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Kinsella on Liberty Podcast, Episode 155.

This is the third of 6 lectures of my 2011 Mises Academy course “The Social Theory of Hoppe.” I’ll release the remaining lectures here in the podcast feed in upcoming days.

The slides for this lecture are appended below; links for “suggested readings” for the course are included in the podcast post for the first lecture, episode 153.

Transcript below.

LECTURE 3: LIBERTARIAN RIGHTS AND ARGUMENTATION ETHICS

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Slides

TRANSCRIPT

The Social Theory of Hoppe, Lecture 3: Libertarian Rights and Argumentation Ethics

Stephan Kinsella

Mises Academy, July 25, 2011

00:00:01

STEPHAN KINSELLA: … later.  So tonight we’ll talk about argumentation ethics.  I have a lot of slides, but some of them will go very fast because they’re just background in case you want to look at them later or if we need some quotes.  But let’s go ahead and dive right into tonight’s lecture.  By the way, before we start, I’m curious.  Who here – well, let me get to the readings page first.  I don’t know if I have that up there.  Who here read more than the required or suggested reading and onto the more optional reading?  I’m just curious how many students have actually read into the argumentation ethics literature beyond the basic stuff I recommended.  Anyone?

00:00:49

00:00:54

Okay, Jacob has.  Jacob, I’m curious.  What did you read beyond the basic stuff?  Method essay.  For argumentation ethics?  Okay.  In any case – oh, just by the way, so we’ll have a short quiz for the first – covering the first three weeks, which will start – I’ll have it posted in a few days.  I’m leaving tomorrow morning, by the way, for the Mises University, so I’ll be traveling tomorrow, but I’ll try to get it up in a couple days.  I wanted to finish this class first before I finish the test so I could make sure I covered only what we talked about in class.  Oh interesting, Jacob.  Good, so you’ve read a lot.  Well, maybe you can help me with some of the difficult questions in here.

00:01:45

So the multiple-choice test will be up in a few days.  It’s optional.  Don’t feel compelled to take it if you don’t want to.  It’s not meant to make anyone feel like they’re going to fail or anything.  It’s just a refresher on the course.  It’s going to be fun, test your knowledge, and to get the certificate if you’d like.  And again, it’s based upon what I say in the lectures, the slides, and also the reading material I mark as suggested but not on the optional reading material.

00:02:11

00:02:15

Okay, so last class we talked about various property issues, how the state arises and the nature of the state, the types of socialism.  We started to talk about de-socialization.  I don’t know if we’ll have time to get to that tonight.  I do have some slides on it at the very end, but I doubt we’ll be able to get to it very much.  Anyway, the article is pretty self-explanatory in any case.  Maybe we can cover it in lecture number six on political topics or number five on economic topics.

00:02:46

By the way, let me – well, we’ll talk at the end a bit about – next class will be on epistemology and methodology.  Okay, so today we’re going to talk about libertarian rights and argumentation ethics.  By the way, I have this little mini ad for my last course because I just want to remind people, I did cover some of this in that course in a more summary fashion.  And some of that’s included in these slides.  I modified it for tonight, and there’s extra stuff here too, but for anyone who took the previous course, some of this I talked about before.  But I’m actually leaving out here a lot of the stuff I talked about in the Libertarian Legal Theory course because it’s not directly pertinent to Hoppe’s approach, but some of this will look familiar to some of you.

00:03:29

So tonight we’re going to talk basically about two main questions.  We’re we talk about what libertarianism is, at least in different conceptions.  And then we’re going to talk about the justification Hoppe provides for it.  And if we have time, we can talk about some related approaches to argumentation ethics.  The readings for tonight – the suggested readings were primarily my kind of concise overview and Hoppe’s article “From the Economics of Laissez Faire to the Ethics of Libertarianism.”  And also his “Justice of Economic Efficiency” and this his “Appendix: Four Critical Replies.”  So that was – there’s a lot more out there, but that’s a good sort of overview of what to read to get the flavor of this whole debate.

00:04:18

Now, this will be a little bit elementary for everybody, so I’m going to go over this quickly because I think we probably already know this, but just to kind of get us in the right framework and to refresh us on where we’re going.  So let’s think about what is libertarianism about.  So it’s a type of political theory compared to other types would be Marxism, forms of leftism and socialism, conservativism, and even modern liberalism or welfare statism or social democracy. It’s concerned with justice in a certain way, and if you think about the traditional classic formulation of justice by – in The Institutes of Justinian, the Roman emperor who helped codify a lot of Roman law, he had said “Justice is a constant and perpetual wish to render everyone his due.

00:05:08

And the maxims of law are these: to live honestly, to hurt no one, to give everyone his due.  Now, these are nice formulations.  They’re a little bit circular.  They sort of – they circle back on each other because – it’s like defining ought is what you should do, and should – what you should do is what you ought to do.  Some of these normative terms are kind of basic, and they feed back on each other.

00:05:31

So we talk about political theory and justice, and we say, well, justice means giving someone his due.  You say, well, what are they do?  Well, the most coherent way to think about it is that what you’re due depends on what your property rights are.  And you’ll see the significance of this in a second when we talk about aggression.

00:05:50

Now, what’s different about libertarians – oh, thanks Rick.  You read Hülsmann’s too.  Thanks.  By the way, the Hülsmann article and also the Larry Seacrest article as well as one of Hoppe’s and one of mine all arose from a seminar we did at Mises on Reinach, Adolf Reinach, who was an amazing and fascinating German thinker.  He was killed I think in World War I.  He died very young, but he was a brilliant guy, produced some great stuff before then that was on the a priori of the civil law and on the criminal law as well.

00:06:32

In any case, a lot of good stuff resulted from that seminar.  It’s on my website if anyone is interested.  And that’s where Guido’s piece came from.  They were all published in the QJAE maybe ten years ago.  In any case, we don’t own the word justice, we libertarians.  But we do have a particular conception of what it means.  And according to that conception – so basically, I think of it like this.  Our conception of justice tells us what the rights we have are, and that tells us what laws there should be.

00:07:06

So it tells you what we’re due, what others owe you, which are obligations and duties, and that corresponds to your rights.  So our idea is that the actual law enforced in a given society, whether there’s a state or not, should conform to what we conceive of as natural law.  So you can think of natural law as an ideal template of laws that should exist, so we’re always aspiring or trying to make laws that do exist conform to that to be just.  So you can think that a conception of justice informs your conception of what rights there are, and that informs your idea of what laws there should be.  So this is just sort of general orientation of framework here.

00:07:47

Slide number seven.  Now, libertarianism is sort of described in a lot of pithy sayings, examples, analogies, metaphors, aphorisms, and kind of summary or condensation statements.  So, for example, Leonard Read, the founder of FEE, in a famous libertarian book in ’54 said people should be free to do anything that’s peaceful.  That’s a pretty good summary of some of the basic normative aspects of libertarianism, but it doesn’t tell you too much.

00:08:21

Dave Boaz said: Libertarianism is the view that each person has the right to live his life in any way he chooses so long as he respects the equal rights of others.”  That’s a pretty good – gives you the flavor of it too, but what does it mean to respect the equal rights of others?  I mean if everyone had a right to welfare, then you’re respecting their equal rights, and I mean it only gets you so far.  Ayn Rand put it a little bit colorfully in Galt’s speech: “So long as men desire to live together, no man may initiate—do you hear me?  No man may start the use of physical force against the others.”  And this is a sort of a good capsule way of stating the – what we call the non-aggression principle.

00:09:05

Rick asks about Bastiat, whether I consider him a libertarian in the strict sense.  I mean I’ve read a lot of Bastiat.  I’ve read him early on.  He was influential to me.  I haven’t revisited him lately on a lot of his issues.  I don’t believe he was an anarchist, but I do believe that – well, for his time I’d say he was a strong libertarian, very radical, very clear thinking.  And the things I’ve heard him write on seem to be pretty much all compatible with libertarianism.  I don’t know if I heard him write on a lot of other libertarian or political views like drug regulations and social and moral regulations, but he seemed to be leaning strongly in the libertarian direction.  He seems to at least be a classical liberal.

00:09:45

So let’s go on, slide number eight.  So we’ve come to a better formulation, the non-aggression principle.  Some call it the non-aggression axiom.  I tend to say non-aggression principle.  Most others nowadays, from what I’ve seen, tend to say principle instead of axiom, and they sometimes call it the NAP, NAP, the NAP.  And Rothbart said: The libertarian creed—or belief—rests upon one central axiom: that no man or group of men may aggress against the person or property of anyone else.

00:10:17

Okay, and aggression is defined as the initiation of the use or threat of physical violence against the person or property of someone else, so it’s synonymous with invasion.  So you can see he’s getting a little bit more descript now.  He’s defining it in terms of the person, which is your body, or the property.  But still, we haven’t defined what the property of someone is.  So if someone is not entitled to the money they earned from doing a job, and the state takes it in the form of taxes, or if a robber robs them of it, is that aggression?

00:10:49

Well, it’s only aggression if it’s their property, so you have to first define who owns that money, who’s entitled to keep it.  So in a way, property is prior to the concept of aggression.  The concept of aggression depends upon filling in the details of what property rights there are.  Now, so there’s different types of libertarianism based upon how strictly you construe the non-aggression principle and how you apply it.  So you have classical liberalism, also sometimes called the nightwatchman state.  Maybe the American founders were somewhat of an example of that.

00:11:28

It’s somewhat libertarian, not completely libertarian.  Then you have minarchists, which I would say is a branch of libertarianism.  I think it’s confused in that it is not anarchist and still believes there’s a role for the state, but at least the strict minarchists believe in an extremely narrow and circumscribed and limited role for the state.  This would include Randians.  Well, I used to think so, but at least nowadays they express, or nowadays I see that they have always expressed some serious deviations from even what I would consider to be minarchism such as some acts of war and intellectual property, for example.

00:12:09

But they are close to being minarchists anyway.  From what I’ve seen, most minarchists are utilitarians and consequentialists except for Randians.  But I think even Randians have consequentialist and even utilitarian aspects, primarily consequentialist, and we’ll get to this in a minute.  Utilitarian in, for example, Rand’s defense of intellectual property and her opposition to anarchy was kind of utilitarian.

00:12:39

Then you have anarcho-libertarians, which are the anarcho-capitalists, which I believe are the most consistent.  That would include, of course, Hoppe.  Finally, you have one flavor of libertarian, the left libertarians.  They tend to be anarchist libertarians, but they have a slightly different emphasis on workers and exploitation and capitalism and some terminology.

00:13:04

Oh, so let’s go.  Dante asks a question about the word axioms versus principles.  Well, Ayn Rand – I mean, in math sometimes the word axiom just means an assumed starting point.  Ayn Rand used axiom more like the Misesians would use the concept of a priori to mean some kind of fundamental principle or proposition that is almost self-contradictory to deny it.  Therefore, we can know that it’s true, and it can’t even be denied.  For example, I think Rank talked about axioms, like the law of non-contradiction, the law of identity, the fact that you exist, that there’s consciousness, things like this.

00:13:45

She would call those axioms, and I think Rothbard was coming from her camp.  He might have used non-aggression axiom as a starting point type thing, or maybe he believed it was self-evident or self-contradictory.  But most people, when they say non-aggression axiom, they mean it’s a foundational principle.  So I think it’s better to call it non-aggression principle because different libertarians have different opinions about whether the principle is just assumed, or whether it is self-contradictory.  So to avoid question begging, I think it’s better to call it the non-aggression principle.

00:14:17

00:14:21

All right, I’ll go quickly through this.  This is the way some libertarians in the past have tried to categorize libertarians.  There’s the famous Nolan Chart.  I think it was originated by Dave Nolan, who was one of the original Libertarian Party founders in the U.S.  So he looked at the left right spectrum, as you can see here on slide 10. – he looked at a two a two-dimensional – excuse me – chart with one axis being personal liberty, and the other axis being economic liberty.  So he tried to show that conservatives tend to be bad on personal liberties but good on economic liberties, and liberals or leftists are vice versa, so that’s the left right spectrum.

00:15:03

Libertarians are sort of better on both, and statists and totalitarians are worse on both.  I think this is useful to see if there’s disagreement on some of the questions that you’re scored on because libertarians don’t agree on everything, of course.  But I think that – one problem with it is that I think that, in some ways, the right is worse than the left on both economic and personal liberties.

00:15:31

And on the other hand, the left is worse than the right on both issues, at least in terms of hypocrisy.  So I can see left and right as being both bad on both personal and economic liberties, but anyway, we’re just defining what libertarians are.  The reason I’m going through this definition to look at it is because we want to look at Hoppe’s justification for it so we first set it out; then we talk about how you can justify it.  First, you describe what we believe; then you describe why we believe it.

00:15:58

There’s another bell curve that Tom Knapp came up with from Center for the Study of a Stateless Society.  Anyway, you can agree or – you can disagree or disagree whether or not he’s right and where the endpoints meet.  I have another picture here on 12, a bigger one.  He chose the classical anarchists and the anarcho-capitalists almost having those, kind of looping around and having the same views.  In any case, he has in this percentage of how much force you advocate, so that’s another way of looking at it.

00:16:32

Now, let’s go back to – I mentioned some of this earlier in lecture one, what Hoppe’s view is and so is Rothbard’s when they describe what the natural situation is.  So this corresponds to basically libertarian principle, and also it corresponds to what Hoppe seeks to justify his argumentation ethics.  So you could say that the libertarian view is a normative view.  It’s a view of norms, rules of social conduct, and rules of conduct, things you should follow.

00:17:01

So that, of course, the libertarian normative view corresponds to the natural position Hoppe and Rothbard have identified.  And, if you remember, that basically corresponds to their views on ownership of bodies, the right to contract and homesteading.  I think I mentioned this before, but Hoppe talks about how we don’t usually think of our bodies as a scarce good, but you can – it is a scarce good.  And it’s the prototype of a scarce good for what need property rights for.  That is, we establish – we assign property rights in things that are scarce, including our bodies, so that we can avoid physical, violent clashes over these things and use them peacefully, cooperatively and productively in society, and then a division of labor.

00:17:48

00:17:51

Okay, so as Hoppe says here, what is the natural position regarding the property that’s implicit in the natural way speaking about bodies, like I say my body.  You say your body.  And he just states that the rules is – now this is the – you can think of this as the libertarian rule with respect to bodies.  The rule is every person has the exclusive right of ownership of his body within the boundaries of its surface.  And every person can put his body to those uses he thinks best for his immediate or long-run interests, well-being, or satisfaction, as long as he doesn’t interfere with another person’s right to control the use of his or her respective body.  Now, this is just descriptive.  We’re just stating what the view is, and what the natural view is.

00:18:35

00:18:41

Okay, my poodles will stop barking in a second.  Sorry for that.  Now, what’s the natural view about – that underlies this way of looking at it?  So what Hoppe says is that the reason we think it’s natural to say you own your body is because every person can say there’s a determinant natural link between me and my body.

00:19:08

And then he looks at it as being produced, not in a sort of metaphysical sense, like creating it out of nothing, but in that I have basically changed it according to a plan.  I’m the one who uses it.  Okay, everyone, excuse me for two minutes so I can shut my poodles up.  Excuse me for just a second.  Okay, my apologies.  All right, so I’m just – I’m describing Hoppe’s views here about why he thinks that there is – what is natural about owning your body, and that is that there’s a production aspect to it.  And this is key to Hoppe’s property theory is that the essence of establishing a property right is to establish borders around the thing, that is, to produce borderlines for things.  So by using your body, you’re demonstrating to the world that this determinant physical object is under your control, and they can avoid transgressing the borders of it if they want to.  The borders of bodies are clear.

00:20:43

00:20:45

Okay, so let’s go to slide 16.  Now, there’s a notion of contract.  We normally think of contract, at least in the Rothbardian sense, as having to do with physical objects that we own.  But the general sense of contract in this Rothbardian-Hoppian sense is just the exercise – the owner’s prerogative to exercise who gets to use the resource.  So the respect to your body, that means you have the right, as the owner of your body, to invite or agree to other people doing something with or to your body.  So you can let someone kiss you, inject drugs into your body, etc. if you choose to, and so this is sort of the prototype or the general notion of a contractual exchange.

00:21:35

And by contrast, aggression would be using someone’s body without being invited, that is, without their consent or permission.  Okay, so that’s what aggression is with respect to bodies.  So you can see now that aggression depends upon the concept of property, saying that the owner of the body is the person that controls the body.  And therefore, they have the right to invite or deny permission to others to use it.

00:22:00

Now, what about other scarce resources in the world, things other than someone’s body, basically goods in the world?  Now, this is a key point, and we’ll bring it up later tonight, but Hoppe says that unlike bodies which are never unowned, which have a natural owner always.  The natural owner is the occupant of the body, you could say, or the person who controls the body.  All other scarce resources can be unowned, so this does make a difference for concepts of alienability and how we ground these rights, which we’ll see later.

00:22:35

A lot of libertarians think that you justify the ownership of things and your body in the same way by saying that the first owner – the first user is the owner by homesteading.  But you can see here that you’re not really the owner of the body because you homestead it.  You’re the owner because you have a direct determinant link to it, and you are the first user usually but not with respect to your parents.  But you have a special connection to it, which gives you a better claim to it than other people.

00:23:02

Okay, but basically to appropriate things outside of your body, you think of yourself as a homesteader, that is, a person having a body that’s already owned, moving in the world, and using action to appropriate things that are outside of human bodies and that are currently unowned.  And we call this original appropriation, and basically this is also embordering, establishing border lines, putting up a fence, transforming the resource so that others can tell what its boundaries are, and that it’s claimed as owned.

00:23:39

00:23:42

And again, contract, with respect to external resources, would again be the owner giving permission or denying permission of others to use it.  Now, this is why Hoppe says a capitalist system is a social system based upon this natural position.  H calls this pure capitalist, but this is just semantics at this point.  Quickly, by the way, this view of contract that Hoppe uses is compatible with the Rothbard and Evers title-transfer theory of contract.  I have an article on it here linked on page 19 – slide 19 – which describes it in detail, but we don’t need to go into the details here because I want to have time to cover everything else.

00:24:22

But the basic idea is that contract is the transfer of title to owned things.  It’s not like a promise that you make that then is binding or enforceable in the law.  It’s rather the transfer of title to a particular object is recognized in the law, so you can change owners of things.  So that’s the theory of contract.  It’s similar in result to the current view contract, which is the binding-promise view, but not identical.  There are some differences, for example, with respect to alienability and the concept of breach of contract, etc.

00:24:54

But that goes a little bit too far afield, but I just want to note here that Hoppe’s view, which is similar to Rothbard’s, is, of course, compatible with the Rothbard-Evers title-transfer theory of contract.  Okay, so if we think of these notions of aggression and property with respect to political systems, so the basic Hoppian view is that we own our bodies, and we have the right to appropriate or homestead and the right to contract with respect to these things that we own.  That’s why you can call socialist systems, systems that basically institutionalize aggression against private property, and capitalism is the one that respects these things.

00:25:33

Okay, so, now let’s talk about what justifications there are for libertarianism because we’re going to get to Hoppe’s in a second.  So we have several approaches that have been offered: the natural rights, or deontological-type approach, which is the more principal-type approach, more classical-type approach.  There’s a consequentialist-type approach, like that of Mieses.  That is – and I’m going to go over these in a little bit more detail in a second.  So there’s the more rationalist and hypotheticals-type approaches, kind of like mine and some of the ones I survey in my article, “New Rationalist Directions in Libertarian Rights Theory.”

00:26:14

There is a more utilitarian defense, which is not the same as consequentialist.  Randy Burnett has a good – I think it’s the introduction to his Structure of Liberty, where he explains why he believes that consequentialism is not the same as utilitarianism.  Utilitarianism is more a subset of consequentialism, but not all consequences is utilitarian.  It’s not online unfortunately.  I think he does have an article on his website, randybarnett.com, about consequentialism, which talks about that a little bit too, and that one is online.

00:26:47

So Jeremy Bentham of the law and economics movement, the whole wealth maximization approach or kind of utilitarian.  Mises was more of a consequentialist in my view, from what I’ve read, like in his Liberalism.  He wouldn’t accept utilitarian economics behind utilitarian politics because it is of opposition to that in his subjectivist economics.  And then you have constitutional approaches like Ron Paul’s and religious approaches.  There’s an article I’ve seen called “Jesus is an Anarchist.”  And on the other hand, I’ve met, of course, Christians that claim that Jesus is on America’s side in all of our wars.  So I’m not so sure that religion is the most solid foundation for right, but it gets some people partway there.

00:27:35

Okay, on to slide 22.  So natural rights, most of you are familiar with that, the idea that by human nature or natural law, we have certain natural rights or human rights.  These are the inalienable rights spoken of in the American Declaration of Independence.  The founding fathers were somewhat of this persuasion, or somewhat libertarian I should say.  John Locke was sort of a proto libertarian in this sense.  Rothbard takes this in a more consistent direction and has sort of a neo-natural law approach in The Ethics of Liberty.

00:28:10

00:28:13

Now, one more thing before we jump into Hoppe’s approach to all this, there’s a classic problem in philosophy.  Some reject this as a problem.  Some accept it.  I think it makes sense.  I think Rothbard recognized it.  Hoppe certainly did.  It’s the is-ought problem.  I won’t read this quote here.  It’s – this is from David Hume’s formulation.  But the idea which I’ll go to slide 24 now, is, as Hoppe said, “one can readily subscribe to the almost generally accepted view that the gulf between ought and is, is logically unbridgeable.”

00:28:48

And in the quote below from Rothbard, which I’ll repeat later for another reason, but he talks about the famous is-ought dichotomy, which has plagued philosophy.  And he talks about how Hoppe’s argumentation ethics gets around this.  But the basic idea is that whenever you try to form an ought statement, which you have to do to come up with political norms, you have to smuggle a norm in somewhere.  You have to build it upon other norms because if it’s just built on facts, then you have to sort of sneak in a norm to get there because otherwise you could just say, well, people have this nature.  But to say, and therefore, they should do this, that’s where you’re introducing the should, but it can never follow.

00:29:31

Now, some Aristotelians would disagree with this.  I think they actually are hypotheticalists of a type because, for example, what they would say is, if, or since even they’ll say, and they’ll call this an assertoric hypothetical.  Roderick Long has written on this. ¹ Since you want to flourish as a human, therefore, according to your nature, you should do this.  I think that type of reasoning is generally correct, but the sense is not that as an assumption.  It doesn’t have to be true.  I mean some mass murderer or some very evil person may say, well, I don’t want to flourish.  I want to dominate and kill people, and I don’t care if I flourish.

00:30:20

So I think you’d have to appeal to some kind of adopted ethic.  You have to show how the ethic or the normative value gets put into the argument to build on it.  And this is what Hoppe does, in my view, in his argumentation ethics.  And by the way, whether you agree with his argumentation ethics or not in this class is not really the point.  I’m not really so much trying to defend it here, although the I’ll be glad to.  I’m just trying to elaborate and explain what his view is.

00:30:49

00:30:53

By the way, I agree Hume had some problems with his epistemology, but I do think his is-ought problem makes sense.  Now, Ayn Rand tried to dismiss the is-ought problem, sort of a neo-Aristotelian.  If you look at the bold part here, the fact that a living entity is determines what it ought to do, so much for the issue of the relation between it is and ought.  Well, I don’t think her quick dismissal succeeded.  It was just too easy.  It’s not that easy.  And even Ayn Rand wrote that it is only an ultimate goal, an end in itself that makes the existence of values possible.

00:31:35

It is an – at the end of her quote here – it’s only the concept of life that makes the concept of value possible.  She admits in other places too – I mean she doesn’t go so explicitly, but it’s clear from what she wrote that her ethics was hypothetical, hypothetical meaning that it was an if-then type thing.  She said that the choice to live cannot be subject to moral judgment because, if you choose to live, then certain moral consequences flow from that choice.

00:32:06

So you could never say whether – you can never criticize someone’s choice not to live, and one of her followers, Harry Binswanger, has an article, again, not online because he’s a pro-IP objectivist, I guess.  I’ve got it cited here on page 26, “Life-Based Teleology at the Foundation of Ethics.”  Mises was a consequentialist in this sense.  He would say if you want peace and prosperity and so on, then you need to have individual liberty – let me make sure someone’s not pinging me for the class.

00:32:45

Anyway, then you need individual liberty and free market as a means to accomplish it.  That was his view as an economist is that we know economics is value free.  All we can tell you is that the scientific and economic way to achieve things efficiently or economically is to use the appropriate means.  And if you want to achieve peace and prosperity, then economics and some other reasoning can tell you that you need free markets and individual liberty.  And, of course, because he was a decent person and believed in peace and prosperity, then he was a libertarian or a classical liberal.

00:33:21

And this is a quote from the Randy Barnett stuff on distinguishing consequentialism from utilitarianism where he says libertarian rights are appropriate given the widely shared goals of enabling people to survive and pursue happiness, peace, and prosperity.  So you see, he takes these goals as for granted.  Okay, any case, let’s go on.  I’m just trying to explain what Hoppe was trying to deal with.  Now, Hoppe criticized the standard natural rights approach, not only because it didn’t overcome the is-ought gap, but because the concept of human nature is far too diffuse and varied to provide a determinate set of contents of natural law.  In other words, just by pointing to what human nature is—we’re the rational animal—doesn’t get you very far.  It doesn’t give you much content to what norms you’re going to get from that.

00:34:17

00:34:24

I’ve already mentioned this consequentialism here on page – slide 28.  Now, utilitarians I mentioned earlier, they would – you could think of that as a subset of consequentialism.  They would choose a rule that maximizes overall happiness or utility.  Richard Epstein, David Friedman have similar views to this.  The law and economics movement does, the idea that we should maximize wealth, have this kind of presupposition.  Now, Austrians would, and Rothbard and Mises would say there are many problems with this approach, mainly economic, if not – and also moral.

00:35:06

But the economic problems would be, number one, values are not cardinal.  They’re ordinal.  They’re not interpersonally comparable.  They cannot be added and summed up, and they’re subjective and relational.  They’re not intrinsic substances or quantity.  And further, even if you could add them up, it’s not clear why it’s moral to rob A and give his wealth to B if B gains more from it than A loses.  I mean you’re still robbing from A.  So utilitarianism is very problematic as a justification.

00:35:41

So I mentioned before Hoppe had a sort of a neo-Kantian and rationalist upbringing in Europe, influenced by Jurgen Habermas and also another German philosopher named Karl-Otto Apel, which is discussed in some of the readings.  But he also been heavily influenced in a more realistic and more liberal and libertarian sense direction and then more so by Rothbard and Mises’ writings.  So what he did was he took the discourse ethics argument of his – of Habermas and Apel, and he reworked it into a libertarian direction using insights of Austrian economics.

00:36:30

So by doing this, he can break out of a natural law approach, so instead of focusing on human nature per se, that is, natural law, nature, as the justification and grounding for political norms and political ethics, he used a praxeological approach being an Austrian.  So he said, “It is not the wider concept of human nature but the narrower one of propositional exchanges in argumentation, which must serve as a starting point in deriving an ethic.”  Now, why do we say this?  Let’s revisit the Habermas-Apel discourse ethics.  Well, their argument was, is that there are certain norms that are presupposed in the activity of arguing.

00:37:21

And also combine that with the recognition that any norm or ethic that you ever hope to justify has to be justified in an argument as a context.  Argument doesn’t mean you’re fighting with people, but it means some kind of discourse or propositional exchange, some kind of intelligent discussion where you’re both trying to use reason to figure out the truth of the matter, what norms or ethics are justified.  Recognizing that every norm that is ever debated or set out as being true has to be justified in argumentation, leads to what Habermas and Apel call the a priori of communication and argumentation.

00:38:05

Now, this point is very general.  All we’re doing is saying that, if there are any norms or assumptions, any kind of presuppositions that necessarily accompany the activity of argumentation itself, then that is relevant to what norms you could possibly justify within the context of argumentation.  I mean as a very simple example, you could never justify the proposition that arguing is impossible because, by arguing, you would demonstrate that it is possible.

00:38:39

Now, that’s not a normative thing, but that’s an example.  Now, it is true that Habermas and Apel, being good European philosophers, or soft socialists or social democrats of the European stripe, and so they had this kind of fuzzy argument that, well, kind of like democracy, a discussion – democracy is sort of like a discussion and the presuppositions that everyone needs resources to survive to be part of it.  And to get the resources, they have to have certain basic needs provided for by the state.  I mean, it’s not really an airtight argument, but they were trying to use their argument to argue for mainstream political conclusions, but to show that it had a solid foundation.  Hoppe took what he thought made sense in that, but he rejected, of course, their application of it.

00:39:32

Now another insight of this approach by Habermas and Apel and also Hoppe is the idea that anytime you have a normative discussion – okay, well, Kevin C asked what if you’re indifferent to arguments?  We may want to hold some questions to the end, but I’ll break apart right now.  I haven’t had too many questions.  So it’s not – but I think Rick is right.  By saying it, you prove you’re not.  I mean if someone – this is my sort of spin on it from thinking from thinking about it for a lot of years.

00:40:13

If someone refuses to engage in rational discourse, they refuse to try to justify anything, then they basically are outside the realm of human reason.  So then we have to regard them as a technical problem.  In other words, if people have a dispute about how to use a given resource, and they come together as civilized people in a genuine, peaceful, rational discourse aimed at trying to find who has the right to use this resource, then they can try to do that.

00:40:48

But if one person refuses and he just attempts to – then either if he goes away and lets you use the resource, or he attempts to use force to control it, and at that point in time, if you believe and can demonstrate to people that are interested in rational argumentation that you do have a better claim than him, then from your point of view, he’s simply a criminal or a technical obstacle.  He’s really not much different than an elephant or a tiger or some force of nature that you have to treat as a technical obstacle and try to use force to defend yourself or use the organized system of the community to institutionally respect your rights.  So basically, this is a discourse that is among a certain circle of people.

00:41:31

In any case, it’s important to understand also that one requirement of – this is one norm or one requirement of argumentation, that is universalizability, sort of the Kantian idea of the golden rule.  Basically it’s the idea that if you are in an argument where you’re civilized and peaceful, trying to come up with a rational justification for what you’re proposing to be true, or the rule that you’re proposing can be adopted, then you’re giving reasons for it.

00:42:02

But to give a reason means to try to point people to some objective, or as the Kantians would say, intersubjectively ascertainable, some objective reason why the norm is grounded in the nature of things, why it’s true.  It can’t just be an assertion.  It’s got to have a reason behind it.  But the idea of giving reasons means the reason has to be something that’s universalizably acceptable by every potential participant in the argumentation.  It can’t be particularizable, that is, just making up an arbitrary reason that says, well, I get to do it because I’m me.  Let me go on to slide 33.

00:42:45

00:42:51

And by the way, before we go on to particularizable, look at the middle part here.  No one could deny in an argument that universalizable norms are justified because, by participating in an argument, you are already engaging in the activity of providing reasons for what you assert to be true.  And, as Hoppe observes that particularistic rules of the type I can hit you, but you’re not allowed to hit me, are at the very base of all practice forms of socialism.  This is why, in essence, socialism is irrational and unjustifiable because it violates universalizability.

00:43:26

And the key thing to recognize here is that, if you make a particularizable argument or to claim in an argument, it’s really the same thing as not making an argument at all because, if I just say I get to hit you because I’m stronger or better than you, that’s really the same as giving up on trying to justify by the force of reason and resorting to real force.  So it’s contrary to the entire nature of argumentative justification.  Okay, so we can assume that any argument someone can make has to be tested by universalizability, has to be universalizable, can’t be particularly visible.

00:44:05

But as Hoppe observes, this only is a formal criteria.  It’s like a filter, but it doesn’t filter out every norm.  It filters out some socialist norms but not all socialist norms, and remember, we’re using socialist and Hoppe’s sense of some institutional rule that aggresses against private property rights.  So as an example, you could formulate a rule, anyone who drinks alcohol will be punished.  And that rule is universalizable because it’s generally applied to everyone.  It’s not particularizable, but it would still fail other tests of argumentation.

00:44:40

So that’s why Hoppe then turns to – he says, well, other than universalizability, what other things are presupposed by the very nature of argumentation?  And remember, argumentation is the activity of trying to justify, with propositional exchange and reason, norms that you propose to be adopted or accepted as justified.  And it turns out, according to Apel and Habermas and Hoppe, that some of the things presupposed in argument – I mean you could say there are facts presupposed in argument, the fact that there are at least two people in the world who exist, metaphysical facts like that.

00:45:19

Even the law of contradiction could be maybe argued to be part of the logic of argumentation, but those are not normative.  There are some norms adopted, presupposed as true by argumentation, and as Hoppe says, to recognize these norms, you have to call three interrelated facts to attention.

00:45:41

Oh, Rick La Greide just asked something similar to what I just mentioned that at a basic level, you have to presuppose the laws of logic and deductive principle as well as universals.  Yes, I believe that’s true.  I think that’s true too, but we want to find what norms are presupposed because then we can hold up any proposed norm to see if it’s incompatible with these norms.  I mean, as a simple example, suppose you were to argue no one should ever argue.  I mean it doesn’t make any sense.

00:46:09

You’re arguing that no one should argue, so you’re practically contradicting yourself.  So you can see already there are some norms you could propose that are incompatible with what you’re presupposing is true and justified just by virtue of engaging argumentation.  So as Hoppe says, here are the three interrelated facts.  First, argumentation is not only cognitive but a practical affair.  That is, we have physical, real bodies that are in the world and living and sitting next to each other or somehow interacting with each other to discuss and communicate.

00:46:39

Second, argumentation is a form of human action, and that means it implies the use of scarce resources including your body.  And third, argumentation is a conflict-free way of interacting.  What does he mean by that?  I mean if you’re trying to persuade me to adopt your proposition as true, there’s not an implicit threat that if I don’t agree with you, you’re going to hit me over the head because, if you are, you’re coercing me and it’s not a genuine argument.

00:47:11

The nature argument is that the participants recognize that each one is trying to persuade the other by the force of reason alone and that he can deviate from that.  Or if you cannot reach agreement, then you’re free to disagree.  You’re free to agree to disagree.  That is a norm in itself.  That is a respect of each other’s domain over their body, for example.  Okay, so this is the essence of the Hoppian – the initial insight he had, and you can see why he results – he achieves different results than Habermas and Apel do because of his awareness of the Austrian view of praxeology, the nature of human action.  That is informing a lot of his insights here.

00:47:56

Okay, slide 36.  I’ve already kind of gone over some of these things, but basically, the Hoppian argument is that, in argumentation, you have to be able to agree to disagree.  So you have to agree to each other sides’ control over his own body so that you’re not coercing him, for example.  By refusing – by endorsing the rule, I shouldn’t coerce you.  I’m respecting that you have the right to control your body, so this is where self-ownership pops out.  Okay, so this is the primary political norm that comes out of argumentation or the first one is that people have the right to control their bodies.  Otherwise, they wouldn’t be able to make – engage in genuine argumentation.

00:48:38

00:48:41

Okay, now what it really means is each person’s body needs to be owned, but who’s going to be the owner?   And again, we have to come up with some reason to say who owns which body.  Now, obviously, the natural case for body ownership, which Hoppe has already given, is the obvious candidate.  You cannot just say I own you because I’m stronger, or I own you because I said it first.  That would be particularizable.  It wouldn’t be a rule grounded in the nature of things.  It’s not a reason.

00:49:13

However, if you point to the direct control people have over their bodies, that gives them a special link to their body.  That is something grounded in the nature of things, something every participant in argument could recognize because they’re all actors in this sense.  Excuse me.  I’m on slide 38 now.  So this is why Hoppe writes, and I’ll get to a quote in a second, but remember, he said that unlike bodies, which are never unowned but always have a natural owner, all other scarce resources can be unowned.  So you see the distinction here.  What this means is homesteading cannot be the source of ownership of bodies because it’s not like you’re just some disembodied spirit out there wandering the cosmos.

00:50:08

Now you may believe this religiously.  It doesn’t change the political fact.  You’re not a homesteader before you have a body.  You are an agent or a person that has a body.  So you can’t even homestead something until you have a body first.  So homesteading can’t be the source of ownership of your body.  Instead, the key is having some kind of objective link that is better than anyone else’s claim to the scarce resource of your body.  And let me just mention quickly here, there’s an interesting aspect of this.  Some of this I’m extrapolating from Hoppe, by the way.

00:50:44

I don’t think it’s incompatible with it, but he never said a lot of this directly.  But if you had to acquire a body by homesteading or by contract, which are really the only two ways to obtain other scarce resources, you could never own yourself because, if you became an owner of your body, at some point, your mother would be the owner first.  So you would be stealing from her because you didn’t homestead it because she was the homesteader in a sense, and you didn’t have it by contract.

00:51:19

Now, by the way, there is an argument you can make, and I have made it in this article I have linked here, that you could make a contract argument.  You could argue that the parent has certain natural positive obligations to the child by virtue of the nature of the parental-child relationship and has an obligation to free the child.  So you could view the parent as an owner, like a slaveowner, of the child initially, but at a certain point, the parent has a duty to manumit or free the child.  That’s not Hoppe’s argument.  I think you maybe could make that.  But my point is that’s not his argument.

00:51:54

00:51:59

Also, it doesn’t mean slavery is always impossible or always unjustifiable because, for example, if someone commits aggression, in this case you could argumentatively justify using force against them because there’s a reason for it in this case.  It’s not just a particularizable, arbitrary assertion.  I get to hit you because I’m better than you, or I get to hit you because I’m stronger than you.  No.  Your argument is I get the hit you because you hit me first, and now you have no right to complain, or something like that.  You consented to it by committing the aggression.

00:52:34

But the point is, some people criticize argumentation ethics by saying, well, it’s possible for a master to argue with his slave.  It’s possible, but it’s not possible for the master to justify his claim to own the slave, or it’s not possible for him to justify his forced use against the slave unless he can point to some act of aggression the slave committed.  But unless he can do that, he couldn’t point to a reason, so his claim would be unjustified, and it would be contrary to the peaceful nature of the discourse itself.

00:53:04

00:53:10

Now, that is how we get to body ownership.  When we come to external resources, we go back to Hoppe’s recognition that argumentation is a practical affair.  We don’t live on love alone, as Hoppe says, and love and air alone.  We have to be able to act to even survive and to get to the argumentation or to participate, but all action employs scarce means in the world.  So to be able to participate in this conflict-free interaction of argumentation, you have to use means.  Those means have to be used, and either they’re conflicted over, or they’re used peacefully.  So you can see that the participants’ argumentation are endorsing the rule that people should be able to use resources peacefully in order to participate in argumentation.

00:53:56

Okay, so that means they’re already agreeing that we need to come up with some property assignment scheme.  And again, we come back to what should the rule be, not should there be a rule.  No one can argue there should be a rule, and no one can argue it shouldn’t be based upon some objective link.  Otherwise, they’re saying it should be arbitrary, and everyone can just say I own that resource, and then we’d have fighting over it because it wouldn’t be one person because any number of people could verbally assert, I own that resource because I claim it first or whatever.

00:54:28

So none of these rules would serve the purpose of argumentation, which is to come up with a rule to allow conflict for use of resources.  No one in argumentation could deny that the rules have to be universalizable.  No one can deny that the rules have to comply and be consistent with the peaceful, cooperative, civilized aspect of the argumentation in the first place.  No one can say – no one could deny that they’ve already accepted ownership of bodies, so they’ve already accepted the implicit idea that the best link to this thing is the one that should decide the question of who gets to use that thing.

00:55:07

So when you establish all these sorts of, what I call what I call grundnorms or ground norms, basic norms, all you need is a little bit of political knowledge and economic knowledge.  And libertarianism just pops out as the only norm, the only sophisticated, high-level, political, or ethical norm that can survive all these other norms.  Everything else is inconsistent with it.  Socialism, in all its forms, is just incompatible with the peaceful, pro-objective link, pro-universalizable, pro-body ownership norms that are at the ground of all argumentative justification.

00:55:49

00:55:52

Okay, so if we remember that the body is a prototype of a scarce good and that we have to find a link for that, now for bod, the link is direct control.  But for external goods, these are things that were one point unowned.  This is a key fact.  Because they’re unowned, and because argumentative participants have to endorse the value of people being able to productively use the resources in the world—that’s what it means to act—then they cannot object to someone at some point practically homesteading or appropriating these goods out of the wilderness.

00:56:29

Someone’s got to use it first for it to ever be used, and because of that fact, we can see that the first user is always going to have a better claim or more objective link to the resource than anyone else.  If he didn’t, then there wouldn’t be ownership in the first place, and remember, the participants in argument are always seeking for ownership rules because that is what it means to avoid conflict and to allow resources to be used peacefully.  Okay, so they are trying to overcome conflict, so they are trying to come up with an ownership rule.

00:57:04

And if they’re coming up with an ownership rule, that means at some point in the world, there’s an owner of a resource.  And that means that owner has a better claim than who?  Than interlopers, outsiders, which are late-comers with respect you.  That means they come later.  So what that means is, implicit in the very idea of ownership, which participants in an argument are undeniably searching for, is this prior later distinction, as Hoppe calls it.  That means the fact that there is – it matters whether you came earlier or whether you came later.

00:57:35

It matters who comes first.  In other words, it’s implicit in the idea of ownership that the person owning the resource now has a better claim than someone else later.  Now, if you think about the Misesian Regression Theorum of Money, for example, he traces the value of money on day – today back in time until we reach a point where the money was a commodity, that is, money had only a commodity value, and no money value and was used only for commodity purposes.

00:58:06

He sort of breaks the infinite regress that way.  Well, a similar type of analysis can be used in this respect.  If you recognize we want ownership, if you recognize that the owner has a better claim than a late-comer, then that means – and if you recognize that things that are owned were previously unowned and had to be plucked out of the commons at some point by an actor who would then be the first owner, if you realize that there was no previous claim that their owner, who possibly had a better claim than the first owner, then you basically have no conclusion left but to say that the very first owner always has the better claim to property.  That is the libertarian rule.

00:58:51

Now, there are some exceptions to this.  He wouldn’t have a better claim than someone he contractually gave it to.  By contractually giving your property to the second person, now the second person has a better claim.  He has a better claim with respect to the world because, with respect to the world, he has an earlier use than them.  With respect to the first guy, he’s got a better claim because he can point to the agreement, the act of contractual change.  So that’s not a particularizable reason.  That’s a reason grounded in the nature of things, in the contractual power of the original owner to use his will to alienate title, etc.

00:59:27

It also – another exception, again, would be if you’re a criminal.  If you commit an act of crime or a tort and you damage someone, then that person might be able to claim your property as some kind of compensation.  But again, his reason wouldn’t be particularizable.  It wouldn’t be arbitrary.  It would be based upon the nature of things.  It would be based upon the nature of aggression, the non-aggression principle that’s already come out of this, and the fact of the crime or the tort.

00:59:53

00:59:56

I know I’m going fast here, but there’s a lot here and we’re almost done, so we’re making good time, and I can answer questions at the end.  So let’s go a little bit farther here.  I’ve already talked about this stuff here on page 42.  Now, what’s interesting, and it’s shouldn’t be surprising, remember, Hoppe had the strong influence from Kantianism, or at least a realistic form of Kantianism and rationalism and Habermas and Apel in Europe, but was strongly and most powerfully influenced by Mises and Rothbard.

01:00:30

And Rothbard, remember, had a sort of neo-Aristotelian approach.  Rothbard’s approach also was somewhat similar to Ayn Rand’s.  And remember, Rand would deny any Kantian influence.  Rand would deny that her ethics is hypothetical, although I’ve shown that it sort of is, that hers is like Hoppe’s.  It’s an if-then thing.  I call Hoppe’s approach if-then because that’s the context of the argumentation.  If you participate in argumentation, you demonstrate that you’re a civilized person, let’s say.  If you adopt these norms that are part of argumentation, then you can’t deny the implications of these norms, the higher-level political or ethical implications of these norms.

01:01:10

And again, that’s similar to Rand’s approach.  If you want to live as a man, then you must follow certain rules that are compatible with man’s nature.  So it’s no surprise that Rothbard’s approach would be seen by Hoppe as having some similarities to his.  Now, and I’ll kind of read parts of this here.  What Hoppe wrote was: This defense of private property—that is, his argumentation ethics— is essentially also Rothbard’s.  In spite of his formal allegiance to the natural rights tradition, in Rothbard’s most crucial argument in defense of private property, he chooses the same starting point or argumentation but also gives a justification by means of a priori reasoning almost identical to the one just developed.

01:01:55

And so he quotes Rothbard here, this is from The Ethics of Liberty.  Here’s what Rothbard said.  Now any person participating in any sort of discussion, including one on values, is by virtue of so participating, alive and affirming life.  You can see the Randian influence here because she talked about choosing to live.  If you were really opposed to life, he would have no business continuing to be alive.  Hence, the supposed opponent of life is affirming it in the process of discussion.  This is the part that’s like Hoppe’s discussion.  Hence, the preservation in furtherance of one’s own life takes on the status of an incontestable axiom.

01:02:31

Now he’s using axiom like Rand did, and I mentioned earlier that’s similar to the a priori type of proposition of Kant – of Misesianism, so you can see the similarity that Hoppe saw here.  And another common point comment I’ll make here – what I’ll do is in about five minutes I’ll try to take a break, and then we can have questions after that.

01:02:55

Hoppe also said, look, I’ve criticized natural rights, and I’m not saying that you couldn’t view my approach as a natural law or natural rights approach in the sense because he’s appealing to the nature of man.  What he’s appealing to is nature as an arguer, as a rational, justifying being, not just his nature as a rational man, his nature as a justifying person, people who engage in discussion and discourse to justify.  So he’s talking about that aspect of our nature to ground and root what he views as natural rights.

01:03:31

01:03:35

Now, so given what I’ve just said about Rothbard and Hoppe’s view that Rothbard’s ethics was sort of a proto version of what he did, Rothbard – it’s not surprising that Rothbard jumped wholeheartedly onto the argumentation ethics bandwagon and this Liberty symposium where Hoppe sort of came out.  Rothbard wrote, in a dazzling breakthrough for political philosophy in general and libertarianism in particular, he’s managed to transcend the famous is-ought or fact/value dichotomy that has plagued philosophy since the days of the scholastics and that had brought modern libertarianism into a tiresome deadlock.

01:04:16

Not only that, Hoppe has managed to establish the case for anarcho-capitalists’ Lockian rights in an unprecedentedly hardcore manner, one that makes my own natural law, natural rights position seem almost wimpy in comparison.  Now, I think he’s being a bit too self-deprecating here, but I think it’s important.  It’s interesting at least to note how impressed Rothbard was by this approach.

01:04:41

I can give a quick sort of anecdotal story here about my own evolution on these lines.  In 1988, I was in my first year of law school.  And I was already strongly libertarian and vowed to be anarchist or probably already was.  But I remember vividly in 1988, that is when the symposium in Liberty Magazine came out that – when Hoppe sort of burst onto the scene.  He had sort of been talking about this at some seminars from ‘86 or ‘87 on, getting excitement, but he really came out maybe ‘88 with the first – can you hear me?  Are there problems with the video or the audio?  Any problems?  Can anyone hear me?  Oh okay.

01:05:38

01:05:42

Anyway, I read that Liberty symposium, and it just struck me.  It’s just finally the most brilliant approach.  I mean I’ve been fascinated with it ever since.  Now, also in 1988, it was my first year of law school.  I had a contracts class, and in contracts class, there is a doctrine of estoppel.  And I remember vividly the professor telling us that the sort of legal reasoning behind the doctrine of estoppel.  And the idea was that if you make a promise to someone or you make a representation, you lead them to believe you’re going to do something, and they rely on that.  And then later, you say, oh, no, I didn’t mean that, or I didn’t really mean to have a promise to obligate myself, then you would be estopped or stopped or prevented from saying something inconsistent with what you had said before.

01:06:36

Now, I thought the reasoning for estoppel in contracts was a little bit confused and weak for various reasons, for example, the idea of detrimental reliance, which what that goes along with is a little bit circular.  That’s the idea that if you rely upon – if you reasonably rely on someone else’s promise to your detriment, then then it’s going to be an enforceable.  Well, but you see that’s circular because it’s only reasonable to rely on it if it’s enforceable.  If the law said those kinds of promises weren’t enforceable, it would be unreasonable to rely on it.

01:07:11

But in the context of the libertarian non-aggression principle, and probably because I had just read or maybe was just about to read—I really don’t remember—Hoppe’s article, and then I soon devoured his TSC in ‘89 or so.  In any case, it struck me as the perfect way to envision the non-aggression principle itself because there’s a perfect symmetry about the non-aggression principle, right?  There’s the idea that we only believe force is justified in response to force.  Now, of course, this is in the context of a theory of property rights.

01:07:46

As I said, the idea of force or aggression is a dependent concept.  But still, in the basic sense of forcing its bodies, they collapse into each other.  Aggression means hitting someone’s body without their consent.  So you’re sort of restating the property view as well when you say non-aggression in the context of interpersonal bodily violence.  It just seemed obvious to me.  This is brilliant.  It seemed to me like a eureka moment, like, oh, well, of course, the libertarian non-aggression principle is justified because what we say is you can justify retaliating against someone for committing aggression, but you can’t justify committing aggression.

01:08:29

And the reason is because the aggressor would be estopped from complaining about me implementing the rule it’s okay to hit people without their consent because he just did that to me.  But on the other hand, if he hadn’t done that to me, he wouldn’t be estopped or prevented, but all that means is there’s an inconsistency between objecting to being retaliated against and arguing that – and having committed the aggression.  So you cannot justify your early act of aggression, so this is really compatible with and similar to the argumentative idea of the argumentation ethics idea of having to have consistency in your arguments and having to have universalizable reasons instead of socialistic or particularizable reasons.

01:09:19

I had some other detail here.  I was going to end here if I had to, so this is why I have my notes for the next class, which will be on epistemology and methodology.  And I have here the readings, which I suggest and which – and some additional optional readings as well.  I’ve got several slides after this, which you guys are free to pour over and look at the links after the class.  I assumed I would not have time to finish all this now, but I think I’ve got the basics of it down.  So it’s 7:10 p.m. central time.  Why don’t we take a six-minute break and come back at 16 past the hour, and we’ll do some Q&A if anyone has any?

01:10:00

01:10:04

It’s both cognitive and practical.  I think that’s actually true.  Hoppe actually has some comments somewhere sprinkled in all these writings where he says that an argumentation or discourse even counts discourse with yourself.  I think what he means there is your hypothetically reasoning out something, trying to imagine ways to justify.  I don’t know how far you can take that, but he has made comments about that, Lucas.

01:10:28

Oh, Jacob says, why does argumentation imply universalization?  Could you elaborate on that?  That’s a good question.  That’s one of the things that has fascinated me for a long time.  I think it’s simply because you’re giving reason.  In other words, you just have to distinguish between giving reasons and not giving reasons, in other words, just saying something arbitrary and irrelevant or actually using force to dominate the other person.  If you’re giving reasons, then that means something.  It means you’re trying to come up with something that can appeal to all the participants.

01:11:01

Now, there are some comments in Hoppe, which are, I think, drawn from the Kantian tradition where he talks about universalizability, and by the way, there’s whole books written on universalizability.  It’s a very sticky, complicated thing if you look into it too deeply, but I think the essence of it that Hoppe means is the sort of brick in his wall of building this edifice.  It’s pretty simple and obvious.  It’s basically the idea of giving a reason.  Giving a reason means giving something that you can – excuse me – is objectively grounded in the nature of things.  And objectively grounded means everyone you’re addressing can see that.  It’s an arbitrary thing.

01:11:43

And the whole reason is if you think about this, the purpose of argumentation to justify norms is to avoid conflict.  The only way you can avoid conflict is if you come up with a unique reason or a unique assignment of an owner for a good.  That’s why Hoppe talks about the problem with having mere verbal assertion be the ground for owning things.  So if just having verbal decree would suffice to give you the ownership of something, like I own that land over there because I say so, well, anyone could say that.

01:12:15

A million people could say it at once, and so it wouldn’t solve the purpose of this kind of argumentation.  It wouldn’t solve the purpose of conflict resolution or dispute, or avoidance, sorry, because there’s nothing unique about that rule.  You need to find an objective link that everyone can see and that can be seen as objectively better in some sense by all fair-minded participants in the argumentation.

01:12:45

01:12:52

Lucas says, doesn’t it go back to Aristotelian logic?  You have to concede certain universals when you engage in arguing basic logic.  I agree completely.  So, for example, that’s why I always say when I’m sort of summarizing it in a more casual way that the idea is that, if you agree with the basic goals of argumentation, which is to allow people to survive, to allow people to have peaceful discussion, to allow people to act in the world, to allow people to employ means, to allow these means to be used peacefully, which means conflict-free, which means you need to assign an owner, if you agree in assigning, coming up with reasons for things, if you agree in this kind of discourse, this kind of propositional exchange, then, of course, you have to agree with the basic laws of logic.

01:13:36

You have to agree with the law of contradiction because that’s where the idea of consistency would come from.  If you say, yes, I agree with you that you have the better claim to that resource.  I agree that by participating in discourse, conflict is a good thing – conflict avoidance is a good thing, I agree that your claim is better.  I agree your arguments are better.  I agree that the logical implication of that is that all socialist norms are unjustifiable, and yet I’m still in favor of socialism.  I mean it’s just not consistent.  It’s self-contradictory.  So of course, the basic laws of logic are presupposed, along with the universalizability in any propositional exchange.  That’s what the use of reason is.

01:14:23

01:14:28

Dante: I think maybe Rand’s – I think that maybe Rand’s explanation that some humans are kind of savages who contradict themselves, but if they’re civilized enough, they’ll have to respect these rules.  Yeah, that’s how I view it.  I view it as we haven’t grown up as a species yet, but to the extent people want to engage in this kind of civilized exchange and discourse, they cannot help but conclude that any non-libertarian ethic is unjustified.  The entire point of Hoppe’s sort of thought experiment here is to show that you could never justify aggression.  It’s that simple because – and the reason is justifying has got to be done as part of argumentation, that argumentation is a non-aggressive activity.

01:15:18

So you can’t justify aggression.  He just – he’s not saying you can’t be a socialist.  He’s not saying you can’t be contradictory.  He’s not saying you couldn’t be a criminal.  He’s simply saying it could never be justified.  Literally it could not be justified because justification is argumentative.  In other words, most people don’t recognize that subtle point, and that’s why they say things like might makes right.

01:15:41

What they’re saying there is that force is justification.  They’re saying it doesn’t need an argument.  Well, of course, they’re confusing the concept of justification there.  If I teach you over the head or if I kill you, it doesn’t justify my having done it.  It doesn’t prove that it was justified or right.  It just means I got away with it.  Jacob asks, while the argumentation ethic provides an argument against physical aggression, does it provide any argument against fraud?  Okay, so the way I look at that is the argumentation ethic basically establishes the fundamental idea of assigning property rights in accordance with these objective links.

01:16:25

So in the case of the body it’s self-ownership.  In the case of other things, it’s the Lockian idea of homesteading or original appropriation.  And as sort of a corollary is the idea that someone who uses force to violate that is demonstrating that they’re not part of the civilized order.  They’re not respecting these norms, and they provide a reason or an exception to treat them differently than other people who haven’t agreed to be respectful of other people’s property rights.  So they can be treated as technical problems or outcasts or outlaws or enemies basically.  So it’s just a straightforward implication of that, that fraud, if you view fraud as a species of theft, not just dishonesty, but fraud basically is when two parties are engaging in an exchange, and one of the parties is giving say, his money to the seller conditioned upon certain conditions.

01:17:27

As the owner of the money, he has the right to place conditions on that.  He has the right to say the title to my money passes to you only if and when you give me those apples.  And the word apples has a meaning, and the seller knows what it means because of a certain determinant meaning.

01:17:44

So that’s a condition of the transfer.  So if the seller pawns off rotten apples or poisoned apples to the guy, then the cellar knows he’s not satisfying the condition.  So the title to the money never transfers, and yet the seller is taking possession of that money and maybe spending it.  So basically, he’s in knowing possession of someone else’s property.  The property title never transferred to him because the condition was never satisfied because of the deception.  So fraud is simply a way of causing there to be an unsuccessful transfer of title, which leads to an active conversion or theft really by the seller.  So I view fraud as just a case of theft by trick or a case of uninformed consent, and so that’s just a natural consequence of the interplay of these property assignment rules that come out of argumentation ethics itself.

01:18:38

Rick La Greide asks, doesn’t the negation of the underlying foundations of argumentation undermine the laws of logic and what it means to be human?  People cannot avoid them even if they say they don’t believe them.  I think that’s a fair statement.  I do agree with that.   I do.

01:19:00

Dante says, in a practical sense, the 300-pound man can rape a young girl anytime he wants, and the girl needs guns.  Well, the word “can” has a special meaning here.  Yeah, he can.  It’s possible to violate rights.  It’s possible to not care about justifying your actions, and it’s possible to commit an action that could not be justified argumentatively like that.  So argumentation ethics only establishes what rights we have.  But establishing what rights we have just shows a normative truth.

01:19:35

It doesn’t – rights are not self-enforcing in any system.  People can violate rights.  Injustice is possible.  Crime is possible.  So of course – now, as a practical matter, I do believe that understanding and promulgating and persuading people of right and wrong and of rights can have strategic or practical value.  In some cases, you can persuade people to leave you alone and respect your rights, and I think actually that’s what happens in society.

01:20:06

Most people privately respect other’s rights.  They’re not consistent about it because they vote contrary to that, but they do it basically.  So I think, as a practical matter, this type of argument – it’s a framework.  This type of normative and rights framework is used to persuade the members of a certain community of what types of laws are justified.  And then we set up procedures based upon those, and then the community of people feels justified in, say, punishing or killing or hunting down or ostracizing people that are on the outside.

01:20:52

Now, as a practical matter, society will only survive if that community of people is large enough, relative to the criminals in our midst to survive.  It’s possible that that would be 1%, and we’d all die or we’d live in some kind of chaotic, barbaric state.  But if you look around the world today, as a practical matter, I don’t think we do.  I think we have society, and it’s only because and to the extent most people respect rights, and then they come together and support each other when they need to, to fight against the outlaws.

01:21:24

01:21:35

Any other questions?  Unless there’s anymore, why don’t we call it a night?  I don’t know who hear is at the Mises or university.  Oh, there’s one more here.  Okay, this is just a comment by Dante.  Yeah, I agree with that comment, Dante, about guns and states with power.  Hoppe has a comment about how states that are economically more liberal internally tend to be more aggressive externally, and the reason is because they have more wealth produced by the free market internally.  Of course, America is the classic example, and that gives the state, which parasites off of the economy, more weapons than other states, so it’s able to dominate them, so it’s sort of a paradoxical thing.

01:22:40

01:22:45

Rick says – well, Tito says, the USSR didn’t aggress abroad by that reasoning.  Well, Rothbard actually argued that they were less imperialistic, and I think Hans Hoppe would agree that the USSR is less able to be imperialistic because they had less resources to do it because their economy was in tatters.  Jacob – okay, let me take one more – another question here.  Rick asked about property rights being a necessary condition to argumentation and what you said is being reliant upon on property rights.  Is this a major point?  Sorry, maybe you can restate it.  I’ve kind of lost what – I don’t know what the major point is.

01:23:32

But let me ask Jacob about – let me talk about Jacob’s question about – Jacob Hill asked does the inability to sever the direct link with one’s body make it incapable for a person to willfully sell themselves into slavery?  Okay, I think this is one of those areas of libertarianism that has been dealt with only in sort of scattered ways, not extremely systematically.  I don’t know what Hoppe has written about this.  I think he’s roughly in agreement with what I’m about to say.

01:24:04

Rothbard said that because – see, Rothbard’s argument for inalienability was that it’s impossible to sever your will from your body.  Now, I don’t think that’s the best argument for it because you – there are ways you can be a slave even though you still have your will.  For example, you commit a crime.  I mean it’s justified.  It’s hard to argue that it’s justified in some cases.

01:24:37

It’s hard to argue that it’s not justified at least in some cases for the victim of an aggressor or his agent to imprison or use force against – basically to enslave the aggressor, to jail him, to kill him, to hunt him down, to at least incapacitate him until the authorities arrive.  So you’re treating this person like a slave, even though he has a will even though he objects.  The question is, is it justified?  I mean how do we own animals?  We own animals even though they have wills of a sort because we have the right to dominate them, to use physical force to have our way.

01:25:18

Now, you can only own resources in accordance with their nature.  I can own an inanimate object in a certain way.  I can own a river in another way.  I can own the airways in another way.  I can own land in a different way than I own a sword.  And likewise, I think you can own other humans in a different way.  You can’t control their bodies directly because they have direct control, but you could physically use force against them to coerce them into doing – to abiding by your commands.

01:25:45

You could put a fence up around them, or you could shackle them and basically have a will, makes it impossible to enslave him or justify it.  So the better argument in my view is, if you look at the distinction, which I’ve tried to draw and which is implicit in an Hoppe’s framework, which I elaborated tonight, that the body was never unowned.  And it was not acquired by homesteading, but alienable objects were.  The right to own something only means the right to control it.

01:26:16

That doesn’t – that just means you have the right to say yes or no if someone else wants to use it in a certain way.  It doesn’t necessarily mean you have the right to sell it or abandon it.  We’re used to thinking that the alienability is an aspect or an incident of ownership because you can do it for owned things, that is, external resources.  But it’s not a feature of ownership per se.  Ownership per se only means the right to control.  The reason that the right to control translates into the right to alienate in the case of acquired things is because you acquire them.

01:26:53

If you acquire it as an owner, that means there was a moment in time when you took possession of this thing and made it clear to the world that you intended to own it as an owner.  You put up borders.  You maintained possession of it.  You defend it against attackers, etc.  But as soon as that ceases, as soon as you cease to want to be an owner, you unacquire it or abandon it, let’s say.

01:27:19

So that gives you the ability to take these things into your patrimony, we might say, or your estate or your ownership, and to undo it.  It’s just an external object.  You can acquire it.  You can unacquire it.  So ownership translates into the right to sell or to give away or to abandon in the case of acquired things.  But you never did acquire your body, so there’s really no way to undo it.  There’s no way to undo the fact that you have the direct link that gives you the better link to your body – you have the direct control that gives you a better way to control your body than other people.

01:27:53

There’s no way to undo that fact.  In my estoppel terminology, what you could say is, if you promise to be someone’s slave, you’re just mouthing words.  And if the purported master tries to use force against you later to stop you from running away if you change your mind, he is committing aggression because you didn’t commit and you didn’t – because you never committed aggression against him, so his use of force is not retaliation.  It’s not in response to my use of force.  See, I never committed aggression.  I just said something.  So there’s no justification for him to stop it.  In other words, there’s nothing in libertarianism that says you can’t change your mind.

01:28:35

If a guy says I’m going to box you tomorrow, and tomorrow comes and he steps into the ring, he’s consenting to being hit.  But if he refuses to step into the ring, he can’t be thrown into the ring and forced to box.  He’s not a criminal.  He hasn’t committed a crime that justifies him being treated like that.  So that’s my approach to inalienability is that the only way to alienate your rights is to commit an act of aggression.

01:28:59

01:29:05

I’ve written on this in two or three articles on my website.  Just search for the word inalienability on my publications page.  Rick says I’d like to hear Walter Block’s contribution to the slavery discussion.  Do you know what he thinks?  Yeah, I’m pretty sure what Walter thinks.  So Walter says, well, ownership means you can sell something, and you agree we’re self-owners, right?   So you can sell yourself.  I mean that’s it.  That’s his argument.  So I think where he’s being tripped up is he is assuming that ownership includes the right to sell, ownership by its nature, but it doesn’t.  Ownership means the right to control.  The right to control doesn’t mean the right to sell necessarily.

01:29:52

It only means that you have the better claim to control than someone else.  In fact, if you think about the right to control per se, it means you don’t have a right to sell.  It means that your rights – you always have the right to say who controls this resource with respect to others because you are the owner.  But as I said, in the case of an acquired good, you can abandon it, and that gives you the right to get rid of that ability to have the better claim because you’ve now abandoned your ownership of it by selling it or whatever.  But there’s just no way to do it with something you didn’t acquire with your body.

01:30:24

01:30:34

He thinks is plausible.  I’m not sure – Walter thinks you can sell yourself into slavery.  He thinks you should be able to.  And in fact, Walter is a strong advocate of Murray Rothbard’s views, and Rothbard had a few, I think, a little bit confused and contradictory comments in his contract theory, which are tripping Walter up.  Now, if Walter were here, he’d disagree with me.  We can have a nice argument about it.  But what Rothbard says is, his contract theory is great.  But he has a comment that if you promise to pay someone or if you have a debt contract, and you owe someone money, like let’s say $1100.  You borrow $1000, and then a year later you’re supposed to repay $1100, $1000 with interest.

01:31:23

And then you are unable to repay the creditor on the due date, then you’re committing what Rothbard calls implicit theft, implicit theft, which I don’t know what that is.  And then he says, theoretically, debtors’ prison would be justified, except he thinks it’s disproportionate.  He thinks it’s too extreme.  But theoretically, you’re committing an act of theft, so you could be jailed.  Now, I think that is wrong because there is no theft if something doesn’t exist.  The $1100 doesn’t exist.  The borrower doesn’t possess it.  He doesn’t own it.  How can you steal something that doesn’t exist?

01:32:04

So Rothbard will sometimes change his emphasis, and does Walter Block in that kind of case, and he’ll say, well, no, but you stole the original $1000 because that was given conditionally.  Well, no, it wasn’t.  The $1000 was given outright, had to be for the borrower to be able to spend it.  The $1000 was given unconditionally.  It was given in exchange for a future promise to a future thing.

01:32:32

If you can reclassify that act of transfer of the $1000 a year later as being theft, well, that means you’re going back in time and changing the nature of what happened year ago.  Well, that violates what Hoppe points out as an important aspect of property is every moment in time, any normative system needs to be able to tell you what you’re permitted to do with what resource right now.  Who is the owner of this resource?  So if the borrower is the owner of the $1000 the date he borrows it, which he has to be to be able to lend it – to be able to spend it for the project he’s borrowing it for, then you can’t change that later.  You can’t set some time where you go back in time, so neither one of these things can be stolen.

01:33:17

The $1000 was not stolen.  The $1100 doesn’t exist.  So there’s no possible act of theft, but because Rothbard said there was, Walter uses that, I believe, to say that a promise to sell something and failure to live up to it could be a type of theft, and he even means your body.  So Block has this criticism of Hoppe, says Tito Warren.  Which one is that?  The only one I’m aware of that is significant is on immigration, which we probably will talk about if we have time during the political issues, lecture number six.  But I think he is for immigration.  Defense of national borders, I don’t know about that one.  I’m not aware of any difference between them on that.  I think they’re both anarchists and believe in private defense in that regard.

01:34:12

01:34:15

Dante asks a question about argumentation ethics and brute force.  If we want a world with more freedom, we need to balance the distribution of guns.  But always the savage with more guns will do whatever he wants.  That’s always been the story.  Well, of course, that’s – this is the problem of the state I believe.  The state is inherently an aggressive institution and doesn’t respect individual rights.  To the extent you have a private society order, capitalism as Hoppe defines it, you have to have widespread societal respect for property rights in the first place.  And so I think you would have people arising to be criminals, and they would be outlaws and hopefully be able to be subdued.

01:35:05

Jacob asked, is there any recourse for the lender against a non-paying borrower?  Well, sure, of course.  I mean I don’t think he can be sent to debtors’ prison.  But in the simple contract that I gave, I didn’t specify further conditions.  But of course, knowing this reality, knowing that it’s possible that the borrower could be penniless on the due date, then the – you could imagine a set of subsidiary, or what we call ancillary title exchanges that accompany and support and relate to the original exchange, which is the creditor says, in exchange for me giving you $1000 now, you hereby give me, in one year $1100 if you own it.  See that if-you-own-it is always there because the future is uncertain.  That’s an inherent condition of the deal.

01:35:56

And the creditor knows this, of course.  So he would say, and if you don’t have the money on the due date, then you owe me – then whenever you come into the ownership of subsequent funds at a future date, that becomes my property with interest accrued at a certain rate, etc.  So of course, or you could have a deal that, if you have a job, then one-third of your salary becomes mine as soon as you’re paid it by your employer.  That’s a way of garnishing wages to pay the debt off.  But yeah, you’d have to make these agreements, or they would probably be implicit, but they’d probably be made explicitly if they had to be as part of the original debt contract.  But it would be a series of title transfers, conditional, future-oriented, title transfers.

01:36:42

01:36:57

Oh, Andre says – he meant defense of national borders from immigrants.  Well, we will talk about the immigration issue in lecture six.  But what Hoppe has pointed out with respect to immigration, in my view, is that, in a statist world, there are costs to people because of the state’s role, costs from immigration that would not exist otherwise.  And I think he’s right about that.  He calls it a forced integration and other effects.  But he explicitly says that he does not favor the federal government, say, in the US enforcing this.  And he favors devolving it down to states and then the cities and the towns and ultimately down to the individual, which is the anarchist view.

01:37:48

01:37:52

Lucas says – well Hermang Tanna has got to go.  Thank you very much, Hermang.  I won’t go much longer so people that have to leave early don’t miss much.  It’s 25 past the end, so let’s go a couple minutes more at the most.  Lucas says, isn’t it impossible to have rights and be considered property?  Selling oneself into slavery would be an invalid contract because there’s no legitimate property involved in the transaction.

01:38:17

Well, I mean that is another argument I’ve heard.  Another argument I’ve heard is that, if you become someone’s slave, you would have to obey in order to commit aggression, and that’s illegitimate.  I don’t think those are the best arguments against voluntary slavery contracts.  I do think your body is property, and if you could sell that somehow, then that would be a valid contract.  I just think the problem is what I said before, that to be a slave means the master has the right to use force.  But the right to use force is only legitimate if it’s response to aggression.  It’s not legitimate if it’s not in response to aggression, and the slave, by saying I promise to be your slave, hasn’t committed any aggression.

01:39:01

I’m not so sure if that’s the best argument, although it’s on the side of the right answer, but that’s not my approach.  What we might want to do is ask Hoppe a question for the Q&A and just get him to elaborate on or confirm his specific view of inalienability because I believe he has the same view as I do on this, but I don’t remember him writing on it.  So I may add that to the list of questions that I’ve been developing.

01:39:30

01:39:34

So why don’t we call it a night?  Oh, sorry, one more.  It’s okay.  I’m sorry having rights and being owned – well, that’s true.  But I think if you become a slave and you have no rights or reduced rights, I mean imagine a criminal who’s in jail.  He does not have the right to escape.  He does not have the right to use force to object to being punished or whatever by the victim or the victim’s agents or representatives.

01:40:01

So to the extent you’re owned by someone else, you don’t have rights.  I mean if you own a goat, the goat doesn’t have rights.  If you own a human, for some reason the human doesn’t have rights, so it’s not impossible.  This is sort of a variant of the Rothbard idea that it’s impossible to alienate your will.  I don’t think it’s relevant that it’s impossible to alienate your will.  I don’t think it’s impossible to have less rights.  If and to the extent you are someone else’s property, you’d have less rights.  The right is the right to control that body, that scarce resource.  So the question is, who owns it?  Is someone else the owner, or are you the owner?  And it’s logically possible for someone else to be the owner, as we see in the case of criminals.  The question is, is it justified?  And I think it’s just not justified by making a promise or a statement.

01:40:48

Lucas: in a free market for criminal defense, there would still be no coercion.  It would all be contractual.  Well, that’s a different argument.  Oh, contractual punishment.  Well, we’ll talk about that in one of the lectures too about Hoppe’s view about the anarchist world.  But there’s a lot of debate among libertarians about whether physical punishment, even if it’s theoretically justified, would be resorted to on a systematic, institutionalized basis in a free society.  I tend to believe that a restitution and ostracism system would be what would emerge for various reasons.  It’s cheaper.  It works better for everyone, etc.  Danny, you’re right.  Block does make the argument about the child.  I’ve heard that before.  I just don’t think it’s a good argument.

01:41:44

Block argues that if you could sell yourself into slavery to save your child, you get the money and then you renege, then you stole it.  See, you’ve stolen the money that you got earlier.  He’s making the same argument I pointed out earlier.  He’s using that Rothbard debtors’ prison argument.  He’s using this idea that you could do something in the future that changes the character of an earlier transaction because, if you’re given a million dollars, you spend it on your kid.  You save him, and then you refuse to be a slave.  You don’t have the million dollars, so you can’t steal the million dollars in the future because you don’t own it.

01:42:21

And what Walter’s only resort is to say, well, you steal it retroactively.  Well, how is that?  How can you change in the future by your actions what the characteristic of an active transaction was in the past?  I don’t think you can do it.  So I do disagree with Walter on that issue.  We’ve had fun debating it, but he’s great, and he has some good points.  So let’s call it a night.  I appreciate it.  Thank you.  You’ve been a great group tonight, and it was fun.

01:42:54

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1. See Geoffrey Allan Plauche, “Aristotelian liberalism: an inquiry into the foundations of a free and flourishing society” (unpublished PhD diss., Louisiana State University,  2007), p. 125; Douglas B. Rasmussen & Douglas J. Den Uyl, “Why Individual Rights? Rights as Metanormative Principles,” in Norms of Liberty: A Perfectionist Basis for Non-Perfectionist Politics (Pennsylvania State University Press, 2005), p.125 (“the fundamental nature of an ethical imperative for a natural end ethics of the sort that we are presenting is best explained by reference to the following classifications: ‘‘Categorical imperative—regardless of what ends you seek, you must take the following steps. Problematic hypothetical imperative—if you seek this end, then you must take the following steps. Assertoric hypothetical imperative—since you seek this end, then you must take the following steps’’ (emphasis added).” (quoting Roderick Long, Reason and Value: Aristotle Versus Rand (Poughkeepsie, N.Y.: The Objectivist Center, 2000), 61 n. 65.). See also Freedom and Flourishing: The Works of Rasmussen and Den Uyl Edward W. Younkins. [↩]

Kinsella on Liberty Podcast, Episode 154.

This is the second of 6 lectures of my 2011 Mises Academy course “The Social Theory of Hoppe.” I’ll release the remaining lectures here in the podcast feed in upcoming days.

The slides for this lecture are appended below; links for“suggested readings” for the course are included in the podcast post for the first lecture, episode 153.

Transcript below.

LECTURE 2: TYPES OF SOCIALISM AND THE ORIGIN OF THE STATE

Video

Slides

TRANSCRIPT

The Social Theory of Hoppe, Lecture 2: Types of Socialism and the Origin of the State

Stephan Kinsella

Mises Academy, July 18, 2011

00:00:00

STEPHAN KINSELLA: Can you guys hear me okay?  Video and slide showing?  Hello?  Test, test.  Okay, hey, good evening, everyone.  It’s 6 p.m. central time US, later for some of you I know.  So let’s get started.  If there’s any initial questions about last week’s lecture, which I’ll go over some of in a little bit, I’ll be happy to take them now.  But tonight, what I would like to concentrate on, I’ll catch up on some of the things I didn’t cover last time and talk about Hoppe’s views on types of socialism and the origin of the state.  And I don’t know if I’ll have time to get to de-socialization.  So, by the way, I posted last week a couple of funny things to the forums about “Drop It Like It’s Hoppe,” a sort of rap thing by a friend of mine.  And also, a Facts About Hoppe, which I thought were amusing, so hope people enjoyed that.

00:01:02

So let’s go on here.  So quick review, last class we talked about basically Hoppe’s place in the Austrian and liberal sort of literature and scheme, his influences, his style, his background, his basic orientation.  And we talked about basic fundamental property-based and human-action-based, praxeology-based foundational concepts and principles, which run through most of his work, various implications of the human action axiom like conflict and scarcity, choice and cost, and profit and loss, and ends and means and causality, and the sort of methodological dualistic approach of Mises, which basically is looking at the causal world with the scientific method approach and more empirical approach, that is paucity, physical laws, and then trying to test those laws to see if you can falsify your hypothesis, which is the sort of standard way most people think of science.

00:02:14

But the Austrian view is that’s one type of science.  Another type of science is the social sciences, which are focused on – can anyone hear me, or is it just Rick that’s having a problem?  Okay, so I’ll keep going.  Methodological dualism, which looks at the causal world in one sense and which, in the case of humans, would be human behavior, just analyzing what motions human bodies go through, or trying to understand the human ends and means and purposes – excuse me – which is the teleological realm.  And from that realm, we know certain things a priori.  We know that humans have ends or purposes.  They employ means.  There’s opportunity cost.  They have choice.  There’s a presupposition of causality.

00:03:09

If you didn’t presuppose causality, you couldn’t act because action employs means, which are scarce means in the world, which are causally efficacious at achieving your ends, which are believed to be.  So an operative presupposition of action would be causality as well.  So these are the a priori things that come from this side of dualism.  Then we talked about different property-related concepts like contract, aggression, capitalism, socialism, even the state, which are all defined in terms of this fundamental concept of property.

00:03:43

00:03:46

I’m going to go to slide three.  So today we’re going to continue the discussion of property, talk about how the state arises and what its definition is, and then talk about different types of socialism or statism.  And if we have time, we’ll get to de-socialization, which I doubt we will actually, but that’s okay.  We can cover that next time.  The readings would be chapters three, four, and five and, to some degree, six of TSC, Theory of Socialism and Capitalism, also Hoppe’s article “Banking, Nation States, and International Politics,” which is chapter three of his EEPP book, and finally, “De-socialization in a United Germany,” which we may not get to today.

00:04:33

Okay, so let me just make one note.  I don’t know if I made this clear enough last time about the concept of property.  Many of you may have noticed that this word is used a little bit carelessly by a lot of people, libertarians and others.  It’s used sometimes to refer to the scarce resource itself.  Like you’ll say my car is my property.  So they use the word property to refer to the thing that is owned.  But technically it’s more of a relationship or a denotation of the ownership right that’s a legally respected right.

00:05:14

Now, legally doesn’t mean state law.  It could mean private law, but basically some kind of institutionalized, legally recognized relationship, that is, a right to control a given resource.  So I think to be careful, we need to think most of the time of property as the ownership right in a resource, not the resource that is owned.  And this usage sort of goes back to the traditional usage of the word property, which has been used for hundreds of years in liberal thought, in classical liberal thought.

00:05:52

Richard Overton in 1646 put it this way, talking about self-ownership: “To every individual in nature, is given an individual property by nature, not to be invaded or usurped; for everyone as he is himself, so he hath a self propriety, else he not be himself.”  So you see the propriety is sort of like a proprietorship or ownership over yourself.  It’s not yourself.  It’s the ownership over yourself.

00:06:20

And John Locke in 1690 in his Second Treatise of Government has this classic formulation.  Though the Earth, and all inferior creatures be common to all men, yet every man has a property in his own person, and nobody has any right to it but himself.  So we need to think of property as the relationship between an actor or an agent, that is, basically a human being, and some scarce resource, including his own body, which is also a scarce resource.  So property answers the question who has the right to control this resource.  It’s not who has the actual control of the resource.  Actual control can be thought of as mere possession or – so think of Crusoe on a desert island.

00:07:07

He would actually have control of resources that he employs as means in his actions, but he really wouldn’t have ownership because he wouldn’t have any legal right, because a legal right is something that other people can respect.  So the legal right is more of a social concept, which is compatible, by the with way, with Ayn Rand’s view of rights as social sort of devices.

00:07:32

Now, there’s a really good definition by A.N. Yiannopoulus.  He is one of the world’s leading civil law scholars.  He’s in Louisiana.  The civil law is one of the two great legal systems in the world, the common law, which is in England and many of the former commonwealth or former commonwealth countries like most of the US, most of Canada, etc.  And then the other great legal system is that in the continent, so it’s sometimes called the continental system in Europe and also in Louisiana in America for historical reasons and in Quebec in Canada and Scotland to a degree actually, in England.  That’s called the civil law or code-based systems.

00:08:20

00:08:24

And Yiannopoulos – now, he’s not a libertarian, but it’s striking how compatible his analysis is with the Austrian libertarian way of looking at property.  As he defines it, his treatise, which actually I’ll show you.  I love this.  This is [indiscernible_00:08:44].  It’s the civil law theories from Louisiana, property, fantastic, very expensive books, but they’re great.  So this is this book here, such great works of scholarship.  In any case, he defines it as I have it on the page here.  I won’t read the whole thing, but basically I’ll read part of it.  Property is the exclusive right to control an economic good.

00:09:04

It’s the concept that refers to the rights and obligations that have to do with the relations of man with respect to things of value, and he even goes into here about scarcity.  He says that some things are needed, and because of the demand on them, they become scarce, and then laws help govern the use of these things.  And then he says property rights are a direct and immediate authority over a thing.

00:09:28

Now, authority is sort of a loaded normative term, which means a legally recognized authority or right to control.  He has another nice, compact expression at the bottom of the page here, on page five slide five.  Ownership is the – I’m sorry.  Possession – ownership is the right to control, or you can think of the right to possess by it where a mere possession is the factual authority that someone has over a thing.  So even a thief would have temporary possession over a car he stole, for example, but he wouldn’t have the right to control it.  He would just have actual or the factual authority but not the legally recognized authority.  So that’s how we need to think of property, and this is how Hans Hoppe thinks about it throughout his work.

00:10:18

Now, let’s continue with what we were talking about last time about homesteading.  So homesteading, or sometimes called original appropriation, would be assigning ownership.  Hold on a second.  Ethan, would you get that for me?  It’s right there behind you.  Assigning ownership to something that was previously unowned, a scarce resource that was unowned.  Hold on a second.  Okay, based upon a certain link, an objective link between the owner and the resource, so that is what homesteading is in the Lockian sense and is sort of reformulated by Hoppian and Misesian and Rothbardian terms.

00:11:10

Now, this intersubjectively ascertainable language is more of a Kantian kind of language.  Objective is how we would describe it, so he uses those sort of synonyms as you can see here.  So in Hoppe’s terminology, in Hoppe’s conceptual framework, any assignment of ownership to an unowned resource other than by this objective link, that is, by mixing your labor or embordering it, would be basically the equivalent of just asserting by verbal decree that you own it.

00:11:44

The problem with this is, this is just a subjective opinion.  It’s something anyone can do.  Any number of people can use this at the same time, and it doesn’t suffice to establish any kind of link that’s a unique link between the person claiming the ownership and the property.  So it doesn’t serve the function of property, which is to assign an owner to this resource so that conflict can be avoided, so that the resource can be used productively and peacefully and as part of an economy in a society.

00:12:14

So as Hoppe looks at it is to homestead something is to emborder.  That’s what you can think of it as embordering, to produce border lines.  So if there’s any empty field, you could build a house on it or put a farm on it or put a fence around it.  So you can put a border up that others can observe in some kind of way.  Possessing an apple would be embordering it, showing that you own it and what the limits of your ownership are by the fact of possession for example.  So there are different ways of embordering things or homesteading them based upon the nature of the good, the nature of the use to which the human will put it as a means to action.

00:12:55

00:12:59

Let’s go on here.  Now, I mentioned earlier there are several fundamental concepts, and some of them imply other concepts that are very fundamental as well.  Scarcity is sometimes used by people in a sloppier way to mean things that are not very common, like not very abundant, like if there is some kind of disease among chickens and so we have fewer eggs being produced, you could say eggs are getting more scarce.  But that’s more of a colloquial, not a rigorous, economic concept of scarcity.  Scarcity does not mean merely nonabundant.

00:13:41

It means that the particular object is a scarce object or what economists call rivalrous.  It means there can be rivalry over it.  What this means is only one user can use this good at a given time, and if two or more people try to use it, they would have to have physical conflict over it.  So you can actually think of a scarce good as something that is conflictable, something that is possible to have conflict over, something that cannot be used simultaneously by more than one person at the same time as a means of action.  So you have to think of scarcity meaning this, and this is crucial to Hoppe’s entire political framework and his economics.

00:14:28

And conflict, what he means is physical violent interaction and strife where two or more actors want to employ the same means or where they’re attempting to achieve or use the same end thing, which is basically a means of action.  But anyway, it’s a scarce resource.  So what is conflicting is actions.  It’s not desires.  It’s not interests.  It’s actions that conflict.  Actions always employ scarce means, and when two or more actors seek to use the same scarce good at the same time, it’s not possible.  That is where the conflict is.

00:15:06

So, for example, people often use overly metaphorical or sloppy language, and they’ll say something like people fight over religion.  But technically that’s actually not true.  People never fight over religion.  Religious differences might be the motivation for the action.  They might be the reason why you clash, but what you’re clashing over is always necessarily scarce resources including land or bodies or the property owned by people, like their money, whatever.  So if one religious group invades another to convert them to their religion, they’re actually physically – using physical spears and axes and bows or guns or whatever against the land and property and bodies of the people that disagree with them.

00:16:02

It’s always a clash over scarce resources whereas the dispute’s motivation could be a religious difference, but that’s not what the fight is actually over.  It’s always physical means being used against physical scarce material and goods.  Imagine if everyone in the world were just some kind of intangible ghosts and can pass through each other and couldn’t actually affect each other or harm each other.  There would be no possibility of conflict or disagreement, and there would be no need for the concept of property.

00:16:30

So again, always keep in mind about the Misesian concept of action as action is something that employs means, which are scarce resources that are causally efficacious at achieving a given end.  And again, you can see that by viewing human action this way, all actions imply choice.  Now, this doesn’t mean that there is actually free will in some kind of ultimate sense.  In fact, the question is really irrelevant.  If you view another human being and try to understand what they’re doing in terms of human action, that is, teleologically, that is, you understand them the way you understand yourself as an actor, having choice and values and preferences and goals and employ means to achieve ends, then you are viewing them as actors, and you are understanding what they do as action and teleologically.  You’re not viewing them as some kind of deterministic or mechanized cloud of subatomic particles following the four laws of physics.  Theoretically you could according to Mises and Hoppe

00:17:40

So this is an interesting comment here, which goes into an issue that’s very controversial with a lot of people.  It goes to religion.  It goes to philosophy.  It goes to the issue of free will and determinism.  And in my view, it’s not characterized this way by Hoppe or by Mises, but I believe the right way to characterize what they are saying is a type of compatibilism, which I actually agree with.  Compatibilism is the view that, in a sense, both determinism and free will are true.  And if you have a dualist perspective of human action, I think it helps to explain that because what it means is when you view people as human actors, you’re necessarily presupposing and understanding what they’re doing as if they have choice.  So you can’t really say they don’t have choice when you’re looking at them as actors.

00:18:36

If you look at them as mechanistic meat robots basically, then you’re not looking at them as actors.  You’re looking at their behavior, not their action, and that would be the causal and possibly deterministic realm.  So Hoppe says in Economic Science and the Austrian Method, one of his epistemological works: No scientific advance could ever alter the fact that one must regard one’s knowledge and actions as unpredictable on the basis of constantly operating causes.

00:19:06

You might hold this conception of freedom to be an illusion, and one might well be correct from the point of view of a scientist with cognitive powers substantially superior to any human intelligence or from the point of view of God.  But we are not God, and if our freedom is illusory from his standpoint, and our actions follow a predictable path, for us this is a necessary and unavoidable illusion.  So, in other words, it might be an illusion.  Hoppe’s not really taking a stand, but what he’s saying is you cannot help but regard action as being uncaused or as being free, volitional.  That’s free will, even if our bodies really follow a predetermined path as could be seen by some super intelligence outside of our universe or whatever.  He’s basically saying that, to me, this is a type of compatibilism because he’s saying it’s possible for both to be true.

[Update: for more on Hoppe’s writing related to this issue, see, e.g.: p. 292 and 301–302 of EEPP:

00:20:02

In the causal realm, we might be caused and determined.  Therefore, in the teleological realm, we view our actions as being explained in the human action framework, which necessarily views our actions as being volitional or making choices.  Now Mises says something similar in Human Action.  We do not assert that man is free in choosing and acting.  We merely establish the fact that he chooses and acts.  Now, what does he mean by you can choose but it’s not free?

00:20:38

I think what he’s saying is you don’t have to take this monistic freewill approach and say that we’re completely free.  What he’s saying is we choose, and choice has a meaning.  It means that the human actor evaluates more than one possible act he could perform.  He makes a choice and thereby demonstrates the one that he prefers.  Whether it’s determined or not is really not necessary to answer.

00:21:04

So Mises goes on.  Some philosophers are preparing to explode the notion of man’s will as an illusion and self-deception because we must follow the laws of causality.  He says something similar to what Hoppe said.  They may be right or wrong from the point of the prime mover, which is God or the cause of itself.  But from the human point of view, action is the ultimate thing.  We don’t assert man is free in choosing and acting.

00:21:31

We merely establish the fact that he chooses and acts and that we are at a loss to use the methods of the natural sciences for answering the question why he acts this way and not otherwise.  So they sort of regard human choice as a fundamental that you can’t challenge, and whether or not it can be explained or somehow compatible with the apparent determinism that comes from a scientific view of the causal world he doesn’t really care about.  It really doesn’t matter, and I tend to agree with that as well.

00:22:00

Now, and the bottom I’ve already gone over, how dualism explains how you can approach things this way.  Now, again, the various fundamental concepts—cost, profit, ends, means, and causality—are all implied in action.  What does that mean?  Well, every action is aimed at a certain goal you’re trying to accomplish.  That’s your end.  And you’re trying to alleviate some kind of uneasiness that you feel or make the world result in a state of affairs that’s different than it otherwise would and that you evidently prefer.  So if that happens, if you succeed in what you want to happen, then you achieve what we call a profit.

00:22:43

Now, profit is not always monetary.  In general terms, it’s a psychic profit.  That means you’re better off now, or at least you’re better off.  You assume that you will be better off when you perform the action.  That is, your ex ante perspective is that the action, if successful, if your predictions are right will make you better off.  That’s the profit.  Now, typically we speak of monetary profit.  Now, that’s in an advanced economy having money in a market economy, or as we say, a catallactic economy.  That would be catallactic profit.  That’s sort of a type of or a subset of profit.

00:23:21

Now, all action has to employ some kind of scarce means, that is, some kind of means that can help you achieve the end you want.  So you can see how this way of looking at action, which is really undeniable because the act of questioning is an action itself, looking at action with this structure help you see that these other concepts that are packed into it or built into it are themselves also undeniable.  Now, one word that Mises and Hoppe use sometimes is apodictic, A-P-O-D-I-C-T-I-C, apodictic or apodictic, which just means basically ineluctable or undeniable, something that is so fundamental and basic that you presuppose it in the very act of questioning it, so to deny it would be contradictory.

00:24:07

Okay, now, think of it this way.  This is an important thing to get, which I mean I don’t think I understood this, this clearly until a few years ago actually because it’s never made explicit.  But it’s very implicit in the work of Hoppe and also in Rothbard and Mises.  So you can think of these fundamental concepts working together this way.  All have to do with property manipulation and ownership.  Homesteading or appropriation is how we create new property titles, and we do that by embordering.

00:24:40

And you could call that a productive act because you’re creating something subjectively into the world of commerce and human value that wasn’t there before, in a way – before something is unowned, in a way it doesn’t really exist.  It’s brought into human existence by the act of homesteading.  So homesteading is the only way to create a new property title.  Contract is the owner of property using his dominion over that thing to transfer the ownership of it, so contract transfers property, titles.

00:25:15

And we can think of that as a general concept that includes not only exchanges or even unilateral commercial transfers but gifts and bequeaths or bequests at one’s death by a will, etc.  Basically, it’s a transfer of ownership from a current owner to a new owner, however you do it.  Now, production transforms owned goods, and we’ll get to this in a minute, but a really important thing to recognize here, and this comes into the intellectual property debate, it creates wealth and value, but it doesn’t create property.

00:25:52

So production means you own something and you work on it using your intellect, using your ideas about causality, using your ideas about what ends are possible what things you can do with it, using your information and ideas about what possible means you can employ to change this or what shapes you could rearrange it into.  Basically, you rearrange it into a more valuable configuration.  So these are the fundamental property concepts: homesteading, contract, and production.

00:26:22

00:26:26

Okay, so the way Hoppe looks at it and the way I agree is the proper way is to view property rights – first of all, human rights – the only human rights are property rights.  Or put it this way.  All human rights are property rights because rights are always about who owns what, who gets to do what.  And that’s only a question that pertains to scarce goods because anything else can’t be conflicted over, and there’s no social problem to solve there.  There’s no need for a rule.  There’s no need for a norm.  There’s no need for a right.  There’s no need for a law.  It makes no sense.  So all human rights are property rights, and property rights are necessarily only in scarce resources.  This is why information is not ownable, and this is why we have to be careful.

00:27:12

I’ve already mentioned a few times how they’re a certain sloppiness with concepts and words, which is okay usually, but you have to be careful not to let it lead you to equivocation on accident or to overuse of metaphors.  So, for example, Rothbard explains that all rights are property rights, and the things we talk about like the freedom of speech, freedom of the press are not really independent rights.  They’re just consequences of property rights.  Okay, so as you can see from the previous breakdown on page 11.

00:27:49

Let me go back – from homesteading, contract, and production, that – back on page 12 now – that creation is not an independent source of ownership.  And this is a common view even among Rand who contradicted this somewhat when she’s talked about intellectual property.  But Mises, Rothbard, and Hoppe and even Rand were explicit about this.  What they view is wealth is created by rearranging already owned factors of production or scarce resources.

00:28:19

I have a blog post that discusses this in detail, which I’ve linked for here on this page, and I’ll quote some of it on the following pages.  So let’s take Hoppe first because he’s the subject of the course even though he came later than the others I’ll quote.  Hoppe writes: One can acquire and increase wealth either through homesteading, production and contractual exchange, or by expropriating and exploiting homesteaders, producers, or contractual exchangers.  Now, what he’s doing there is distinguishing between peaceful and violent ways of acquiring wealth.

00:28:53

But what I want to focus on here is the first half of that sentence.  You can increase wealth by homesteading.  Now, that’s true.  If you acquire an unowned resource and make it your own, now you have something that’s valuable to you that you didn’t have before.  If you have a contractual exchange, by definition, both parties to an exchange, let’s say two people exchange a chicken for a pig.  Each one demonstrates by his action that he values the things he receives more than the thing he gave up.

00:29:25

It’s actually not what conventional economists would say.  It’s an even exchange, that the value of the pig is equal to the value of the chicken.  It’s actually not true.  The guy that receives the chicken values that chicken more than the pig he gave up.  The guy that receives the pig, receives the pig more than the chicken he gave up to acquire it.  So each one is better off after the exchange, which is why every contractual exchange actually increases the sum total of wealth in society, not by a cardinal number, not that you can measure utility, but you know that both parties are better off after.

00:30:02

Lucas says this screws up the model so don’t say this.  You’re right, and in fact, this is a presupposition of income tax law.  The way it operates, they quite often will tax you for the value they say of something, by its monetary value.  But this is actually unscientific because if I pay $10,000 for a car or someone gives me a car that someone else would pay $10,000 for and the IRS will tax me on $10,000 worth of value, well, actually the car may be worth more than $10,000 to me because I paid $10,000 for it, so I value the car more than the $10,000.  So you could see that these – the state actually requires unscientific economic principles.

00:30:48

Okay, but now, I left out production.  So production, by production, Hoppe means rearranging something you already own to make it more valuable.  That is an increase in wealth.  So let me go onto the next page and let you see what Rothbard and others said about it.  So even Ayn Rand wrote this.  This is a fascinating quote, which I don’t think she quite realized the implications of it when it comes to patents and copyrights or intellectual property, which she supported.  She acknowledges here very powerfully: The power to rearrange the combinations of the natural elements is the only creative power man possesses.  Creation does not mean the power to bring something into existence out of nothing.  Creation means the power to bring into existence an arrangement of natural elements that hadn’t existed before.

00:31:43

So you can see what this implies is you own some property, and then you rearrange it to make it more valuable.  Apple takes plastic and metal and – excuse me – silicon and turns it into an iPod.  If you put it into the blender and see if it will blend, then you turn it back into a useless hunk of matter.  But you have to own this matter to rearrange it into something more valuable.  Now, the Randians will say you’re creating values, and therefore you own these values, but of course you can see this as double counting or it’s unnecessary.  You don’t need to say you own the value that you create.  You don’t need to own the product that you create to own the iPod that you fashioned because you had to own the raw factors first that went into it.  And you own them because you already own the property that goes into it.

00:32:34

Rothbard says something similar.  Man finds himself in a certain situation, and you decide to change the situation to achieve your ends, but you can only work with the numerous elements that he finds in the environment by rearranging them to bring about the satisfaction of his ends.  Now, some of the objectivists and Randians have accused Rothbard of plagiarizing from Rand because he used to be in her orbit.

00:32:58

But let me show you what Mises said earlier than both of them about the nature of production.  He says there’s a naïve view that regards it as bringing into being of matter that didn’t exist before as creation.  But then he says this is inadequate.  The role played by man consists solely of combining his personal forces with those of nature so that your cooperation leads to a particular desired arrangement of material.  No human act of production amounts to more than altering the position of things in space and leaving the rest to nature.  And that part means relying upon causal laws that will get you what you want, but basically, they’re all talking about the same thing.

00:33:41

Okay, now, let’s switch to the origin of the state, the nature of the state, and then we can talk about different types of socialism.

00:33:56

So this is Hoppe’s – a quote from Hoppe.  Let me begin with a definition of the state.  Now, this is one characteristic of Hans Hoppe which I have always admired is his ability to have very, concise, and essentialist definitions.  He doesn’t leave a lot of things to implication like a lot of writers do, and making it explicit helps to clarify just what you’re arguing.  And you’ll see this also with Rothbard.  Rothbard is a very clear writer.  You can understand what he’s saying.  If you try to read a lot of political theorists of other schools, even the Hayekian school sometimes, but especially the leftists and the Marxists and others, they are awful, very vague and slippery, and they change definitions from minute to minute.  So this is an admirable quality.  So his definition of the state is really good here.

00:34:48

What must an agent be able to do to qualify as the state?  He must be able to insist that all conflicts – now remember, this goes back to his view of conflict as conflicts over the use of a conflictable or rivalrous or scarce means.  All conflicts among the inhabitants in a given territory must be brought to him for ultimate decision-making for his final review.  In particular, this agent must be able to insist that all conflicts involving himself be adjudicated by him or his agent.

00:35:20

Now, implied in this power to exclude all others from acting as ultimate judge, as the second defining characteristic of a state, is the agent’s power to tax, that is, to unilaterally determine the price that justice seekers must pay for his services.  Now, you can see that this actually applies to any state, even a minarchy, and Hans says in other places – he combines the power to tax with the power to have a monopolistic decision-making power in a given territory.  And these are actually sort of both sides of the same coin.  And in fact, either one is sufficient for the other.

00:35:58

Imagine an agency that didn’t have a monopolistic right to outlaw competition in adjudication services but it has the power to tax.  Well, if it has the power to tax, then it can outcompete all other agencies because it can take money from the people and use it to subsidize its services, similar to the way that public or state schools, government schools in, say, the US are hard for private schools to compete with, and that’s why private schools are a minority.  Conversely, if you didn’t have the power to tax but you had the power to outlaw competition, then the agency could simply charge a monopoly price for its services, which people will be forced to use because you’re preventing them from using competing services.  So that’s the same as a tax.  So basically, taxing implies monopoly, and monopoly implies taxes.

00:36:55

00:36:58

Edward asks, what about the mafia and the black-market arbitration that escapes the state’s jurisdiction?  I’m not sure what your question is about it.  If you want to elaborate, you can, and I would say the state doesn’t have to have 100% complete control to exist.  That’s obvious.  Even now, there’s a black market, but the state just has to have enough to survive and prosper and stay around.

00:37:20

Now, one difference between – no, nothing is perfect.  It’s just sufficient to be an institution that can survive.  The mafia is very similar to the state.  The main difference is it’s not seen as legitimate.  In fact, that’s the primary difference.  It’s not seen as legitimate by the people that it persecutes.  It also basically taxes people and outlaws competition with violence to some degree.  But it’s not seen as legitimate, so it’s always the extent to what it can get away with before people start fighting back.  It’s more limited.

00:38:00

The state deludes people into thinking primarily by democracy and the right to vote and by employing them and giving them benefits it makes people – I think – actually Jock says, the state is like Stockholm syndrome.  I actually think that’s a good analogy to explain the mentality of people that believe the state is legitimate.  They are basically victimized by the state, but they believe the state’s lies that they need the state to survive and to have a good society.

00:38:33

Lucas mentions private arbitration.  Yeah, but private arbitration that’s open and legal operates under the sort of umbrella of state control and only with the state’s permission.  In fact, if you have an arbitration and there’s a determination and you have your arbitral award and you want to enforce it, if the loser refuses to comply, then what you have to do is actually take that to a state court for ultimate enforcement.  And the state actually will not enforce arbitral awards that it deems to be contrary to public policy.

00:39:12

That is, if you try to escape – let’s say you had a – you made your employees sign an arbitration agreement, the rules of which or the rules of the arbitration agreement or the agency that you agree to hear it don’t permit the employees to argue based upon environmental protection laws or human rights protection laws or minimum wage or pro-union legislation.  Well, then the state’s courts simply wouldn’t enforce that.  So it’s all basically puppets of the state or operating under the state’s wings or control.

00:39:49

So the conclusion to this quote by Hoppe – excuse me – based on this definition of the state, it is easy to understand why a desire to control a state might exist.  For whoever is a monopolist of final arbitration within a given territory can make laws, and whoever can legislate can tax, and this is enviable position, and I have a couple links here.  I have a link to Hoppe’s article, which this quote comes from, and this thinking runs through a lot of his work, and also a blog post by me, which quotes this and elaborates on it a little bit.

00:40:22

Okay, now, how does the state arise, that is, something that’s different than a mafia that can only get away with so much?  So Hans has a fantastic article, which is now a chapter in the expanded edition of his Economics and Ethics of Private Property, chapter three, “Banking, Nation States, and International Politics.”  I can’t go into that whole article here, but the fundamental thing to get from it for this purpose here is he goes into a systematic analysis of exactly how the state sort of insidiously takes control of certain institutional features of society to slowly have its tentacles in everything and to basically take control.

00:41:06

So, as he argues, the state takes over and corrupts many institutions and aspects of life such as roads and transportation.  I mean all the roads in society are primarily state-owned, which leads, by the way, in Hans’ view, which we’ll discuss in another lecture, to forced integration because, for example, the roads the government puts up are free to use.  It makes it easy for citizen A to travel across the country, and the state has antidiscrimination laws so that if the road takes you to a neighborhood that could be private and might have a restriction against people that are culturally different or whatever, but now they can’t enforce this, and so it’s easy for people to get there.

00:41:50

So it’s a way of the state forcing integration on people, which has implications for Hoppe’s immigration views.  Communications—as soon as the radio waves started being privatized in the courts, in the common law in the early part of the 19 – I guess 1900s – sorry – yeah, 1900s, the FCC was created and basically appropriated it and monopolized it.  I’m talking about the US here.  And now they’re trying of course to regulate the internet and communications because communications is a – and of course there’s extreme censorship in more authoritarian regimes, what people are permitted to read, what people are permitted to say, who they’re permitted to talk to, freedom of the press, freedom of speech, of course law and justice, the courts, the police, healthcare now.  Money is another extremely important one.  The government takes over money.  These are all private institutions and features that would arise.

00:42:51

But the state insidiously starts taking over, the financial and banking sector of course and money and education, another extremely important one.  That’s explicitly for propagandistic purposes.  So when the government takes over so many things like this, it starts getting its hooks into the entire fabric of society.

00:43:12

And then finally the big one—slide 19 now—would be democracy itself.  So we have a system of state education, which makes people sort of believe the myths of democracy, and we are the state.  And then the state redistributes state power itself, makes everyone a shareholder in the state in a sense, a stakeholder in the state.  My mom might be taking social security payments.  Someone else might be on welfare.  Someone else might have a job at the local prison.  Someone else may be manufacturing munitions that – in the defense industry that the Army – the military buys.  Someone else may be going to a subsidized school or college.  And so everyone starts thinking of themselves as part of the state and dependent on the state and beneficiaries of the state.  And they have a stake by their voting and by their lobbying to try to use the state to take from others to get for themselves, and that helps reduce resistance to state power.

00:44:25

So when people view themselves as owners of the state or we are the state, when you can vote and you believe the myth that your vote matters and you can control things when you’re dependent on the state for your survival, then you’re not going to resist the state expansion of power as much as you would if it was, say, a monarchy or even a despot or a mafia where the distinction between the ruler and the ruled is clear.  And the fact of the violence and basically the theft that this ruler is committing is visible and evident.  And you might put up with a king as long as he provides some benefits to you.  He’s kind of harsh.  He taxes you.  You grudgingly pay it, but at least he sort of helps keep foreign armies away and does some kind of justice.

00:45:15

So the role of these isolated states is that of state actors to be clear, but not in the modern democratic state.  Anyway, the point of this article, this chapter is to talk primarily about money and banking, so that’s why he concludes that with the monopolization of law and security production, traffic, communication, and education – oh, by the way, we can mention the TSA here of course and airplane traffic and transportation – excuse me – which the government regulates, as well as the democratization of state rule.  All features of the modern state have been identified but one: the monopolization of money and banking, and then he goes into talk about that.

00:45:58

And of course, you can see how horrible that is as well with our current recession and economic cycles, etc., which the state creates, and then the state comes in and rides into the rescue or uses this as an excuse to seize more power in emergency level or to print literally trillions of dollars of money and to hand it over to cronies of the state like Goldman Sachs, etc., GM, the airline industries.  And everyone just puts up with it because they believe the state’s lies that the state can protect us from this horrible disaster, which the state itself of course has caused.

00:46:39

00:46:43

Tito has a question.  Well, actually, you don’t have a question.  Okay, here it is.  Tito says, given Hoppe’s definition of the state, will we then presume that, rather than government per se, the state is more precisely a form of government?  We can’t accurately suggest that a monarchy is a monopolistic expropriator by its nature, and neither is democracy.  Both are governments.  The state is, by its nature, a monopolistic expropriator.  Well, okay, my view of this, and I think it’s compatible with Hoppe’s views, the word government of course is widely used by libertarians and others again in a sloppy fashion, sometimes as a synonym for the state and sometimes not as a synonym for the state.  Hans tends to use the word state, which I believe is more precise.

00:47:31

I would tend to think that the word government means – the best meaning of the word government is some kind of institutions of justice and law in a given society whether that’s a state government or whether it’s a private government.  So I would agree with you that, in a way, a state is a type of government.  It’s just a – it’s a bad type of government.  So I would agree with you on that, but that’s why we talk about the state because that’s a more clear definition.

00:47:59

00:48:04

And, by the way, you might notice this too.  So the – when the state takes all these – has all this control over our institutions, they gradually infiltrate our language and our concepts with what I call classificationism.  Basically, everything comes down to a state arbitrary classification.  Like they’ll say is that a marriage or is that not a marriage?  And if it is, then certain rules apply and certain don’t.  I mean there’s millions of – hundreds of these things of what an employee is, what – if you’re not an employee, then you’re not subject to certain rules, what money is, what it means to be practicing law or practicing medicine, what income is, what interstate commerce means, etc.  I have a blog post on this as well, which you can click on there.

00:48:48

And Hoppe’s view is the state is fundamentally based on a mistake by the populace.  That is, it rests upon societal consent because it’s always a small group parasitically leaching off society at large.  So it could not survive.  It doesn’t have enough physical might to survive if every – if 90% of society saw it as a mafia.  It couldn’t get away with what it gets away with.  So it’s – the only reason they exist is because people have a mistaken notion about its legitimacy.  And this is because of ideological propaganda, which again is accomplished because of its control over media, communication, and especially education and because of widespread economic illiteracy of the people.

00:49:39

Most people, I believe, are decent, and if they really understood the economic consequences of the law that they support, they would be much less willing to support statist and socialist policies and also because of the problem of vested versus diffuse interests, that is, special interest groups are motivated to lobby Congress, for example, to pass laws that help them.  And it only affects everyone else in society a small amount, and they don’t have an organized interest in countering it.  In this way, we get to a point of warring special interest groups and basically a system like we have now where everyone is trying to get theirs at the expense of everyone else.

00:50:17

00:50:23

By the way, I’m not much of a conspiracy theorist myself.  I think Hoppe is more sympathetic to them than I am.  And Rothbard was far more sympathetic, but he does have a good point here, Rothbard does, about – this goes back to the state ideology point.  He says that the state tries to poo-poo the idea of conspiracies, and the idea if you look at the bottom, this quote here, is that a conspiracy theory could unsettle the system by causing the public to doubt the state’s ideological propaganda.  So he’s saying that conspiracy theories are useful because they help people to distrust the state, and I think there’s something to that, but that doesn’t mean that they’re all correct.

00:51:04

00:51:13

Now, back to Hoppe’s essentialist definition of socialism.  Remember, he defined it as socialism has to be conceptualized as an institutionalized interference with or aggression against private property and private property claims.  Now, you’ll notice here that the standard definition of socialism talks about state control or collective control over the means of production.  But Hoppe looks at that as just one – he generalizes beyond that and says look, there’s nothing special normatively or politically about the means of production.  It’s just one type of useful property, but there’s lots of types of useful property.  They all serve as means to – means as part of action, scarce goods, scarce means that are part of action.

00:51:56

And so – and he also – the word institutionalized distinguishes it from private crime.  Now, he’s, of course, a libertarian opposed to private crime and views that as aggression.  But it’s just private aggression, not institutionalized.  Institutionalized would have to be some kind of regular, systematic, repeated, sustained interference or aggression committed by an institution, an agency in society that is seen as legitimate, and therefore, can impose these laws on people.  And capitalism correspondingly is defined as a social system based on explicit recognition of private property and a contractual, non-aggressive exchange between private property owners.  So he defines it this way, and some people objected to this because they want to maintain the word socialism to refer to basically communism or state control of the means of production.

00:52:51

But Hoppe’s essentialist definition allows him to sort of see common threads in things that are less than full-fledged or outright socialism or communism and see the common thread between them.  And basically, this goes back to his definition of the state.  Basically, in Hoppe’s terminology, the state, any state, even a minarchy, is necessarily and to the extent that it exists is socialistic, so that even a minarchy has to commit some kind of systematic aggression, which is socialistic.

00:53:25

And conversely, socialism is necessarily a state, so he basically looks at them, and that allows him to look at it as a spectrum, different types, blends, flavors of socialism, types of states that is, which have different effects on society because they’re different types of states, different types of socialism.  So this is why he says there must exist varying types and degrees of socialism and capitalism, that is, varying degrees to which property – private property rights are respected or ignored.  Societies are not simply capitalist or socialist.  Indeed, all existing societies are socialist to some extent.

00:54:09

Now, he doesn’t mean here that all societies have to be socialist to some extent.  What he means is in today’s world, because everywhere that there’s society, there’s a state, and then there’s socialism.  And he breaks it down into different types, and I’m only going to touch on some of his key analyses and features of these because once you start reading into this, you get the hang of it.  I mean he breaks it down into socialism Russian-style, which most people would call socialism or communism, socialism social-democratic-style, the socialism of conservativism, and the socialism of social engineering.  These are – excuse me – chapters three, four, five, and six of TSC.

00:54:53

So why don’t we do this?  Let’s talk – let’s continue on for another – a few more minutes before we have Q&A or before having a break and go into some of these so that we can get close to finishing today.  So first he talks about socialism Russian-style.  Now, there’s not too much surprising here.  It’s just that his framework allows him to first analyze the most pristine or paradigmatic type of socialism and analyze its effects.

00:55:27

A lot of these are common to libertarian and Austrian critics of socialism.  But basically, he first talks in the book around page 28 about how, if you have any type of institutionalized socialism, that is, redistribution of property rights, then this is going to have bad effects on society.  Even in the Garden of Eden it would result in reduced investment and also in non-productive personality types.  Basically, people would become more aggressive, and that’s because aggression would become more profitable.  And non-aggression is not as legally respected, and you can’t profit from it as much.

00:56:10

So he said even in the Garden of Eden, but now in this chapter, he’s talking about what he talks – what most people call socialism par excellence, that is, that kind of standard thing they think of as socialism, a Marxist sort of social system where the means of production, which means the scarce resources used to produce consumption goods, are nationalized or socialized, that is, controlled collectively instead of being owned privately by private property owners like capitalists.

00:56:39

And you notice here that he’s talking here about the means of production is a type of scarce resource or scarce good.  It’s a means of action, but it’s a subset of all scarce resources.  It’s the subset that is used to produce consumption goods, which are another scarce resource or scarce good.  Now, Hans’s essentialist definition, he would include both of those, the systematic aggression against both of those as a type of socialism.  But here we’re talking socialism par excellence or Russian-style, so it’s the typical type of socialism most people think about.  The type that the Democrats will laugh when they say it’s ridiculous to call Obamacare socialized medicine.

00:57:25

It’s ridiculous to call that socialism.  Now, in one sense they’re correct that it’s not really the state control of the means of production.  But it does amount to an institutionalized interference with private property rights, the taxes we need to pay for it, the regulations that tell people what to do or doctors, etc.  So it would have similar effects to – at least similar negative effects to standard socialism.

00:57:54

Anyway, Hoppe in this chapter analyzes many aspects of communism or this Russian-style socialism.  So for example, he looks at the economic effects, and he breaks it down into three primary effects, and one would be there would be a relative drop in the rate of investment and rate of capital formation.  And the reason is when you socialize goods, you favor the non-user and the non-producer, and the non-contractors of the means of production.  So you basically get what you subsidize, and this raises cost for users, producers, and contractors, so there’s fewer people acting in those roles.

00:58:30

00:58:34

That means there’s going to be less original appropriation of natural resources, less production and upkeep of the old factors, and less contracting.  And these are the ways that wealth is generated remember, so there’s less wealth.  Now, this is true.  This first effect he notes is true of all types of socialism.  Even in a minarchy you’re going to have this effect to some degree, maybe not as extreme or severe, but the same effect.  Now, a second effect is it’s going to result in a wasteful use of the means.  So that’s also a way of destroying wealth because when you use property for its most desired ends, then you have less wealth being produced.

00:59:16

00:59:20

To stay on track let’s skip over this.  You can – if you’ve read these chapters, you’ll see he goes into a lot of detail about the intricate analysis of the different ways these different types of socialism affect society.  So then number three, it causes relative impoverishment, a general drop in the standard of living by overutilizing the factors of production.  And the reason is, if you’re a caretaker of property, then you have a different incentive to maintain it and use it effectively that a private owner would.

00:59:51

This is sort of the tragedy of the commons to an extent, just a traditional incentive problem of socialism.  He also mentions lastly that socialism Russian-style has important changes in the character structure of society.  It changes people’s personality over time, and this is true.  It makes people less alert to opportunities for profit, less productive.  They don’t care as much about anticipating changes in consumer demand because they can’t do anything about it, or they can’t profit from it as much.  They don’t develop as many market strategies.

01:00:27

So people’s initiative declines.  Their work habits decline.  And then if the state has to reintroduce a little bit of capitalism because they’re just going – they’re becoming impoverished, it’s too late to get the people to change.  You’ve already ruined the whole character of a society.  And in this chapter – let’s go on to the next one, socialism social-democratic-style.   So as Hoppe argues, even if you have a moderate-market socialism, you still can’t prevent a relative impoverishment of the population if there’s socialized production to any extent.

01:01:17

So what he explains is that the failures of communism were too apparent, and it was too unpopular.  So a lot of these countries, even though they had the same egalitarian and anti-capitalist impulses, didn’t want to put central planning in place.  So they put a softer version, which is social-democratic-style, and one – there are two central features.

01:01:40

01:01:45

So unlike Marxist socialism, private ownership in the means of production is not outlawed.  It’s permitted except with some exceptions—except for education, traffic and communications, central banking, and the police and the courts.  And remember, in Hoppe’s “Banking and Nation States” piece we just went over, these are important ways the state gets its tentacles and control over society.  And the second thing is the owners of the means of production only own part of their income that they can acquire from using these means of production, and then part of it goes to the state like in the form of taxes or some other kind of controls.

01:02:20

And of course, this is going to have systematic effects too, similar to but not the same as but similar to Russian-style socialism.  There will be less production, more impoverishment, less wealth formation, more leisure.  People will value leisure more because it’s – productivity is relatively less rewarding, so they’re lazier, spend more time at leisure.  And then people also shift their activities to less productive activities or gray market or black-market activities or things that are not taxes or taxed relatively less.  So it distorts the structure of society that way as well.

01:03:02

Now, this – a really interesting shift is when – and most people would recognize that social democracy is sort of a soft type of socialism even though it’s not outright central control of the means of production.  But Hoppe, of course, shows that using the essentialist definition of aggression and statism that he has that, of course, every state is socialist to some degree, and conservative policies and conservative types of governments and regimes also are socialistic but in a different way.

01:03:34

So he starts off here with a fascinating overview of the history of feudalism which, by the way, is compatible with the left-libertarian, mutualist-type criticism that is common nowadays of existing property structures that came from feudalism or state favoritism in the past.  I mentioned – I don’t know if I mentioned earlier or in another lecture that Hoppe’s views on homesteading of easements is also compatible with the sort of left-libertarian criticism.  His idea that, if you have people in a community and they’re traveling to the river, but they haven’t really homesteaded the land, they might have homesteaded an easement, the right of way, over the land, and if someone then homesteads that land, they homestead it subject to the easement or right of way.

01:04:23

This is similar to some of the complaints a lot of left libertarians have, and the fact that this is built into Hoppe’s work shows I think that some of their concerns are already addressed by anarcho-capitalists like Hoppe.  So, for example, here he talks about the assignment of property rights to these feudal lords where they started acquiring all this property didn’t come from actual appropriation or contract.  They just were given a special privilege by the state or by the system, and then that allowed them, of course, to collect rents from the serfs and to have extra market power and to develop these feudal kingdoms.  And this is a type of socialism as well because it’s an institutionalized interference with private property rights.

01:05:16

Whose rights would it be interfering with?  It would be interfering with the rights of the people that were actually using the property, for example, the serfs.  Basically, it’s taking their property rights from them, and of course this is a different type of socialism than Russian-style or even social-democratic-style, but it’s also going to have negative effects.  Hoppe calls this aristocratic socialism.  Now, this is perfectly compatible with his other writings, which we’ll get to in another lecture, about the relative superiority of some kind of constitutional monarchy, traditional monarchy.

01:05:48

It doesn’t mean he’s a monarchist.  In fact, he’s not, and it doesn’t mean that to the extent these monarchies are feudalistic like this that they don’t have problem as well.  They do.  But you can still say one type of state is institutionally inferior or superior in different ways than other types.  And, as Hoppe notes, these conservative states tend to use price controls, regulations, and behavior controls, which are socialistic in Hoppe’s framework because they interfere with people’s use of their property or their bodies, which is a type of property.

01:06:26

01:06:30

Finally, I’ll pause here, and we’ll take a break.  But he also has a long chapter, and we won’t get into this too much because a lot of it has to do with his build-up to his methodology and his attack on positivism.  But he’s talking here about, in America and pragmatic, practical societies, which are not really that principled thinking but use a lot of the methods of the natural sciences, a lot of empiricism, influence from Karl Popper where we have more piecemeal social engineering which, by the way, is becoming more systematized.

01:07:04

But one policy here, social security for example – now these, of course, have similar effects to the socialist policies of the other types but different.  So why don’t we take a break here?  It’s 7 past the hour.  Let’s come back at 15 past the hour, and we will resume with a few more slides and then some Q&A.  I’ll be back shortly.  See you at 15 past.

01:07:31

01:07:34

[indiscernible_01:07:34] question about Hoppe’s arguing that government or really the state is not necessary for law and justice enforcement.  Yeah, he makes it explicitly in several places.  I think it’s in his book The Myth of National Defense or something like that.  He’s got a chapter or two in there on that, and he’s got one or two other pamphlets or articles about this, and I’m going to cover that in our subsequent lecture.  But try his book, The Myth of National Defense.

01:08:02

01:08:07

Let me go through a few more of my slides here.  I actually – so no, I’ve actually kind of finished what I wanted to go over here.  He’s got a nice article, which I’ll cover briefly next lecture on “De-Socialization in a United Germany.”  He also has an extended sort of discussion in the previous chapters we just discussed comparing East Germany and West Germany.  It’s showing how the difference between those two is striking.  It’s a great laboratory case showing the – how sort of this example bears out some of his predictions about his economic predictions about how socialism can affect a society, culturally, personality wise, spiritually, politically, and of course, in varied economic ways.

01:09:06

Now, what he does – you’ll note that Hans is an apriorist.  That is, he’s an Austrian in the Misesian tradition who believes in the use of deductive laws, that is, a priori laws.  What Mises does and what Hoppe does is they take a starting point, certain undeniable propositions like, for example, the action axiom or the a priori of action.  And they deduce certain facts from this that cannot be denied, and then they introduce certain contingent facts to make the analysis more tailored to what we have and more interesting.  But these introduced facts are usually a little bit less controversial, or they’re not controversial at all.

01:09:59

For example, the assumption is made that we don’t have a barter economy, that we have catallactic commercial, roughly free-market economy with money.  And if you assume that there’s money, then you can make other deductions based upon your basic, fundamental economic laws, and then that hold as long as the assumptions are true, that is, as long as there is money.  So this is a common technique of Mises and Hoppe.  And so what he does in his chapters analyzing the effects of socialism is he says, listen, I’m deducing all these effects, systematic effects, by basically pure reason, by deductive reason.

01:10:39

Now, he can’t say what the extent of the effects are.  He can say if you diminish property rights in this following way, then you can expect to see these types of consequences.  There’s a tendency.  He can’t say what the extent or magnitude is.  And what Austrians believe is that you don’t really – you can’t test or verify a priori laws, but you can illustrate them with historical examples.  So that’s what Hans is doing with the Germany and East Germany/West Germany analysis.  He’s saying that, look, my preceding analysis is – stands on its own as a deductive exercise with certain empirical assumptions.

01:11:24

But let’s take a look at the West Germany/East Germany case to illustrate it, not to test it fully but just to illustrate it and get an idea of the magnitude of some of these tendencies.  So he also has – like I say, we’ll talk in detail next time, and let me explain what we’re going to talk about in the next one.

01:11:43

We’ll talked about the de-socialization.  In the next class, we’re going to switch to ethics and Hoppe’s case about libertarian rights and argumentation ethics.  We may get into a little bit of more political matters as well, so that’s a reading assignment.  I’ll post it on the course page later today.  So we have plenty of time.  There were some questions which I didn’t get to earlier because I wasn’t – I didn’t stop for all of those.  So if I’ve missed any that you want to repeat here or refer me to, or if you have any other questions, I’ll be happy to discuss anything, or if anyone wants to discuss anything, go for it.

01:12:21

01:12:28

Tito Warren asks, what are my thoughts on geolibertarianism?  I assume you mean Georgism.  I think it’s unlibertarian.  I think it’s based upon bad economics, kind of crankish views on value, and the Austrians disagree with.  The idea of a single tax is insane I believe.  I mean basically it’s a type of socialism because it’s a type of institutionalized interference with private property rights, that is, the right to land.

01:13:04

Now, it probably would be better than what we have now if that’s all you had, but it would, of course, metastasize and turn into a worse tyrannical state like we have now.  So I don’t think it’s very sound.  I don’t think it makes any sense, and I think it has a fixation on land, with land as some kind of special type of good, but I don’t think there’s any economic case for that.  I think land – now I don’t know if Hoppe has written much on Georgism.  I know Rothbard did.  Rothbard demolished Georgism in some of his articles.

01:13:38

But anyway, the idea of tax is a bad idea, and the idea that you don’t own the product – or the rent comes from land because you didn’t create the land.  You only improved on it or something like that I think is nuts.  But the libertarian idea is simply always to answer the question who has the right to control this scarce resource?  And the libertarian answer is the person with the better connection to it.  And so, a piece of land is a scarce resource, and the original homesteader has a better claim to that land than anyone else including this single-taxing agency, whether it’s the community or whatever.  So I don’t agree with it, and I know Hoppe doesn’t agree with it.  I know Rothbard supposes it.

01:14:31

So are there any other questions?  Anything I missed in the – let me scroll up here and see if there’s any questions I missed.  If I miss anything, you can call it to my attention.  I think most of this was your chatting among each other.  I do see Jock posted Proudhon’s definition of government.  Let me see here.  To be governed is to be watched, inspected, spied upon, directed, law-driven, numbered, regulated, enrolled, etc.  You know, I mean this is this sort of leftist conflation of authority with tyranny or with statism, and – so let’s see.

01:15:16

Do I have this on the wrong – I have it on all participants.  Let me see if I’m not looking at everything right.  Is there something I’m missing here?  I have the chat window open.  That’s all I can see.  I don’t see something about Michael.  Oh okay.  Let me see what the forum question is here.  Hold on a second.  There’s a Moodle forum question here, which I missed.  Oh I don’t know how I missed this.  I thought I had a subscription.  Maybe it was just posted.  Okay, this is from Eric Stabe.

01:16:07

I’m confused by what seems to be a contradiction in Hoppe’s TSC this week.  Let me flip back through the slides.  Is this what you guys are talking about, Eric Stabe’s?  Oh quickly, I see John McGinnis has asked a question here.  Hoppe uses the argument – I wonder why I’m not seeing this.  So maybe it’s not focusing it to all.  You’ve got to send to all participants I believe.  Hoppe uses the argumentation theory but says Mises took Hoppe to a new level.  Will you discuss this?  Yes, I will in the epistemology discussion.  I will discuss that probably two lectures from now.

01:16:49

Okay, let me go back to Eric Stabe’s question.  He thinks there’s a contradiction in TSC.  In chapters two and three, Hoppe speaks of how socialist economies force people to rely on family – let me cut and paste this here so everyone can see it.  This is from Eric Stabe.  Okay, socialist economies force people to rely on family, relationships, and persuasion to advance their economic standing rather than ingenuity and skill.  Later, on page 70, he says people develop uniform and uninteresting personalities, and the state kills creativity.  These statements seem to be at odds.  How can a person’s behavior – I’m sorry I didn’t see this question before.  How can a person’s behavior be at once – I might need to reply to this later after thinking about it because this is sort of [indiscernible_01:17:49].  Hold on a second.  How can your behavior at once, reacting to the same stimulus, become both more private and more political?

01:17:59

Having to rely on interpersonal relationships to achieve advancement would seem to force people to become more personable and seek interaction with others.  I’m actually – I’d have to look at it and see.  Maybe someone here can – I’m having trouble concentrating on this right now.  Does someone else here have a thought on what he’s talking about?  Socialist economies force people to rely on the family.  I don’t know what he means – to advance their – I’m not sure what you’re talking about in the first part.  What I’ll do is I’ll either address this next week, or I’ll try to answer in writing that everyone can see later this week to answer that question.  I’ll look at the quotes you’re talking about.

01:18:46

01:18:54

Manjula Guru says, in the readings, socialism is said to be liberalism in the US.  Can you explain this?  I think you mean the terminology question.  I’ve never quite understood exactly how this bizarre shift happened.  I mean, from my perspective, the word liberalism used to denote sort of a progressive, pro-individual, enlightenment sort of improvement in the human condition.

01:19:24

Free-market, classical liberalism it’s called now in the US.  And somehow the leftists and socialists in the US co-opted that term where its meaning has been changed in the US where liberalism means basically social-democratic socialism, whereas in Europe I believe the word liberalism still means what we call classical liberalism here.

01:19:49

I mean Mises had a book, Liberalismus, classical liberalism, or I think in the American market they called it Liberalism and the Classical Tradition so people wouldn’t think we’re talking about Bill Clinton and the Democratic party.  So it’s just a terminology thing.  It’s bizarre.  Libertarianism has more than one meaning.  I believe it has a philosophical meaning, having something to do with free will.  And of course, the word civil libertarian is usually a leftist sort of ACLU-type term that refers to people that believe in personal liberties but not really economic liberties, so words just have different meanings.

01:20:27

Edward Dehm: Do you prefer a term to refer to yourself as a non-left libertarian?  Well, I actually – I mean I’m sympathetic to a lot of the insights of the left, and I’m sympathetic to the argument that a lot of our history came from the left tradition.  There’s also intertwining with the right in some ways.  I think that the left-right spectrum is a flawed way of looking at things, and I think they are both types of socialism, and they are both wrong.  And they both have more in common with each other than we have with either of them, and I don’t think libertarianism is either left or right.

01:21:03

And I personally – and Hoppe has the same view.  I personally get a little bit – I won’t say upset, but I resist the idea, the call among left libertarians for us to learn from our origins on the left.  I mean I’m all for recognizing the insights of left libertarians, but as for the pure left itself, I think they’re utterly evil, so is the right, but I think they’re utterly evil and completely unlibertarian.  And if anything, they have something to learn from us like economic literacy and intellectual honesty and consistency, and the same with the right.

01:21:45

So I just think I’m a libertarian.  Now, I used to say I’m an anarcho-libertarian or maybe an Austrian or Rothbardian libertarian.  I don’t even like the term anarcho-capitalist myself, but again, this is about Hoppe, and Hoppe does use the term anarcho-capitalist.  He doesn’t mean he’s a capitalist in the sense that it’s criticized by the left libertarians.  When they criticize capitalism, they mean the existing corporatist monopoly capitalist institutions we have in place now, which of course, so-called anarcho-capitalists are not in favor of either.  It’s just another semantic difference.

01:22:22

John McGinnis asks, capitalism and libertarianism seem interchangeable synonyms according to Hoppe.  I think so.  I think he’s going with – I guess in the ‘60s and ‘70s, ‘80s, the big libertarians like Milton Friedman and Rand and even Rothbard, they all, for some reason, used capitalism as a synonym or as maybe a proxy for – like a type of metonymy for a free-market order with strong private property rights and a thriving free-market advanced economy, maybe an industrialized economy.  So it has – it did become that way, and I think Hans does use it as more of a synonym.

01:23:09

I think Dannys says – Danny Sanchez from the Mises Institute says some left libertarians don’t like the good kind of capitalism either.  I agree with you, and this is my problem with their use of the word capitalism because, if you try to corner them and say, well, what we mean by capitalism is this, so we don’t really have a disagreement, they will still disagree with you saying that for some of them it really is substantive.  For example, they will say that, well, we’re against authority with libertarians, authoritarianism and being bossed around, pushed around by bosses, this kind of stuff, which sort of buys into this Marxist, leftist view of human nature and the economy and exploitation and alienation from your labor and all these kinds of things, which I think is not – first of all, it’s not part of libertarianism.  And I don’t even think it’s compatible with it.  It’s certainly not required by it.

01:24:09

01:24:14

Tito Warren: How should we reply to the leftist assertions that hierarchy is bad?  And they don’t really answer the question.  How should we reply?  Well, because it’s – well, first of all, I think it’s not a clearly defined term.  What does hierarchy even mean?  I mean libertarianism has a clear conceptual framework.  When we talk about scarce resources, property rights, aggression, these are all really clear.  We oppose aggression.  We think aggression is unjustified or immoral.  Now, we have our reasons for this, and that is our fundamental view.

01:24:55

And any kind of law that you want to set up that would prevent something that you think is bad like hierarchy, if the hierarchy is not aggression, then a law against it is aggression, so we oppose that, so we have a really simple view.  So if they would define what they mean by hierarchy, some types of it are wrong like a state’s hierarchy or laws that impose state power or that give power to some actors like unions, giving them the power to force citizens to negotiate in good faith with them, etc. then we oppose that because it violates property rights.  This is the problem with leftists I believe is they don’t really – clearly, they don’t have clear concepts, so I mean I don’t know what to say.

01:25:50

If people don’t want to be rational and think clearly, I don’t know how to communicate with them.  But I would say that it’s obvious that some types of hierarchy, if you use a broad term, are justified: natural hierarchies, family relationships, societal relationships.  I mean hierarchy just means some things are ranked higher than others in some way, so we can’t be complete egalitarians.  I mean maybe give them the Wilt Chamberlain example from Nozick’s Anarchy, State, and Utopia where he says that let’s say we have a completely egalitarian society where everyone is equal.

01:26:20

But then we have freedom, and everyone will want to see Wilt Chamberlain play basketball because he’s great.  So they all voluntarily give him a quarter or a dollar or whatever, and after a while he’s going to have an unequal distribution of wealth, yet it was done totally legitimately.  No one’s rights were violated.  So the only way to stop it would be to come and prevent people from trading voluntarily with each other.  But that would be a type of hierarchy, so you can see how it could arise, so it depends on the process.

01:26:50

01:27:00

Sure, you’re welcome, Tito.  Sorry, did I miss a question?  Any other questions?  Something about luck here.  I don’t know who brought that up, but of course that is the – that is basically the argument of John Rawls.  Let me type it here.  I don’t know how many of you are familiar with him.  He had a book called A Theory of Justice in ’70 something, early ‘70s, one of the most famous political theory books of all time.  And the book that came along as a response to it was Robert Nozick’s Anarchy, State, and Utopia, which I believe, and Hoppe – by the way, if you look at the introduction to Ethics of Liberty, Murray Rothbard’s Ethics of Liberty, written by Hoppe – the introduction was written by Hoppe.  He’s got a great section in there where he just totally devastates Nozick by comparing him and his approach to Rothbard.

01:27:52

I mean he argues that Nozick was more of a flashy kind of guy, a razzle-dazzle guy and dilettante, not a systematic thinker, not a foundational thinker unlike Rothbard who was systematic and careful and rigorous.  And so, it’s no surprise that Nozick wrote his book and never responded to criticisms and recanted of his libertarianism to a degree later on.  And actually Anarchy, State, and Utopia is an argument in defense of the state.  Most people think it’s an anarchist argument.  It’s not.  It’s an argument in defense of the state, how a minarchist state could be justified.

01:28:33

But in any case, John Rawls’ argument that Nozick was replying to was that people are born with – some people are born by luck with better skills or social status than others, and that’s unfair that they can benefit from that.  Therefore, we can justify imposing a type of egalitarian leveling effect on society, etc.

01:28:58

01:29:02

Danny asks – well, let me continue this real quick.  Jock says Rawls doesn’t prove a rationale for having coercive mechanisms of distribution.  You can diagnose the same problems as the veil of ignorance but still find voluntaristic ways of dealing with them.  Yeah, I agree with that, but I think he – I don’t know if he does, but I know that his argument is used to justify redistribution.  Of course, I think it fails, so I agree with you.  It doesn’t actually provide a rationale.  But I do think the veil of ignorance argument is very problematic.

01:29:47

Cathy Cuthbert is right.  Harrison Bergeron is the Kurt Vonnegut story.  Actually, Hoppe cites that story in – I think it’s in The Theory of Socialism and Capitalism or the other book that we went over tonight.  In one of his footnotes, he talks about that.  It’s basically the state imposing egalitarianism on people’s looks or capacities or skills, handicapping people that are better than others to make everyone equal.

01:30:13

Okay, Danny asks, in TSC, Hoppe uses the term conservative socialism and in general uses a negative connotation of the term referring to people using the state to coercively conserve their place in society.  In later works, he uses that term in a positive way.  What explains the shift in terminology?  Well, I think he’s – in the positive sense, I think he’s talking about cultural conservativism, so he’s talking about traditional, culturally conservative values like the importance of natural elites and family ties and natural leaders and private institutions like marriage and the home and maybe small cultural communities that – so he’s using it in that sense there that he’s in favor of.

01:31:11

And he’s explaining there how the state undermines and erodes that and how, in the absence of state, these things would be more important and would supplant a lot of the institutional functions that are poorly accomplished by the state now.  But I think in the first usage, conservative socialism, I think he’s referring to more like feudalism basically and also the republican or the conservative party’s opposition to change and the use of the state to prevent change and to preserve people’s place in society.  So I suppose the word has many meanings like a lot of words if he’s using it in one nuance one place.  I don’t think they contradict each other.  I think it’s just a little confusing because the same word is used in both.

01:32:04

01:32:19

Jock has a comment about European conservatives and being identified with aristocracy and feudalism in Hoppe’s time.  I tend to agree with that, but like I said, he’s got – his views on monarchy – most people sneer at this and say, oh, monarchy is ridiculous.  But of course, he’s not in favor of monarchy.  He uses that to criticize democracy.  He’s showing that the common assumption that the move from monarchy to democracy was – the common view is that that was progress.  He’s saying that that common view is mistaken.  He’s not saying it’s not better in any way.  He’s just saying that the common view that was this whiggish, unalloyed progress in society is not good.

01:33:01

Jock says economically a private state is less capital destructive.  Yeah, we’re going to discuss that in one of our lectures.  I mean he even has a letter to the editor to Chronicles magazine about 15-20 years ago where he argues that private slavery is less economically destructive than public slavery, not that he’s justifying either one, but he’s explaining the systematic economic effects of those.  So public slavery is kind of what we have now or what you have in common I would say.  Everyone is a slave of this big institution.  You have just massive destruction and impoverishment and waste, whereas chattel slavery in the US where there was an owner of a slave, you could expect the owner of the slave to have an incentive to take care of his property.  I mean it’s horrible to talk about, but you can analyze these things in a way and basically a private situation – or a public situation tends to be worse economically in a lot of these settings than a private one would.

01:34:07

01:34:11

Yeah, Yuri Maltsev does make that point.  Anyway, if you look on Hoppe’s website, hanshoppe.com, under the publications page, if you search for the word chronicles, you’ll see that letter.  Just search for the word chronicles.  Any other questions?

01:34:31

01:34:35

Edward asks about the is-ought problem in argumentation ethics.  Yeah, I’m going to go into that, as much detail as I can, and we can have a good discussion about the whole thing.  Cathy, I think if you look at the letter, I think he uses communism as the example unless you’re talking about Yuri, but if you’re talking to me – hold on.  Let me try to find it.  It’s right here, and I don’t have it in front of me right now.  I’ll just give you the link.  Here it is right here.  Oh, this is a long time ago I think, before he was really well-known, and this is just a letter to the editor to Chronicles, so I don’t think he got much for that, although his uncharitable critics could see them if they wanted to.

01:35:38

01:35:42

Danny says, is it true that Rothbard derived the homestead principle from self-ownership while Hoppe does the opposite, deriving self-ownership from the homestead principle, that we own ourselves because we’re first users of ourselves?  I don’t think that’s quite right.  I think – okay, we’ll talk about this next lecture more in the argumentation ethics.  But my perspective on it is this.  I think Rothbard actually didn’t derive it.  Rothbard sort of states his natural case like we’ve done already in the first lecture here like Hoppe does as well.  And he just takes it as sort of intuitive, illogical consistencies from [indiscernible_01:36:21].  But I think he takes it as sort of a Lockian given that we own ourselves.  Hoppe – I don’t think he says we’re first users.  That’s his argument for property.

01:36:35

Sorry for my poodle barking.  There’s someone walking by.  Hoppe’s argument is that you own a resource if you have a better link to it, a connection to it, than anyone else.  In the case of owned resources, external goods, the first user has this best connection to it because it was previously unowned, and you have a better connection than anyone else.  But his argument in the case – and I wrote about this in my article on “How We Come to Own Ourselves,” “How We Come to Own Ourselves.”  It’s on my website along with the Mises Daily.  Hoppe argues that the reason you have a better connection to your body is because you have direct control over it.

01:37:24

Now, in a way, that’s just a way of restating the Lockian idea that you’re a self-owner if you think of ownership as an actual thing rather than a normative thing.  You are the actual owner.  You are the natural owner, the one who actually does control your body.  So he has an example.  If I want to raise my arm, I can just will it and raise my arm, so obviously I have the better connection to my body.  I have an intimate connection with my body.  My personhood and my identity are infinitely bound up with this body because I’m the one actually directly controlling it.

01:37:56

That is his argument, and I think it actually is different than the homesteading argument, the first-use argument because if you go with first use, then parents would own their children because the mother – excuse me – the mother owns the matter in her body that grows into the baby.  And when it’s born, it’s just coming from her body.  She owns it.  But Hans’ view is no.  The baby or the human, when he reaches a certain point, has self-control, and so basically, he reappropriates the body that you could say is owned by the mother at a certain point.  It becomes owned by the baby or by the child at a certain point.  So there’s a shift in ownership of that physical resource from the parent to the baby because the baby has a better connection to it, not because of first use but because of direct control.

01:38:57

01:39:04

Any other questions?  Tito asks, are children property?  I don’t view children as property, and I don’t believe Hoppe views children as property.  I think the view is that children are self-owners, but there’s a continuum or spectrum when they develop from a state where they need care and someone to be a guardian for them.  So I think the view is that a child has rights.  A very young child has rights but doesn’t have full capacity to make decisions, etc.  And so, the presumption is that the parent, who has a natural link to the child, is presumed to have sort of the implicit consent of the child to be his decision-maker for his interest like a guardian until he reaches a certain level of maturity.

01:40:04

So the parent is a guardian.  That’s why I believe that the Hoppian/Rothbardian view would be that if a parent abuses a child, then the presumption is overcome that this human being is the one the child would – we can assume the child would appoint to be his guardian to exercise his affairs for him.  And it would go to some third party who could adopt the child or rescue the child or whatever.

01:40:29

01:40:33

Tito says, are they stewards of the child?  Yeah.  I mean the word in the law is guardian or in the civil law is tutor or tutrix.  Is there a claim to parenthood until the child reaches maturity?  I think there is a claim to parenthood, but the claim is – there’s two different claims.  There’s a claim of the parent with respect to the child, and that relationship with respect to the outside world.  With respect to the outside world, the outside world has to respect the child’s rights and views the parent as the spokesman for the child.  So the child doesn’t consent to being abused by an outsider because the parent makes it clear that you’re not going to do that to my child, exercising speaking for the child.  But between the child and the parent, I think that the parent doesn’t own the child.  The parent has the right by its natural link to the child to be the first one to be presumed to be the spokesman for the child.

01:41:39

Now, I personally believe that the parent has obligations to the child, positive, legally enforceable obligations as I argue in that article, “How We Come to Own Ourselves.”  I actually am not sure that Hoppe agrees with that because I think he is pro-abortion rights, although he hasn’t written much on this.  But I think that my argument could be used to argue that at least some abortions are at least somewhat aggression because it violates your obligation to the rights-bearing entity that you’ve created.  But this is – this course is not about my views.  I mean I’m happy to answer questions, but it’s about Hoppe’s views.  And maybe we can ask Hoppe.  I don’t know if he’s going to want to answer it because he asked me a long time ago to come up with an argument justifying abortion, and I gave up on it.

01:42:38

How would circumcision be viewed in this regard?  Well, look.  I’ll give you my perspective on this.  Oh, well, Jaya Dixit asked about the child wanting to leave.  Well, that’s Rothbard’s view, and I presume that Hoppe agrees with that.  When the child is mature enough to say no basically or I want to run away, the I think he has demonstrated a certain maturity.  But I mean I think practically, social customs and practical common sense would establish guidelines for that.  I don’t think it’s going to be a 3-year-old or a 5-year-old.

01:43:17

But in any case, about circumcision, I mean look.  I’ve read all the debates about this.  My view is that female circumcision would be such an unnecessary and mutilating type of act that, if the parent does that, you wouldn’t – the parent would lose their – they would lose their right to speak for the child because most people would assume that the child would not appoint such a person to be their guardian.  Male circumcision – I mean my personal view is even if you’re against it or you wouldn’t do it yourself or you think there’s arguments against it, I don’t think it’s so heinous and so obviously wrong that you can’t say that’s not within the parent’s scope of authority to decide for the child.

01:44:07

And most people that are circumcised that I’m aware of tend to be glad that they were or don’t resent it, sort of blessing it retroactively, indicating that there’s empirical evidence to think that it’s reasonable that the child would consent to the parent having the authority to make that decision for them, even if it’s largely on cultural or cosmetic grounds, so that’s my view.

01:44:34

01:44:46

Oh, well, some of you are talking about Block’s view on evictionism.  Again, I’m actually – Hoppe has hardly written on abortion that I’m aware of like I said.  I believe he’s loosely in favor of it, which we all have to be in the sense that would not want to empower the state to have that invasive power to police these types of private matters.  So as a practical matter, you pretty much have to be pro-choice legally speaking.  But I wouldn’t be surprised if he would take a dim view of it in the later stages like I would.  Now, whether he thinks that’s a type of aggression or murder or just immoral or unseemly I don’t know.

01:45:27

01:45:37

Edward asked a question about civil law and common law.  You said Hoppe has mentioned civil law is better than the common law because it’s written down and less subject to arbitrary interpretation by the state, and do I have an opinion of this?  Well, actually, I’m not aware of him writing that.  If you could find that, I’d be curious about it because I don’t think he’s actually ever written that.  It doesn’t sound like something he would say.  Well, if you can find that, I’d be really curious.  I don’t recall anything like that.

01:46:02

Now, I wrote a long article on the civil law in 1995 for the JLS when he was the editor, and he published it, so maybe he was getting something from that.  I’m from Louisiana, which is a civil law jurisdiction, and I have written a good deal on it, and I do think that the civil law is superior to the common law but not because it’s written down but just because it comes from the Roman system, which has better legal – cleaner legal concepts than the common law system.  Both the common law and the civil law are basically written down now.  I don’t think that – I don’t think, and I don’t think Hans would think that being written down is really a superior aspect to it.

01:46:49

Now, that is the view of some legal positivist types.  But if you find that, I’d be happy to look at it.  I’m actually curious.  So if he actually thinks civil law is superior to common law in some ways, this is news to me, but it could be for the same reasons I do.  I think it’s just better because it’s a more scientific, more rational foundation for law.  Please let me know.

01:47:13

Exactly.  Cathy says the Constitution is written and where did that get us, and I know Hoppe is just disgusted with the US Constitution and views it as a mistake.  So I don’t think he would fixate on the written aspect of it, and again, like I said, the common law is written down now.  Cases are published in written form, and there are treatises that summarize and systematize and categorize it in a written form, so I don’t think that’s the difference.

01:47:42

Jock talks about how the origins are about monopoly being the common law across the land.  Of course, there’s elements of that in the civil law as well.  In the Roman law, there was one law – now I’m forgetting the term.  There was one law for the Roman citizens and one law for the outsiders.  There’s actually a Latin or some kind of term for that, ius gentium I think, ius gentium, ius gentium – it’s some other – a term for the other.  Anyway – but actually this helped to develop a common law that wasn’t like the monopoly of the king’s law.  It helped the Roman law develop a magnificent body of legal rules that it has developed into.  But someone can Wikipedia that term and make sure I’m thinking of it right, but I think it was ius gentium and – anyway.  If anyone is curious, I’ll try to find it and talk about it next class.

01:48:45

Well, we’re almost 30 minutes over.  I don’t mind going over, but I know some people are very late, and people listening to the lectures later tend to get annoyed if we go too long because they don’t have any predictability.  So I’d be happy to answer a couple more questions, but I think we should cut it off soon or by the hour at the latest.  Any other questions?  Okay, it’s getting late for everyone, so thank you guys.  I enjoyed it.  Good questions, and we will pick this up with argumentation ethics and rights next week.  Thank you all much.

01:49:34

Podcast (kinsella-on-liberty): Play in new window | Download (Duration: 1:49:47 — 25.1MB)

Kinsella on Liberty Podcast, Episode 153.

This is the first of 6 lectures of my 2011 Mises Academy course “The Social Theory of Hoppe.” See also my article “Read Hoppe, Then Nothing Is the Same,” Mises Daily (June 10, 2011). The remaining lectures follow in podcast feed.

The slides for the first lecture of the Social Theory of Hoppe course are provided below, as are the “suggested readings” for the course.

Transcript below.

[Update: see also David Gordon, “The Political Economy of Hans Hoppe” (Mises University 2021)]

As general background I suggest:

• Kinsella, “Foreword,” in Hans-Hermann Hoppe, A Theory of Socialism and Capitalism (Laissez Faire Books ebook edition, 2013)
• Kinsella, “Afterword,” in Hans-Hermann Hoppe, The Great Fiction: Property, Economy, Society, and the Politics of Decline (Laissez Faire Books, 2012)
• “Introduction,” with Jörg Guido Hülsmann, in Hülsmann & Kinsella, eds., Property, Freedom, and Society: Essays in Honor of Hans-Hermann Hoppe (Mises Institute, 2009) (published as “Essays in Honor of Hans-Hermann Hoppe,” Mises Daily, Aug. 7, 2009)

LECTURE 1: PROPERTY FOUNDATIONS

Video

[fvplayer id=”1″]

Slides

For slides for all six lectures, plus extensive hyperlinked suggested reading material, see this Libertarian Standard post.

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Kinsella on Liberty Podcast, Episode 152.

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

This audio was recorded by me from my iphone in my pocket; video and a higher-quality audio should be available shortly.

The outline and notes used for the speech is appended below, which includes extensive links to further material pertaining to  matters discussed in the speech. An edited transcript is available here.

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Podcast (kinsella-on-liberty): Play in new window | Download (Duration: 22:27 — 15.4MB)

Related:

• Property Title Records and Insurance in a Free Society
• Rothbard on the “Original Sin” in Land Titles: 1969 vs. 1974 (Nov. 5, 2014)
• Many of these issues are also discussed in Legal Foundations of a Free Society, e.g. in ch. 2, n.36, ch. 11, n.12, ch. 25, text at n.42
• Kevin Carson on Confiscating Property from the Rich
• Jeff Deist’s breakdown of Rothbard’s approach to such property issues in “A Libertarian Approach to Disputed Land Titles,” Mises Wire (June 3, 2021)
• Murray N. Rothbard, “Confiscation and the Homestead Principle (1969),” Panarchy
• Jeff Deist, “Rothbard on Slavery Reparations,” Power & Market (July 12, 2019)

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

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

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

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

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

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

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

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

Kinsella on Liberty Podcast, Episode 151.

This is my recent speech “Balancing Intellectual Property Rights and Civil Liberties: A Libertarian Perspective,” presented at Branford College at Yale University, New Haven, CT, Oct. 2, 2014, in a lecture series called “The Politic Presents.” It was held in the beautiful Trumbull Room at Branford Court, where the accompanying picture was taken. The initial speech is about 33 minutes and was addressed mainly to non-libertarian undergraduate students. I tried to set the stage for those not familiar with Austrian economics, IP or IP theory, libertarianism, without being too basic. These were smart Yale students, after all.

This was recorded in my iPhone in my suit pocket, but the quality is okay anyway; and it includes the 33 minute initial lecture and the following 20-minute Q&A session, but then I forgot to turn off my iPhone as I walked to a restaurant with a group of students for dinner, so it also includes some informal but fun Q&A and related conversation as we walked to dinner, for the last 10-20 minutes.

Transcript available here.

Podcast (kinsella-on-liberty): Play in new window | Download (Duration: 1:17:51 — 106.9MB)

Kinsella on Liberty Podcast, Episode 150.

An interview by the delightful libertarian couple Caity and Dan Greene, from Glasgow, Scotland. We discussed a variety of liberty-related matters, as noted on their show notes for Episode 10:

Stephan Kinsella is Founder and Executive Editor of Libertarian Papers, Founder and Director of the Center for the Study of Innovative Freedom (C4SIF), a member of the Editorial Board of Reason Papers, and a member of the Advisory Board of the Lexington Books series Capitalist Thought: Studies in Philosophy, Politics, and Economics. A registered patent attorney and former adjunct professor at South Texas College of Law, Stephan has published numerous articles and books on IP law, international law, and the application of libertarian principles to legal topics. He received an LL.M. in international business law from King’s College London, a JD from the Paul M. Hebert Law Center at LSU, and BSEE and MSEE degrees from LSU. He is currently a member of the Advisory Council of theGovernment Wast and Over-regulation Council of the Our America Initiative (2014—), and a Senior Fellow with the Bastiat Institute (2014–).

We chat about intellectual property and Stephan’s arguments against it, Ayn Rand, free markets, objectivism, anarcho-capitalism, how law may function in a stateless society, the Montessori method of education and more.

Podcast (kinsella-on-liberty): Play in new window | Download (Duration: 57:17 — 79.0MB)

Kinsella on Liberty Podcast, Episode 149.

My recent appearance on the Non-Aggression Podcast with host Mike Cuneo, aka 412 Libertarian. We talked about IP, Georgism, Stefan Molyneux’s use of the DMCA to do a copyright takedown of a critic on youtube, whether Hitler is responsible for the holocaust, and the like.

From his show notes:

IP And Beyond With Stephan Kinsella – Non-Aggression Podcast

Podcast (kinsella-on-liberty): Play in new window | Download (Duration: 1:14:15 — 43.5MB)

Kinsella on Liberty Podcast, Episode 148.

I was a guest last night on Freedom Feens (Aug 28, 2014): Stephan Kinsella Battles The Copyright Zombies And Patent Trolls – Freedom Feens live radio archive “Stephan Kinsella is an intellectual property attorney who hates intellectual property laws. He explains why, and what can be done about it. It’s one of the best chats we’ve heard from him yet.

Derrick J. Freeman and Davi Barker help. Michael W. Dean isn’t there, and Davi is only there sometimes, because some patent somewhere is messing with their Internet.”

Some links for matters discussed in the show:

• Personal Audio’s podcasting troll patent:http://www.google.com/patents/US8112504
• Man sentenced to federal prison for uploading “Wolverine” movie
• Tim Lee and Lawrence Lessig: “some punishment” of Swartz was “appropriate”;
• RIAA Celebrates 15 Year Jail Sentence For Movie and Music Pirate;
• Six Year Federal Prison Sentence for Copyright Infringement;
• British student Richard O’Dwyer can be extradited to US for having website with links to pirated movies.

Podcast (kinsella-on-liberty): Play in new window | Download (Duration: 1:21:53 — 44.0MB)

Kinsella on Liberty Podcast, Episode 147.

I appeared on the Tom Woods Show today (Aug. 20, 2014, Episode 225), to discuss patents and liberty.

Podcast (kinsella-on-liberty): Play in new window | Download (Duration: 35:44 — 32.7MB)

Kinsella on Liberty Podcast, Episode 146.

Today I had a discussion with Williamson Evers, about his pathbreaking 1977 article Toward a Reformulation of the Law of Contracts, which was the first article ever published in the Journal of Libertarian Studies (Evers’s other JLS articles).

This article was relied on heavily by Rothbard, in ch. 19 of The Ethics of Liberty, “Property Rights and the Theory of Contracts.” I discuss this piece in detail in my 2003 JLS article “A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability” (now in Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023)), and I also discuss it in my post Justice and Property Rights: Rothbard on Scarcity, Property, Contracts…. See also my post Thoughts on Walter Block on Voluntary Slavery, Alienability vs. Inalienability, Property and Contract, Rothbard and Evers.

A fascinating interview. We discussed the genesis of this important theory and related matters. I appreciate greatly Dr. Evers taking time to discuss this matter with me.

Note: The purpose of talking to Evers was to ask him questions about his own theory of contract. I sent him a copy of my article as a way to persuade him to talk with me, but my purpose was not to discuss my article with him. However, Evers seemed to think this was the reason for my call and he kept bringing the topic back to my article, when I really wanted to discuss his. In any event, as he was my guest, I did not try too hard to change the topic, and did end up getting a great deal of useful information from him about his original paper and the origin of these ideas.

Grok shownotes:

[00:00:01 – 00:17:54] Stephan Kinsella interviews Williamson Evers, a Stanford PhD and Hoover Institution research fellow, about the title-transfer theory of contract, a libertarian legal framework pioneered by Evers and Murray Rothbard. Evers recounts the theory’s genesis in the 1970s, stemming from late-night discussions with Rothbard, which led to his seminal 1977 article in the Journal of Libertarian Studies. The theory redefines contracts as transfers of property titles rather than enforceable promises, aligning with natural rights and private property principles. They discuss its revolutionary potential, its underappreciation, and its distinction from traditional legal systems that emphasize expectations or obligations to act, highlighting how all contractual obligations can be reduced to property title transfers.

[00:17:55 – 00:34:55] The conversation delves into nuanced aspects of the theory, including future title transfers, bankruptcy, and inalienability. Evers addresses concerns about contracts involving non-existent or future assets, arguing they remain valid, though he opposes debtor’s prison and overly punitive measures like exorbitant performance bonds that could resemble slavery. He critiques the idea of “walking away” from contracts, as seen in mortgage defaults, and emphasizes the need for further research into issues like abandonment of hazardous property and the intersection of inalienability with punishment. Kinsella and Evers agree that the theory requires more development, citing contributions from scholars like Randy Barnett, and conclude with mutual appreciation for the discussion’s depth and its implications for libertarian legal philosophy.

Transcript and Grok detailed shownotes below.

Update: See also Thoughts on Walter Block on Voluntary Slavery, Alienability vs. Inalienability, Property and Contract, Rothbard and Evers
(Jan. 9, 2022).

See also KOL197 | Tom Woods Show: The Central Rothbard Contribution I Overlooked, and Why It Matters: The Rothbard-Evers Title-Transfer Theory of Contract.

Related links:

• KOL225 | Reflections on the Theory of Contract (PFS 2017)
• KOL197 | Tom Woods Show: The Central Rothbard Contribution I Overlooked, and Why It Matters: The Rothbard-Evers Title-Transfer Theory of Contract
• KOL 029 | First Degree Liberty Interview: Argumentation Ethics and the Title-Transfer Theory of Contract
• KOL338 | Human Action Podcast Ep. 308 with Jeff Deist: Rothbard on Punishment, Property, and Contract

Youtube:

GROK DETAILED SHOWNOTES

Detailed Segment Summary

• [00:00:01 – 00:06:42] Introduction and Genesis of the Title-Transfer Theory

  • Kinsella introduces Evers, noting his 1977 article as the first in the Journal of Libertarian Studies.

  • Evers shares his background, his friendship with Rothbard, and their late-night discussions that shaped the theory.

  • The title-transfer theory emerged from Evers’ graduate work at Stanford, where he explored underdeveloped libertarian legal concepts, buildingrived from Rothbard’s initial ideas in 1974 and formalized in Evers’ 1977 article, later used in Rothbard’s Ethics of Liberty.

• [00:06:43 – 00:15:30] Core Principles and Philosophical Foundations

  • The theory posits that contracts are transfers of property titles, not enforceable promises, aligning with the idea that all rights are property rights over scarce resources.

  • Evers critiques utilitarian views of contracts based on expectations, advocating for a natural rights approach.

  • Discussion touches on inalienability, emphasizing that self-ownership prevents selling oneself into slavery, distinguishing body rights from alienable property rights.

  • Evers and Kinsella compare their philosophical leanings: Evers favors an Aristotelian-Thomist approach, while Kinsella is influenced by Hoppe’s argumentation ethics, though both see compatibility.

• [00:15:31 – 00:24:52] Future Obligations and Onerous Damages

  • They explore contracts involving future obligations, such as delivering non-existent assets, which Evers considers valid but not justifying debtor’s prison.

  • Evers raises the issue of performance bonds and whether exorbitant penalties (e.g., $1 trillion) could equate to slavery, suggesting this area needs further research.

  • Kinsella suggests that extreme future title transfers could mimic slavery, potentially justifying bankruptcy-like provisions.

  • Evers references Randy Barnett’s contributions and mentions Marcus Cole’s bankruptcy expertise as relevant to the theory.

• [00:24:53 – 00:34:55] Bankruptcy, Abandonment, and Inalienability in Punishment

  • Evers expresses discomfort with bankruptcy’s “fresh start” concept, arguing that debts remain owed, and criticizes advice to “walk away” from mortgages during the financial crisis.

  • On abandonment, Evers argues that abandoning hazardous property (e.g., polluted sites) doesn’t absolve responsibility, comparing it to a bullet or landmine causing harm later.

  • They discuss how punishment (e.g., restitution or imprisonment) intersects with inalienability, as compelling action may conflict with the principle that specific performance cannot be enforced.

  • The episode concludes with mutual appreciation and acknowledgment that the title-transfer theory remains underexplored, with room for further scholarly work.

TRANSCRIPT

Interview of Williamson Evers on the Title-Transfer Theory of Contract

Stephan Kinsella and Williamson Evers

August 5, 2014

00:00:01

STEPHAN KINSELLA: Okay, this is Stephan Kinsella.  I’m here with Mr. Williamson Evers who I’ve never met in person, and he has graciously agreed to discuss with me a topic that I’ve been interested in, in a number of years, the title-transfer theory of contract.  And Mr. Evers, how are you doing?

00:00:19

WILLIAMSON EVERS: I’m fine, thank you.  So I’m Bill Evers, Williamson M. Evers.  I’m a Stanford PhD in political science, and I currently am a research fellow at the Hoover Institution at Stanford.  I was a friend of Murray Rothbard for many years and discussed political theory and philosophy of law questions with him including questions about the law of contracts.  So I think that’s what we’re going to discuss today.

00:01:01

STEPHAN KINSELLA: Absolutely, and I’ll just observe that I’ve been a fan of the Journal of Libertarian Studies, of course, since its inception, and I noticed that I think your article was the very first article every published in the JLS.

00:01:13

WILLIAMSON EVERS: That’s right.  It was the lead article in Volume 1 No. 1.

00:01:19

STEPHAN KINSELLA: Yes, and you’ve had several others.

00:01:20

WILLIAMSON EVERS: Yes, and I was also the managing editor for awhile.

00:01:24

STEPHAN KINSELLA: And I think your article came out in 1977, and I’m a lawyer, and so I’ve written on this topic.  And I’ve been interested in it since I’ve been studying Rothbard and libertarian theory.  And this theory has been fascinating to me for a long time.  My impression, and I’d like to get your impression, is that it’s been – it’s got a lot of potential.  It could have more development, and it’s underappreciated, and I think it’s revolutionary to be honest in legal and libertarian theory.

00:01:54

Just in tracing the genesis of the idea, it appears to me that around 1974 – I think your article came out in ’77 – around ’74, Rothbard had some sketchy thoughts on this in one of his earlier articles.  So my guess has been for awhile that you and Rothbard were discussing this, and you wrote it up into a longer piece, and then Rothbard drew on that in his Ethics if Liberty chapter, which relies heavily upon your 1977 article.  Is that basically what happened?  Do I have that right?

00:02:26

WILLIAMSON EVERS: I think that’s basically right.  So this was a long time ago.  So you and I are talking in 2014.

00:02:37

STEPHAN KINSELLA: Correct.

00:02:37

WILLIAMSON EVERS: I specialize in kindergarten through high school education policy these days, and I’m not writing in this area anymore.

00:02:49

STEPHAN KINSELLA: I understand.

00:02:50

WILLIAMSON EVERS: I’m not saying I would never write in it anymore, but I haven’t for many years.  I wrote, in addition to this article, for the reformulation of the law of contracts.  I also wrote on social contract theory and political thought, and so that’s a related area.  But anyway, I wanted to – your question really is about the genesis of this, and Murray Rothbard and I used to talk on the telephone late at night.  He was kind of a night person, and we would talk quite long times, maybe even hours sometimes.

00:03:33

And so the early days when I knew him, he didn’t really like to travel very much, but he loved to talk on the telephone and have people in his apartment, he and Joey’s apartment in New York City.  But anyway, we used to talk about things, and I was a graduate student in political science at Stanford.  And I had to write papers on various topics, and so I tried to utilize the obligation to write serious papers to also explore things that I thought were underdeveloped in political philosophy of classical liberalism.

00:04:20

And so I did, and I – this is really not something I’m completely certain of, but I believe that I discussed it with Murray Rothbard that certain insights that I found in a very fragmentary way, a very scattered way in different writings of his.  And that he encouraged me to develop these further, and so Stanford has a great law school, a great library.  And I just dug in, and sort of the first thing I realized was that utilitarian ideas about expectations had had a huge impact on the way the law of contracts was discussed.

00:05:14

Like a lot of things, and this is something that you – is reflected in your own writing, there are different ways that sort of – and different ways of approaching a topic that kind of end up with a similar result.  So just because this focus on expectations was there didn’t mean that the law of contract was completely wrong-headed or hopelessly wrong or something like that.  But it meant that it wasn’t thought about in a way that was compatible with a natural-rights, private-property-oriented classical liberalism.

00:05:58

So I looked around, and I found various authors who – I read things on all the different sides of this, and I found out what are the issues, what are the controversies, what are the controversies that are interesting to libertarianism.  And I tried to find out how had previous people thought about and how to press those thoughts on further and try to systematically go through the issues.  And that’s what I did in this article, and Professor Rothbard thought it was a pretty important article, so I used it as a lead piece in the new journal.

00:06:42

STEPHAN KINSELLA: And I agree with that, and when I came across it and Rothbard’s restatement of it in Ethics of Liberty, it sort of blew my mind as a lawyer.  As you saw from my piece, I’m from the civil law tradition in Louisiana, and there they distinguish contractual or conventional obligations as either to do or to give.  So that’s the conventional way of – the typical way of looking at it, and from what I realized from looking at your and Rothbard’s work is that pretty much every conventional legal system and contractual system can be boiled down to really an obligation to give, which is really not an obligation to give.

00:07:26

It’s just a transfer of ownership of property.  So to me, this whole approach rests upon an essential insight that all rights are property rights and that all property rights are rights in scarce resources.  And the right of ownership is the right to control it, and one of the aspects of that is the right to convey the title to someone else.  And that’s really what contracts are.  I mean is that the basic approach that you would agree with?

00:07:55

WILLIAMSON EVERS: Yes, but I do think we have to be careful about include the right to convey because I think that the natural rights tradition in classical liberalism says that you can’t sell yourself.

00:08:18

STEPHAN KINSELLA: Correct.

00:08:18

WILLIAMSON EVERS: You can’t sell yourself into slavery.  Now, you could – let’s say you found a guru or a religious figure, or you joined a monastery whether it was absolute rule by the head of the monastery.  You could dedicate yourself in a sense.  You could make yourself servile, but you couldn’t – they couldn’t hold you to it.

00:08:47

STEPHAN KINSELLA: Exactly.

00:08:48

WILLIAMSON EVERS: They couldn’t enforce a contract.  They couldn’t hold you captive as a slave legitimately in terms of natural rights libertarian philosophy.  So – and the whole superstructure of libertarian philosophy of law is built on dealing with the situation of free human beings in a society with scarce resources, as you said.  And so you are then – that superstructure, the rest of it, the conveying the alienable property, you can’t sort of take that superstructure and use it to destroy the foundation, which is the free person operating in the material reality of the world.  So I just – it’s like you’re out on the limb, which is the superstructure.  You can’t really destroy the trunk or the roots and say, oh, well, that was a legitimate move.

00:09:57

STEPHAN KINSELLA: Right, and which is why my…

00:10:01

WILLIAMSON EVERS: I hope your listeners haven’t gotten lost in the metaphor, but all I’m saying is…

00:10:05

STEPHAN KINSELLA: No, my listeners love this kind of stuff, so that’s fine.  My feeble attempt to build on your work and Rothbard’s was, in my article, one reason I thought I had to deal with the whole inalienability issue was because of exactly what you’re talking about.  I don’t know if you agree with all of that approach, but it seems to me that we have to treat property rights in one’s body, which is euphemistically or metaphorically called self-ownership sometimes.  We have to treat that differently than the acquisition of property rights in scarce resources that are previously unowned.

00:10:42

WILLIAMSON EVERS: I agree with that.  I agree with that.  So I did have some differences with your paper, but I thought it was a serious paper.  And I’m not so sectarian as to condemn you to outer darkness or something over the differences because I think it’s a very interesting article that you wrote.  I have some thoughts on different aspects of it, which I’d be glad to make the focus of the rest of our discussion.  But I just want to mention to listeners to this that, again, this is not the area in which I’m doing research and writing today, but I can recall what I think and thought about it.

00:11:29

So as I went through it, I thought, first of all, you’re kind of recapitulating what Professor Rothbard and I – Murray Rothbard and I had to say, but you’re also partly talking about your foundational views of what justifies libertarian philosophy.  And you’re, I guess, attracted to the argumentation ideas of Hans Hoppe.  Am I correct in that?

00:12:02

STEPHAN KINSELLA: It is, but I don’t think these ideas rely upon that.

00:12:06

WILLIAMSON EVERS: Right.  I don’t think they do either, and so I wouldn’t want to state that.  I myself – I am more of a Aristotelian Thomist in the way that Professor Rothbard liked to modify that and the way that Doug Rasmussen and Den Uyl set this forward.  I think that is pretty good.  Similarly, Henry Veatch is another man that I think highly of.  But I don’t oppose the argumentation idea, which has a kind of a more Kantian cast to it.

00:12:46

It was, I think, developed very well by James – Father Sadowsky, James Sadowsky, and Professor Rothbard also liked it.  And I view that as not in conflict with an Aristotelian-Thomas specification of property rights and of human liberty, individual liberty.  And so we’re not antagonistic, but I just thought I would say that I think they’re compatible, but I think – I find one is more of a thin justification, and the other is more of a thick one, and I’m just more comfortable with it.  That’s the thick one, but I…

00:13:28

STEPHAN KINSELLA: Which one?  Oh, the thick one

00:13:28

WILLIAMSON EVERS: But I also think in arguing with other people it’s good to have at your disposal a thin one because it’s easier to talk to people.  It’s just kind of a – what political philosophers call an imminent critique because you’re saying to somebody, well, if you think that you can do this, how can you even say that you think people should do this if you don’t own yourself in order to open your mouth?

00:14:02

STEPHAN KINSELLA: Exactly.

00:14:02

WILLIAMSON EVERS: Kind of thing.  And so that’s sort of – in caricatured form, the essence of the argumentation argument.  And I think at a minimum it ought to make people pause.  So I think it’s good, but I just think I want to kind of go deeper.  Now, I think you make a good point that Professor Rothbard and I seem very stand-offish about the word or term promises.  And we’re very – you use the phrase that we’re fixated on it.

00:14:40

STEPHAN KINSELLA: That was probably too harsh.

00:14:41

WILLIAMSON EVERS: We’re kind of writing in reaction.

00:14:44

STEPHAN KINSELLA: I understand.

00:14:45

WILLIAMSON EVERS: To legal theorists that made a lot out of mere promises.

00:14:51

STEPHAN KINSELLA: Exactly.

00:14:52

WILLIAMSON EVERS: But I think you’re quite right in saying that if the substantive effect and intent of a promise is to convey title, then it’s quite a good contract, and it would be so under libertarian thinking.

00:15:11

STEPHAN KINSELLA: Right.

00:15:11

WILLIAMSON EVERS: So I – and that is your point, and I agree with it, but I mean I also think, and you’re kind of in our conversation here acknowledging that you’re understanding that we were reacting…

00:15:25

STEPHAN KINSELLA: Of course.

00:15:26

WILLIAMSON EVERS: Against this kind of cavalier, breezy use of promises.

00:15:30

STEPHAN KINSELLA: Of course.

00:15:31

WILLIAMSON EVERS: With quite a substantive effect in the people that we were arguing against.

00:15:37

STEPHAN KINSELLA: Of course, and I’m happy to let you talk about any of this, but my point was not to get you to comment on my paper.  My paper is just an indication of my interest in this topic, and I’m really interested in a few things about – I don’t know if you’ve paid attention to or if you recall some of these – the little minutia…

00:15:59

WILLIAMSON EVERS: I don’t know where we…

00:16:01

STEPHAN KINSELLA: I’m sorry.  I’m sorry about that.  I don’t know what happened, but we got cut off, but I’ll fix it.

00:16:05

WILLIAMSON EVERS: Okay, so what was I saying when we stopped here?

00:16:10

STEPHAN KINSELLA: Well, I was – I’m trying to remember.  I’m sorry.  I was distracted myself.  But what I was saying was I just wanted to ask you a couple of things that have stood out to me in this debate.  First, I wanted to get your impression…

00:16:24

WILLIAMSON EVERS: Well, did you hear me saying that – let’s see now.  We talked about the promises thing, right?

00:16:35

STEPHAN KINSELLA: Yes.

00:16:37

WILLIAMSON EVERS: Okay, so then I wanted to go, and before I did it, I wanted to say that I appreciate – once again, I appreciate you writing the article.  I think it’s a serious article, and just because we have differences doesn’t mean I’m condemning you.

00:16:56

STEPHAN KINSELLA: Well, I don’t…

00:16:57

WILLIAMSON EVERS: Personally.  But anyway, the first thing I wanted to discuss was this issue about the existence of something that might be owed in the future.

00:17:09

STEPHAN KINSELLA: Exactly, and I actually did want to turn to that.  I wanted to kind of get your impression on that.

00:17:13

WILLIAMSON EVERS: So I wanted you to kind of state your view, and then I would react to it.

00:17:20

STEPHAN KINSELLA: And that’s fine, and let me be clear.  I wanted to get your views.  I really wasn’t trying to seek your commentary on my article.  I’m happy to – if you want to use that as a framework, and that’s fine.  But I was trying to talk to you about what you’ve written, and I wanted to get your insight about the process and what your thoughts are on the development of this theory and how much is left to be developed.  And believe me, I’m not a critic.  I’m a huge fan of your work.  I think there’s something to be developed, so I wasn’t trying to be critical in my article.  There’s a few things I was trying to…

00:17:54

WILLIAMSON EVERS: Well, I think Randy Barnett, although he’s – this has not been the major focus of his writings, he has made additional contributions on it.

00:18:07

STEPHAN KINSELLA: I agree completely.

00:18:07

WILLIAMSON EVERS: And I think that that’s another person who has written on this, but in the sense you’re right that there hasn’t been a lot written on it.  I wonder – there’s also a professor at Stanford named Marcus Cole, who’s an expert on bankruptcy.  And I have not explored that much of his writings on this, and I don’t know how much he draws on this.  He’s certainly familiar with Randy Barnett.  I don’t know if he knows about my writings on this I think, but anyway.

00:18:46

STEPHAN KINSELLA: I’d be happy to look into it.

00:18:47

WILLIAMSON EVERS: He might – I mean obviously bankruptcy is strongly related to contract.  And it’s related to this issue that we’re talking about now, which is whether someone who is called upon to perform or transfer something in the future, whether – if that thing is not in existence, what is the status of the contract.  So I mean my view is that if you commit it to something that’s a legitimate contract, even if you don’t have it, let’s say you’re supposed to have a certain amount of money to give to somebody in the future, and you don’t have it.

00:19:31

That doesn’t – it’s still a valid contract, and if you’re not – if you don’t have it or you’re withholding it or hiding it somewhere or something, that’s – or you give it to your best friend at the last minute, it’s still a valid contract, and you owe the person a money.  So then part of the question that arises is, well, if it’s a kind of theft, why couldn’t you be put in debtor’s prison or…

00:20:12

STEPHAN KINSELLA: Exactly, exactly.

00:20:13

WILLIAMSON EVERS: Why shouldn’t you be?  And I think that’s a very valid question to raise.  But I think, and I know from your writing that you’re not on the side of this, but I still think, and I’m – again, I’m open to argument on all this except for the fact that I’m not writing on it anymore.  So – but anyway, I think there are gradations.  Just as in robbery, there’s robbery of your house when you’re not there, and there’s robbery when you’re there.  There’s – in the streets there’s robbery with a gun on you, and there’s robbery where they just snatch and grab.

00:20:55

So I think just as there’s that, there’s different kinds of thefts, and there’s lesser and greater theft.  And that would be disproportional to the amount of intention that’s involved and so forth.  This all affects the gravity of what has been done to you.  I’m talking about you, the victim, who didn’t get paid back.  So that’s part of why I don’t favor debtor’s prison, and I think no one can speak for Murray Rothbard anymore, but I think that similar ideas figured in his thinking.

00:21:35

Again, I just think particularly with specific unique items, the idea is very troubling because let’s say you have the Mona Lisa, and you sold it to me, but the delivery is supposed to be in the future.  So at the last minute I give it to somebody else.  That’s crazy.  You have to be still liable to turn over the thing that you owe.  So I’m not – I mean I’m kind of flippantly giving this example, and it’s a much more subtle topic.  But anyway, that’s my view.

00:22:27

Now, there’s another issue that you don’t really get into very much but I think is a complicated one for this theory.  And it is an area that deserves additional research program on anybody who writes on this in the future, and that is the slavery equivalent, onerous-damages issue.  So the examples, I agree to sing.  I’m an opera singer, and I agree to sing in the San Francisco Opera, and then when the time comes, I don’t show up.  I’m off drunk somewhere or something, whatever.  So – or I just decide I don’t want to do it.

00:23:12

So can somebody compel a specific performance?  Well, you and I both agree no, they can’t.  But now what about a performance bond of some sort?  So I put forth some – in the contract made with me to come and do the singing.  I say, well, if I don’t show up, I owe $5000 or $7000, some number that’s maybe even more than what I was going to be paid, but it would be enough to make me want to show up there.

00:23:52

Now, the question is what if it were $1 trillion?  Okay, or something huge?  Now, you might say, well, of course I, the opera singer, don’t have the 1 trillion, so that’s – maybe you take care of it.  But if someone doesn’t agree with you, is there another problem here?  And the question might be is it the equivalent to slavery?  Is the burden so – like I will chop off your leg or I will – I’m not killing you, and I’m not – whatever, but something that is so onerous that it makes it equivalent to slavery.  And I don’t – because I’m not writing in this I don’t have a quick answer.  But I do think that this is an area that deserves further research, further writing, sensible writing.

00:24:52

STEPHAN KINSELLA: Well, I have…

00:24:53

WILLIAMSON EVERS: I think it’s a realistic issue.

00:24:57

STEPHAN KINSELLA: Well, the way I’ve interpreted your theory and Rothbard’s in my Misesian/Rothbardian/Hoppian way is that it’s all about transfer of title.  And theoretically you could engage in a future title transfer, which – say, to a debtor, which basically transfers every piece of property that you ever acquire forever, even a piece of food going into your mouth.  And if you did that, it would be equivalent or tantamount to a type of slavery.  And so maybe some argument like that could be used to justify some type of bankruptcy type of provision, which I think is getting at the same insight that you’re talking about here.

00:25:39

WILLIAMSON EVERS: But I don’t – so I am uncomfortable with this idea that you could convey everything including every morsel of food and drink of water.

00:25:51

STEPHAN KINSELLA: Correct.

00:25:52

WILLIAMSON EVERS: For the future.  But anyway, that point that we’re both getting at is that this is an area that deserves further exploration, and so I am uncomfortable with the whole idea of bankruptcy.  And this is why maybe Marcus Cole has something to contribute or other future people that maybe aren’t born yet.  Who knows?

00:26:15

So generally the idea of bankruptcy is you say I can’t pay, and I want to start over.  And the law makes various provisions, and it might make a homestead exemption and whatever, whatever.  I am not really comfortable with that.  I think you still owe the money, and you can’t just get out of it, and I’m really troubled.  There are people, even people that might claim they’re libertarians, who want to – I sound like I’m getting into a big heresy hunt here.  But during the last financial crisis with all the homes going into foreclosure and things like that, there were people going around advocating that people who were having trouble paying their mortgages just walk away.  Walk away.  You’ll be better off.

00:27:22

STEPHAN KINSELLA: That’s the title of Doug French’s book I think, right?

00:27:24

WILLIAMSON EVERS: You’re so-called…

00:27:25

STEPHAN KINSELLA: I think that’s the title of his book, Walk Away.

00:27:29

WILLIAMSON EVERS: Yeah.  Anyway, the point is they were telling people even though you’ve made this contract, you’ve made this money, now you’re under water, as the phrase goes.  Just walk away.  And the system has already built into it an expectation that a certain number of people will walk away, so do it.  I don’t agree with that.  I think that’s wrong…

00:27:55

STEPHAN KINSELLA: Let me…

00:27:56

WILLIAMSON EVERS: Anyway, so that’s an area that I think needs – and again, I’m not writing in this area, but I – it troubles me and seems to be against libertarian values.  But I’m open to argument as I am with everything.

00:28:18

STEPHAN KINSELLA: Well, it seems to me that the terms of the contract matter, and the terms of the contract that would be in force in a free society matters because the terms of the contracts in today’s law may be influenced by the political climate and the laws that exist.  So it’s hard to have a pristine approach to this, but let me – if you don’t mind, let me get your opinion.

00:28:41

WILLIAMSON EVERS: So one of the other things that you try to address some of that is you pose different – you could have additional provisions to provide for the case in which the person doesn’t have the money.  And in a way you’re kind of – as I said at the beginning of this interview, you’re trying to get back to the point that you don’t really want people to get off scot-free without doing what they owe.  And so you are trying to kind of recover this to some extent.

00:29:16

STEPHAN KINSELLA: I’m trying to get…

00:29:17

WILLIAMSON EVERS: I wanted to also…

00:29:18

STEPHAN KINSELLA: Go ahead.  Go ahead.  Sorry, go ahead.

00:29:20

WILLIAMSON EVERS: I also wanted to compliment you.  I thought you had done a good statement of the abandonment issue.  So this is a potentially tricky issue because – okay, I’ve got to turn this off.  I have to turn you off and talk to you later.  Okay.

00:29:46

STEPHAN KINSELLA: Take your time.  You were talking about the abandonment issue.

00:29:48

WILLIAMSON EVERS: And this is related to a lot of what we’ve been talking about, so if you can acquire property and do it through systematically making it part of your projects and the phrase that you often used is homestead it, you also have to be able – so you’re marking it.  You’re setting out boundaries.  You’re systematically mixing labor with it and so forth.

00:30:15

You also have to be able to abandon it, so this is complicated because you have to make an objective, recognizable, overt thing showing your intent.  It’s a little bit tricky, and this is another area where further writing needs to be done on this.  So let’s take the Love Canal case.  Okay, this is sort of not as bad as was shown in Reason magazine many years ago.  The government was all mixed up in it, but we’ll just call it some pollution thing.  So you’ve created this pollution thing, and then you walk away.

00:31:08

Now, maybe nobody occupies it, but let’s say it bubbles over, or it’s emitting harmful rays, or it’s somehow has a some kind of geyser effect, and it’s spraying out into the atmosphere and falling on other people.  Can you just abandon it and say this is not my property anymore?  I don’t think so.  It’s just like I shoot a bullet.  Well, in a way I’ve abandoned the bullet, but the bullet keeps going and it hits somewhere.

00:31:44

STEPHAN KINSELLA: Or you plant a landmine or something like that that explodes ten years later, and it kills someone.  Exactly.  There’s a causal responsibility.

00:31:53

WILLIAMSON EVERS: Okay.  But anyway there’s room for more writing and thinking about this.

00:31:57

STEPHAN KINSELLA: I agree completely.

00:31:58

WILLIAMSON EVERS: Then I think you get in – interestingly into the issue of inalienability and punishment.  And so to explain this a little further, so let’s say we’re in agreement that there’s – that people are inalienable.  They can’t sell themselves, but their material goods may be intellectual goods.  This is another whole topic that I don’t want to get into.  But anyway there are material goods that are alienable and that people are transferring titles to and so forth.

00:32:37

But now let’s say you commit a crime.  Okay, in punishing you, a restitution effort might take what you have, or it might compel you to do something to restore to the other person, or it might imprison you, especially if it’s a retributive-punishment approach.  And libertarians are divided among – classical liberals are divided among different punishment theories, but certainly the most common are restoration or – and retribution I think and balance the scales of justice.

00:33:28

STEPHAN KINSELLA: Rectification, rectifying the situation.

00:33:30

WILLIAMSON EVERS: Right, rectifying in various ways.  So this might impinge on the idea that you are inalienable and that people can’t compel specific performance from you.

00:33:43

STEPHAN KINSELLA: I agree.

00:33:44

WILLIAMSON EVERS: So I think this issue, which you raise, is one that needs further discussion.  And so I think that’s an area that…

00:33:59

STEPHAN KINSELLA: Well, let me – if you don’t mind, let me ask you…

00:34:02

WILLIAMSON EVERS: So I’m kind of through my thoughts on the whole thing, and I do need call back the person that was calling me there.

00:34:11

STEPHAN KINSELLA: Let me thank you for taking your time to speak with me, and I really appreciate what you’ve done.  And I don’t know if you’re interested, but I’d be happy to speak with you just personally in the future if you’re interested.  I really appreciate what you’ve done in the past, and I think it’s a great endeavor.  And so I will thank you for your time.  And I will let you go, and I will send you a copy of everything, and we can talk about it before anything goes public.

00:34:41

WILLIAMSON EVERS: Okay, well, I authorize you to post this in whatever form you want to.

00:34:48

STEPHAN KINSELLA: Thank you, Mr. Evers.  I appreciate it.  Nice talking to you in person.

00:34:52

WILLIAMSON EVERS: Thank you.  I enjoyed it also.  Bye-bye.

00:34:55

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