertarians like Tibor Machan and Roger Pilon. 5 Hoppe had developed his argumentation ethics defense of libertarian rights, in part based on the work of his PhD advisor and mentor, the brilliant and famous (and socialist) German philosopher Jürgen Habermas, and fellow German philosopher Karl-Otto Apel, along with some insights from Rothbard and Mises, plus some original insights, and a libertarian spin, by Hoppe. It was an original and brilliant new spin on libertarian rights theory that Rothbard enthusiastically adopted. Rothbard became the mentor, Hoppe his protege and intellectual colleague from the mid-1980s to Rothbard’s death in 1995. [continue reading…]
Note: An updated and revised version of this article is included as chap. 22 of Legal Foundations of a Free Society (Houston: Papinian Press, 2023). Text below.
[Update: Re Rand and Kant: Objectivist Round-up, April 2025: “2. Ayn Rand Institute (ARI) philosopher Greg Salmieri is asked how much of Kant Rand read.He says he doesn’t know because we don’t have any books by Kant that she “marked up.”Salmieri says that Rand likely learned a lot about Kant from Peikoff and she may have studied the various arguments in the Critique of Pure Reason with him.Brook asks Salmieri about Rand’s take on Kant and he says it’s correct albeit on a high level.”]
Text below (not yet edited; some blockquotes and italics missing)
22
The Undeniable Morality of Capitalism
Originally published in 1994, this is one of my first scholarly articles.* As noted in “How I Became a Libertarian” (ch. 1), I sent this article to Hoppe and soon after met him and others at the Mises Institute. I have made only minimal revisions to the original piece, except for deleting the initial section “Criticisms,” since, in retrospect, these criticisms now seem silly and trivial.†
* Stephan Kinsella, “The Undeniable Morality of Capitalism,” St. Mary’s L. J. 25, no. 4 (1994): 1419–47, a review essay of Hans-Hermann Hoppe, The Economics and Ethics of Private Property (Boston/Dordrecht/London, Kluwer Academic Publishers, 1993). In this chapter I will cite to the most recent edition, The Economics and Ethics of Private Property: Studies in Political Economy and Philosophy (Auburn, Ala.: Mises Institute, 2006 [1993]; www.hanshoppe.com/eepp); hereinafter “EEPP.”
† In the original article, I wrote that it was unfortunate that Hoppe’s article “In Defense of Extreme Rationalism” was not included in EEPP. See Hoppe, “In Defense of Extreme Rationalism: Thoughts on Donald McCloskey’s The Rhetoric of Economics,” Rev. Austrian Econ. 3, no. 1 (1989; https://mises.org/library/defense-extreme-rationalism-thoughts-donald-mccloskys-rhetoric-economics): 179–214. This has now been remedied, as this article was later published in Hans-Hermann Hoppe, The Great Fiction: Property, Economy, Society, and the Politics of Decline (Second Expanded Edition, Mises Institute, 2021; www.hanshoppe.com/tgf).
Introduction 586
Individual Rights 588
The Reception of Hoppe’s Ideas 588
Argumentation Ethics 589
Estoppel and Directions for Further Inquiry 591
Remaining Questions—Rights of Fetuses, Babies, and Defective
Humans 594
Hoppe, Rothbard, Rand, and
Classical Natural Rights Theory 595
Hoppe’s Value-Free (?) Ethics 597
Hoppe’s Conception of “Rights” 597
Habermas’s and Apel’s “Discourse Ethics” and Gewirth’s and Pilon’s
“Principle of Generic Consistency” 598
III. Epistemology 601
The Application of Praxeology
to Epistemology and Ethics 601
Hoppe and Kant Versus Rand 603
A Priori Truths 606
Economics 607
Public Goods Theory and the
Production of Security 607
The Economics and Sociology
of Taxation 608
Banking, Nation States, and
International Politics 611
Marxism Reformed by Praxeology 613
Mises Versus Keynes 614
Conclusion 614
I. INTRODUCTION
If Professor Hans-Hermann Hoppe’s books and articles would come already-underlined and highlighted, it would save readers a lot of time. Or at least each book should come with a free pen attached. For when I follow my usual habit of underlining, circling, checking, starring, or highlighting important insights in the books I read, I find that my copies of Hoppe’s books start to look as if a two-year-old with a crayon had gotten hold of them.
In 1989, Hoppe published A Theory of Socialism and Capitalism, in my eyes one of the most important books of the decade for its analysis of capitalism, socialism, and property rights, focus on scarcity in property and economic theory, and its revolutionary “argumentation ethic” defense of individual rights.[1] Over the past few years, Hoppe has produced a significant assortment of articles elaborating on his argumentation ethic and the epistemology that underlies it, as well as on his impressive economic writings. His new book, The Economics and Ethics of Private Property, is a collection of almost all of these related writings (not counting a large number of writings published previously in German). This may come as a disappointment to some, who, like me, were expecting a new treatise, building upon the prior one. The book is significant, nonetheless, for drawing together material previously published in such varied sources as Liberty magazine, the Journal of Libertarian Studies, the Review of Austrian Economics, Ratio, and others.[2]
II. INDIVIDUAL RIGHTS
A. The Reception of Hoppe’s Ideas
This book is fascinating, stimulating, provocative, and ground-breaking. In the September 1988 issue of Liberty, Hoppe published “The Ultimate Justification of the Private Property Ethic.” This article gave rise to a symposium, “Breakthrough or Buncombe?”, published in the November 1988 issue of Liberty, containing the critical comments of ten commentators, including Murray Rothbard, Tibor Machan, David Friedman, Leland Yeager, David Gordon, Douglas Rasmussen, David Ramsay Steele, Timothy Virkkala, and others.
To my surprise, almost all of these libertarian commentators were unimpressed by, if not downright hostile to, Hoppe’s argument. Only Murray Rothbard gave Hoppe’s thesis wholehearted endorsement and recognized its validity and significance:
In a dazzling breakthrough for political philosophy in general and for libertarianism in particular, he has managed to transcend the famous is/ought, fact/value dichotomy that has plagued philosophy since the days of the scholastics, and that had brought modern libertarianism into a tiresome deadlock. Not only that: Hans Hoppe has managed to establish the case for anarcho-capitalist-Lockean rights in an unprecedentedly hard-core manner, one that makes my own natural law/natural rights position seem almost wimpy in comparison.[3]
Why Hoppe’s ideas, which are such an important advance in political and libertarian thought, have failed to cause more excitement or gain more adherents than they have is baffling, but the best solution to this is the publication of further elaborations and defenses contained in Hoppe’s newest book.
The book is divided into two parts, “Economics” and “Philosophy.” Because Part Two: Philosophy contains Hoppe’s most important ideas—his defense of individual rights—I will discuss this part first. The six chapters (chapters 6 through 11) in Part Two plus the “Four Critical Replies” in the Appendix present Hoppe’s argumentation ethic and its underlying epistemology—often repeatedly and redundantly, because the chapters were first published as independent papers, and little editing, except in chapter 6, has been done to integrate them or to delete redundancies.
B. Argumentation Ethics
Hoppe’s “argumentation ethics” theory, briefly stated, starts by noting that all truths, including ethics and normative statements, must be discoverable through the process of argumentation. This “a priori of communication and argumentation” is undeniable, as one would have to contradict oneself in using argument to deny this. Therefore, whatever facts or norms are postulated while engaging in argumentation cannot be contradicted by any proposed fact or norms.[4] As Hoppe writes:
In analyzing any actual norm proposal reason’s task is merely confined to analyzing whether or not it is logically consistent with the very ethics which the proponent must presuppose as valid insofar as he is able to make his proposal at all.[5]
In argumentation, the validity of certain implications cannot be disputed. For example, the universalization principle, as formulated in the Golden Rule of ethics or in the Kantian Categorical Imperative, states:
… that only those norms can be justified that can be formulated as general principles which without exception are valid for everyone. Indeed, as it is implied in argumentation that everyone who can understand an argument must in principle be able to be convinced by it simply because of its argumentative force, the universalization principle of ethics can now be understood and explained in the wider a priori of communication and argumentation.[6]
In other words, anyone who argues accepts the validity of the universalization principle implicitly.
“The universalization principle only provides one with a purely formal criterion for morality…. However, there are other positive norms implied in argumentation apart from” this principle.[7] First Hoppe points out three interrelated facts: “First, that argumentation is not only a cognitive but a practical affair. Second, that argumentation, as a form of action, implies the use of the scarce resource of one’s body. And third, that argumentation is a conflict-free way of interacting.”[8]
Therefore, anyone engaging in argumentation (or, indeed, any discourse at all, even with oneself) must accept the presupposed right of self-ownership of all listeners and even potential listeners: for otherwise the listener would not be able to consider freely and accept or reject the proposed argument, which is undeniably a goal of argumentation. “It is only as long as there is at least an implicit recognition of each individual’s property right in his or her own body that argumentation can take place.”[9] The libertarian nonaggression principle—“nobody has the right to uninvitedly aggress against the body of any other person and thus delimit or restrict anyone’s control over his own body”—is implied in the concept of argumentative justification, because justifying means justifying without having to rely on coercion.
The concomitant right to homestead private property is also presupposed by anyone engaging in argumentation: since the use of naturalresources, i.e., property rights in land, food, water, etc., is absolutely necessary for any listener to survive and be able to participate in an argument, and since homesteading unowned property is the only objective and conflict-free way to assign property rights, all arguers must also presuppose the validity of the homesteading of unowned property, the Lockean “mixing of labor” with scarce resources, for otherwise argumentation could not occur.[10] And, of course, the right to self-ownership plus the right to homestead are the bases of laissez-faire capitalism.[11]
C. Estoppel and Directions for Further Inquiry
Professor Hoppe’s discovery of such a rock-solid defense of individual rights is a profoundly important achievement. Because so many of Hoppe’s insights deserve further exploration and development, one welcomes future writing by Hoppe and by others building upon his work.[12]
For example, in my own article, “Estoppel: A New Justification for Individual Rights,”[13] I draw on Hoppe’s work—especially his application of the principle of universalizability to the activity of argumentation—in making another argumentation-based or discourse-based defense of individual rights. Hoppe’s main argument is that any person who argues must accept certain principles that must be implicitly acknowledged by any person engaged in the very activity of arguing, and that these principles imply the rights of self-ownership and homesteading, as they are incompatible with any other—“socialist”—ethic. In my estoppel theory, I argue that the existence of rights can be demonstrated by looking at the consistency of the arguments made by a rights violator at the moment when he is about to be punished for the rights violation.
Since what is important about rights is that they are (legitimately) enforceable, if an alleged rights-violator is unable to meaningfully object to his punishment or, indeed, if he implicitly consents to his punishment, then this is enough to justify the existence of the rights claimed. And it is indeed true that if A initiates violence against B, A is estopped, or prevented, from complaining (i.e., objecting or withholding consent) if B retaliates or punishes A. For A has admitted the validity of aggression, and it would be inconsistent for him to object to his own punishment, which is, after all, “only” aggression.
By the same token, however, laws that attempt to enforce “positive” rights (such as the right to food or a job) or to prohibit nonaggressive behavior (such as expression, prostitution, the use of drugs, or the offer to pay someone less than minimum wage) are not legitimate. For here the state, in enforcing such laws against nonaggressors, is itself an aggressor.[14] If the imprisoned, nonaggressive “criminal” asserts his right to be freed and his concomitant right to use force against the aggressor-state to escape, the state cannot deny this asserted right nor the legitimacy of the prisoner’s (proposed) use of force against the state, since the state, by being an aggressor, is estopped from denying the legitimacy of the use of force. Since the prisoner has a right to be freed, of course the state has no contrary “right” to imprison him. By this same logic, an aggressive criminal has a right to not be disproportionately punished. For example, someone who steals an ink pen may not be executed as punishment.[15]
It is hoped that others will also build upon or critique Hoppe’s work. Murray Rothbard stated in the Liberty symposium that “a future research program for Hoppe and other libertarian philosophers would be (a) to see how far axiomatics can be extended into other spheres of ethics, or (b) to see if and how this axiomatic could be integrated into the standard natural law approach.”[16] Also of interest would be a systematic cataloguing of just what is a priori axiomatic knowledge.[17]
Another tantalizing idea deserving further exploration is Hoppe’s discussion of free will:
[O]ne must regard one’s knowledge and actions as uncaused. One might hold this conception of “freedom” to be an illusion, and from the point of view of a “scientist” with cognitive powers substantially superior to any human intelligence, from the point of view of God, for example, such a description may well be correct—but we are not God, and even if freedom is illusory from His standpoint, for we [sic] human beings it is a necessary illusion.[18]
D. Remaining Questions—Rights of Fetuses,
Babies, and Defective Humans
Hoppe establishes the foundation for individual rights, but takes it no further. One almost salivates at the prospect of Hoppe writing more on this, answering the questions of exactly how to apply the rights of self-ownership and homesteading to the hard cases, such as fetuses, babies, children, and retarded people (who, after all, cannot argue). Hoppe deals only suggestively or obliquely with this problem: the question of what is just or unjust “does not arise vis-à-vis a stone or fish, because they are incapable of engaging in such exchanges and of producing validity-claiming propositions.”[19]
What about fetuses, or even babies? Another related statement of Hoppe’s fails to answer this question:
Obviously, we could have conflicts regarding the use of scarce resources with, let us say, an elephant or a mosquito, yet we would not consider it possible to resolve these conflicts by means of proposing property norms. The avoidance of possible conflicts, in such cases, is merely a technological, not an ethical, problem. For it to turn into an ethical problem, it is also necessary that the conflicting actors be capable, in principle, of argumentation.[20]
Is a baby “in principle” capable of argumentation? Hoppe’s view on this is unfortunately unrevealed.
Hoppe, Rothbard, Rand, and Classical Natural Rights Theory
Hoppe never commits himself as to whether he believes other defenders of natural rights—such as Rothbard, whom Hoppe obviously admires greatly—are correct in their support of natural law and natural rights. He remains noncommittal, stating:
Agreeing with Rothbard on the possibility of a rational ethic and, more specifically, on the fact that only a libertarian ethic can indeed be morally justified, I want to propose here a different, non-natural-rights approach to establishing these two related claims. It has been a common quarrel with the natural rights position, even by sympathetic readers, that the concept of human nature is far “too diffuse and varied to provide a determinate set of contents of natural law.”[21]
Does Hoppe agree that natural law is hogwash? Is he a “sympathetic reader “? One gets the impression that he agrees with this criticism of natural law. If so, however, it is unclear how Rothbard, aligning himself with the natural law or natural rights tradition of philosophy, in “The Ethics of Liberty presents the full case [that] the libertarian property norms” are the rules that “can be discerned by means of reason as grounded in the very nature of man.”[22]
Hoppe even attempts to define his own theory as being, really, a new type of natural rights theory:
Nor, then, do I claim that it is impossible to interpret my approach as falling in a “rightly conceived” natural rights tradition after all…. What is claimed, though, is that the following approach is clearly out of line with what the natural rights approach has actually come to be, and that it owes nothing to this tradition as it stands…. Of course, then, since the capability of argumentation is an essential part of human nature—one could not even say anything about the latter without the former—it could also be argued that norms which cannot be defended effectively in the course of argumentation are also incompatible with human nature.[23]
Yet, Hoppe states:
[T]his defense of private property is essentially also Rothbard’s. In spite of his formal allegiance to the natural rights tradition Rothbard, in what I consider his most crucial argument in defense of a private property ethic, not only chooses essentially the same starting point—argumentation—but also gives a justification by means of a priori reasoning almost identical to the one just developed. To prove the point I can do no better than simply quote: “Now, any person participating in any sort of discussion, including one on values, is, by virtue of so participating, alive and affirming life. For if he were really opposed to life he would have no business continuing to be alive. Hence, the supposed opponent of life is really affirming it in the very process of discussion, and hence the preservation and furtherance of one’s life takes on the stature of an incontestable axiom.”[24]
F. Hoppe’s Value-Free (?) Ethics
In addition to Hoppe’s seeming unwillingness to criticize wholeheartedly the natural rights tradition, he is also curiously reluctant to admit the ethical aspects of his argumentation ethic:
Here the praxeological proof of libertarianism has the advantage of offering a completely value-free justification of private property. It remains entirely in the realm of is-statements, and nowhere tries to derive an ought from an is. The structure of the argument is this: (a) justification is propositional justification—a priori true is-statement; (b) argumentation presupposes property in one’s body and the homesteading principle—a priori true is-statement; and (c) then, no deviation from this ethic can be argumentatively justified—a priori true is-statement.[25]
Now I do not see how this is a “completely value-free justification of private property.” Private property means rights in private property; and “rights” is indeed a normative, value-laden concept. Of course, in a trivial sense, any statement such as “A should do X” is an is-statement, because one is implicitly stating that “it is the case that A should do X.” But this is still really an ought-statement, as is step (b) above, in making a statement about property rights. I do not see, however, why Hoppe is reluctant to admit this, as this is not a defect of his argument, but is in fact why it is so powerful—because it does justify the subset of ethics concerning rights.
G. Hoppe’s Conception of “Rights”
Unfortunately, Hoppe never clearly defines what he means by “rights,” which leads to some slight confusion in the presentation of aspects of his argument.[26] Primarily, he uses the word in a normative, ethical sense. He occasionally, however, seems to mean “power,” which is value-neutral and non-normative: “[I]f no one had the right to acquire and control anything except his own body … then we would all cease to exist….”[27] It is true that we would all cease to exist if we had no power or ability to acquire and control things; however, a “right” is not logically necessary for this power to be exercised. For example, in a Robinsonade, Crusoe alone on his desert island has no rights because rights are relevant only socially, as they concern relationships between individuals. Yet Crusoe, if he has the power to build a hut and gather fruit, can actually survive.
Certainly we have the ability to affect the world, otherwise we would not continue to exist—and this may explain why, according to Hoppe’s theory, we must have the right to exercise this ability. But the problem with switching to the power-sense of “rights” in a justification of normative-rights is that one may end up justifying the former and not the latter, or neither. And certainly it would be both useless and futile to try to prove that we all have the actual ability and power to control our bodies and to homestead; the very existence of the Internal Revenue Service disproves this contention immediately. Hoppe’s inconsistent use of “rights” is not fatal to his argument, but clarification of this step in his argument and a precise definition of “rights” would be welcome.[28]
H. Habermas’s and Apel’s “Discourse Ethics” and Gewirth’s
and Pilon’s “Principle of Generic Consistency”
Much of Hoppe’s argumentation ethics draws on the “discourse ethics” theories of Jürgen Habermas and Karl-Otto Apel.[29] Hoppe’s argumentation ethic also bears some similarities to Alan Gewirth’s “dialectically necessary method.”[30] Applying this method and the principle of universalizability, Gewirth derives the precept “act in accord with the generic rights of your recipients as well as of yourself,” which he calls the “Principle of Generic Consistency” (PGC).[31] Gewirth holds that his theory shows that individuals have rights to “freedom and well-being,” which in turn justify a welfare state.[32]
Hoppe criticizes Gewirth’s “dialectically necessary method” because it is based on action in general as opposed to the specific communicative subcategory of action.[33] It is interesting to note that Gewirth’s former student, Roger Pilon, believes Gewirth’s PGC is correct, important, and pathbreaking, but that Gewirth himself has applied his own theories incorrectly in an attempt to justify the welfare state.[34] The libertarian Pilon believes he can reform his own teacher’s work in order to justify libertarian principles.[35] Similarly, Hoppe believes his former teacher Habermas’s discourse-ethics theories, while correct at core, are applied incorrectly by Habermas to yield a socialistic ethic; Hoppe feels that Habermas’s theories, if correctly applied (as Hoppe himself does), yield the libertarian non-aggression norm.
Hoppe states:
Apel and Habermas are essentially silent on the all-decisive question of what ethical prescription actually follows from the recognition of the “a priori of argumentation.” However, there are remarks indicating that they both seem to believe some sort of participatory social democracy to be implied in this a priori. The following [i.e., argumentation ethics] explains why hardly anything could be farther from the truth.[36]
Although Habermas and Apel agree that argumentation implies that certain intersubjectively meaningful norms exist,[37] they would not agree with the next step taken by Hoppe. Hoppe next recognizes that argumentation, as a form of action, requires exclusive control of the scarce resources in one’s body; this implies that “as long as there is any argumentation, there is a mutual recognition of each other’s property right in his own body.”[38] As Hoppe observes, “That Habermas and Apel are unable to take this step is, I submit, due to the fact that they, too, suffer, as do many other philosophers, from a complete ignorance of economics, and a corresponding blindness towards the fact of scarcity.”[39] Presumably, just as Hoppe criticizes Gewirth’s welfare-state-justifying theory, not only because of its results but also because of its action-based method, he would also find fault in Pilon’s neo-Gewirthian theory and methods, despite Pilon’s libertarian (i.e., correct) conclusions.
III. EPISTEMOLOGY
A. The Application of Praxeology to Epistemology and Ethics
Hoppe’s epistemology is basically an extension of Ludwig von Mises’s praxeology, which Mises had previously applied only to economics.[40] Mises inquired into the logical status of typical economic propositions such as the law of marginal utility. Mises showed that both empiricism and historicism are self-contradictory doctrines and justified the claims of rationalist philosophy by demonstrating the existence of a priori synthetic propositions.[41]
In the Kantian and Misesian framework, analytic truths like “all bachelors are unmarried” are true, but circular or tautological. Synthetic truths, like “all bachelors are unfulfilled” (if that were true), say something substantial about bachelors that is not already part of the definition of bachelors. We may know a synthetic truth through experience or empirically (or a posteriori). But these truths are not necessarily true, and might have been false if experience had been different. According to empiricism, synthetic truths can be known only through experience.[42] A synthetic a priori proposition is significant because it is necessarily true yet is not a tautology, thus yielding certain unchallengeable real knowledge about the world.[43]
Mises shows that the propositions of economics are indeed knowledge that is not derived from observation and yet is constrained by objective laws. In the science of praxeology, the general theory of human action, the “axiom of action” (i.e., the proposition that humans act, that they display intentional behavior), qualifies as a priori synthetic knowledge because (a) the “axiom is not derived from observation—there are only bodily movements to be observed but no such thing as actions—but stems instead from reflective understanding”; and (b) this understanding is of a self-evident proposition, “for its truth cannot be denied, since the denial would itself have to be categorized as an action.”[44] Mises shows that all of the “categories which we know to be the very heart of economics—values, ends, means, choice, preference, cost, profit and loss—are implied in the axiom of action.”[45]
Hoppe’s achievement is to explain how praxeology also provides the foundation for epistemology and ethics (the argumentation ethichas already been discussed above). To the a priori axiom of action, Hoppe adds a second a priori axiom, the “a priori of argumentation.” This axiom:
… states that humans are capable of argumentation and hence know the meaning of truth and validity. As in the case of the action axiom, this knowledge is not derived from observation: there is only verbal behavior to be observed and prior reflective cognition is required in order to interpret such behavior as meaningful arguments. And the validity of the axiom, like that of the action axiom, is indisputable. It is impossible to deny that one can argue, as the very denial would itself be an argument.…
Recognizing, as we have just done, that knowledge claims are raised and decided upon in the course of argumentation and that this is undeniably so, one can now reconstruct the task of epistemology more precisely as that of formulating those propositions which are argumentatively indisputable in that their truth is already implied in the very fact of making one’s argument and so cannot be denied argumentatively; and to delineate the range of such a priori knowledge from the realm of propositions whose validity cannot be established in this way but require additional, contingent information for their validation, or that cannot be validated at all and so are mere metaphysical statements in the pejorative sense of the term metaphysical.[46]
B. Hoppe and Kant Versus Rand
Hoppe offers a stunning justification and interpretation of Kant’s controversial statement that “[so] far it has been assumed that our knowledge had to conform to reality,” instead it should be assumed ‘that observational reality should conform to our mind.’”[47]
According to rationalist philosophy, a priori true propositions had their foundation in the operation of principles of thinking which one could not possibly conceive of as operating otherwise; they were grounded in categories of an active mind. Now, as empiricists were only too eager to point out, the obvious critique of such a position is, that if this were indeed the case, it could not be explained why such mental categories should fit reality. Rather, one would be forced to accept the absurd idealistic assumption that reality would have to be conceived of as a creation of the mind, in order to claim that a priori knowledge could incorporate any information about the structure of reality.[48]
The empiricists’ critique seemed to be justified by statements such as that of Kant above. However, writes Hoppe:
… recognizing knowledge as being structurally constrained by its role in the framework of action categories provides the solution to such a complaint. For as soon as this is realized, all idealistic suggestions of rationalist philosophy disappear, and an epistemology claiming that a priori true propositions exist becomes a realistic epistemology instead. Understood as constrained by action categories, the seemingly unbridgeable gulf between the mental on the one hand and the real, outside physical world on the other is bridged. So constrained, a priori knowledge must be as much a mental thing as a reflection of the structure of reality, since it is only through actions that the mind comes into contact with reality, so to speak. Acting is a cognitively guided adjustment of a physical body in physical reality. And thus, there can be no doubt that a priori knowledge, conceived of as an insight into the structural constraints imposed on knowledge qua knowledge of actors, must indeed correspond to the nature of things. The realistic character of such knowledge would manifest itself not only in the fact that one could not think it to be otherwise, but in the fact that one could not undo its truth.[49]
In Hoppe’s pamphlet Praxeology and Economic Science,[50] which contains a discussion similar to the one in chapter 6 of his book, he makes it clear that he does not think that Kant himself meant that reality is created by the mind.[51] Indeed, Kant had hinted at the solution presented in Hoppe’s interpretation above. Hoppe writes, “He thought mathematics, for instance, had to be grounded in our knowledge of the meaning of repetition, of repetitive operations. And he also realized, if only somewhat vaguely, that the principle of causality is implied in our understanding of what it is and means to act.”[52]
As for the Objectivist or Randian denunciation of Kant for this statement that observational reality should conform to the mind, Hoppe states:
Among some followers of Austrianism, the Kant interpretation of Ayn Rand (see, for instance, her Introduction to Objectivist Epistemology [1979]; or For the New Intellectual [1961]) enjoys great popularity. Her interpretation, replete with sweeping denunciatory pronouncements, however, is characterized by a complete absence of any interpretive documentation whatsoever. On Rand’s arrogant ignorance regarding Kant, see B. Goldberg, “Ayn Rand’s ‘For the New Intellectual,’” New Individualist Rev., vol. 1, no. 3 (1961).[53]
C. A Priori Truths
Hoppe then ferrets out various truths that are implied in the very fact of arguing. The laws of logic, such as junctors (“and,” “or,” “if-then,” “not”), quantors (“there is,” “all,” “some”), and the laws of identity and contradiction:
… are a priori true propositions about reality and not mere verbal stipulations regarding the transformation rules of arbitrarily chosen signs, as empiricist-formalists would have it. They are as much laws of thinking as of reality, because they are laws that have their ultimate foundation in action and could not be undone by any actor. In each and every action, an actor identifies some specific situation and categorizes it in one way rather than another in order to be able to make a choice.[54]
Hoppe goes on to show that arithmetic is an a priori and yet empirical discipline and “is rooted in our understanding of repetition—the repetition of action.”[55] He even demonstrates the irrelevance of Gödel’s Incompleteness theorem.[56] Euclidean geometry is a priori and yet incorporates empirical knowledge about space, “because it is not only the very precondition for any empirical spatial description, it is also the precondition for any active orientation in space.”[57] Einstein’s non-Euclidean theories even presuppose the validity of Euclidean geometry: “After all, the lenses of the telescopes which one uses to confirm Einstein’s theory regarding the non-Euclidean structure of physical space must themselves be constructed according to Euclidean principles.”[58]
Hoppe also demonstrates the a prioristic character of causality and teleology. Significantly, Hoppe shows that “everything which is not an action must necessarily be categorized causally”; and, “in contrast, everything that is an action must be categorized teleogically.”[59] Also, because the causality principle is a necessary presupposition even of the Heisenberg Uncertainty Principle in physics, there is a “fundamental misconception involved in interpreting the Heisenberg principle as invalidating the causality principle.”[60]
IV. ECONOMICS
A. Public Goods Theory and the Production of Security
Part One: Economics contains five interesting and insightful chapters. In chapter 1, “Fallacies of the Public Goods Theory and the Production of Security,” Hoppe shows that the distinction between “private” and “public” goods is completely illusory:
A clear-cut dichotomy between private and public goods does not exist…. All goods are more or less private or public and can—and constantly do—change with respect to their degree of privateness/publicness as people’s values and evaluations change, and as changes occur in the composition of the population. In order to recognize that they never fall, once and for all, into either one or the other category, one must only recall what makes something a good. For something to be a good it must be recognized and treated as scarce by someone. Something is not a good as such, that is to say; goods are goods only in the eyes of the beholder. Nothing is a good unless at least one person subjectively evaluates it as such. But then, when goods are never goods-as-such—when no physico-chemical analysis can identify something as an economic good—there is clearly no fixed, objective criterion for classifying goods as either private or public. They can never be private or public goods as such. Their private or public character depends on how few or how many people consider them to be goods, with the degree to which they are private or public changing as these evaluations change and ranging from one to infinity.[61]
Hoppe then applies this analysis to the production of security, commonly held to be a public good. Because the production of security is no more a “public good” than goods and services such as cheese, houses, or insurance, there is no special economic reason that prevents markets from producing security, and thus no justification to require remedial state action, such as state monopolization of police and defense.
B. The Economics and Sociology of Taxation
In chapter 2, “The Economics and Sociology of Taxation,” Hoppe argues that only three ways exist of acquiring or increasing wealth: through homesteading, producing, or contracting. Since taxation implies a reduction of income a person can expect to receive from these three activities, the opportunity cost for using one’s time and body to perform these activities is raised by taxation. Thus the marginal utility of producing wealth is decreased, and the marginal utility of consumption and leisure is increased, leading to a shift away from the production of wealth and towards consumption and leisure. Therefore taxation is a means for the destruction of property and wealth-formation.[62]
To the objection that taxation makes people actually work harder in order to earn the same income as before taxation, Hoppe replies that even if increased taxation causes:
… [an] increase in workaholism, it is still the case that the income of value-productive individuals has fallen. For even if they produce the same output as previously, they can only do so if they expend more labor now than before. And since any additional labor expenditure implies foregone leisure or consumption (leisure or consumption which they otherwise could have enjoyed along with the same output of valuable assets), their overall standard of living must be lower now.[63]
Hoppe also explains “why the assumption that taxation can possibly leave the productive output of valuable assets unaffected and exclusively cripple consumption is fatally flawed.”[64] This is because time preference—people’s preference of present goods over future goods—combines with the increased marginal utility of leisure and consumption and the decreased marginal utility of production. Because people have an increased preference for consumption (in the present), and a relatively decreased preference for production (in the future), the length of the structure of production is shortened, and thus fewer valuable future assets are produced. “Every act of taxation necessarily exerts a push away from more highly capitalized, and hence more productive production processes, and into the direction of a hand-to-mouth existence.”[65]
After showing that taxes reduce the standard of living of consumers, Hoppe discusses the sociological reasons for taxation, and ever more of it. This discussion is fascinating and insightful, but it comes down to the fact that there is taxation because the government can get away with it; the government can get away with it because a majority of the population either actively or passively support such governmental policies; and the majority support government because of the lack of (complete, principled) acceptance of a private property ethic.[66]
Government propaganda plays a role in influencing public opinion. Hoppe asks how the government could change public opinion from true ideas (i.e., the historical support in the United States for freedom and private property) to wrong ideas. He points out:
It would seem that such a change towards falsehood requires the systematic introduction of exogenous forces: A true ideology is capable of supporting itself merely by virtue of being true. A false one needs reinforcement by outside influences with a clear-cut, tangible impact on people in order to be capable of generating and supporting a climate of intellectual corruption.[67]
(Objectivists who would criticize Hoppe because many of his ideas were influenced by Kant should note Hoppe’s radical lack of epistemological and moral skepticism evident in this statement.)
Thus the government effectively buys support from the populace through a system of transfer payments, grants of privilege, and governmental provision of certain goods, e.g., education, which makes the populace increasingly dependent on the continuation of state rule.[68] By adopting democracy, the state “opens every government position to everyone and grants equal and universal rights of participation and competition in the making of state-policy.”[69] Thus people gradually lose sight of the immorality of the exploitation and expropriation in which they participate, and are lured “into accepting the view that such acts are legitimate as long as one is guaranteed a say over them….”[70]
[W]hen everyone is potentially a minister, no one is concerned to cut down an office to which he aspires one day himself, or to put sand in a machine which he means to use himself when his turn comes. Hence it is that there is in the political circles of a modern society a wide complicity in the extension of power.[71]
Hoppe concludes that everything depends on a change in public opinion. Although this may appear hopeless, “ideas have changed in the past and can change again in the future … and the idea of private property has certainly one attraction: it, and only it, is a true reflection of man’s nature as a rational being.”[72]
C. Banking, Nation States, and International Politics
Chapter 3, “Banking, Nation States, and International Politics: A Sociological Reconstruction of the Present Economic Order,” is the best and most important chapter in Part One. Here Hoppe explores how and why the state monopolizes money and banking and shows the danger of the ever-approaching international monetary order.[73] Similarly to the discussion in chapter 2, this chapter argues that the state arises despite its inefficiencies and immorality and therefore depends upon public support, either active or passive. To create legitimacy in the minds of the public, the state engages in propaganda:
Much time and effort is spent persuading the public that things are not really as they appear: Exploitation is really freedom; taxes are really voluntary … no one is ruled by anyone but we all rule ourselves; … etc.[74]
Additionally, to garner public support, the state also engages in redistribution: it takes individuals’ wealth, which individuals tend to resist, but redistributes some of it to individuals in order to corrupt them into assuming state-supportive roles. Because the state rests upon coercion, it must of course monopolize the police, defense, and courts.[75] In order to be able to regularly exploit the population, the state must also control traffic and communications, so it monopolizes these also. The state monopolizes the field of education to eliminate ideological competition. The state also adopts a democratic system that opens up potential government jobs and votes to all, giving the people a legal stake in the state in order to reduce resistance to state power.[76]
But “[t]he monopolization of money and banking is the ultimate pillar on which the modern state rests.”[77] Thus the state monopolizes the minting of gold (to shift psychologically the emphasis from gold in universal terms like ounces to terms of fiat labels like “dollars”); passes legal tender laws; monopolizes the banking system; nationalizes gold; and finally cuts the last tie to gold by declaring paper notes irredeemable in gold.
But because there is still competition among states, which limits governments’ abilities to inflate their currencies, governments have an incentive to expand their territories and to expand the territory in which each government’s currency is in place. Historically, the tendency has been towards a one-world government, with a one-world paper currency, with the United States at the helm, and with no remaining limit on inflation of the money supply except hyperinflation and a collapse of the economy. This tendency is likely to continue unless public opinion:
… the only constraint on government growth[,] undergoes a substantial change and the public begins to understand the lessons explained in this [chapter]: that economic rationality as well as justice and morality demand a worldwide gold standard and free, 100% reserve banking as well as free markets worldwide; and that world government, a world central bank and a world paper currency—contrary to the deceptive impression of representing universal values—actually means the universalization and intensification of exploitation, counterfeiting-fraud, and economic destruction.[78]
D. Marxism Reformed by Praxeology
Chapter 4, “Marxist and Austrian Class Analysis,” is an interesting chapter that reinterprets the Marxist theory of history from an Austrian economics perspective. Hoppe argues that the hard-core tenets of the Marxist theory of history are essentially correct, but are derived in Marxism from a false starting point; and that the Mises-Rothbard brand of Austrianism can give a different justification for the validity of these theses.
The five hard-core Marxist beliefs are: (1) The history of mankind is the history of class struggles; (2) the ruling class is unified by its common interest in upholding its exploitative position and maximizing its exploitatively appropriated surplus product; (3) class rule manifests itself primarily in specific arrangements regarding the relations of production (i.e., the assignment of property rights); (4) internally, the process of competition within the ruling class generates a tendency toward increasing concentration and centralization; and (5) finally, with the centralization and expansion of exploitative rule gradually approaching its ultimate limit of world domination, class rule will increasingly become incompatible with the further development and improvement of “productive forces.”[79]
Hoppe points out that Marx’s theory of exploitation is flawed because, in maintaining that there is exploitation when a capitalist retains a surplus profit after paying a laborer, his theory does not take into account nor “understand the phenomenon of time preferencesas a universal category of human action.”[80] Of course, once time preference is considered, it can be seen that “contrary to the case of slave and slave master where the latter benefits at the expense of the former, the relationship between the free laborer and the capitalist is a mutually beneficial one.”[81] It is logically absurd to regard homesteading of unowned goods, or voluntary agreements between different homesteaders, as exploitative, because nothing is taken away from anybody by these activities, and goods are actually created. “Instead, exploitation takes place whenever any deviation from the homesteading principle occurs…. Exploitation is the expropriation of homesteaders, producers and savers by late-coming non-homesteaders, non-producers, non-savers
and non-contractors….”[82] Given this theory of exploitation, Hoppe analyzes the nature of government to justify the five Marxist theses above.
E. Mises Versus Keynes
The final chapter in Part One, “Theory of Employment, Money, Interest, and the Capitalist Process: The Misesian Case Against Keynes,” contains an illuminating discussion of the Austrian theories of employment, money, and interest. After this discussion, Hoppe states that it is now “easy to recognize Keynes’s ‘new’ General Theory of Employment, Interest, and Money as fundamentally flawed and the Keynesian revolution as one of this century’s foremost intellectual scandals.”[83] Hoppe then proceeds to eviscerate Keynes’s theories against this backdrop.
V. CONCLUSION
Like A Theory of Socialism and Capitalism before it, The Economics and Ethics of Private Property contains cutting-edge economic theories and breakthroughs in epistemology and individual rights theories. Hoppe is indeed correct that, in the long run, immoral government policies depend upon the tacit support of the majority of the population. The only way to win more recognition and enforcement of our individual rights is to educate the populace of the truth and wisdom of freedom. The publication of works like Hoppe’s, with an uncompromising, hard-core (and, more importantly, correct) defense of liberty, certainly advances this cause.
ENDNOTES [some italics and formatting missing]
[1] See “The Ethical Justification of Capitalism and Why Socialism Is Morally Indefensible,” chap. 7 in Hans-Hermann Hoppe, A Theory of Socialism and Capitalism: Economics, Politics, and Ethics (Auburn, Ala.: Mises Institute, 2010 [1989]; www.hanshoppe.com/tsc). Argumentation ethics is discussed in “Dialogical Arguments for Libertarian Rights” (ch. 6) and “Defending Argumentation Ethics” (ch. 7).
[2] Hoppe’s article, “The Ultimate Justification of the Private Property Ethic,” Liberty 2, no. 1 (Sept. 1988; https://perma.cc/6TYM-BJRZ): 20–22 (included as chap. 13 of EEPP), was the subject of the symposium, “Breakthrough or Buncombe,” Liberty 2, no. 2 (Nov. 1988; https://perma.cc/A5UU-P64A): 44–53, containing discussion of Hoppe’s argumentation ethics by several libertarian theorists, many critical, and Hoppe’s reply, “Utilitarians and Randians vs Reason” (53–54). This reply is included in “Appendix: Four Critical Replies” in EEPP; see also subsequent response to critics in idem, “PFP163 | Hans Hermann Hoppe, ‘On The Ethics of Argumentation’ (PFS 2016),” The Property and Freedom Podcast, ep. 163 (June 30, 2022).
In addition to the response to the Liberty symposium, “Appendix: Four Critical Replies” also includes responses to David Osterfeld, Loren Lomasky, and David Conway in other publications. See David Osterfeld, “Comment on Hoppe,” Austrian Economics Newsletter 9, no. 3 (Spring/Summer 1988; https://perma.cc/4229-ZR7P): 9–10 (also including Hoppe’s reply, “Demonstrated Preference and Private Property: Reply to Professor Osterfeld,” pp. 10–12, and Sheldon Richman, “Comment on Osterfeld,” p. 10). David Conway’s review of Hoppe, A Theory of Socialism and Capitalism (pp. 11–14) and Hoppe’s response, “On the Indefensibility of Welfare Rights: A Comment on Conway” (pp. 14–16), appeared in Austrian Economics Newsletter 11, no. 1 (Winter/Spring 1990; https://perma.cc/X2PR-H8BW). Loren Lomasky’s criticism was “The Argument from Mere Argument,” Liberty 3, no. 1 (Sept. 1989; https://perma.cc/38XS-ZDEL): 55–57. Hoppe’s reply to Lomasky was “Intimidation by Argument—Once Again,” Liberty 3, no. 2 (Nov. 1989; https://perma.cc/4382-RKSQ): 37–39, republished as “Intimidation by Argument,” section III in “Appendix: Four Critical Replies.” Rothbard’s humorous response to Lomasky was “Hoppephobia,” originally published in Liberty 3, no. 4 (March 1990; https://perma.cc/JT7K-YTUJ): 11–12, reprinted at LewRockwell.com (Oct. 4, 2014; https://perma.cc/5HH6-2P78. See also the discussion re Lomasky and others in “Defending Argumentation Ethics” (ch. 7), at n.4 et pass., including excerpts from Hoppe’s and Rothbard’s responses to Lomasky’s critique.
For more on argumentation ethics, see Kinsella, “Argumentation Ethics and Liberty: A Concise Guide,” StephanKinsella.com (May 27, 2011); idem, “Hoppe’s Argumentation Ethics and Its Critics,” StephanKinsella.com (Aug. 11, 2015).
Regarding Yeager—in my view, he is wrong about several topics. First, he is wrong about Hoppe’s argumentation ethics; see also “Defending Argumentation Ethics” (ch. 7), n.5. Also, he is wrong about self-ownership; see “How We Come to Own Ourselves” (ch. 4), n.1. And he is wrong about knowledge and the calculation problem. On this latter issue, see “Legislation and the Discovery of Law in a Free Society” (ch. 13), at n.66, and references in Kinsella, “The Great Mises-Hayek Dehomogenization/Economic Calculation Debate,” StephanKinsella.com (Feb. 8, 2016), including Leland B. Yeager, “Mises and Hayek and Calculation and Knowledge,” Rev. Austrian Econ. 7, no. 2 (1994; https://mises.org/library/mises-and-hayek-and-calculation-and-knowledge): 93–109; Joseph Salerno, “Reply to Leland B. Yeager on Mises and Hayek on Calculation and Knowledge,” Rev. Austrian Econ. 7, no. 2 (1994; https://mises.org/library/reply-leland-b-yeager-mises-and-hayek-calculation-and-knowledge): 111–25, and Yeager, “Calculation and Knowledge: Let’s Write Finis,” Rev. Austrian Econ. 10, no. 1 (1997; https://mises.org/library/calculation-and-knowledge-lets-write-finis): 133–36.
[6] Ibid., p. 316. On universalizability, see Kinsella, “The problem of particularistic ethicsor, why everyone really has to admit the validity of the universalizability principle,” StephanKinsella.com (Nov. 10, 2011); “What Libertarianism Is” (ch. 2), at n.23; “How We Come to Own Ourselves” (ch. 4), n.15; “A Libertarian Theory of Punishment and Rights” (ch. 5), Part III.D.1; “Dialogical Arguments for Libertarian Rights” (ch. 6), at n.43; and “Defending Argumentation Ethics” (ch. 7), the section “Universalizability.”
[10] Ibid., pp. 319–22. Hoppe makes it clear that, although he agrees with Locke’s theory of homesteading by mixing one’s labor with resources, he believes the Lockean proviso—Locke’s limitation that the right to homestead extends only when “enough and as good” is left for others—is false and must be rejected (contra Lomasky). Ibid., p. 410.
[11] For further elaboration of these issues, see “What Libertarianism Is” (ch. 2) and “How We Come to Own Ourselves” (ch. 4).
[12] For subsequent discussion of argumentation ethics since the publication of the original article in 1994, see Kinsella, “Argumentation Ethics and Liberty: A Concise Guide” and idem, “Hoppe’s Argumentation Ethics and Its Critics.”
[13] Kinsella, “Estoppel: A New Justification for Individual Rights,” Reason Papers No. 17 (Fall 1992): 61–74. See note 15, below.
[14] Rothbard has developed a useful classification or typology of aggressive intervention. If an aggressor’s command or order involves only the commanded individual himself—i.e., the aggressor restricts the individual’s use of his own property, when exchange with someone else is not involved—this Rothbard calls autistic intervention. If the aggressor compels an exchange between the individual and himself, or coerces a “gift” from the individual subject, this may be called a binary intervention, since a hegemonic relation is established between two people: the aggressor and the individual subject. If the aggressor compels or prohibits an exchange between a pair of subjects, this is called triangular intervention.
Examples of autistic intervention are murder or compulsory prohibition or enforcement of a salute or speech. Taxation, conscription, slavery, and compulsory jury service are examples of binary intervention. Examples of triangular intervention are price controls, minimum wage laws, and licensing. 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. 12, §2. In chapter 3, “Banking, Nation States and International Politics: A Sociological Reconstruction of the Present Economic Order,” Hoppe makes similar distinctions among aggressive actions in pointing out why states with relatively more liberal internal economic policies are more successful in war against states with relatively less internal liberalization:
The need for a productive economy that a warring state must have also explains why it is that ceteris paribus those states which have adjusted their internal redistributive policies so as to decrease the importance of economic regulations relative to that of taxation tend to outstrip their competitors in the arena of international politics. Regulations through which states either compel or prohibit certain exchanges between two or more private persons as well as taxation imply a non-productive and/or non-contractual income expropriation and thus both damage homesteaders, producers or contractors i.e., those that cause wealth to come into existence. However, while by no means less destructive of productive output than taxation, regulations have the peculiar characteristic of requiring the state’s control over economic resources in order to become enforceable without simultaneously increasing the resources at its disposal. In practice, this is to say that they require the state’s command over taxes, yet they produce no monetary income for the state (instead, they satisfy pure power lust, as when A, for no material gain of his own, prohibits B and C from engaging in mutually beneficial trade). On the other hand, taxation and a redistribution of tax revenue according to the principle “from Peter to Paul,” increases the economic means at the government’s disposal at least by its own “handling charge” for the act of redistribution. Since a policy of taxation, and taxation without regulation, yields a higher monetary return to the state (and with this more resources expendable on the war effort!) than a policy of regulation, and regulation with taxation, states must move in the direction of a comparatively deregulated economy and a comparatively pure tax-state in order to avoid international defeat…. A highly characteristic example of this connection between a policy of internal deregulation and increased external aggressiveness is provided by the Reagan administration.
EEPP, p. 102–103 & n.22.
[15] Kinsella, “Estoppel: A New Justification for Individual Rights.” An expanded discussion of the estoppel theory will be presented in my work-in-progress, Estoppel: A Theory of Rights. (Author’s note: This previous comment was included in the original 1994 article. Subsequently, I elaborated on this theory, albeit under different titles than previously envisioned. See “A Libertarian Theory of Punishment and Rights” (ch. 5) and “Dialogical Arguments for Libertarian Rights” (ch. 6).)
[16] Murray N. Rothbard, “Beyond Is and Ought,” Liberty 2, no. 2 (Nov. 1988; https://perma.cc/8LZR-DN6Y; also https://mises.org/library/beyond-and-ought): 44–45.
[17] Although Hoppe demonstrates the a priori character of several concepts, he neither systematically nor exhaustively catalogues them. See Part IV, below, for a discussion of Hoppe’s a priori concepts.
[18] EEPP, p. 301. For an interesting discussion of neuropsychologist Roger W. Sperry’s writing on the subject of free will, determinism, and causality, see Charles Ripley, “Sperry’s Concept of Consciousness,” Inquiry 27 (1990): 399–423; see also Leonard Peikoff, Objectivism: The Philosophy of Ayn Rand (1991), pp. 69–72 (discussing Ayn Rand’s theory of volition and its relation to causality); and David Kelley, “The Nature of Free Will,” The Foundations of Knowledge, Lecture 6 (Portland Institute Conference, 1986; YouTube; https://youtu.be/m8qeaxNl7jE). [playlist; David Kelley, Foundations of Knowledge Lecture Series]
[21] Ibid., p. 313 (Alan Gewirth, “Law, Action, and Morality,” in Georgetown Symposium on Ethics: Essays in Honor of Henry B. Veatch, R. Porreco, ed. (New York: University Press of America, 1984), p. 73)). See also the related discussion in “Dialogical Arguments for Libertarian Rights” (ch. 6), the section “Argumentation Ethics and Natural Rights.”
[24] Ibid., pp. 321–22, quoting Murray N. Rothbard, “A Crusoe Social Philosophy,” in The Ethics of Liberty (New York: New York University Press, 1998), pp. 32–33, also published as idem, “A Crusoe Social Philosophy,” Mises Daily (December 7, 2021; https://mises.org/library/crusoe-social-philosophy). Ayn Rand’s thought related to this subject is worth noting:
[A]s Rand maintains, all “oughts” are hypothetical, based on valuing one’s life….
The point is not that one has to be alive in order to act to achieve anything. The point is that being pro-life is what makes end states qualify as values. Only choosing to hold one’s life as a value gives one the stake in one’s actions that is required for the whole issue of evaluation to arise….
Contrary to biological determinism, one does not have to pursue any goals or proclaim anything to be of value. But contrary to subjectivism, if one does, the action or proclamation logically depends on implicitly accepting one’s life as one’s ultimate value….
The issue of justifying choices arises only in the context of having already chosen to live. The choice to live is not extra-moral, but pre-moral; it is a precondition of all moral evaluation.
Harry Binswanger, “Life-Based Teleology and the Foundations of Ethics,” The Monist 75, no. 1 (Jan. 1992): 84–103, at 99–100. As Ayn Rand states:
Life or death is man’s only fundamental alternative. To live is his basic act of choice. If he chooses to live, a rational ethics will tell him what principles of action are required to implement his choice. If he does not choose to live, nature will take its course.
Ibid., at 100 (quoting Ayn Rand, “Causality Versus Duty,” in Philosophy: Who Needs It (Signet 1984), pp. 95, 99. For further discussion of the structure of this Rothbard’s argument for rights here, see David Osterfeld, “Natural Rights Debate: A Comment on a Reply,” J. Libertarian Stud. 7, no. 1 (Spring 1983; https://mises.org/library/natural-rights-debate-comment-reply-0): 101–13, pp. 106–07.
[26] This is in marked contrast to Hoppe’s normal habit of clearly defining key terms. For example, Hoppe has brilliantly demonstrated that socialism “must be conceptualized as an institutionalized interference with or aggression against private property and private property claims.” Hoppe, A Theory of Socialism and Capitalism, p. 10.
[28] Lomasky makes a similar critique in “The Argument from Mere Argument.”
[29] EEPP, p. 314 n.16. Jürgen Habermas’s works, often in German, are cited frequently throughout the book. Habermas’s work on “communicative action” is crucial in Hoppe’s own argumentation ethics. See also discussion in “Dialogical Arguments for Libertarian Rights” (ch. 6), n.25 et pass. Habermas’s writings published in English, or English-language discussions of Habermas’s works, include: Seyla Benhabib & Fred Dallmayr, eds., The Communicative Ethics Controversy (Cambridge, Mass.: MIT Press, 1990); Douglas B. Rasmussen, “Political Legitimacy and Discourse Ethics,” International Philosophical Quarterly 32 (1992; https://perma.cc/MK59-QEVV); Jeremy Shearmur, “Habermas: A Critical Approach,” Critical Rev. 2 (1988): 39–50; Kenneth Baynes, The Normative Grounds of Social Criticism: Kant, Rawls, and Habermas (Albany: State University of New York Press, 1992), pp. 77–122; Jane Braaten, Habermas’s Critical Theory of Society (1991); Jürgen Habermas, Moral Consciousness and Communicative Action, Christian Lenhardt & Shierry Weber Nicholsen,trans.(Cambridge, Mass.: MIT Press, 1990 [1983]) (containing English translation of work originally published in German as “Moralbewusstsein und communikatives Handeln”);idem, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, William Rehg, trans. (Cambridge, Mass.: MIT Press, 1996; https://perma.cc/27K9-YWW2); idem, Communication and the Evolution of Society, Thomas McCarthy, trans. (Boston: Beacon Press, 1979); idem, Knowledge and Human Interests, Jeremy Shapiro, trans. (Boston: Beacon Press, 1972); idem, Legitimation Crisis, Thomas McCarthy, trans. (Boston: Beacon Press, 1975); idem, The Philosophical Discourse of Modernity : Twelve Lectures, Fredrick Lawrence, trans. (Cambridge, Mass.: MIT Press, 1987); idem, Theory and Practice, John Viertel,trans. (Boston: Beacon Press, 1973); idem, The Theory of Communicative Action, Thomas McCarthy, trans. (Boston: Beacon Press, 1984 & 1987) (two volumes); Thomas McCarthy, The Critical Theory of Jürgen Habermas (Cambridge, Mass.: MIT Press, 1981); idem, Ideals and Illusions: On Reconstruction and Deconstruction in Contemporary Critical Theory (Cambridge, Mass.: MIT Press, 1993); John B. Thompson & David Held, eds., Habermas: Critical Debates (London: Macmillan Press, 1982); Michael Pusey, Jürgen Habermas (London and New York: Routledge, 1987); Richard J. Bernstein, ed., Habermas and Modernity (Cambridge, Mass.: MIT Press, 1985); Jürgen Habermas, Jürgen Habermas on Society and Politics: A Reader, Steven Seidman, ed. (Boston: Beacon Press, 1989); David M. Rasmussen, ed., Reading Habermas (Wiley-Blackwell, 1991); Stephen K. White, The Recent Work of Jürgen Habermas (Cambridge University Press, 1988); Gary C. Leedes, “The Discourse Ethics Alternative to Rust v. Sullivan,” U. Rich. L. Rev. 26 (1991; https://scholarship.richmond.edu/lawreview/vol26/iss1/4/): 87–143, at 108-11; Lawrence B. Solum, “Freedom of Communicative Action: A Theory of the First Amendment Freedom of Speech,” Northwestern U. L. Rev. 83 (1989; https://scholarship.law.georgetown.edu/facpub/1954/): 54–135, at 86–106.
See also Karl-Otto Apel, “Is the Ethics of the Ideal Communication Community a Utopia? On the Relationship between Ethics, Utopia, and the Critique of Utopia,”in Benhabib & Dallmayr, eds., The Communicative Ethics Controversy; idem, “The A Prioriof the Communication Community and the Foundations of Ethics,” in Towards a Transformation of Philosophy (London and New York: Routledge, 1980); idem, “The Problem of Philosophical Foundations Grounding in Light of a Transcendental Pragmatics of Language,” in Kenneth Baynes, James Bohman & Thomas McCarthy, eds., After Philosophy: End or Transformation? (Cambridges, Mass.: MIT Press, 1986); Kim Davies, “Review of K-O Apel, Towards a Transformation of Philosophy (1980),” Radical Philosophy 30 (Spring 1982; https://www.stephankinsella.com/wp-content/uploads/texts/davies_apel-review.pdf); Michel Rosenfeld, “Book Review of Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy,” Harv. L. Rev. 108 (1995): 1163–89.
[30] EEPP, p. 315 n.18. Gewirth’s theory is presented in his book Reason and Morality (Chicago: University of Chicago Press, 1978). For a concise statement of Gewirth’s theories, see his article “The Basis and Content of Human Rights,” Georgia L. Rev. 13 (1979): 1143–70; also idem, Moral Rationality (The Lindley Lecture, Univ. of Kansas, 1972; https://core.ac.uk/download/pdf/213402925.pdf); idem, “Law, Action, and Morality,” p. 73.
See also the discussion of Gewirth and his libertarian student Roger Pilon in “Dialogical Arguments for Libertarian Rights” (ch. 6).
[31] Gewirth, “The Basis and Content of Human Rights,” p. 1155.
[34] Roger A. Pilon, “Ordering Rights Consistently: Or What We Do and Do Not Have Rights To,” Georgia L. Rev. 13 (1979; https://perma.cc/FYX4-CFNH): 1171–96, pp. 1178, 1187; see also idem, A Theory of Rights: Toward Limited Government (Ph.D. dissertation, University of Chicago, 1979; https://perma.cc/DGS3-W4UA).
[47] Ibid., p. 282, quoting Immanuel Kant, Kritik der Reinen Vernunft [Critique of Pure Reason], in vol. 3 Werke, Wilhelm Weischedel, ed. (Frankfurt/M.: Suhrkamp, 1968), p. 45.
[50] Hans-Hermann Hoppe, Praxeology and Economic Science (1988), later included in idem, Economic Science and the Austrian Method (Auburn, Ala.: Mises Institute, 1995; www.hanshoppe.com/esam).
[53] Ibid., at 45 n.14. Goldberg’s article, however, is poorly reasoned and largely unconvincing. See David Kelley, The Evidence of the Senses: A Realist Theory of Perception (1986), p. 27–31 (discussing the primacy of existence); Leonard Peikoff, Objectivism: The Philosopy of Ayn Rand (New York: Dutton, 1991), pp. 148–52 (discussing Ayn Rand and philosophy of objectivity). The notorious phrase of Kant’s can be found in English in Immanuel Kant, Critique of Pure Reason (Norman K. Smith trans. 1953 [1929]), pp. 21–22. As David Kelley, executive director of the Institute for Objectivist Studies, paraphrases Kant:
Hitherto it has been supposed,” Kant says in his major work, “that all our knowledge must conform to the objects,” but, he argues, … under that supposition, every effort to establish the validity of consciousness has failed. So, “the experiment therefore ought to be made, whether we should not succeed better with the problems of metaphysics by assuming that the objects must conform to our mode of cognition.
Kelley perceptively criticizes Kant here with an analogy, that of Kant’s thought applied to the driving of a car:
Hitherto it has been supposed that our steering must conform to the road. But on this supposition it has proved impossible to establish the validity of our steering. The experiment therefore ought to be made, whether we should not have more success with the problem of driving by assuming that the road must conform to our steering.
Author’s note (2023): As Hoppe has observed, Kant’s meaning is ambiguous or murky enough because of his wording to cause some, such as Kelley, and other, primarily American, philosophers, to interpret Kant in this idealistic way, while others, primarily on the continent, have interpreted him in a more realistic way. See EEPP, p. 282 and 282 n.17, citing, as examples of the latter, Friedrich Kambartel, Erfahrung and Struktur (Frankfurt/M.: Suhrkamp, 1968), chap. 3 as well as Hoppe’s own Handeln und Erkennen: Zur Kritik des Empirismus am Beispiel der Philosophie David Humes (Bern: Lang, 1976; www.hanshoppe.com/german). Some other books suggested to me in this regard, which I have not yet read (and I don’t know German), include: Ralph C.S. Walker, Kant (London: Routledge and Kegan Paul, 1978) (suggested by Barry Smith); Paul Abela, Kant’s Empirical Realism (Oxford: Clarendon Press, 2002) and J.N. Findlay, Kant and the Transcendental Object: A Hermeneutic Study (Oxford: Clarendon Press, 1981) (suggested by David Gordon); Paul Lorenzen, Methodisches Denken (Frankfurt/M.: Suhrkamp, 1968) and idem, Normative Logic and Ethics (Mannheim: Bibliographisches Institut, 1969) (suggested by Hoppe); Magdalena Aebi, Kants Begründung der “Deutschen Philosophie”: Kants Transzendentale Logik, Kritik Ihrer Begründung (Basel: Verlag für Recht und Gesellschaft, 1947) (suggested by Kevin Mulligan).
But as Hoppe points out, “Whether or not such an interpretation of Kant’s epistemology is indeed correct is a very different matter. Clarifying this problem is of no concern here, however.” EEPP, p. 282 n.17. In any case, Kantians such as Mises, Kantian-Misesians such as Hoppe, and Aristotelean-Misesians such as Rothbard are in fact epistemological realists and not idealists as some philosophers construe Kant to be. To the contrary, the Misesian praxeological perspective helps to ground a realist epistemology. As Hoppe notes,
Recognizing knowledge as being structurally constrained by its role in the framework of action categories provides the solution to such a complaint, for as soon as this is realized, all idealistic suggestions of rationalist philosophy disappear, and an epistemology claiming that a priori true propositions exist becomes a realistic epistemology instead. Understood as constrained by action categories, the seemingly unbridgeable gulf between the mental on the one hand and the real, outside physical world on the other is bridged.
Ibid., pp. 282–83. For more on Hoppe’s realistic, Misesian-based epistemology, see his Economic Science and the Austrian Method, pp. 68–70. On Rothbard’s, see his “The Mantle of Science,” “In Defense of ‘Extreme Apriorism,’” and other chapters in Section One: Method, of Economic Controversies (Auburn, Ala.: Mises Institute, 2011; https://mises.org/library/economic-controversies). On Mises’s realism, see Ludwig von Mises, “Epistemological Studies,” in Memoirs, Arlene Oost-Zinner, trans. (Auburn, Ala.: Mises Institute, 2009; https://mises.org/library/book/memoirs) (formerly Notes and Recollections); Mises’s dismissive remarks on Popper in 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), chap. 4, §8 and chap. 7, §4; idem, Theory and History: An Interpretation of Social and Economic Evolution (Auburn, Ala.: Mises Institute, 2007 [1957]; https://mises.org/library/theory-and-history-interpretation-social-and-economic-evolution), chap. 1, §3. See also Edward W. Younkins, “Menger, Mises, Rand, and Beyond,” J. Ayn Rand Stud. 6, no. 2 (Spring 2005; https://perma.cc/SM4J-TYBV): 337–74, p. 342 et pass. (also in Edward W. Younkins, ed., Philosophers of Capitalism: Menger, Mises, Rand, and Beyond (Lexington Books, 2005)), and Heidi C. Morris, “Reason and Reality: The Logical Compatibility of Austrian Economics and Objectivism,” Rebirth of Reason (May 10, 2005; https://perma.cc/PSR5-MNFE).
[58] Ibid, p. 288 n.23; see Petr Beckmann, Einstein Plus Two (Golem Press, 1987), p. 27 et pass. (proposing theory implying that Einstein’s work does not prove physical space is non-Euclidean). In the journal founded by Dr. Beckmann, who passed away in 1993, a recent article purports to have found evidence disproving part of Einstein’s theory, thereby confirming Beckmann and Hoppe. Howard C. Hayden, “Stellar Aberration,” Galilean Electrodynamics [https://perma.cc/JUY8-W7WS] vol. 4, no. 5 (Sept./Oct. 1993; https://perma.cc/GQY6-KUVK): 89–92. In this article, Hayden, a professor of physics at the University of Connecticut, claims that evidence shows that the phenomenon of stellar aberration is not due to the relative velocity of a star with respect to Earth, as is claimed by Einstein’s theory of relativity. Ibid., at 91–92. The evidence thus casts doubt on the validity of Einsteinian relativity. Galilean Electrodynamics is now edited by Howard C. Hayden. (Author’s note (2023): this original comment was written in 1994.)
[66] In this book I often use “government” more or less synonymously with “the state,” although it is probably preferable to use the term state, when possible, as it is conceptually distinct from “government,” as one can imagine “governing institutions” of law and order in a private-law society. In fact many statists and mini-statists (minarchists) often engage in equivocation on this point; they presuppose that there cannot be law and order, or “government,” without the state, but if the anarchist claims to favor law and order, then the statist equates government with state and accuses the anarchist of being inconsistent. This is really simply disingenuous question-begging hidden behind an equivocation.
[68] Hoppe discusses some of these themes also in Democracy: The God That Failed (Transaction, 2001; www.hanshoppe.com/democracy).
[69] Ibid., p. 67. This calls to mind the words of Lysander Spooner, writing in 1870. Note especially Spooner’s point 2:
The ostensible supporters of the Constitution … are made up of three classes, viz.: 1. Knaves, a numerous and active class, who see in the government an instrument which they can use for their own aggrandizement or wealth. 2. Dupes—a large class, no doubt—each of whom, because he is allowed one voice out of millions in deciding what he may do with his own person and his own property, and because he is permitted to have the same voice in robbing, enslaving, and murdering others, that others have in robbing, enslaving, and murdering himself, is stupid enough to imagine that he is a “free man,” a “sovereign”; that this is a “free government”; “a government of equal rights,” “the best government on earth,” and such like absurdities. 3. A class who have some appreciation of the evils of government, but either do not see how to get rid of them, or do not choose to so far sacrifice their private interests as to give themselves seriously and earnestly to the work of making a change.
Lysander Spooner, “No Treason No. 4: The Constitution of No Authority,” in The Lysander Spooner Reader (San Francisco, Calif.: Fox and Wilkes, 1992; http://www.lysanderspooner.org/works). Spooner (1808–1887), an anarchist, was a Massachusetts lawyer noted for his vigorous opposition to the encroachment of the state upon the liberty of the individual, such as the institution of slavery. In No Treason, Spooner demolishes the “consent” theory of the validity of the Constitution. Unfortunately, Spooner was a total crank and wrong on the important issue of intellectual property. See “Law and Intellectual Property in a Stateless Society” (ch. 14), n.4 et pass.
[73] See note 14, above (quoting Hoppe’s explanation of why more liberal or free-market states are more successful in war or imperialism than more socialist states).
[74] EEPP, pp. 86–87. Here one is reminded of government leaders referring to taxes as “contributions.”
I was a guest on the fun and zany libertarian podcast “Johnny Rocket Launch Pad,” Episode 97. They fired questions at me one after another, and I did my best to field them. The sound effects were added later.
What are some things libertarians commonly get wrong? What bad habits do we fall into, with regard to philosophy and law? This week we are joined by the intellectual giant Stephan Kinsella, who brings his experience in law, and philosophy to the table. This episode exposes new ways of looking at old philosophies, and we also go into depth about intellectual property. This is an episode you cannot miss!
This is a debate between me and one Todd Lewis, hosted by Keith Preston, about self-ownership and the non-aggression principle. Lewis had participated in a decent debate with Walter Block previously, so I agreed to discuss with him, even though he was not clear where he was coming from, what his own position was, or what he hoped to prove by debunking the NAP (whenever someone is opposed to the NAP, I assume they want to justify aggression—I think I’m right). This Lewis character appears to be some kind of “Mennonite” Christian in Ohio, and claims to be a former “fusionist” (some kind of libertarian+conservative) and now some form of Christian conservative who believes in legally punishing homosexuality. I don’t think he was ever really a libertarian, to be honest. He attacks a lot of strawmen, and never really responds to my coherent statement of the libertarian vision. He calls this the “Praise of Folly” “podcast” though it is not a podcast since there is no RSS feed. But I’ll grant, he was far more civil and even intelligent than others I have debated, on topics like anarchy and IP, such as Jan Helfeld and Robert Wenzel, though that’s admittedly a low bar.
In this discussion, we discuss why intellectual property (IP) is a hindrance to progress and innovation for musicians, and how MusicPreneur’s can navigate the oftentimes confusing waters of IP.
I was a guest on the fun and zany libertarian podcast “
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