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KOL020 | “Libertarian Legal Theory: Property, Conflict, and Society: Lecture 3: Applications I: Legal Systems, Contract, Fraud” (Mises Academy, 2011)

by on February 21, 2013
Libertarian Legal Theory with Stephan Kinsella

Kinsella on Liberty Podcast: Episode 020.

This is lecture 3 (of 6) of my 2011 Mises Academy course “Libertarian Legal Theory: Property, Conflict, and Society.” The remaining lectures follow in subsequent podcast episodes.

Note: The material in these lectures more or less tracks the contents of my later-published book Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023).

Grok Shownotes:

[00:00–15:00] In the third lecture of the Mises Academy course “Libertarian Legal Theory: Property, Conflict, and Society,” delivered on February 14, 2011, Stephan Kinsella shifts from foundational principles to practical applications, focusing on legal systems, contracts, and fraud. He recaps the prior lectures’ emphasis on property rights, self-ownership, and the non-aggression principle, which form the basis for libertarian legal theory. Kinsella outlines the lecture’s objectives: exploring how libertarian principles shape private legal systems, analyzing the Rothbard-Evers title-transfer theory of contracts, and addressing fraud as a violation of property rights.

[15:01–1:29:15] Kinsella delves into the structure of libertarian legal systems, advocating for decentralized, private courts that prioritize restitution over punishment, contrasting this with statist systems. He elaborates on the title-transfer theory, explaining how contracts function as voluntary property title transfers, and discusses fraud as a form of theft through misrepresentation. The lecture concludes with a Q&A session, where Kinsella addresses audience questions on topics like the enforcement of contracts, the role of reputation in private legal systems, and the challenges of applying libertarian principles to complex legal disputes.

Video, Transcript and Slides below, as well as Grok Detailed Shownotes.

This lecture’s topic is “Applications I: Legal Systems, Contract, Fraud,” and discusses:

  • Legislation and Law
  • The significance of Roman Law
  • Contract Theory
    • “written” agreements
    • Inalienability
    • Breach of contract
    • Debtor’s Prison

For slides for all six lectures, plus extensive hyperlinked suggested reading material, see this Libertarian Standard post. For a listing of the syllabus and topics covered in each lecture, see this Mises Academy Course Page (archived).

For more information, see my Mises Daily article “Introduction to Libertarian Legal Theory,” and Danny Sanchez’s post Study Libertarian Legal Theory Online with Stephan Kinsella.)

All six lectures:

Video:

Slides:

The videos of all six lectures are also available on this playlist.

Grok Detailed Shownotes

Detailed Summary by Time Segments

Segment 1: Introduction and Recap

  • Time Markers: [00:00–12:00]

  • Description and Summary:

    • Kinsella opens the third lecture, welcoming students to the Mises Academy course and briefly reviewing the platform’s features, such as access to recordings and slides.

    • He recaps the first two lectures, which covered libertarian basics: justice as the protection of property rights, self-ownership, homesteading, and the non-aggression principle.

    • The focus of Lecture 3 is introduced as applying these principles to practical legal issues, specifically legal systems, contracts, and fraud.

    • Kinsella emphasizes that libertarian legal theory seeks to resolve conflicts over scarce resources through clear property assignments, distinct from statist legal frameworks.

    • He encourages students to review previous materials and engage with the suggested readings available on the course website.

Segment 2: Libertarian Legal Systems

  • Time Markers: [12:01–27:30]

  • Description and Summary:

    • Kinsella discusses the structure of legal systems in a libertarian society, advocating for private, decentralized courts over state monopolies.

    • He explains that private legal systems would focus on restitution (compensating victims) rather than punishment, aligning with the non-aggression principle.

    • Reputation and market incentives are highlighted as mechanisms to ensure fairness and accountability in private courts, reducing reliance on coercive state enforcement.

    • Kinsella contrasts this with statist legal systems, which often prioritize state power and punitive measures over individual rights.

    • He references historical examples, like medieval merchant guilds, to illustrate how private legal systems have functioned effectively in the past.

Segment 3: Contracts and the Title-Transfer Theory

  • Time Markers: [27:31–42:00]

  • Description and Summary:

    • Kinsella revisits the Rothbard-Evers title-transfer theory of contracts, emphasizing that contracts are agreements to transfer property titles, not binding promises.

    • He explains how this theory differs from traditional contract law, which often enforces obligations regardless of property considerations, a statist approach.

    • Examples are provided, such as a sale where the contract specifies the transfer of ownership of goods or services at a designated time.

    • Kinsella discusses breach of contract, noting that in a libertarian framework, remedies focus on restoring property rights rather than punishing non-performance.

    • He addresses the role of mutual consent in contracts, ensuring that all parties voluntarily agree to the title transfer.

Segment 4: Fraud as a Property Violation

  • Time Markers: [42:01–57:00]

  • Description and Summary:

    • Kinsella analyzes fraud within the libertarian framework, defining it as a form of theft where misrepresentation induces an invalid property transfer.

    • He explains that fraud violates the title-transfer principle, as the victim’s consent is based on false information, undermining the voluntary nature of the contract.

    • Examples include selling counterfeit goods or misrepresenting the quality of a product, which result in the transfer of property under false pretenses.

    • Kinsella discusses remedies for fraud, suggesting that restitution (returning the stolen property or its equivalent) is the primary solution in libertarian law.

    • He cautions against conflating fraud with mere breaches of promise, emphasizing the need for a property-based analysis.

Segment 5: Q&A and Closing Remarks

  • Time Markers: [57:01–1:29:15]

  • Description and Summary:

    • Kinsella opens the Q&A session, addressing audience questions on the practical application of libertarian legal principles.

    • He responds to queries about enforcing contracts in a stateless society, suggesting that reputation and arbitration would play key roles.

    • Questions about the transition from statist to libertarian legal systems are discussed, with Kinsella acknowledging the challenges of dismantling state monopolies.

    • He clarifies the libertarian stance on complex issues, such as disputes involving multiple parties or ambiguous property claims, advocating for case-by-case analysis grounded in property rights.

    • The lecture concludes with Kinsella encouraging students to review the slides and readings, prepare for the next session on applications like inheritance and intellectual property, and continue engaging with the course material.

TRANSCRIPT

Libertarian Legal Theory: Property, Conflict, and Society, Lecture 3: Applications I: Legal Systems, Contract, Fraud

Stephan Kinsella

Mises Academy, Feb. 14, 2011

00:00:01

STEPHAN KINSELLA: Yeah, Hoppe’s t-shirt is good.  I have Hazlitt and two or three others.  They’re really great.  So happy Valentine’s Day, everybody for whom it’s still that day.  We have 26 people online, about, I think, one-third or maybe one-fourth of the course actually.  I guess 27 now.  I guess a lot of people are going to catch this after.  Okay, so we’re about to start.  So tonight we’re going to have some applications of the principles we’ve developed so far, and we’re going to focus on legal systems and contract and fraud.  And just a quick point.  So this is week three, so later this week we will post the mid-term exam, and the weighting will be 40% of the total score.  That’s right.  Everyone else is married.

00:00:53

So 40% of the score will be this test and 60% the final, and as I mentioned in the first class, the course is based upon what I say here in the course and the office hours, so you should listen to the office hours and the suggested reading material, not the optional, and all these slides here because the slides have some reading material that I do not read everything in them.  But the optional reading material, I will not test for the main credit based on those.  Well, it depends on when we put it up, Trina.  We’ll put the exam later this week, and we’ll probably give you seven days to complete it, so we’ll let you know when we post it.

00:01:43

Okay, now where did we leave off?  We left off last time on – we talked about property rights and scarcity and then punishment and restitution and various sort of applications to that like threats and stalking and Rothbard on air pollution and torts and restitution versus punishment, etc.  We also talked regarding legal theory about legal positivism and logical positivism.  And I will say that I think that part of the talk is particularly interesting because you will almost never hear anyone discuss those two things together, although, as we discussed last time, you can definitely see some connections.  And I think pretty much only an Austrian can appreciate those connections, and I don’t claim to flesh them all out, but something really worth thinking about and to explore.

00:02:33

And we also talked about some of the ways in which anarcho-capitalism or anarcho-libertarianism could work, whether we can punish outlaws who are not members of any agency, how restitution would work, punishment and ostracism and things like that, so that’s where we left off.  So now let’s continue.  Now, I will say that the first two lectures were very crammed.  I really think this is more of a seven or eight-lecture course, so the first two had a lot of stuff crammed in.

00:03:04

But luckily, I could spill over some of the questions to the office hours because I’m holding this, this time for the first time, and that’s working out well.  I do think for the next four courses – four lectures, they probably won’t last as long.  So hopefully tonight we can finish in about one hour with the main lecture, maybe a little bit over, and then have time for Q&A.  But let’s just wait and see.  If we have to go 90 minutes, we can.  It won’t be a problem because we are covering about three separate topics tonight, each of which will take a different amount of time.  Let me close this door here so the noise is down.  Excuse me.

00:03:40

00:04:09

Did everyone lose me?  Am I back now?  I’m not sure what happened there.  So we’re going to discuss different aspects of the legal system of a libertarian world, contract theory, and then why fraud is aggression.  Contract theory is a pretty big topic.  The first topic is pretty big.  Fraud is a more narrow area, so hopefully we can fit all three of these in.

00:04:32

Okay, so for the first topic, let’s talk about law.  I’m just going to do a little bit of background.  This may be somewhat basic for some of you, although I suspect not for many of you except for maybe some historians, even law students.  I studied a lot of this in law school only because I went to a civil law law school, but I forgot most of it, or didn’t appreciate the importance of it at the time.  So I sort of relearned this in the meantime on my own, and it’s pretty fascinating to just think about the overall structure of the world’s major legal systems just to get an idea of the context of where we are, what we can draw on, and what our system is being contrasted to.

00:05:11

So I would say the oldest and most advanced and the most important body of law in a way is the Roman law, about 1000-year, well-developed period of law from about 439 B.C. to about 535 A.D.  It culminated in what’s called the Corpus Juris Civilis.  This is the body of the civil law in Rome, which was done under the orders of the emperor, Justinian.  So in a way, I know he was an emperor and not very libertarian, but he’s one of the most important figures of all history in a sense because he preserved – the Roman law would have been lost without his codifying it and preserving it.

00:05:54

So the Corpus Juris Civilis consisted of three major parts.  Number one was the code, which was like a collection of the imperial enactments, decrees over the centuries of the emperors.  The two main parts that were most important for our purposes is the digest, the Digest of Justinian.  This was sort of an encyclopedia and a collection of the writings of the Roman jurists including Papinian whose picture adorns the advertisement for this course, and Ulpian, another very famous Roman jurist.

00:06:30

I mean these guys were just brilliant.  And then there was the institutes, which is sort of like a textbook, which sort of summarized the digest and the code’s teachings, and it’s good that that was preserved because it helps fill in the gaps for where the others have gaps.  And all three of these together had the force of law in Rome.  So the Roman law is basically this thousand-year period of very developed law.  It was a decentralized legal system, much like the common law in England.  That is [no audio_00:07:02].

00:07:03

00:07:24

Am I back?  I’m sorry.  Don’t know what happened here.  Okay, what I – let me ask a question.  When this happens, do I – does the audio drop out or just the video?  Okay.  All right, I’m not sure.  So what I was saying was – let me just recap then.  So the Roman law major system has three main parts: the code, the digest, and the institutes.  Right, okay.  So it was a decentralized system of law in that the collection – the legal rules developed as the result of actual cases like in the common law in England, or sometimes they would – legal scholars would take up a hypothetical case.  Like they would say if someone has a dispute with the following parameters, what would the right result be?  So they would take up these hypothetical disputes, and these also added to the body of law, quite an interesting thing. 1

00:08:31

Now, sort of a – the modern descendent of the Roman law is the modern civil law or continental law it’s sometimes called.  This is the law in place in almost all of the world that’s the western world outside of the common law and the commonwealth countries.  So England, the US, most of Canada, Australia are common law countries, but other than that, European countries and the west typically have one type of civil law or another.  These are code-based systems.  Modern civil codes they’re called, which are basically modern codifications of the ancient Roman law principles and other principles too.

00:09:17

Anyway, I’ll get to that in a minute.  However, let me give an example.  One of the most famous – actually, I’m not sure what they have in China.  I think it’s a weird hybrid of this communist stuff and Asian law, but I’m actually not sure.  I think it’s a mess, same thing in Russia, I think.  I think it’s a mess.  But there’s one thing to note about these things.  The Code Napoleon or the Napoleonic Code, the French civil code is one of the most famous of the early codifications.  So that was another great thing another sort of emperor did.  Napoleon codified the existing European law, which was largely based on Roman law in 1804.

00:10:03

Now, France and Spain were trading Louisiana, which is one of the 50 United States, back and forth at that time.  Louisiana enacted its own civil code in 1808, largely modeled after the French civil code.  Now, these codes are very elegant if you read them, very elegant restatements of very elegant bodies of law developed in Rome – excuse me – and in Europe.  But one thing about them is, unlike the early Roman law, they enshrine legal positivism.  Like the first or second or third articles of these codes say that the primary source of law is the legislature and the code itself.  So it sort of gets this attitude among the legal profession and the people.  When you want to know what the law is, you look at the code first.

00:10:50

And whatever the code is, whatever the legislature says, is the law.  Now, it so happens that the substantive principles in these codes were modeled after principles developed in a decentralized legal system, so they’re actually pretty good, at least at first.  The same thing is true to an extent of the American Constitution, which is – in a way, it’s a general code.  But it’s based upon a lot of principles developed over time in England and – England primarily.

00:11:20

Now, the other major system would be the common law. So that was in England, let’s say, around 1154 or so to the present, and that’s another decentralized legal system.  So in a way, the common law and Roman law are similar.  They are both ancient, old, well-developed, and decentralized legal systems.  When I say decentralized, they were not primarily legislation-based.  They primarily developed their legal principles gradually over time as a result of actual disputes between parties, although, as I said, in the Roman law, sometimes you would have hypothetical disputes.

00:11:57

Now, other major legal systems that are very important, which we can learn from, would be the Lex Mercatoria, or the Law Merchant, which was prevalent in European countries in the Middle Ages, say, from around the 5th to the 15th century, which is actually based a lot on Roman law.  Canon law, which is the Roman Catholic law – it’s a very advanced legal system, which was also based in part on Roman law not surprisingly.  And finally, Jewish law, which is a very – another ancient legal system from – I think it started developing.  There’s lots of phases of Jewish law.  It’s very complicated and scattered.  But there’s a lot – Maimonides is a famous Jewish scholar, jurist, I think around 11 or 1200.

00:12:50

Anyway, someone asked a question.  Jock: Is the difference between the common and civil thing about what is not forbidden is permitted versus only what is expressly permitted?  I wouldn’t – there’s a lot of different opinions among legal philosophers or legal scholars about what are the main differences between them.  The first difference people would say is that the civil law is more based upon the Roman law, and the common law is based upon English law.  But as I mentioned, the true difference is that the modern civil law is rooted is legislative supremacy.  That is the primary difference, and I’ll get to this in a little bit, but I might as well go to some of it now.  But I don’t think that in either system – they’re both fairly liberal systems in the sense of freedom of contract, etc.

00:13:48

I don’t think in either system there is a presumption that everything that is permitted – that is not permitted is forbidden, although that tendency can be a little bit more pronounced in the civil law systems because of legal positivism.  But it’s not so bad as in, say, Russia – Soviet or communist countries, etc.  There is a fair amount of liberalism and freedom of contract in property rights and personal autonomy in both systems.

00:14:18

Here’s what I will say about this.  The difference between the civil law and the common law has been made more murky in, say, the last century because what has happened is this.  In the common law, which used to be a system where you have judge-made law, and the difference is one of attitude among lawyers and scholars.  Like if you ask a common law lawyer what’s the law, they want to look for a case and find it, and they actually feel nervous until they find a case even when there’s a statute that covers this area.  They want to find a case that validates their interpretation, and this is because the common law is a precedent-based system or stare decisis, which means the ruling of a previous court on the same or similar factual issue is binding upon future courts unless they expressly overturn it.

00:15:15

The ruling in the civil law is not the same because the primary source of law is the code, so the civil law lawyer and the jurist, the judge, first looks at the code and tries to find the answer even if the answer – even if this case has been answered many times before by other courts in the same way.  So they first look to the code, so it’s an attitudinal-based thing.  Now, this causes a difference in the way legislation is passed in these countries.

00:15:41

So, for example, in the civil law country, they’re used to legislation, primarily in elegant code, but legislation in general, being the primary source of law.  So if the legislature wants to pass a new statute, they just pass it, and then the lawyers and the judges will look to that to find out what the law is.  Now, it might not be as elegant as the civil code.  It might be an infringement on the civil code, but it’s still a body of the primary source of law, which is a legislature’s will.

00:16:09

In the common law, the judges are – they’re said to be jealous of their jurisdiction of being the primary makers of the law.  So whenever you make a common law statute or at least originally, let’s say, 100 years ago, 200 years ago, it was sort of like an encroachment upon the primary domain of law, which was the courts.  So the legislature had to be very specific because otherwise the judges would find a way around it.  That’s one reason you see the original English statutes are much more wordy and particular.

00:16:43

And they’ll use five or six synonyms in a row to make sure they’re covering all their bases, whereas the civil law countries tend to have more elegant statutes because they’re just announcing general principles, and they expect the judges to go to the statutes first to try to figure out what the law should – what the consequence or the application should be in a particular case.  But over time what’s happened is we have become more of a legal-positivistic world, and legislation has come to dominate, as I’ll discuss in more detail later in a few slides.

00:17:19

But what that has done is it has made the systems become more similar, so for example, in the civil law countries, the civil code is still there, but even they have become a little bit corrupted.  But more importantly, outside of them, there’s a whole body of legislation that has arisen around the civil code, making it less important.  Okay, by the way, I mentioned stare decisis earlier.  That is the principle in the common law where the precedent of a previous case is binding on future courts.

00:17:51

In the civil law, as I mentioned, the primary source of law is the civil code or the statutes that are relevant.  But there’s something called jurisprudence constante, and I’ll have that spelled in a minute on a slide.  That is the idea that if there’s a long series of the same judgments issued by courts, they have a lot of persuasive weight.  Let me see if Andy sent me a note here.  Okay.  So that’s the two differences: stare decisis in the common law, jurisprudence constante in the civil law, and I’ll have that spelled out in a second.

00:18:30

Someone asks the difference – how are judges bold enough to challenge precedents in common law?  Well, so it’s basically – think of it like a threshold or a burden of proof.  So a court can be persuaded to overturn previous precedent if it’s persuaded that there was a mistake.  But usually they’ll do it explicitly, sometimes implicitly.  But the thing is, you can’t do it unless you are the same level of court or higher, so a lower court can’t overturn the precedent of a higher court.  So they do it if they think it’s bad enough.  The earlier decision has been clearly been shown to have been poorly reasoned or bad enough, and they have enough courage to change it.  So you can change stare decisis, but it’s just a really high burden.  Just think of it as a high threshold you have to cross, higher than it would be in the civil law countries.

00:19:27

In the civil law, if you could make a good argument that this code article applies in this way to this case, the judge will apply it even if another judge applied the same code article to a similar case previously.  They’re not as reluctant to apply the code article.  By the way, there’s an interesting thing in the civil law theory.  The civil code is said – the civil code articles are said to be floating in a plasma of law.  That’s an interesting expression, a plasma.  So the idea is that there’s an organic, coherent unity of this hypothetical body of legal principles and justice and that the code articles that we found so far are little data points of that that are kind of peeking out like islands peeking out, so that if we have a case that is not exactly covered by one of the code articles, it is – you can analogize in between data points things that it’s similar to.

00:20:29

You can interpolate, so to speak.  And the only reason you can do that is because you assume there’s a cohesiveness and there’s a uniformity in the law, and there’s a hidden order, a plasma, whereas in the common law, you can’t assume that as much because – or at least that’s what the civil law lawyers would say because it’s not planned.  It’s just these sort of decentralized body of legal rules that developed all over the country in different courts.  So there could be inconsistencies, so it would make no sense to interpolate between them.  You could get whatever results you want.

00:21:04

Does the civil law usually make decisions based on the letter or the spirit of the law?  Well, I would say if it’s a code case they would tend to go with – well, they would go with the letter of the law if it’s covered by a code article.  But they believe more in the spirit of the law because they assume there’s a unity of the law, which is this plasma idea.

00:21:25

Okay, let’s go head on.  I’ve jumped ahead a little bit, but that will just save time for later, so we’ll go on to slide seven now.  Okay, so I already mentioned some of this.  The civil codes of the civil law system have been gradually reduced in importance with other statutes that have risen to the fore, and not elegant code-based statutes but all these things like the Americans with Disabilities Act, although that’s an American law.  But you know what I’m talking about, all the particularistic legislation the legislatures come up with now.

00:22:02

Modern common law has been gradually codified with things like the UCC, the Uniform Commercial Code, which was the brainchild of Karl Llewellyn, a German-American legal scholar, and it’s been largely supplanted with a flood of legislation.  Patrick: Yes.  I don’t know the particular situation of Brazil, but it is true.  As I mentioned, like in the US, our Constitution is like a civil code, and it’s very much more like the civilian systems because it is very short, compact, and elegant in general and abstract statement of legal principles, more like a civil code than the modern legislation we see now or a court-based system.

00:22:45

And here’s where I mentioned under the modern common law point.  I mentioned the – let me get my laser pointer out here.  I mentioned jurisprudence constante, which is the French or the civilian idea that a long series of decisions in the civil law can be very persuasive or influential to a judge, but it’s not the same thing as precedent in the common law.  Now, as for other modern systems of law – so in the ancient systems of law, I mentioned Roman and common law and also Lex Mercatoria, Jewish law, canon law, etc.

00:23:23

In the modern systems of law, we have civil law and modern common law, both of which, as I said, are kind of converging towards each other.  They’re both very legislation-based, and they are both increasingly governed by either constitutions or by treaties, international treaties that the countries have agreed to.  And by the way, we won’t get to international law very much in this course, so let me mention an interesting – I’ll try to mention some interesting terminology every now and then that is used by lawyers in a confusing way that, if you just knew the codes, a lot of things would become clear.

00:24:00

So in law, there’s a word called municipal.  So municipal law is a term that means the national law of a given country, and the word for country in the international law is state.  So there’s 180-something states in the world, and every state has its own municipal law.  So in America, that would be our Constitution, our federal law, our federal statutes, and the state laws.  In Brazil, it would be their own.  So that’s municipal law.  It doesn’t sound like what municipal law would be, but just to let you know.

00:24:32

And then in international law, you have public international law, which is the rules that govern international relationships.  And you have international commercial law, which is sort of the more individual-based law that governs transactions and commerce between companies and people of different countries.  So the modern systems of law would include also civil law, modern common law, and of course Islamic law, which I don’t know much about, and I’m not going to go into here.

00:25:05

But international commercial law and arbitration, which is sort of a successor to the Law Merchant actually, which I mentioned earlier, and public international law, which the main organ of which is the United Nations and various networks of treaties around the world.  Okay, so that’s sort of an overview of the major legal systems of the world.

00:25:34

Now, what has happened is ever since we’ve had – say, in the last 150-200 years, we have had a rise of legislation as the dominant form of law to such an extent where even libertarians now are not always opposed to legislation as the form of making law.  Now, they might have an opinion on what it should consist of, but they think of law as what the government says the law is, what they decree, not just judges of the state’s legal system coming up with decisions, which might be actually just or more or less just because in a court-based system, you have a judge who is trying to do justice based upon two contestants before him who each have claims to a certain thing.  And he takes into account all of the facts, all of the context, and he tries to come up with a rule based upon rules he’s aware of that other judges have tried, and do justice.

00:26:39

This is why the common law and the Roman law tended to be more compatible with libertarianism because it’s the outcome of more or less an attempt to do justice.  Legislation is just a decree of a body of men who say what the law is, and of course, that’s subject to all of the whim, but even if they had the best intentions, they’re not deciding a dispute between two real people.  So you have a law like the Americans with Disabilities Act, the ADA in the United States passed 15 or 20 years ago.  So it’s got a phrase in there like every employer must make reasonable accommodation of a handicapped person, but they don’t define what that means.

00:27:18

Now, the reason is the statute is a result of a compromise between the left and the right, and they just make up these vague terms, and they assume the judges will interpret them.  And the judges will do their best, but they’re not interpreting – they’re not trying to do justice between two parties based upon the actual facts and based upon principles of justice that have been developed and known for a long time.  They’re just trying to interpret words that a committee of people wrote down on paper.  There’s no reason to believe that these words and the principles in this statute would be self-consistent or consistent with justice or even be coherent or non-ambiguous.  So what is reasonable accommodation now?  I don’t know.  It’s anybody’s guess.  Gradually, a body of case law develops, but it’s not the same as regular case law.  It’s just something the courts settle on as a compromised way to try to interpret these vague words that these legislators come out with.

00:28:17

So a famous Italian legal theorist, Bruno Leoni, who, by the way, is said to have been murdered by a client sadly in his 40s I think, he was a brilliant man.  He wrote Freedom and the Law, and I think that book is online for free, and if it’s not, you should buy it.  It’s a fantastic book.  And one of his fellow lawyers – I don’t know if I quote him here – Giovanni Sartori – he’s fantastic.  He’s also really good, Giovanni Sartori.  Anyway, so what Leoni pointed out was when you have legislation becoming the dominant form of law, number one, it reduces the amount of legal certainty in society.  So this is one problem of having a legislation-based system.  Why is there less certainty?  Because the legislature has the authority to just change the law from day to day.

00:29:12

Now, we see this right now in the current financial crisis when no one knows what the government is going to do, let’s say, in the US case about mortgages and the interest rate and the bailouts and whether banks can foreclose on mortgages and what changes they’re going to – what the tax law is going to be next year.  Whenever you have uncertainty, and you have uncertainty just because there’s a dictatorial agency that has the discretion to change their mind.

00:29:41

In a common law system, they couldn’t do that.  It evolves more slowly and gradually, and there’s no sort of single body that decides to change the law.  It’s just a response to conditions.  So whenever there’s a legislature, you can’t be sure what rules will apply tomorrow, so that increases uncertainty.  And as he points out, there are three things about judges that make them different systematically from legislators.  Number one, they can only make a decision when they’re asked to do so by the parties.  They can’t just go to court one day and make a decision.  They have to have a dispute.

00:30:19

Number two, the judge’s decision is not that far reaching.  It only affects those parties and maybe occasionally third parties.  And third, his discretion is limited because he has to refer to precedent, similar precedent, so he can’t deviate from precedents too much.  If a judge were to hear a case between [no audio_00:30:40].

00:30:41

00:31:03

Sorry, am I back now?  Okay, sorry.  What I was saying is if a judge were to try to – in a decision between two parties with a concrete dispute, let’s say they’re both claiming a sum of money because one damaged the other or they had a contract dispute.  If the judge just decreed one of these crazy statutory schemes, it would be what’s called dicta, D-I-C-T-A, dicta.  And what that means is it’s something that’s not necessary for his decision beyond his authority to make, and other judges would ignore it.  It’s not part of precedent or case law.

00:31:42

Okay, so this is why judges cannot do the same thing that legislatures can do.  Now, if you have a legislature, you have – and by the way, you might have seen this poster before or this little bumper sticker that when the legislature is session, no man’s life, liberty, or property is safe.  Well, that’s the same idea that the legislature is kind of unpredictable what they’re going to do, and they have a lot of authority.  So there is more legal certainty in a decentralized legal system like Roman law or customary law or common law.

00:32:18

Now, what are some of the effects of this?  I’ll just go through them quickly.  When you have more uncertainty in society, so for example, you can’t be as sure that your agreements will be enforced because the legislation might come in and change the law and say that these types of agreements can’t be enforced.  For example, as we have right now with mortgages, I mean the reason you give a mortgage to secure a loan is because you have collateral to back up your loan.  But if you think the government is going to come in and freeze all the mortgages because of concern for homeowners out a desire to pander to homeowners to get votes, well, then you’re going to have less loans being granted because you can’t be secure in your collateral, same idea.  So you have more costly alternatives being developed if you can’t rely on contracts as much.

00:33:10

Also, when you have increased uncertainty, time preference is increased, and time preference is a very important thing in economics and libertarian theory.  The idea is that the higher time preference is – or the lower time preference is, the better off we are because people are willing to invest more for the future.  They’re willing to wait longer to be gratified and to have longer-term projects.  When you can have longer-term projects, you can have bigger projects and more returns.  If you’re living hand to mouth because you have high time preference, you save less and you produce less, and we live a more squalid lifestyle.  So the point is that legislation leads to uncertainty, which leads to negative effects like more cost and higher time preference, which leads to lower production and impoverishment of everybody.  I’m having a little coffee, or maybe there’s bourbon in there.

00:34:11

So another negative effect of uncertainty, and if you will read one of Hoppe’s articles on – it’s on hanshoppe.com on his publications page.  It’s on time preference I believe.  He’s got a good extended discussion about – and I think I cite this in my legislation article that I have on the course page.  But there’s an extended article I think by E.D. Bonson or someone.  “The Heavenly City” I think it’s called, or it’s a book, I think.  It’s a study about how, when you have more – a higher time preference, this leads to increased time because people become more present-oriented.  And this pushes people right on the margin, people that would be criminal but they’re not quite, in a certain society, into criminality if time preference increases.  So there’s a bunch of negative effects of legislation and the uncertainty that it engenders.

00:35:10

Another one is this.  As you have more and more laws, and the idea that law is what the government says, then you have more special interest groups arising.  And then other special interest groups arise to defend themselves from the laws or to get their slice of the pie.  So this makes it more of like a war of all against all.  So then we’re all fighting and conflicting over what laws should be there and getting our slice of the pie and hurting the other groups and having laws that harm our competition, etc. instead of cooperating and just minding our own business.

00:35:44

Another problem with this is when you have so many laws, we are pretty much all law breakers.  There’s almost always some law you can find that someone has violated, especially given the perverse rule in most legal systems that ignorance of the law is no excuse.  Now, when you have a legal system like a libertarian legal system, which is based upon what we say natural law or law that’s common sense or law that’s written on our hearts, engraved on our hearts, then you can say ignorance of the law is no excuse because we all know the law.  The law is don’t hurt each other.  Respect each other’s rights.  Everyone knows this.

00:36:20

But when you have legislation coming and law can be just made arbitrarily and you have literally hundreds of thousands of laws buried in books and regulations, which amount to laws, it is literally impossible to know all these laws.  So to have a rule that ignorance of the law is no excuse is perverse, but in any case, what this does is it gives the government the authority to have discretion about who they’re going to single out.  So they can always make you a law breaker if they want to.  So what this does is it does tend to make you more like the society of, say, a communist country where everything that’s not permitted is forbidden because you’re probably breaking the law at any point in time.

00:37:06

Let’s go to slide 13.  Oh, here’s Giovanni Sartori.  So I’m on slide 13.  What I’m saying is Sartori who is sort of a colleague or a fellow Italian legal theorist of Bruno Leoni pointed out when legislation is thought of as the primary source of law, which is how everyone thinks of the law now.  In fact, even libertarians think like this way now.  They’ll say, well, that’s – they’ll say that you have these income tax nuts in America.  They’ll say, well, it’s not illegal to not pay income tax because it’s not the law.  It’s not on the lawbooks.  So they think of what’s in the law books, what’s written down in black and white is what the law is instead of justice and legal principles developed based on justice.  They start thinking of law as whatever has been decreed by the legislature.

00:37:59

So as Sartori pointed out, when everyone starts thinking that law is whatever the government says, when legislation is the primary source of law, citizens become more accustomed to following orders, so they become more docile, more servile, and less independent, and then the government can become more tyrannical.

00:38:16

Now, let me mention quickly here, the idea of a private system law is that in a common law system, you would have a role for codification, but it would not be legislated.  So there would be a role for commentators and codes, so you would have these – excuse me – decentralized bodies of law like in the Roman law. And then some legal scholars or companies or arbitration agencies or whatever would come in and try to come up with codifications of the law, clean up some messy edges, and suggest improvements.  But they would codify the law.  There would be a market for that and a need for that like what’s done in the past with Justinian’s code – I’m sorry, the digest, sorry, and as was done by, say, Coke, the English legal theorist or Blackstone, another English legal jurist, or as is done now by the American Law Institute restatements or even the uniform commercial code, which is adopted by some legislatures but is a code that was drafted by an institute. [Update: see On the Role of Commentators and Codes]

00:39:36

Okay, so let’s go to slide 14.  Am I still there?  No freezing.  Good.  So as I mentioned before, here’s where I have the municipal law thing I mentioned earlier.  In a legal system of a libertarian world, let’s think about international law versus municipal law.  So right now, we have state-based or country-based legal systems, which is a municipal law, and international law.  The municipal systems have become largely legislation based, so they’re very positivist in the legal positivism sense.  So if you’re convicted of doing drugs or accused of doing drugs, it’s not a very good defense to say it’s unjust because the only question before the court is did you violate the terms of what’s written down here in this statute whether or not it’s just?

00:40:31

Now, sometimes you can try to appeal.  If there’s wiggle room, you can appeal to the Constitution, but even the Constitution allows taxation.  The Constitution allows drug laws.  The Constitution used to allow slavery in America I’m talking about.  So even the Constitution can’t be assumed to have been just, so people are only appealing to compliance with a given written-down, arbitrary standard of law decreed by a group of government bureaucrats.  There’s no reason to think that would be just.

00:41:01

International law, by contrast, as much as some libertarians and conservatives have distrusted world government centralization and the United Nations, it doesn’t look to me like there’s any great danger that the United Nations is going to take over.  If anything, the great danger is the United States and maybe some of its main allies or co-conspirator countries would and do dominate the United Nations and use that to cover their global hegemony.  So I’m not so concerned that the United Nations – now, they are somewhat socialistic in some of their laws, but they don’t have much enforcement power.

00:41:44

So the one good thing about international law, and I’m talking public international law when states make arguments before neutral forums and tribunals when they have disputes with each other, or when countries have – when companies have arguments with another state or with each other in an international setting, there’s a little bit more wiggle room and leeway to make normative arguments and to bring in, say, libertarian principles or justice principles because the law is not legislated as much.

00:42:17

And there’s more of a general-principles-of-law-basis of international law, so it makes more sense to tell the jurist this is what the just solution would be because they’re not so bound by the straight jacket of a legislative scheme and what they can do.  So in a way, international law, I think – international law itself, and Jock says about ACTA.  Well, that’s a treaty that is sort of like private law between countries, so I think that’s just as bad, of course, as municipal and state law.  And that is corrupting international law to some degree too.  I’m talking primarily about public international law, which is governed by so-called principles of international law, which is primarily contracts should be respected, and countries should not attack each other for no reason.  So it’s roughly compatible with libertarianism.  Respect contracts, and don’t commit aggression.

00:43:22

Now, as we talked about in the last class, the legal system of the libertarian world would probably be restitution based, although it could be based theoretically upon a right to punish.  But it would probably be predominated by restitution and practice.  And then so I don’t get too far behind here, and we may not have much time for Q&A today, so we may have to kick it to next time, but anyway, there is sometimes a dispute among libertarians about, in a private legal system, in an anarchist system, would criminal law disappear, and would there only be property law?

00:44:00

Would one devolve into the other?  And the thinking is that criminal law, at least in our statist system, is not really libertarian because there’s no victim.  The state claims to be the victim.  So think of the OJ murder case.  The state prosecuted OJ and lost because they had a higher burden of proof, and then the victims sued OJ for a tort in a civil case for restitution basically and won.  Now, in a private system, you think that would be the only – there would only be one suit by the victim against OJ.

00:44:34

Now, maybe it would be criminal, but the result would still be restitution.  There is still good reason to believe that in a private legal order, even if criminal and tort and civil law devolve into each other, you would of course still have – you would have specialized types of courts, say, for contract cases, for successions like when you have a death and you have to decide who gets to inherit the property, for marital disputes, divorces, child custody, civil cases, and crimes and torts.  So you would have specialized courts, but they’re all applying the same basic property rights principles, just to different situations.

00:45:23

Now, there is something that libertarians are prone to, and that is what some of us call armchair theorizing.  And we see it here in this course.  People say if you have this kind of case, what’s the right result?  I think we need to have a little bit of humility about our ability to come up with answers.  And if you reflect about how the common law and the Roman law systems did things, which are more compatible with our ideal system, they came up with the disputes only in response to a detailed, factual accounting of a context.

00:46:00

So the person who came up with the legal decision or determination knows a lot of details about the parties, the dispute, and tries to come up with an answer.  Usually in these hypothetical questions, it’s pretty general.  If you shout fire in a crowded theater, are you guilty?  If you incite a mob to riot, are you guilty?  Well, that’s not enough of a decision to go on, so we have to sort of be careful about how much we can come up with from our armchairs.  I think libertarians have to come up with general principles, and we have to rely upon them being eked out and developed and applied in concrete ways by courts and by arbitration agencies, by insurance companies, by contractual regimes, by customs, and see how they develop.

00:46:53

Now, Randy Barnett, who is an important libertarian legal theorist, in one of his books, which I discuss in my article, which I have hyperlinked here, the “Knowledge, Calculation, Conflict, and Law” article right here.  He says we should distinguish between abstract rights and legal precepts.  By abstract rights, he means basically what our general rights are.  Legal precepts he means more concrete applications of these to given situations or areas of law.

00:47:25

So of course, Julia, I think you’re right.  I think that what you could expect would be to see arbitration agencies, insurance companies, private justice agencies gradually coming up with contracts and regimes and basically treaties.  And you would have legal precepts develop as well, and we could model a lot of these after what the civil codes and the common law and the Roman law have done, but we have to be aware that these were kind of quasi-statist systems, overly statist systems.  And we have to take everything they did with a grain of salt and at least examine them to make sure that they weren’t based upon some un-libertarian abstract principles.

00:48:11

Let’s go to slide 16 now.  Excuse me.  So I have some examples, just examples here.  I don’t want to go through them in detail because we’re running behind.  Just here are some examples that you really – it’s hard to do armchair theorizing with a lot of these whether a promise is always or is never a contractual title transfer, whether – like I said, whether incitement can be a crime or is a crime.  What counts as a threat?  When you go to your neighbor’s door to borrow a cup of sugar, are you committing trespass, or did you have an implicit invitation to use their property to knock on their door?  If you kiss a girl on a date, is it a type of sexual assault, or did you have implicit permission given the context?

00:49:06

And then there’s caveat emptor, which is the buyer beware.  Was he defrauded, or did he – should he have known better?  And then Walter Block and Murray Rothbard’s idea where they say, well, there should always be the two-teeth-for-a-teeth punishment rule.  I mean I understand the sympathy there and the reasoning, but it seems to me a little mechanical and a little bit armchair.  We can’t say it would be exactly two teeth for a tooth.

00:49:37

Okay, so we’re making good progress here.  I am going quickly here, but – that’s interesting, Patrick.  I’ve been trying to think of some more courses, so if you guys have ideas, let me know.  Okay, so we’re kind of done with libertarian legal theory.  We can take questions later.  I’d like to move on to contract theory now.  And fraud is not going to take long.  Contract theory is going to take at least 20 minutes.  Great.  I am squeezing a lot in here guys, and I know a lot of you are not legal experts, so you’re really keeping up nicely.  And I hope I’m not going too fast, but I really want to cover as much as I can.

00:50:15

Okay, contract theory.  Now, step back and think about this, and I hope I’m not being too elementary.  When I talk about these things, I’m a lawyer, practicing lawyer.  I’ve read a lot of stuff.  I’ve been thinking about this stuff for 20 years, and even I still think about it in somewhat elementary terms to just step back and sort it out.  So sometimes it seems basic to me, but I think it’s a helpful way to step back and take a fresh look at it because there’s so much baggage out there about how people approach these things.  And there’s so much lack of clarity in the legal concepts they use and in the assumptions that they have.  They just assume way too many things.

00:50:58

They assume way too many things, and it leads to erroneous assumptions or people just making crazy statements and assumptions.  So let’s step back and think for a second.  People commonly say, including libertarians, they just take for granted the ability to contractually bind yourself or to obligate yourself.  And what they think of is the modern concept of contract as a binding promise.  That is, you make a promise in a certain way that gives rise to a legal obligation to perform.

00:51:29

Now, what does that mean?  Most systems don’t have what’s called specific performance.  That is, if you refuse to do what you promised to do, the judge will almost never make you do it except maybe sell a piece of real estate, but that’s not really making you do anything.  You’re just transferring ownership of it.  He won’t tell you, if you don’t sing at that birthday party, I’m going to put you in jail.  He might issue a contempt order if you refuse to do something – if you do something you refuse not to do, like if you can just abstain from doing it.

00:52:03

But these courts don’t want to get involved in supervising whether you did the job right and all this kind of stuff.  So they almost never issue specific performance, it’s called, specific performance.  What they do is they just award damages, so they’ll say if you promise to sing at someone’s party and you don’t, well, you’ve got to pay them $5,000 of damages.  So it always comes down to a title transfer if you think about it.  It’s not put that way because people think of things as binding promises.  They call them binding promises, but they’re not really binding.  All they mean by that is that there’s a consequence if you don’t do it.  And the consequence is almost always a transfer of title to money or property in terms of damages.

00:52:47

So basically what the legal systems really are is title transfer system.  Things you do can cause title to be transferred, usually money.  So the libertarian system that is propounded by Murray Rothbard is explicitly this: a title-transfer theory of contract.  They say, look.  Let’s just go ahead and go right – let’s cut right to the chase.  Let’s call it what it is.  And by the way, one alternative theory that’s a libertarian theory of contract is Randy Barnett’s consent theory of contract.  I think it’s a little bit more like the conventional theory.  I prefer Rothbard’s theory, but you might find Randy Barnett’s theory of interest.  I have it on the optional readings section for this course, for this lecture.

00:53:36

So let’s go on.  Let’s talk about Rothbard’s and Evers’ theory.  So what happened was this.  Until recently, I actually would call it the Evers-Rothbard theory because Williamson Evers, who is a scholar, still living, published an article in 1977 in the Journal of Libertarian Studies on his contract theory.  Murray Rothbard then built on this theory and summarized it and extended it a little bit in his 1982 book, The Ethics of Liberty.

00:54:04

But I recently realized that in a 1974 article, Rothbard kind of anticipated Evers’ theory in an article he did, and David Gordon posted on the Mises blog recently about how – or actually the Mises email list, sorry.  Anyway, that he had actually asked Evers the other day where the title-transfer theory came from, and he said he got it from Rothbard.  So basically what I think happened was Rothbard got there because of his Austrian theories and his libertarian theories.  And then Evers took off from that, and then Rothbard built on that, so this is still the Rothbard-Evers theory.  Basically, the idea is that the right to contract is just a consequence of property rights.  So if you own a piece of property, then you have the right to sell it to someone else.

00:55:00

Now, I’m going to revisit this when it comes to the inalienability issue because I actually don’t think that’s an automatic assumption.  This is the mistake that’s made when it comes to your body, but it is true, I believe, when it comes to property that you own.  The reason is—I’ll go ahead and anticipate the argument—when you have property that is outside your body, something that you own, you own it because you came to own it.  You came to own it because you homesteaded it.  It used to be an unowned thing, and then you homesteaded it from the state of nature, or you acquired it from someone else who did that.

00:55:34

But the point is, this is a thing that at some point no one owned, and at some point, you didn’t own, but then you came to acquire it.  You’re now the owner of this object or this thing.  You’re the owner because you’re not merely possessing it.  You’re owning it with the intent to own it.  That’s an important part of ownership.  Ownership is the right to possess or the right to control something.  It’s not merely actual control or possession.  It’s the right.  And to own something, you have to intend to own it.  I mean if I grab a stick off the ground in the middle of the wilderness just to strike a tree with it and drop it, I never really did intend to homestead that.  Or you could say I homesteaded it, and right away I abandoned it, but the point is my intent to own is an important part of maintaining ownership of something.

00:56:24

This is why it’s possible to – we’ll have to get to that in a minute, Atchafalaya, but that’s the inalienability issue.  I’m talking about things that you homestead because think about it.  You’re homesteading it.  You are a homesteader.  You are someone with a body, having a body, so the ownership or control of your body is already presupposed as part of what a homesteader is.  So that’s sort of a given.  You don’t homestead your body in the same way that you, as a body owner you can say, homesteads other things.  By your intentional action, you acquire something and you homestead it.

00:57:01

That means that if you lose the intent to own it, you don’t own it anymore.  So that means you have the ability to abandon these things.  Now, this seems elementary, but I think it’s very important.  This is, I think, why you have the right to sell things that you own.  You just abandon them in favor of a given person basically.  You give it to someone else and say I now relinquish my title to it, and then they’re holding it so they can re-homestead it, for example.  That’s one way to think about it.

00:57:30

The reason this is important is because ownership, as I mentioned, is the right to control.  Now, the right to control does not imply automatically the right to get rid of the right to control.  It means that you’re the one who gets the right to decide who can use this.  So how would the right to control imply you have the right to sell it?  Because that means you would lose the right to control.  So I think the way – the reason you can sell it is because, when it comes to something that you acquire, you can un-acquire it.  You can abandon it.  If you can abandon it, then your ownership of it means you can evaporate that ownership.  That’s why you can sell these things.  So it’s a consequence of the combination of the right to control, the importance of intent to own, and the fact that you acquired it is the reason why you can sell an acquired external object.

00:58:21

Now, this actually does not apply to one’s body because you never did acquire your body in the same way.  It’s not like you are a disembodied spirit lurking around and you homesteaded a body.  You might have religious beliefs like that, but it’s still not the same thing.  You weren’t a homesteader.  You weren’t an agent, an actor in the world, walking around with already having a body and homesteading your body.  It makes no sense.  Anyway, Patrick, I’m not sure who you’re asking a question of or what your question is, but…

00:58:57

00:59:02

Okay, so I’ve already touched on this a little bit.  By the way, it’s 9:02 right now.  Why don’t we take a seven-minute break, and then we’ll continue?  And I think I may go most of the rest of the class with the lecture.  And we won’t have much time for Q&A, but we can go longer if you guys want, and then we can do more questions on the office hours on Wednesday.  So it’s 9:03 now.  Why don’t we come back at 10 past the hour?  Is that okay with everybody, 10 past the hour?

00:59:42

Okay.  So now let’s talk about breach of contract.  Now, in conventional theory, breach of contract, as I mentioned earlier – I touched on this already.  Can everyone hear me?  I’m back okay?  Okay, so the conventional view is that – okay, bye, Erika.  The conventional view is that if you have a contract, it’s an enforceable promise, and if you breach it, there’s damages.  So the libertarian view, according to the title-transfer theory, is that there really is no such thing as breach of contract.

01:00:24

Now, there is a theory in sort of law and economics – excuse me – and it’s called the efficient breach theory, which comes close to what our view is or what my view is or what Rothbard and Evers and my view is.  Efficient breach theory is that you should be permitted to breach a contract if you have a better opportunity to do something else with your property or your time as long as you can pay off the original party.  Of course, that’s the consequence of a title-transfer theory is that in your contract, it is viewed as a set of conditional title transfers between parties.

01:01:03

Now, I’ve already touched actually on this part here.  Oh, I’m sorry.  I thought you meant got to go, Erika.  Sorry.  Now, I’ve already touched on this issue.  Does ownership automatically include the right to sell?  In my view, it does not.  There is actually an international law issue, which is relevant here, and a state law issue.  It’s called parliamentary or legislative sovereignty.  So the question is can a legislature bind themselves now not to do something in the future?  Like could Congress pass a law saying we cannot – here’s the minimum wage.  It’s $10 an hour, and we cannot ever lower it.  They actually can’t do that because next Congress could just change their mind.  Even if they put it in the Constitution, the Constitution can still be amended because nothing requires unanimity, and even if it did, you could finally have unanimity.

01:02:10

The same thing is true with countries.  So you’ve had some of these famous international arbitrations in the ‘70s in the Middle East oil dispute cases like Aramco and Saudi Arabia and all these kind of things, Exxon and these companies.  They had concessions, which are international agreements or treaties between companies and countries, and these are given international force.  And so basically, it’s like a property right given by a country to a separate country’s national company – not national company, but a national, meaning a citizen of that country.

01:02:46

And that agreement, if you breach it, it’s like breaching a treaty.  So you had these countries like Saudi Arabia, etc.  They would nationalize the oil concessions of Exxon or whatever, and then even though they had promised they would never do that, and then they would say that, well, we have the right to change our mind because of sovereignty.  And basically the international arbitration tribunals had to make a decision.  When a country makes a solemn promise that’s binding under international law – and there’s a way to do this.  It’s called internationalizing the contract.

01:03:24

This is not really relevant for our course.  I’m making an analogy to the personal situation, but the point is, the question before the court is, is it an exercise of sovereignty to bind themselves in the future, or can they always change their mind later?  And basically the idea is that, at least for countries, they can bind themselves.  At least that means there’s consequences if they breach the agreement.  Just like if America – like Congress can change the law.  Say Congress can change the copyright law tomorrow because there’s nothing to stop them from doing that inside the American legal system.  But if they change the copyright, it could violate the Berne Convention, which is a treaty they entered into, and then they would be in breach of international law, and there would be consequences for that.  What they might be is a different question, but there could be consequences, and that’s what law is.  Law is a rule, the breach of which gives rise to certain serious consequences.

01:04:24

So the question is, if you own property, that means you have the right to control it.  If you have the right to control something, you can see why that doesn’t automatically mean you have the right not to control it.  I mean the right to control it – so let’s say I have the right to control this ink pen here.  That means I can loan it to you, or I can refuse to loan it to you.  Now, let’s say I agree to loan it to you.  I say yes, I promise I’ll let you have this pen.  I’m going to give this pen to you.  Now, you take the pen.

01:05:00

Now, if I’m the owner, I have the right to say give me the pen back.  The right to control by itself doesn’t automatically imply you can get rid of the right to control.  That takes an extra assumption, and as I mentioned earlier, I think that assumption is the nature of the good as being something that was acquired by a homesteading agent.  Now, if you acquire – if I acquire this pen, there was a point in time when the pen didn’t exist or I didn’t own it and I come to own it.  I can abandon that ownership, and if I abandon it, someone else can re-acquire it.  That’s why I can sell it.

01:05:40

Okay, so – but that doesn’t apply, in my view, to the body.  Now, the question about inalienability rises.  Can you make a contract to sell your body?  Now, if you have the promise view of contract, then in a way you could.  You could obligate yourself to perform a certain service like be an apprentice or even a slave.  But if you didn’t perform it because there’s no specific performance, then there’s just a consequence, like you have to pay damages.

01:06:04

So in the promise-based theory in which there’s no specific performance, it doesn’t really matter whether you say there’s – inalienability is sort of a consequence of that because you still can’t be physically punished and prevented from leaving the plantation if you’re a voluntary slave, let’s say.  Under the title-transfer theory, the question arises: Can you transfer title to your body?  Now, I think you cannot, and the reason is because this.  As I mentioned, the right to own is the right to control and doesn’t automatically imply the right to abandon.  It does in the case of acquired things, but in your body, you never acquired it in the same way.  I’m going to mention Rothbard’s view of inalienability in a second, Jock.  I’m first going to explain where I think it makes sense, and then I’ll contrast to Rothbard.

01:06:56

With your body, you never acquired it, so you really can’t abandon it, so there’s no easy-to-understand way that you can just mouth words that get rid of title to your body.  What would that even mean?  When you say you have title to your body, a lot of people have a problem with the self-ownership idea.  They think it’s inconsistent or contrary or has a religious connotation like they think it implies that you’re saying you’re a soul and you own your body as a soul.  I don’t think it implies that.  You can have any metaphysical view about religion, and this is still the same idea.

01:07:29

Self-ownership only means for the libertarian it’s a way of describing the fact that you are the one who has the right to say, consent, or permit or not permit people to use and touch yourself, your body.  Whether you’re the same as your body or not is not really the issue.  The point is you can identify your personality and your identity and your body.  Whether they’re the same thing or not is irrelevant, but the point is we can identify these different legal sort of constructs or entities.  And we have an answer about who has the right to control your body.  It’s you.  That’s all self-ownership means.

01:08:03

That doesn’t mean you can – now, think about this.  So if contract is not binding promises – so let’s say a boy kisses a girl on a date and she consents to it.  Why is that not assault or battery?  Well, because she consented to it, even if we say the consent was implicit or contextual by the circumstances.  But what if the girl – what if a girl tells her boyfriend you may kiss me tomorrow?  Now, tomorrow arrives.  Okay, good, right.  The kiss is relevant here.  So tomorrow arrives.  Nothing is said.  They’re alone, and the boy leans over and kisses the girl.  Now, normally we would say that he believes he has her consent because she told him the day before he could do this.

01:08:54

Okay, so the reason the kiss is consensual is because think about this.  This is never emphasized in what I read.  There is consent right now.  In other words, we are using her words yesterday as evidence of what her current consent is, but it’s always her current consent that matters.  It’s not her consent yesterday that matters.  It’s her consent now.  The reason is because let’s say yesterday she says you can kiss me tomorrow.  And they’re sitting on the bed next to each other today, and he looks at her and she sees he wants to try to kiss her, and she says, listen, I’ve changed my mind.  I don’t want to do this.  Now, is he entitled to kiss her anyway?  Well, of course not because she is not consenting to it now, and all that matters is now.

01:09:44

She has the right to change her mind.  There’s nothing in libertarian theory that says you can’t change your mind.  If I agree to box someone or play a football game with someone, if I step onto the ring or step onto the field and I get hit, I’ve consented to it.  But if, at the last minute, I change my mind, then they may not hit me.  Then it’s aggression.  It’s assault.  So this is a fundamental important fact that we have to keep in mind.  It’s the consent at the moment of the interaction that matters.

01:10:14

Now, given that fact, so what if a girl promised her boyfriend could kiss her?  If he kisses her anyway later on when she says no, he’s committing aggression.  The fact that she promised before is irrelevant.  The only way he can – now, let’s take it out of the kissing example because this is getting creepy.  So let’s take a slave example or a boxing example.  Can everyone else hear me?  Am I frozen?  Okay, so let’s take a boxing example.  Well, let’s go ahead and take a slavery example to make it explicit.

01:11:04

Okay, in one week I promise to be your slave.  Now, one week comes and I refuse to do it.  Now, may the slaveowner, putative slaveowner, use force against me and treat me like a slave?  Well, only if it’s not aggression.  This is the libertarian touchstone.  Is it aggression or not?  Now, it’s not aggression if it’s in response to my aggression.  But did I commit aggression against him?  No, I only uttered words a week before.  You can’t say that that was a transfer of title to my body because that is circular reasoning because you’re trying to – in other words, it was a transfer of title to my body if he’s got the right to hit me.  That’s a consequence of his rights to hit me or not to hit me, and he doesn’t under libertarian aggression theory because I didn’t commit aggression.

01:11:59

The only reason people get confused is they may this assumption that if you own something, you have the right to sell it.  The reason they make that assumption is they are used to thinking of alienable things, and it is true that for alienable things you have the right to sell them.  But it’s not because you own them.  It’s because you have the right to abandon them because they’re alienable in the first place because you acquired them in the first place.

01:12:23

So in other words, the same concept of ownership, which is the right to control, applies to your body and to things you acquire because they’re both scarce resources, and you have a claim to both.  But the claim is different, and the reason you have the right to sell an acquired thing is you just un-acquire it.  But your body is not the same thing.  When you acquire things, you are already a body owner acquiring things.  It doesn’t make any sense to say you abandon your body by merely announcing your change of intent.

01:12:53

So this is my theory.  This is my belief.  Now, what’s Rothbard’s view?  Rothbard had a kind of confused view on this I believe.  He had the title-transfer theory of property.  Now, he did not want to say that you could sell yourself into slavery.  So his argument was that there’s an impossibility involved, that it’s impossible to sell yourself into slavery because you’re always really in control, actual control of your body.  Now, I think this argument does not work because sometimes slavery is justified by Rothbard’s and by my views and other libertarians’ views because let’s say someone murders a family member.

01:13:39

Well, you can enslave the guy at least temporarily to kidnap the guy, to punish him, or to incapacitate him or to force him to give you restitution or to defend yourself against him or something, but the point is you are using force against this person’s body against his will.  So you have the right, under Rothbardian theory, to use force against an aggressor’s body even though he has the physical control of his body.  So it’s not impossible to do that.  Impossibility does not prevent having a right to enslave someone in certain cases, so I don’t think that’s a good argument.

01:14:18

There’s another argument that you don’t have the right as a person to commit aggression, so if you’re a slave of a slaveowner, he might order you to commit aggression so he couldn’t be yours.  But to me, that’s only a limited attack on slavery.  That only says that you can’t – all that means is the slaveowner doesn’t have the right to use his slave to commit aggression, but you don’t have the right to a gun to commit aggression either, but you can own guns in general.  So I don’t think that’s an argument either.  So I think Rothbard’s argument is not a good argument.  I think it’s not impossible to own a slave, which is what Walter Block picks up on.  Walter Block says you can sell yourself into slavery because he sees this flaw in Rothbard’s reasoning.  I think Rothbard’s reasoning is flawed, but you don’t need to rest on it.  All you need to realize is that ownership of property does not automatically give you the right to sell it.  That only comes out in the case of acquired goods.

01:15:12

Now, there’s an interesting twist on this.  Rothbard has a comment.  I think it’s in his contract article about debtors’ prison.  And Block buys into this, although I’ve talked to him personally about it, and he goes back and forth on this.  The idea is this.  Let’s say you borrow money from someone.  Let’s say I borrow $1000 from you, and I’m supposed to pay you $1000 plus 5% interest back in one year, so $1050 in one year.  Now, if I don’t pay the money back to you in a year – what I was saying was – so I borrow $1000.  I’m supposed to pay you back $1050 in a year.  If I don’t pay it back because I’m broke, then Rothbard says I could theoretically go to prison because I’m stealing from you.

01:16:12

Now – and he’s right.  The only reason I can go to prison is if I’m committing a crime of aggression.  If I’m not stealing, then debtors’ prison could not be justified.  But what am I stealing?  Now, Rothbard says you’re stealing the original $1000.  Walter Block sort of goes back and forth and says you’re stealing the $1050.  Well, you can’t be stealing the – I can’t be stealing the $1050 because I don’t have it.  I don’t own it.  I’m broke.  There’s no money for me to steal.  It doesn’t exist.  You can’t steal something that doesn’t exist.  So Rothbard says, well, you’re stealing the original $1000.  Well, I’m not stealing it.  You gave it to me one year ago for me to use.  You gave me 100% title to it.  If you didn’t, I couldn’t use it for my projects or whatever I wanted to borrow the money for.

01:17:00

You can’t retroactively make something theft in the past because, at every moment in time, a libertarian theory of property has to specific who owns things so that we can know who owns it so people can know what to do with it.  For example, if you loan me $1000 – well, I’m going to get to fraud in a minute because this is another problem with this way of looking at it, Trey.  If you loan me $1000, I have to be able to spend it.  I can’t spend it if it’s not mine.  I can’t pay someone for his supplies that I need to buy.  I can’t give him the money.  He won’t take it unless I have the authority to give him the full title to it.

01:17:40

So you have to conceive of a loan, for example, as two title transfers.  Number one, it’s a present transfer of title to the $1000, 100% transfer, no conditions attached.  And there’s another title transfer made.  That is, my transfer now of $1050 of my future money, in the future, to you, but because that’s a future-oriented transfer, it’s inherently and necessarily uncertain, and we both know this.  Everyone knows this.  The future is uncertain.  So there’s no fraud.  There’s no fraud at all.  What’s fraudulent?  Someone’s got to tell me what the fraud is.

01:18:26

So here’s the idea.  There is no debtors’ prison for failure to pay a debt.  There cannot be.  And when they say implicit theft, I don’t know what implicit theft is.  There’s either theft, or there’s not theft.  Theft cannot be implicit, and theft cannot be retroactive.  Now, I disagree, Trey.  It cannot be loaned on condition of repayment.  It was loaned 100%.  Title was transferred in exchange for a future title transfer.  If you say it was loaned on condition, that means it was loaned on a condition – the question is who had title to the property right after it was handed over?  Was it the borrower, me?  Or was it the loaner?  If it’s conditional, I don’t own it, and I can’t spend it.

01:19:13

Colin says, but the authority was conditional.  Well, I don’t know if the authority was conditional.  I didn’t break any condition in the present.  See, when you loan money to someone, they presumably have some kind of project in mind that they’re going to make the money back and make a profit and be able to repay the loan out of it.  This is a risky activity.  It’s entrepreneurial.  Both sides know this.  Well, you can’t have a performance bond because that means insurance, and you cannot insure every entrepreneurial activity because that’s not the nature of insurance.  You just can’t do it.

01:19:48

I don’t know – Jock, if you can elaborate.  I don’t know what theft by finding is or how it would apply here.  You cannot insure loans, Matt, because insurance can only apply to – you have to read some of Hoppe’s and Mises’ stuff on this, but you cannot insure entrepreneurial risk.  Well, I would say all loans are bilateral exchanges of property.  One, it’s a current, present, unconditional transfer of title to money given to the borrower.  And the other is a future transfer of title to property that may or may not exist in the future, so it’s inherently risky.  Everyone knows this.  All loans are risky.  They may not go – the question is whether it’s an act of theft if you don’t repay someone.

01:20:40

Now, I agree that if I have the money on the due date, then some of my money automatically becomes owned by the creditor.  So now I’m holding $1050 of his money.  If I refuse to turn it over, I’m committing aggression, a type of trespass or theft.  But the question is if I’m penniless or bankrupt.  Now, clearly, they would have negotiated subsequent title transfers, like I hereby transfer $1050 to you in one year, and if I don’t have the money, then I transfer that amount plus interest in the future if and when I come into that money.  So you would have subsequent title, but I may be dead.  I may get killed.  I may not be able to ever pay you back.  Some loans go bad.  Just like my business adventure may have gone bad, your loan to me went bad.  These are all entrepreneurial activities.

01:21:29

Well, Trey, a mortgage is a secured loan.  A secured loan, yes, is secured by a house, but that’s because it’s a particular type of investment that you can do this with.  In other words, the bank loans me money to buy a piece of real estate, so that’s an asset that is somewhat comparable in value to the loan value, and they take out a security interest in that, which is a partial ownership interest in that property until I pay the loan off.  That’s perfectly fine, but you can’t do that with a business venture, for example.  I mean you can have some assets, but the point is, the hypothetical, if you’re totally broke – okay, by the way, let me stop for an administrative matter.

01:22:11

We are – we’re past the time.  I am happy to go further if everyone wants to.  I think what I’ll want to do is – let me see what the next slides are.  I see your slides.  Funny, guys.  I’m pretty much done with contract theory.  The next would be fraud, which you’ve already touched on.  What I’ll do is I will touch on fraud in the beginning of the next lecture.  So now that we’re done here with the main substance, let’s just talk, whatever you guys want to talk about now about what we’ve talked about tonight.  We can talk for the next, say, 15, 20, 25 minutes if you guys want, so ask away.

01:22:53

I’ll try Alex’s question here.  Can’t the creditor write into the contract that if the borrower doesn’t repay on the date his future income will be used to repay the debt plus a fine?  Yes, because that’s just another title transfer.  It’s a transfer of title to property, which is what the title-transfer theory of contract says is that all contracts have to be viewed as either unilateral or bilateral exchanges of property titles.

01:23:24

The libertarian definition of aggression – well, I would say that sort of the intuitive definition is the initiation of force against the person or property of another, that is, the invasion of their property or the borders of their property or the unconsented-to use of their property.  These are all synonymous uses, but you can see that that definition turns upon the definition of property, so in a way, I think aggression turns upon property.  Property is, in a way, a more primary concept.

01:23:55

We have to define what property is, which means we have to say who the owner is.  So, for example, if I take a football from you that you’re holding, it’s aggression if it’s your football.  If it’s my football, I’m just taking my football back, and it’s not aggression.  So the question of who owns the football determines what is aggression.  So aggression is the unconsented-to use of and/or the invasion of the borders of the property or body of another person.

01:24:31

01:24:37

Karl: Tell me about your remedies against the penniless borrower.  Well, I think in many cases there would be no remedies.  You just write the loan off.  You’d just have to write it off.  But the question from libertarians is, is one of the remedies to grab him and put him in a work camp and treat him like a slave because he committed aggression and get your money back that way?  And I say no, even if he agreed to it, because the agreement to be a slave is an unenforceable attempt to alienate something that’s inalienable.  That’s your body and your will.  But – and their failure to repay a loan is not aggression, so that doesn’t justify the use of force against his body, so there’s just no way.

01:25:23

So all you can do is just keep garnishing his wages or seizing property from him in the future.  Right, he’ll get a bad reputation, etc.  Yes, I think if the loan is taken in bad faith, it can be fraudulent, but that’s suffices the hypo.  Not every loan that is not repaid was fraudulent or taken in bad faith.  I mean loans are inherently risky because they’re future oriented.  This is an important Austrian insight.  Every future action, every action that’s aimed at the future, and the future is always uncertain to some degree, so there’s always a chance that your projects will not be – come out as expected.  That’s what the concept of loss is.  The praxeological category of loss means that you don’t succeed in your action, and you might not succeed because you’re not omnipotent, and the future is uncertain.

01:26:13

01:26:19

Well, you know, Trey, I don’t know about – I tend to doubt that contracts would turn upon your hidden intent at the time of signing it.  I think that people would prefer certainty, and they would have certain objective things that would go into contracts as they’re done now.  Colin says, it might your intent to what you’re going to use the money for, but then you could put that in the contract, like we’re going to loan you money, but we expect you’re going to use it for capital equipment purchases for a certain type of business.  And then if you use it for something else, you’re committing a type of theft of the money, let’s say, because you only have permission to use it for certain purposes.  But if you put too many strings on the use of the money, then it really can’t be used freely, and it defeats the purpose of making the loan.

01:26:58

Colins says, I’m not sure why it should matter whether you acquired your body or already – always owned it.  Well, let me just mention quickly this is my personal view.  I don’t know how many people hold it.  I don’t want to mischaracterize it as being the standard libertarian view.  I do think libertarian views on inalienability are all over the map, and they’re confused.  This is my attempt to sort it out.  I’m just giving you what my view is, and I go into this in elaborate detail in that contracts article, which is on the recommended readings for this course – for this lecture.

01:27:28

But see, you’re saying if you own it, you should be able to divide it up.  I agree that if you actually extract your kidney or chop your arm off, at that point in time, it’s no longer part of your body, but it’s something that you own as a piece of acquired property.  So you can do what you want now with this piece of property because for someone to take my severed arm or kidney, it’s not aggression against my body anymore because it’s not part of my body.  But as long as it is, then to use force against my body is – has to be consented to by me.  See, this is the fundamental question: Did I consent to it?  Now, you can say, yes, I consented when I promised to do it, but that assumes that you can’t change your mind.

01:28:14

But what libertarian says that you can’t change your mind?  In fact, if you focus on the fact that your current consent to an interaction is what matters, then you will see that that implies you can change your mind.  Yeah, you can – Robert, you can donate blood, but can you be forced to donate blood?  That’s the question.  If I promise you I will come to your blood drive tomorrow, but I don’t come, can you get some goons and grab me and stick a needle in my arm and take the blood from me?  I say no.  That’s an act of aggression against me.  It’s aggression because I’m clearly not consenting to it.

01:28:52

So why is it justified?  Normally, libertarians say that the use of force against someone’s body is justified only if they consent to it or if it’s in response to an act of aggression they committed.  I didn’t commit aggression by promising to show up for your blood drive or by failing to show up for it.  So I don’t think it’s justified.  I think it’s just clearly just – it’s still aggression.

01:29:14

01:29:20

Alexis, yes.  I think the creditor – well, if he – unless he made a stupid loan and agreed not to go after future income.  If he said you owe me $1050 of your future estate on a certain date unless you don’t have it, in which case you don’t owe me anything anymore, but they would never agree to that.  So yes, you would have a claim on the future income, but it’s still a claim on property, not on the body.  I think you can sell your organs.  You just can’t be compelled to sell your organs if you promise to, Atchafalaya.  Again, this is my personal view.  You guys are free to disagree.  I just want you to understand one libertarian perspective on this.

01:30:05

Noam: In libertarianism, can you use violence to force a borrower to repay a loan, threaten to kneecap him?  Well, this is exactly what we’ve been discussing.  The answer in my view is no because that would all be aggression against someone.  Remember, if you use force against someone’s body, it’s got to be either – under libertarianism.  This is what the non-aggression principle is about.  It has to be either consented to or it has to be in response to aggression.  That’s retaliatory.

01:30:34

Now, it’s clearly not consented to.  If you kneecap someone, they’re not going to consent to it, and it’s not in response to aggression.  He did not commit aggression.  See, that’s why Rothbard says that it’s implicit theft because he’s trying to find some act of aggression that would justify a debtor’s prison or some violence against the deadbeat.  So he’s trying to say it’s implicit theft, but that argument doesn’t work in my view because he’s not stealing the money that’s owed because it doesn’t exist, and he’s not stealing the money that was loaned to him because that was given to him unconditionally.

01:31:04

It had to be for him to spend it, so there’s no theft.  So the only other argument is that, well, you consented to be kneecapped when you made the loan, but you can change in your mind.  In other words, you can’t bind yourself to agree to some physical force, just like the girl on the date changing her mind about being kissed.  There’s no difference.

01:31:30

Okay, David says, what about when you change your mind about a contract?  What are the consequences?  Well, a contract is different.  A contract – if we assume a contract is an exchange of title to things you own, your mental state has nothing to do with it.  You have already done the deed, so on the day – let’s take the loan case.  Let’s assume I’m not a deadbeat.  Let’s assume I borrow $1000, and on the due date, I have plenty of money.  Well, a year ago, I already transferred $1050 of my estate on such and such a date, so on that date, the transfer happens automatically because I already did it.  So it doesn’t matter if I change my mind.  If I refuse to hand it over, I’m committing aggression by holding someone’s property that I’m just in temporary possession as a guardian of someone else’s property.

01:32:23

01:32:30

So Walter Block – Patrickccg: Walter Block uses a similar example.  If you receive money for selling your blood, well, it’s just like a loan.  So the money was received.  It depends on if it was – I mean if it was given to me in full ownership to spend, then that title transfer has already happened.  And it was given in exchange for the hope that I would comply with a certain promised action, a service.

01:32:58

But if I don’t perform the service, then we can assume that there was an implicit contract for me to say, if I don’t give the blood, then I owe you the million dollars you paid me or whatever it was you paid me.  But that’s just like a loan.  I’m just promising you future money that I may or may not have, and if I don’t have it, it’s not theft if I don’t give it to you because I can’t give you something I don’t own.

01:33:22

01:33:28

Well, estoppel has to do with making a claim that’s inconsistent with something that you have done, an action that you’ve performed, specifically aggression.  So if I commit a crime against you, if I commit a violent act of battery, assault and battery and I beat you up, I have acted on the principle that it’s okay for me to use your body against your consent to a certain degree.  Therefore, I cannot object if you act on me based upon the same principle that I’ve already shown that I endorse, so that’s the basic idea of estoppel.

01:34:10

I don’t see how you can apply that to the deadbeat lender case because when I borrow money, I’m taking present money that you give to me unconditionally.  And I mean what am I estopped from?  I mean I never did commit – see, you have to use actually force against my body in the future to be able to enforce this against me as an act of theft or something.  But I never did use force against your body.  I never did do anything against your property without your consent, so I don’t see how that would apply.

01:34:44

01:34:51

How do you impel a borrower to repay?  Well, you may not be able to.  I mean some loans go bad.  Loans are risky.  Fractional reserve bankers don’t like to hear this, but they are.  That’s why you get interest because you’re taking a risk.  Sometimes they go bad.  Sometimes you have to write it off.

01:35:09

If I give an engagement ring – oh, Robert, I was – oh, contemplating a marriage and she changes her mind, I cannot get the ring back.  Okay, now here’s where armchair libertarian theorizing would come in.  I mean I don’t think I can say from an armchair what the answer is.  It depends upon what the basic contract was, and that depends upon social customs and context.  Now, why does that matter?  It matters because, as the owner of a thing, you have the right to abandon it.  You abandon it by manifesting your intent in a sufficiently public or social way and let people know what your intent is.

01:35:49

What’s that?  That’s a type of communication.  So all this has to do with communication, but communication is a language thing.  A language thing is a community thing.  It’s very contextual related.  So if you have a neighbor in a certain neighborhood and it’s understood by everyone—it’s customary—that you can walk up to their door if they have a doorknocker or a doorbell and knock on it to ask for something innocuous like to borrow a cup of sugar, then we assume that that’s an implied invitation, permission, or license for your neighbors to use your property for that limited purpose.

01:36:25

Otherwise, it would be trespass because you’re clearly using their property.  So just because of the existence of certain community customs and assumptions, there’s a communicatory aspect to things you do like having a doorknob on your house or a doorknocker, sorry, or an open sidewalk, open to the street that doesn’t have a locked fence on it or something like that.  You don’t have a no posted sign out.  So these things have a communicatory function.  Likewise, if you give your fiancé a ring, it depends upon what’s understood.

01:36:58

I mean if the understanding in that culture is that you’re giving her the complete ownership of the ring or if you’re giving it to her conditionally upon – or you’re loaning it to her basically pending marriage, I mean it depends.  And if you know what the custom and the default presumption is in an area, if you want to change that, you have to make it clear.  Like you have to give your girlfriend a ring and say, listen.  I know that the presumption in our area is that this is an unconditional gift, but it’s not unconditional for me.

01:37:29

This cost me $10,000, and if you don’t go through with the wedding, I want it back, or it’s just a loan.  Actually, you don’t own it until we get married.  I mean if you want to change the situation, go ahead and do it.  That’s fine.  But it’s just a communication issue, so I can’t answer it.  But I can tell you, I think the law is that it’s – actually, I forgot what the law is.  There is an answer in the law, but I forget what the answer is.  I think the bride is supposed to give it back, to be honest, but I’m not sure.

01:38:04

This places – Jonathan: This places a responsibility on the creditor to make sure the borrower is not a deadbeat.  Of course.  Of course.  You should be careful when you make a loan to someone.  Trey – and that’s where reputation comes in.  Evaluate his project.  Trey: I think where I’m hanging up is the difference between having a claim against someone and using force to enforce the claim.  Well, see, having a claim is the language of promise.  I would say you don’t really have a claim against someone.  You only have a potential property right, so you have to think of contracts as just webs of exchanges of title to alienable things that people own.

01:38:44

So the loan is just I grant you some future property that I might have.  Look, maybe we should not make it bilateral like this.  Let’s just make it unilateral because there’s no reason you have to have consideration for this or have it be an exchange.  Let’s say I tell my grandson I will give you $1000 tomorrow if it rains.  Okay, now I have transferred title to future property to him conditionally.

01:39:23

So if it rains tomorrow and if I have money, $1000 of it transfers to his ownership.  I mean it just happens automatically because I’ve already done it, and then we have to wait and see if the condition is fulfilled.  So that’s all the other side of the loan is.  It’s just a conditional future transfer of property.  It’s conditional because I might not own the money.  In other words, the implicit condition is I hereby transfer $1050 to you in one year if I have it.  That has to be an understood condition because the future is uncertain.  Whether we say it or not, that’s a condition of the loan.  Yes, you enforce a claim by taking his money.  That’s right, Alexis, not by forcing him to do something.

01:40:10

This is a cool thing.  I mean I’m glad you guys find this adventurous because I think it’s very interesting.  I go into it in detail in my contract article, and we can only discuss it so much here, so if you’re interested in it, read that further and see what you think.

01:40:22

[no audio]

01:40:41

… if he has it in his possession.  So then [no audio_01:40:44] property in a sense.  He has to turn it over.  If he doesn’t, he’s the one that’s being an aggressor.  So taking it from him by force is not aggressive.  It’s just the new owner of the money taking what belongs to him.

01:40:59

01:41:12

David: Money is fungible.  What about a bailment of a specific object?  Well, you’d have to elaborate exactly – give me a clear example, but if it’s bailment, I would say the money is – the title is held by the owner if I understand bailment correctly.  So let’s say I put money in a safety deposit box in a bank.  I retain title to that.  The bank cannot loan it to someone else.  Same thing if it’s mixed with other people’s money in a fungible way, but it’s considered to be a loan of -Jesús Huerta de Soto goes into this in his book on banking.

01:41:52

Look, I think people are starting to leave.  We better – Jock, I don’t remember what Chosen Action is.  I’ve read that too, and I’m not sure the relevance here.  I’m glad you guys enjoyed it, but we better stop here because people are leaving now.  I don’t want to go on in an unfair way.  So why don’t we do this?  Feel free to email me questions or put them on the course page or save them for Wednesday’s class, and I’ll be happy to address them there or between now and then.  And you guys have a really good week, and I will talk [no audio_01:42:27].

01:42:28

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  1. See Roman Law and Hypothetical Cases. [↩]
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“Foreword,” to Hoppe, A Theory of Socialism and Capitalism

by on February 21, 2013

Below is my Introduction to Hans-Hermann Hoppe’s A Theory of Socialism and Capitalism (Laissez Faire Books, 2012). Earlier editions of the book may be found here.

[Update: here are the epub and mobi files]

Appended below my Introduction is the Editorial Preface by Jeffrey A. Tucker

***

Foreword to the Laissez Faire Edition by Stephan Kinsella

YOU ARE IN for a treat. Hans-Hermann Hoppe’s A Theory of Socialism and Capitalism: Economics, Politics, and Ethics (1989) utterly captivated and enlightened me when I read it over twenty years ago.

All of Professor Hoppe’s writing is insightful, including his books The Economics and Ethics of Private Property (2003), Democracy: The God That Failed (2001), Economic Science and the Austrian Method (1995), and The Great Fiction: Property, Economy, Society, and the Politics of Decline (2012), published earlier this year by Laissez Faire Books. But TSC has always been my favorite. An integrated, systematic treatise, not merely a collection of related essays, it is truly Professor Hoppe’s magnum opus—his Human Action, his Man, Economy and State.

TSC is so rich with insights that it bears careful reading, and periodic re-reading. In a book review of TSC, Professor Robert McGee noted:

When I read a book, I make marginal notations and underline the points that I think are worth reading a second time. With this book, I found that I had to restrain myself because I was making so many notations that it slowed my reading. Practically every paragraph has at least one point worth reflecting upon. 1  [continue reading…]

  1. Robert W. McGee, “Book Review” [of Hans-Hermann Hoppe, A Theory of Socialism and Capitalism], The Freeman: Ideas on Liberty (September 1989), available at thefreemanonline.org.[↩]
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KOL019 | “Libertarian Legal Theory: Property, Conflict, and Society, Lecture 2: Libertarian Basics: Rights and Law-Continued” (Mises Academy, 2011)

by on February 21, 2013

Libertarian Legal Theory with Stephan Kinsella Kinsella on Liberty Podcast: Episode 019.

This is lecture 2 (of 6) of my 2011 Mises Academy course “Libertarian Legal Theory: Property, Conflict, and Society.” The remaining lectures follow in subsequent podcast episodes.

Note: The material in these lectures more or less tracks the contents of my later-published book Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023).

Grok Shownotes:

[00:00–15:00] In the second lecture of the Mises Academy course “Libertarian Legal Theory: Property, Conflict, and Society,” delivered on February 7, 2011, Stephan Kinsella continues exploring libertarian principles, focusing on their application to legal theory. He recaps the first lecture’s discussion on justice, rights, and property as mechanisms to resolve conflicts over scarce resources, emphasizing self-ownership and homesteading. Kinsella introduces the lecture’s agenda, which includes a deeper dive into property rights, the non-aggression principle, and the role of contracts in a libertarian framework, while addressing common misconceptions about libertarianism.

[15:01–1:23:35] Kinsella elaborates on the foundations of libertarian legal theory, discussing how property rights emerge from first use or transformation of resources and how they facilitate peaceful cooperation. He examines the Rothbard-Evers title-transfer theory of contracts, which views contracts as transfers of property titles rather than binding promises, and contrasts this with statist legal systems. The lecture also covers the implications of libertarian principles for issues like fraud, blackmail, and defamation, followed by a Q&A session where Kinsella addresses audience questions on topics such as the practical implementation of libertarian law and its compatibility with existing legal structures.

Video, Transcript and Slides below, as well as Grok Detailed Shownotes.

This lecture’s topic is “Libertarian Basics: Rights and Law-Continued,” and discusses:

  • Anarcho-libertarianism (cont.)
  • Justice: Punishment and Restitution
    • The Case of Threats
    • Stalking
    • Spam
    • Torts and Negligence
  • Legal Positivism and Logical Positivism

For slides for all six lectures, plus extensive hyperlinked suggested reading material, see this Libertarian Standard post. For a listing of the syllabus and topics covered in each lecture, see this Mises Academy Course Page (archived).

For more information, see my Mises Daily article “Introduction to Libertarian Legal Theory,” and Danny Sanchez’s post Study Libertarian Legal Theory Online with Stephan Kinsella.)

All six lectures:

Video:

[fvplayer id=”10″]

Slides:

The videos of all six lectures are also available on this playlist.

Grok Detailed Shownotes

Detailed Summary by Time Segments

Segment 1: Introduction and Recap

  • Time Markers: [00:00–10:45]

  • Description and Summary:

    • Kinsella opens the second lecture, welcoming students and referencing the Mises Academy platform’s features, such as recorded sessions and course materials.

    • He recaps the first lecture’s focus on libertarian basics: justice as the protection of rights, property rights as a solution to scarcity-driven conflicts, and self-ownership as a core principle.

    • The agenda for Lecture 2 is outlined, including a deeper exploration of property rights, the non-aggression principle, and the libertarian approach to contracts.

    • Kinsella emphasizes the course’s goal of applying libertarian principles to legal theory, distinct from conventional legal studies rooted in state authority.

    • He encourages students to review the previous lecture’s slides and readings, available on the course website.

Segment 2: Property Rights and Non-Aggression Principle

  • Time Markers: [10:46–25:30]

  • Description and Summary:

    • Kinsella delves into the mechanics of property rights, explaining that they arise from homesteading (first use or transformation of unowned resources) or voluntary transfer.

    • He reiterates the role of scarcity in necessitating property rights to allocate resources peacefully and avoid conflict.

    • The non-aggression principle (NAP) is discussed as a cornerstone of libertarian ethics, prohibiting the initiation of force against others’ persons or property.

    • Kinsella clarifies that the NAP is not a positive obligation but a negative one, requiring only that individuals refrain from aggression.

    • He addresses potential oversimplifications of the NAP, urging students to consider its application in complex legal scenarios.

Segment 3: Contracts and the Title-Transfer Theory

  • Time Markers: [25:31–40:00]

  • Description and Summary:

    • Kinsella introduces the Rothbard-Evers title-transfer theory of contracts, which views contracts as agreements to transfer property titles at a future point, not as morally binding promises.

    • He contrasts this with traditional contract law, which often enforces promises regardless of property considerations, a statist approach.

    • Examples are provided to illustrate how title-transfer works, such as selling goods or services, where the contract specifies what property changes hands and when.

    • Kinsella discusses how this theory resolves issues like breach of contract by focusing on property rights rather than punishing unfulfilled promises.

    • He notes that this approach aligns with libertarian principles by grounding legal obligations in voluntary agreements and property.

Segment 4: Applying Libertarian Principles to Legal Issues

  • Time Markers: [40:01–55:00]

  • Description and Summary:

    • Kinsella explores how libertarian principles apply to specific legal issues, such as fraud, blackmail, and defamation.

    • Fraud is analyzed as a form of theft, where misrepresentation leads to an invalid transfer of property, violating the title-transfer principle.

    • Blackmail is discussed as a controversial issue, with Kinsella arguing that it may not inherently violate property rights, though it raises ethical questions.

    • Defamation is examined, with Kinsella suggesting that it does not involve aggression against property, challenging traditional legal protections against it.

    • He emphasizes the need for libertarian legal theory to remain consistent with property rights, avoiding ad hoc justifications.

Segment 5: Q&A and Closing

  • Time Markers: [55:01–1:23:35]

  • Description and Summary:

    • Kinsella opens the Q&A session, addressing audience questions on the practical implementation of libertarian legal systems.

    • He responds to queries about how private courts might function in a libertarian society, suggesting they would prioritize restitution over punishment.

    • Questions about the compatibility of libertarian law with existing legal frameworks are discussed, with Kinsella noting the challenges of transitioning to a stateless system.

    • He clarifies misconceptions, such as the assumption that libertarianism rejects all forms of coercion, explaining that only aggression (unconsented force) is prohibited.

    • The lecture concludes with Kinsella encouraging students to engage with the course materials and prepare for the next session, which will cover property and contract law in greater depth.

TRANSCRIPT

Libertarian Legal Theory: Property, Conflict, and Society, Lecture 2: Libertarian Basic Rights: Rights and Law, Continued

Stephan Kinsella

Mises Academy, Feb. 7, 2011

00:00:03

STEPHAN KINSELLA: My take on this course is we have basically more than six lectures worth of material to squeeze in, which I think is good for you guys.  My last course I gave, I spoke about 60 minutes per lecture, and then we talked about – we had about 30 minutes of Q&A.  Last time, we spoke the entire 90 minutes plus some, and then I’m doing office hours this time on Wednesdays, which works well.  So if we go the whole 90 minutes, that will – we have time to do Q&A on Wednesdays, so I think that’s working fine.  So you guys are getting eight or nine weeks’ worth of lectures in this six weeks, so I think that’s fine.

00:00:47

Phil Collins, I’ve heard that.  I’ve heard Tracy Byrd.  I think he’s an American country singer, and when I was younger and had hair, I was called Alex Keaton or Michael J. Fox, but I don’t think there’s a resemblance.  But anyway, Max, I have a couple of ideas for new courses.  I’m considering doing a basic libertarian course like introduction to libertarianism, kind of following Hubert’s book a little bit.  I’m not sure.  I want to wait and see how this one goes and see how I could blend those two or separate those two.  And there’s some kind of micro courses I have in mind too like Austrian Law and Economics, things like that, so let’s wait and see how it goes.

00:01:41

So what I’m thinking is this.  Today we have more of a sane schedule to fill, and if we go the entire 90 minutes, which I don’t think we will, then as I said, I can go to Q&A on Thursdays.  By the way, I had a really interesting appearance on an American podcast, which is called This Week in Law.  If you go to T-W-I-T – excuse me – dot tv, twit.tv, it’s part of the TWiT or This Week in Tech network.  And it was last Friday, and it’s already up, and I think it went really well.  They were amazingly receptive to a lot of fairly radical libertarian ideas that I presented on the state and intellectual property and things like that.  So some of you might find that of interest.

00:02:33

Okay, just before we get into the depths of this, we have 33 online now.  That’s good.  Is the video okay, and is the audio okay?  Can you hear me?  That’s the most important thing.  And can you see the video?  Everyone okay?  It’s four past midnight for some of us, four past four in the morning for some of us, so let’s proceed.

00:02:58

Okay, so tonight’s lecture I’m calling Libertarian Basics: Rights and Law, Continued.  I’m kind of following up on what was discussed last time and adding some more things.  And I’m going to – and by the way, our last Q&A session at the office hours on last Wednesday was recorded as well, and the recording came out pretty good even though Danny wasn’t on board.  That’s right, Danny.  Thank you for the link to TWiL 97.

00:03:27

In any case, the recording came out good.  There’s no video.  There’s audio and the slides.  If you downloaded and installed the player Danny linked to in his notes, you can listen to the Q&A from Wednesday.  And you should do that because we did discuss a lot of issues in detail, and there were some very good questions from members of the class.  And some things are a little bit redundant with what I’ll discuss tonight because I want to cover all the main topics and the main lectures.  That’s the link for the podcast I was on last – on Friday.

00:04:10

So let’s just briefly summarize.  Where did we leave off?  We’re talking about basics of libertarian theory, rights, and law.  We talked about justice, rights, and the law last time and rights and duties, the relationship between rights and duties or obligations, also the relationship between economics, in particular, Austrian economics and libertarian reasoning, how they both support each other.  And we talked about how the purpose of the kind of initial lecture is to provide a framework for – and a conceptual vocabulary that we can all use to discuss the more detailed topics that we’ll start with tonight.

00:04:47

We talked about the origins of libertarianism.  I didn’t go into a lot of detail on this because we’re talking about what the truth is and what we’re interested in and what we believe and how we apply these ideas, not really about where they came from.  But we talked about it in some detail because it’s of some relevance of interest.  We talked about how modern libertarianism originated in the 1950s and different types of libertarianism such as minarchism and anarchism and the different justifications that different libertarians have for their beliefs whether it’s utilitarian or consequentialist or natural rights-based or based on a constitutional-type idea or even religious or rationalist or some combination of these.  So – oh, sorry.  Let me hit record.  Thank you.

00:05:42

… five minutes into this, so I was just talking about slides number two and three on this slide of where we left off and where we’re about to head, and we had some administrative matters.  So if anyone is using this recording and I missed it, that’s what we talked about.  So we’re on slide three, which is really slide two.  Now, what we’ll talk about today, we’ll kind of finish up where we had to truncate the discussion last time.  So we’ll kind of finish that up, and then we’re going to talk about some particular topics: punishment and restitution, and several subtopics like threats and stalking and spam and restitution, legal positivism and logical positivism, and then also anarchy.

00:06:26

So these three topics will be today.  These are actually pretty big topics.  If we do not finish, I will finish them next time, and I will – or I’ll go longer tonight, and I will take questions on Wednesday at 7 p.m. London time.  If – and we should be able to finish everything in 90 minutes, but hopefully we can finish tonight in less than 90 minutes and have time for Q&A today, unlike the first course – the first lecture.  So let’s just kind of tie up some of the loose threads.  Good night.  Let’s tie up some of the loose threads.

00:07:01

We ended up – I was just describing some of the approaches to libertarianism and to rights.  One of them is Hoppe’s argumentation ethics approach, which is sort of a rationalist-type approach.  And what’s interesting to note here for those who are not interested with it, and again, I’m not appealing to authority.  I just want to kind of point out these things.  Murray Rothbard, who is sort of the dean or the godfather of libertarianism, had a more of a natural rights or neo-natural rights approach.  And he initially had sort of an Ayn Randian, Aristotelian, natural rights approach to libertarianism.  What our nature is determines – as humans determines what our rights are.

00:07:47

Hans-Herman Hoppe – so you can think of it this way.  Rothbard was Mises’ greatest student in both political theory and in economics.  And Rothbard studied under Mises and became his greatest proponent and expanded and extended his thought and improved upon it, in my view, in both economics and political theory.  Hans-Hermann Hoppe was a Kantian-influenced theorist like Mises was.

00:08:21

Now, Rothbard was more of the Aristotelian side, but they sort of put these terminological differences to the side, and they focused on substance, and there’s a lot of similarities in their ideas and their concepts if you put the terminological differences aside.  As I mentioned last time, for example, the Aristotelians might say something is an axiomatic truth if it’s self-contradictory to deny it, whereas the Kantians would say it’s ineluctable or a priori.  It’s the same kind of idea actually, although there’s a different terminological or semantical approach to it.

00:08:57

In any case, Hoppe is a very well-known Austrian economist and libertarian from Germany who was initially a socialist but started being influenced by – he started reading Rothbard and Mises, and he basically became such an inherent of the school, he moved to Las Vegas to study under Rothbard and became his protégé for a long time.

00:09:20

So my theory – and now this is simplified, but you have Mises, Rothbard, Hoppe.  In any case, Hoppe had a new approach to argumentation ethics.  He was skeptical of a lot of the natural rights approaches to libertarianism because of problems that plagued the natural rights theory according to Kantians or to some thinkers.  One of them is the is-ought gap, that you cannot go from is to ought.  In other words, you cannot say because the way something is, is the way it ought to be.  You have to make an assumption at some point.  You have to introduce some kind of values or norms or oughts and build upon those.

00:10:01

And those have to be explicitly introduced or presupposed in some way rather than built upon facts.  In any case, Hoppe came up with what’s called his argumentation ethics, which I briefly described last time and which we discussed in the office hours from last time, and which are discussed in detail in the recommended readings for the last class and for this one.  And his argument was basically that you can recognize what norms are justified by asking which ones could be compatible with the basic norms that are implied in the activity of argumentation itself.  And the idea is that these matter because any norm that you ever would argue for has to be justifiable in argumentation, which is a special type of human activity.

00:11:03

And so Hoppe’s project, which he bases upon the work of his teacher, Jürgen Habermas and Karl-Otto Apel, two well-known German philosophers, quasi-socialist philosophers, but their idea is something called discourse ethics, the idea that the very activity of discourse, which is a human activity, presupposes certain values or norms.  And so Hoppe’s idea was to integrate this basic idea with sort of a more Rothbardian or even Misesian understanding of economics and human interaction and libertarianism and to say that Habermas was right that discourse does presuppose some things.

00:11:43

But it doesn’t presuppose – it’s not compatible with socialism like Habermas himself thinks.  Rather, the only norm that comes out that’s compatible with honesty, consistency, human nature, and human action is basically the libertarian idea.  So I’m just trying to summarize here that what happened was Hoppe burst on the scene in the late ‘80s, say, ’86, ’87, ’88 with his argumentation ethics, and Rothbard, as you can see in the quote here, which I won’t read, Rothbard was blown away by it.  Rothbard said, I have a new protégé.  He’s extending my ideas and those of Mises, and he’s right that there are some problems with the natural rights approach, which I’ve been pushing, and Hoppe’s kind of neo-Kantian approach fixes it.  So that’s yet another approach to libertarianism, which I personally adhere to, but which you don’t have to, but that’s my approach.

00:12:39

So we’re going to go to slide six now.  So this is part of what I was saying, part of one of the rationalist approaches to rights, not really empiricist, not really consequentialist, not really utilitarian, not really natural rights except in a kind of special sense, more of an approach like the Misesian approach to economics.  We have certain basic, undeniable concepts that we can justify by appealing to logic or the structure of human action, and then we build upon those.

00:13:14

We might introduce explicitly certain empirical assumptions.  So, for example, in economics, we can know the law of supply and demand.  We can know that if you introduce money, certain things will happen.  But we cannot know that there will be money.  But we can say if you have money, or let’s assume that there’s money in society, now we have indirect exchange through a medium of exchange.  That will allow certain features of the economy.  So then you have a whole analysis of a monetary economy.  This is partly a priori based upon laws of human action, and it’s partly based upon certain explicitly introduced assumptions like the assumption that there is money and the assumption, for example, that humans prefer leisure over labor.

00:14:03

Now, these contingent assumptions are not that controversial, and they happen to be true, so it’s not too controversial to assume them, and you can get more interesting results if you do that.  In any case, this is similar to this rationalist approach to rights.  Another rationalist approach to rights is my own, which I describe in some of the articles I’ve linked in the notes to the course in the lecture for number one and two, is the estoppel idea.

00:14:32

The idea of estoppel in the common law is that you’re not permitted to assert a claim in a case if it’s inconsistent with something you’ve asserted earlier in that case that the other side relied on.  The idea is that you have to be held to one sort of consistent theory.  Otherwise, your opponent doesn’t know where to go with their arguments.  And the idea is that you’re estopped or prevented or stopped from using or from asserting or from being heard to say something that is inconsistent with what you maintained earlier.

00:15:08

So this is just a basic idea of the common law, and it’s also an idea of the Roman law.  It’s got a different name, but the idea is that you cannot do something or say something that’s inconsistent with an earlier act or statement.  You’re held to be a certain standard of consistency in your arguments and in your statements.  So my argument relies upon a similar type of logic, and it is recognizing that this type of argument can apply to a unique feature of the libertarian ethic, which is our reciprocity or symmetry.

00:15:47

Unlike all of the political ethics and political theories, the libertarian idea has within it a certain symmetry, the idea that you can use force against someone but only if they use force against you.  So that’s the non-aggression principle or the non-initiation-of-force idea.  So in other words, if you think about the non-aggression principle, it says that – it doesn’t say no force is permissible.  It only says you can’t initiate fore.  But what does that mean?  That means that you can use force if it’s in response to force used first against you, so you see the symmetry there.

00:16:26

If someone just insults you, you cannot use force because there’s no symmetry between the force you want to use and the just mere words used against you.  But if someone uses force against you, you may use force in retaliation, so there’s a symmetry to libertarianism and a strict symmetry, which other theories do not hold because all other political theories at some point break down and say, well, you can use force against this guy even though he didn’t use force against you, like if you want to put someone in jail for not paying taxes, for example.  So my thinking was that this symmetry in the libertarian idea is backed up by the – excuse me – let me get some power.  I’m about to run out of power.

00:17:20

All right, sorry about that.  I forgot to plug in my computer.  Anyway, so the idea is that the idea behind estoppel could be applied to this, and so I developed an argument, which is complementary to what I just mentioned for Hoppe.  But it’s all – all of these ideas, and they’re not just mine.  There’s mine, Hoppe’s Fran Van Dun’s.

00:17:44

I don’t follow the computer lab in the kitchen comment.  Anyway, these are all – the idea behind all of these is that you have to be held to a certain type of consistency and that every time people enter into a certain debate about what our rights are or what’s wrong and right to do, all these people are civilized proponents of a certain type of norm.  They’ve assumed certain civilized norms, and we can point to those norms, and we can say, look.  You’re saying we should outlaw drugs.  But that’s the use of force against this guy, and he hasn’t done anything wrong.  And that’s incompatible with or inconsistent with the basic norms that we’re all assuming is part of this entire endeavor.  So that’s sort of that approach.  Oh, I’m not in the kitchen, Danny.  I’m in my study.  And that’s not three computers.  That’s cinema display.

00:18:42

Okay, anyway, let’s go to the next lecture.  So you’ll notice that one aspect of this approach, and the reason I mention it here is not that important to what we’re going to get to as the foundation of libertarianism.  It’s important to recognize this because it helps to understand a lot of debates among libertarians: natural law types, Kantians, categoricalists, hypotheticalists.  I basically – my personal view is that almost everyone believes in a hypothetical approach.  Even like Ayn Rand, who was sort of a natural rights-type thinker, even she said that all of our values and oughts come from the choice to live.  But she said the choice to live is not something you can say you should do because that would be a should, and you can’t have a should before you’ve chosen to live.  So even she admitted that the choice to live is sort of premoral or amoral.  It’s hypothetical.

00:19:56

Now, one of my friends whose name is Geoff Plauché, Geoffrey Allan Plauché, he is an Aristotelian, anarchist libertarian following in the lines of Douglas J. Den Uyl and Rasmussen and Roderick Long and these guys and even Ayn Rand to some extent. And I have part of his PhD thesis quoted here.  1 He mentions that Roderick Long mentions that he thinks that you don’t have to call it a hypothetical imperative.  It’s assertoric.  It’s not if you choose to live or if you value this.  It’s since you do.  I think these are a little bit quibbles.  I think the basic approach is this.  All of us libertarians and anyone engaging in normative discourse is choosing and demonstrating that they prefer to interact peacefully and to try to solve their problems in a civil way.

00:20:50

So you could say since you value peace, since you value discussing with me this issue and figuring it out, what follows from whatever we’re already valuing?  So you can, in other words, assume the validity of these things.  Okay, but this is some good stuff here, so if anyone is interested in this, follow up on the links I have here in and the quotes I have here.

00:21:17

I’m going to go to slide eight now.  So now I’m going to get to the meat of all this.  All of this stuff is preliminary in my view, and this is not something that Rand would agree with.  At least she wouldn’t say.  I would say this.  In this course, we want to identify and unpack what the essence of the libertarian principles are, and then we want to explore its implications and applications.

00:21:41

So I’ve talked about different ways to approach it, different ways to get here, different conceptions of it, and different justifications for it.  But I believe there’s a common core that we all identify with or that we would if we analyze it rigorously and rationally enough.

00:22:21

Am I back?  Can you hear me now?  Am I back?  Okay.  What I was saying was Ayn Rand would have opposed the big-tent approach.  She would have said the libertarians plagiarized her principle that no one may initiate the use of physical force, and they treat it as a mystically revealed or out-of-context absolute.  Now, what she meant by that was you cannot be a libertarian unless you’re an objectivist.  You have to accept all of my philosophy to be a real libertarian.

00:22:55

But I think this is contradicted by even other aspects of her own philosophy.  For example, her very intuitive and simple, plain-language definition of what was the core of the political aspect of her philosophy.  She wrote in Galt’s speech: So long as men desire to live together, no man may initiate, no man may start, the use of physical force against others.  Now, you see that she talks about very common sense, plain language concepts and terms that really don’t require a deep grounding in philosophy to understand, maybe to explicate, maybe to get the details of.

00:23:40

But the way she put it—don’t initiate force—is something that a farmer or anyone could understand.  So it’s a principle that, even according to her wording of it, if anyone agrees with these concepts, they are a libertarian, or they’re a capitalist in her terminology.  They agree with the political aspect of her philosophy.

00:24:07

Slide nine.  So now, let me say what I believe we can say that libertarianism’s main principles are according to all the definitions of it, if we just look at it closely.  The terminology might not be shared by others, but I think that this is compatible with the way they look at it.  Okay, so I think that what we are is we are the political philosophy that consistently favors social rules aimed at promoting peace, prosperity, and cooperation.

00:24:35

And basically, the two fundamental principles of our philosophy are we recognize that there are only two rules that satisfy these basic norms or grundnorms, which you could call them. That is, number one, the self-ownership principle, which only libertarians hold.  That is, we own our own bodies.  Every person has the right to control his body, which means if someone else uses your body without your permission, they’re committing aggression.  Steven, can you hear me?  Okay.

00:25:17

And number two – so there are two types of scarce resources in the world.  There is your body, and there are other things.  So the libertarian rule is that your body is owned by you.  That is, you have the right to control it.  That is, you are not a slave in any sense.  And number two, the Lockian homesteading principle.  That is, if there’s a scarce resource out there that people can fight over or have a dispute about, the owner of that resource is the person who either homesteaded it – all right, let me hit reload.  Oh, I’m sorry.  I did it anyway.  Sorry about that. Okay, Matt, you just messed me up.  Okay, I’m back.

00:26:12

So the second – so libertarianism is basically self-ownership plus Lockian homesteading.  What does that mean?  Self-ownership means no slavery and no aggression against bodies, no rape, no battery, no assault, no slavery, no murder.  And the Lockian homesteading principle is the way that we identify who owns a given resource when there’s a dispute about it.  We don’t really care what the rules are if there’s no dispute.  We only care if there’s a dispute.  If there’s a dispute, there’s a dispute between two or more people.  Between those people, we say the one of those people that has the better connection to the thing in terms of being the first one to start using it is the owner.  Now, that could be that person, or that could be the person he inherited the title from.

00:27:09

So it could be you or your ancestor in title, we’d say.  Now, by ancestor, I don’t mean a family relationship.  I mean if you think of a chain of title.  If I’m going too fast, please stop me, and please feel free to interrupt me.  Okay, so this is what I think is the essence of libertarianism.  It’s the diligent attempt to consistently apply these ideas.  It’s basically an attempt to find rules that minimize conflict and allows the peaceful use of scarce resources.

00:27:50

Okay, now, there are different ideas about why we are libertarian, why you would hold libertarian ideas.  Now, I personally think one of them is because of our nature.  I personally think it arises from empathy.  I think we have empathy for other people, and I think there are biological and sociological and evolutionary reasons for this.  Now, not everyone has empathy, and those people tend to be sociopaths or outlaws, and we have to deal with them as technical problems.

00:28:24

They’re dangers to us, but the subset of humanity, which is, I think, a major part that chooses – Colin, I’m not saying we derive it.  I’m just trying to explain why people might choose to value each other enough to enter into this civilized realm.  I mean I’m not really sure why they do.  I think this is why, but for some reason, most people do, and anyone who’s having this conversation has, for some reason, done this.  And so the question is, logically, what norms are implied by or consistent with this endeavor of getting together and trying to live peacefully among each other, trying to find fair rules?

00:29:16

I agree that non-empathetic people might have value for that.  I agree that things other than empathy might motivate other people.  I’m sort of talking empirically what I think is the predominant reason why people tend to be social and civil, and I think empathy has something to do with it, but I could be wrong.  And I don’t think it’s that relevant.  It’s just an interesting inquiry, sort of like a meta inquiry when you’re interested in all these issues.

00:29:49

Now, here’s where you start seeing the importance of Austrian economics and sound economic thinking about these matters.  We’re going to start from the beginning, and this is where you get a lot of good insight from Hoppe in his book A Theory of Socialism and Capitalism, and I have a quote here.  So if you stop and think about it, why do we even need property rules in the first place?

00:30:11

So as Hoppe points out, only if there’s scarcity would you even have a problem of conflict in the first place over goods, would you need there to be coordination and property rules that would assign who owns things.  Now, let me clarify something I had to clarify in the comments in the office hours.  By scarcity, we do not mean lack of abundance.  What we mean is rivalrousness, which is an economic term, which basically means it’s a character of a thing that basically means you can have conflict over it.  So the point is we’re talking about what scarcity means and why scarcity is relevant here.

00:31:01

So scarcity in this sense means the character of a good or a thing such that only one person can use it at a time such that one person’s use excludes the others, such that if two people try to use this thing at the same time, there will be conflict, and they’ll have to physically fight over it.  This is what we mean by scarcity.  So – funny one.  Funny one, Matt and Mr. CivLib.  So when people say, well, good ideas are scarce, they don’t mean it in the same way that we do as economists or as political theorists.

00:31:40

So we’re talking about “conflictability“—you can think [of it like that].  But the point is the purpose of property rules is to permit the peaceful use, the productive use of these resources, which serve as means of human action.  We need to use things in the world to accomplish things.  If everyone is fighting over these things, you’re going to fight over them and not be able to use them productively.  You’re going to be fighting and wasting time and hurting each other, maybe breaking or ruining the good itself.

00:32:13

So people that prefer these certain grundnorms, which I talked about earlier, they want to have peace, prosperity, cooperation, and the peaceful use of things.  They would all tend to favor some system of allocation of property rights so that we know who can use this thing.  But the point here is not how we allocate these rights.  It can be done arbitrarily and by a dictator.  The point is that you only need to do this when there is this problem with respect to the good itself.

00:32:55

So if – and Hoppe points out this thing called imagine the Garden of Eden.  You cannot imagine this completely because if you imagine a complete Garden of Eden where there’s no conflict possible at all, then we’re just sort of all ghostly essences kind of passing through each other.  And there’s sort of independent realities.  But if you imagine – let’s just analogize this to Rothbard’s idea of the evenly rotating economy.  We sort of think of an unrealistic scenario to isolate certain things.  So let’s imagine the Garden of Eden where there’s no scarcity, no conflict.  We don’t the need for production, no need for rationing, and property rights are unnecessary.

00:33:41

The reason is – like imagine you can just reach up at any moment and grab a banana or grab a house or grab a car, and you could have it.  There’s just an infinite number everywhere.  Now, in this sense, it’s sort of like the limit in calculus or in math where the distinction between scarcity in the trivial sense and scarcity in the economic sense blur together.  If you really had an infinite number of bananas out there, theoretically if you’re – let’s assume your body is unique and your standing room is scarce.  And you reach up and you grab a banana, and you’re holding a banana.  Even if there’s an infinite number of bananas out there, this particular banana you’re holding is still scarce because if someone takes it from you, you don’t have it anymore.

00:34:28

Now, I do think it’s true that in an economy, in a society where there is such plentifulness, such abundance, technically every banana you held would be scarce.  But you really wouldn’t care if someone took it because you could replace it instantly, and anyway, why would someone take it from you in the first place?  So in the limit, in a way, abundance and non-scarcity blend together, but there is a conceptual distinction in the real world between these things.  But the point is to realize that the reason we have property rights is to ration and assign the right to use a given resource that only one person can use at a time without conflict so as to avoid conflict.  So if you had perfect plentifulness, superabundance, you wouldn’t need property rights.  The reason we need them is because we have scarcity in the world.  And by the way, a lot of this will pop up later in the IP talk in lecture five.

00:35:31

So we do have scarcity.  Now, what are implications of this?  Like I mentioned earlier, you can have conflict over these resources, and there can only be exclusive use by one person of these things.  Now, let’s step back, and here’s where, especially where, the nature of – goodnight, and close that door for me.  Here’s where the nature of – here’s where Austrian economics plays a key role in my view in both Hoppe’s theory and libertarian theory.  If you think about the way Mises conceptualized human action, it’s called praxeology.

00:36:07

So he said if we look at the logic of human action, we conceive of action as the purposeful use of a scarce means to achieve a desired end or goal.  Now, if this seems trivial, I think it’s not.  If this seems arcane, it’s not that hard to understand.  We’re just describing in fairly common-sense terms what people do in every action they take.  You always conceive of some state of affairs in the future that you don’t like and you want to change it.  So you want to change it to X.  That’s your end or your goal or your purpose.

00:36:46

To achieve that, you imagine what things you can interfere with in the world, what you can change to do it, so you use means.  You use your body, and you interfere and you use means to achieve your end.  These means are necessarily scarce resources that we just talked about, as Mises explains in Human Action and other works.  Now, I don’t have time to go into this in detail, but if you study the sort of epistemology or the philosophy of this idea, as Hoppe elaborates in a lot of the works that I link to and Mises, this way of looking at it shows that we know certain things are a priori true about human action.

00:37:33

We know that there’s subjective value, that is, that value is subjective.  It’s just how you regard things.  There’s not a value in things.  We know that people choose.  We know that preference is demonstrated in action.  We know that we have to presuppose there’s causality because you couldn’t assume that your means will achieve the ends you’re trying to result in if you didn’t believe in causal physical rules in the universe.

00:37:59

There’s the category of means and ends.  That’s the distinction between what you use to achieve your end and the distinction between them.  There’s the idea of opportunity cost.  That is, if you have an end X, well, you have another end Y or Z you could have chosen as well.  But if you choose X, then that means you value it higher than Y and Z, which is demonstrated preference and choice and subjective value.  But it also shows that the cost of your action, the cost of your choosing to pursue X is Y, the next-highest thing you could have chosen.  That’s the opportunity cost, which is another economic concept.

00:38:39

And also, it presupposes the idea of profit and loss.  Now, we’re used to thinking of profit and loss in modern-day terms of money, that is, monetary profit and monetary loss.  But it’s really a more general thing of psychic profit and loss.  That is, if you achieve the end you had in mind, then you have a psychic profit if it’s as you envisioned it would be.  And if you don’t achieve it, like if you choose the wrong means, and therefore, you don’t succeed at achieving your end, you have a psychic loss, even if it’s something non-monetary like getting a girlfriend or something else.

00:39:14

Okay, so the point is that, by analyzing the nature of action, it can illuminate the very nature of why we need to use scarce means as part of action and then why we have property rights in them.  So – and again, we’ll return to some of this in the IP lecture number five, but let’s think about this.  When you act, you use scarce things in the world to achieve your ends.  Now, if we have a property rights system respected, then you can use these means without being interfered with by other people without conflict, so you can use them peacefully and productively.

00:39:58

But the role of knowledge is to guide your action, and again, I think I’m going to return to this in more detail in the IP lecture, but just think about this for a second.  This is the key mistake made by people who believe in intellectual property.  They think of knowledge or information as a factor of production, and it’s another thing that we create, and therefore, you should own it.  But if you think about the structure of human action, you see that information or knowledge and scarce things in the world serve two different roles in action.

00:40:32

We use means or scarce things to achieve our ends, but information or knowledge is what is in our head that guides our choices.  In other words, the more I know about the way the world works, the more I know about what ends I can choose.  It might not be X, Y, and Z I’m choosing between if I have more knowledge.  Now I have A, B, C, D, E, F, and G.  So it expands the universe of possible ends I know I might pursue.

00:40:58

Like if I know there’s chocolate and vanilla ice cream and I choose between them, that’s one choice.  But now if I learned about strawberry ice cream as well, now I have three things to choose between.  And if I choose strawberry, I’m enriched because if I achieve that, then I have achieved something that’s more valuable to me than my next-highest cost.  Likewise, the more I learn about the universe and causality and the way things work—recipes, techniques, ways of doing things—then I have a wider array of means I can choose from to accomplish my given ends.  So knowledge reinforces and enriches the universe of means and ends, so it’s very important in human action.

00:41:44

But unlike scarce means, it does not need to be owned to be used.  This is the key thing that is missed.  And a good example is, imagine your grandma has a good recipe for a chocolate cake, and you and your cousin know it, let’s say.  Well, to make the cake, you need eggs and a spoon and an oven and a bowl and flour and yeast.  So all these things are scarce goods, and if your cousin has your own and your spoon and your eggs, you can’t make the cake.  You would only fight over it.  If you each have your own bowl and spoon and cake, you can make it.  But you each can use the same recipe.  So you each need to have a property right in your scarce resources to make the cake successfully, to have productive action, to have prosperity.  But you don’t need to own the recipe.  You just need to have possession of it.

00:42:49

Yes, Skyler, you’re exactly right.  Non-scarce things don’t need to be owned, and in fact, if you think about it, and again, I’m jumping the gun a little bit, but this is so important because it does play into the role of how we think about rights.  The entire functioning of the free market, which is an advanced society where there is institutionalized respect for private property rights, which means what?  Because we talked about property rights, which means there is a system where most things that people would want to use to achieve things, there’s a known owner for this thing.

00:43:26

So all these things can be used by the owner productively instead of being fought over.  And when this happens, you have increasing division of labor, and you have material prosperity.  So in other words, you have more abundance coming out of it.  Think of the assembly line, Henry Ford’s making of the car, modern-day manufacture of goods that are so cheap.

00:43:53

So in other words, when you allow property rights to be assigned, which we have to assign because there’s scarcity, then it allows human ingenuity and creativity to be unleashed and to be productively used to create more.  So in other words, when you have property rights in scarce things, humans can overcome scarcity to some degree.  So in the face of a lack of superabundance, we can make things more abundant.

00:44:25

In other words, we’re doing the best we can to overcome this unfortunate fact of the world, which is that we don’t have everything we want.  But with information, the more information you have, the better we are.  The bigger the body of human knowledge, the better off that we are because we can all draw on these recipes and ideas to enrich our universe of ends and means.  So to artificially restrict information would be like imposing – destroying physical goods just because we want to raise the price.  So they’re equally insane, but I will have to discuss this more in the IP lecture.

00:45:18

And I’ll get to this later too, but if you just think about it, the basic function of the market, there’s one aspect of it that has been neglected, partly because of this neglect of intellectual property and the problems behind it, and that is emulation.  So we – the nature of property rights and the role of scarcity in the function of the market, the key aspects of the market is that we have property rights that permit competition.  They allow competition, and competition benefits the consumer.  But it requires emulation, that is, learning.

00:45:55

Some of you might have followed.  Last week there was a big dispute between Google and Bing, and Google is the search engine, which you all know about, and Bing is the Microsoft competitor.  And Google accused Bing of copying – hello?  Anyone else here?  Anyone else having a problem with the – excuse me – with the video?  Can you all hear me?  Okay, sorry Z.  I’m not sure what the problem is.

00:46:27

But the point is – so you have Google accusing Bing of cheating, but they didn’t really have a coherent claim to their argument.  I mean they said, well, it’s sort of like if you lean over the desk and you cheat off of me during a test.  Well, it’s not like that.  Bing is not lying to anyone.  I mean if you cheat off of someone in a test, you’re lying to the school or to your fellow students or whatever.  Bing is not lying to anyone.  They’re just competing.  They’re emulating what Google is doing.  They’re learning what their competitor is doing, and they’re trying to improve on it or to match them.  The point is that’s one of the key aspects of the market is to emulate what your competitors are doing.

00:47:06

Yeah, we did – Barry, we did talk about that in the podcast.  I’ll wait a second.  Why don’t you guys try to reload?  I’ll wait a second here.

00:47:15

00:47:25

Okay, let me continue on.  Let’s go to slide 15.  Now, let’s talk about some of the key aspects of libertarian rights.  Number one, as you can see from the foregoing discussion, it won’t be a big surprise to think about it the following way, but it’s not always thought about this way in casual discussion among libertarians.  But Rothbard conceives of libertarians as property rights.

00:47:52

If you look at chapter 15 of The Ethics of Liberty, he gives some really good examples of people normally talk about freedom of speech and freedom of the press as what they call human rights or what we libertarians might call individual rights or libertarian rights.  But Rothbard points out that really all rights in the end are property rights, and he’s right, of course, if you think about rights as arising from the nature of scarcity, they have to be property rights.  The only time you could have a conflict is over something that’s conflictable, which is a scarce resource.

00:48:28

And so the right is always in the end going to say who owns that resource, who gets the right to control it, which is a property right.  So he gives the example for free speech, let’s say.  I mean free speech is not an independent, free-floating right that is independent of property rights.  It’s really just a derivative or consequence of property rights because if it was an independent right you would have the right to speak on your neighbor’s property.  But you don’t.  You don’t have the right to speak on your neighbor’s property.  You have to do it with his permission.  So that’s an example why free speech is not sufficient to guarantee you the right to speak.

00:49:08

And on your own property, you have the right to speak because you own the property, and you’re not aggressing against anyone else.  So in other words, it’s just a consequence of your owning property, so that’s an example of why it’s not necessary to have a right to free speech to have free speech abilities.  You basically need to own property.  It’s the same thing with freedom of the press.  In the Soviet Union and in other countries, you cannot have true freedom of the press if there’s no freedom of – if there’s no property rights because you can’t own a factory.  You can’t own a printing press.  You can’t own the paper.  You can’t own the ink.  You can’t hire the employees.  You can’t make a profit from selling the paper, whatever.  So basically everything always resolves to property rights.

00:49:55

Rothbard does a really good job in that chapter of exploding a metaphor you guys might have heard, which is a pernicious one because it’s repeated over and over.  It was given by a famous American Supreme Court justice, Oliver Wendell Holmes, where he said, well, obviously property rights are not absolute because you can’t shout fire in a crowded theater.  So he said, well, everyone would agree that you can’t do that.  Well, of course, there’s two problems with this.

00:50:23

Number one, if there’s a fire, you should be able to shout fire.  So – but let’s assume you’re falsely shouting fire.  The point is, as Rothbard pointed out, it depends upon what rules are set by the owner of the theater, or we can assume that the owner of the theater would set certain reasonable rules.  But the point is, the reason why it’s wrong to shout fire in a crowded theater is not because there’s no freedom of speech, but it’s because there’s only property rights. 2

00:50:51

So in other words, you cannot use the fact and the consequence of there being property rights to say that property rights are not absolute.  So this is more disingenuous, uncareful reasoning by the left and by statists.  So as I mentioned before, the principle components of libertarianism is our assignment rules, how we assign property rights, that is, how we say who owns what.  For the body, what we say, and again, I’m not trying to justify it here.  If you don’t agree with it, then you’re not a libertarian or not to that extent.  But the essence of what we believe is that, for the body, the owner is the person himself unless you do something to change it like commit a crime or something like that.  For other things, it comes from the Lockian homesteading rule plus contracting.

00:51:44

I won’t go here because we’re running behind as usual, but I won’t go into the Lockian proviso.  I’ll quickly say the Lockian proviso was Locke’s idea that there’s a limit on how much you can homestead from the state of nature.  He said you can homestead things that are out there that are unused so long that there’s enough and as good left for everyone else.  So he’s imagining like an infinite sea of trees or land or water.  If you take a cupful or an acre, you’re not really hurting everyone else because there’s plenty left for them to homestead.  But his idea is that when you start eating up that resource and it starts getting really scarce in the sense that there’s not much left, then you do hurt other people by taking their opportunity to homestead it.

00:52:38

Now, Hoppe and Rothbard and de Jasay, D-E, J-A-S-A-Y, have good arguments, in my view, for why the proviso—and Block too, by the way, Walter Block—why the proviso is not justified and why full Lockian homesteading is justified.  There’s also something we don’t really need to go into in detail here about the practical applications of the details of applying Lockian homesteading.  Rothbard sort of has a good starting analysis of this, which does need more work I believe by libertarian theorists called a relevant technological unit, and you can see that link I have here at the bottom of the page.

00:53:25

You should take a look at that, but his idea is that, in society, customs and norms were developed by negotiation among people trying to find a fair rule as to exactly how much you can homestead.  You can’t plant a flag and homestead the whole continent.  You can homestead what you’ve used and what you transform by your labor.  And that would be some reasonable unit of that property given that type of use that people are using it for like a farm or something like that or like the sky over your head or the minerals underground or the spectrum if you’re having electromagnetic communications by wavelength or shipping lanes if you have boats or airways if you have airplanes flying overhead, things like this.

00:54:16

Okay, I’m going to skip this here, but this is basically Rothbard’s idea of the relevant technological unit.  Now, my idea is that we can’t have too much armchair libertarian theory.  We can’t figure this out by sitting in a room and just discussing it.  This is all heavily contextual.  It’s heavily dependent upon the propensity of civilized human beings to get together to try to find a workable way to assign fair rules, to use these resources so that they can be used peacefully and productively rather than people fighting over them.

00:54:46

And there’s going to be some need for negotiation and compromise and just having a neutral judge in some cases make an arbitrary decision to make it – to decide who’s going to get to use it.  But we do the best we can, which is why I said earlier the libertarian can be conceived of as the person who, as consistently as possible, applies and extends these ideas of peace, prosperity, cooperation.  It doesn’t mean it’s always possible in every case.  It means we try as hard as we can, and we’re serious about it.

00:55:26

It’s 9 o’clock my time.  We’ve been going for one hour.  What I would like to do is in a little bit – I’ll answer you in a second, Max.  What I’d like to do is take a break in a few minutes, and then we’ll see how much farther we need to go.  I think we’re probably going to go closer to the end of the hour for the lecture, and that’s fine, and we can have question and answers in the office hours on Wednesday at 7 p.m. London time – excuse me – London time.  So in maybe five minutes we’ll take a break, a five-minute break, and then we’ll continue.  But let’s go on for five more minutes, and we’ll stop then.  Well, I would be happy to go another hour, but I’m afraid because of the schedule of a lot people here that that would go beyond what a lot of people could do.

00:56:18

But let me quickly answer Max’s question.  Intellectual property in my view cannot be homesteaded because – well, a couple of reasons.  It’s not scarce.  It’s just patterns of information.  As I mentioned, there’s – if you think about different ways it’s used in human action, it guides human action.  It’s what you consult to make a decision.  A decision about what?  About how to use scarce resources.  Those things have to have property rights.

00:56:47

The other way to conceive of it is this.  Because when you grant a right it’s always enforced with physical force against real things, tangible or scarce things, to grant a right in intellectual property can never be enforced against that property.  It’s always enforced against real things.  So, for example, if you have a property right in an idea or a pattern or a song, well, when you sue the person who’s doing it, you’re going to get one of two things.  You’re going to get some of his money, or you’re going to get a court order to use force against him to tell him not to do certain things with his body or with his property.

00:57:30

So in effect, saying you have an intellectual property right is a disguised way of making a claim upon his scarce resources: his money or his property, like his printing press or his body.  And when you make a claim on someone’s body or property or money, then you’re saying you’re the owner.  But you’re not the first user of it, and so the libertarian rule is that the first user is the owner, not this other guy who just came up with a way to use his own property.

00:58:04

Okay, that’s a brief snippet of why you cannot homestead ideas.  Basically, homesteading ideas is a disguised way of redistributing property rights from already existing property owners to other people who did not homestead their property.  This slide, by the way—we’re on now 17—is sort of some quotes from Rothbard, which go into the way he thinks we would apply the relevant technological unit as a concept to narrow down how we would apply homesteading principles.  Slide 18 is a little bit more about that, and I think we’ve already discussed most of these ideas here.  You can read these slides later for a little bit more detail and follow these things for elaboration, but this is the basic idea we’ve discussed already.

00:59:06

Okay, I’m going to turn to a slightly different topic now to elaborate on a few more concepts we need to discuss some things further down the road.  Basically, these are prerequisite kind of ideas.  First of all, you need to understand that rights – the difference between what the purpose of rights are and what positive rights are and the relationship between rights and duties.

00:59:32

So first of all, you have to understand that rights are always correlative of obligations or duties.  Correlative means one implies the other.  It’s like two sides of a coin.  If I say I have a right to X, someone else has a duty to provide me X.  Now, the libertarian idea is that all rights are so-called negative.  Now, this is what’s commonly said.  I have a right not to be aggressed against.  That means you have the right not to aggress against me – I’m sorry – you have the obligation not to aggress against me.  So my right does impose an obligation on you, the obligation to respect my rights.

01:00:13

So the question is how are these rights to be respected, and what kind of rights are they?  What libertarians often say is that, unlike all other political theories, we only believe that there are negative rights because if there are positive rights, that would imply positive obligations.  I think there’s a little bit of confusion about this.  I think it’s actually not correct.  I think that the best way to think about it is this: Libertarians are against all unchosen positive obligations.

01:00:58

So let’s think about an example.  If you commit a crime, this gives – this action – by this action, you are choosing to incur certain obligations.  What obligations do you have?  Well, you have an obligation or a duty to stop committing the crime, to confess if you’ve done it already, and then to make amends or restitution and to turn yourself in basically.  If you’re piloting – if you’ve agreed [no audio_01:01:30].

01:01:31

01:01:42

… in a lake out of spite and they can’t swim, let’s say, and if – they’re going – they’re probably going to drown.  Now, you’ve undertaken a duty to rescue them.  So – and then arguably, and we really don’t have time to go into this in detail, if you have a child, this is the result of voluntary human action in most cases.  You could argue that you – this is analogous to the case of pushing someone into a lake.  When you push someone into a lake, you’re making them a victim.  You’re putting an innocent person in a state of need that you created where, if you don’t rescue them, they’re going to suffer harm.

01:02:27

You could argue that bringing a child into the world, and a baby is by nature a dependent being for some time, if you don’t take care of that baby, then you are violating his rights to life or something like that.  So you could make an argument that abortion, at least in the late stages or infanticide at least or failing to care for a baby also – not infanticide, excuse me.

01:02:55

But just failing to provide for your child as a normal parent should violates the positive obligations you have undertaken by your actions.  But the point here is that libertarianism is not against positive obligations.  It’s simply against unchosen ones.  Now, we can debate which ones are chosen and which ones are not.  We can debate whether having sex, which leads to procreation and reproduction and children, is that kind.   That can be debated, but the point is to make sure you understand that libertarians are generally against positive obligations because we’re against ones that are unchosen.

01:03:40

So that’s why we’re against a right to welfare – excuse me – for example, because that would imply the obligation of others to provide for your welfare rights, to provide for your free education and your house and your clothing and your job and so on.  So this is the reason libertarians oppose this because no one undertook that positive obligation.

01:04:06

Let’s take a five-minute break, and we’ll return.  And then we will discuss how long we will go.  I’ll be happy to go as long as people are willing to put up with.  And then we can do Q&A on the office hours.  So I will see you guys in five minutes at 15 past the house.

01:04:26

So someone asked this is one I read a long – I mean it’s just full.  You can see.  This is the Habermas – let me show you the – does everybody see this?  This is the Habermas book of which I devoured about, I don’t know, 15 years ago.  And it’s – I found it interesting, and it’s worth reading if you want to go there, but honestly, I don’t think you need to, to understand the argumentation ethics ideas.  I think the argumentation ethics is pretty intuitive.  Rothbard understood it.  Rothbard had read Habermas.  Rothbard was aware of all this.  He was such a widespread reader.

01:05:12

Okay, everyone back.  Let’s continue.  Before I continue, let me ask.  If I go – it’s 15 past.  If I go about 10 or 15 minutes past the ending time, does anyone strongly object to that?  I’m just afraid it’s getting really late for some people, and I guess you can catch the end of it later on the recording if you miss it.  Okay, well, what I’m going to do is I’m going to finish these lectures, and we won’t have time for Q&A today, and we can do the Q&A on Wednesday.  Everyone good with that?

01:05:53

Okay, now, I have a long article, by the way, which applies the estoppel idea but which goes through a lot of the sort of logic of punishment and restitution and retaliation in the Journal of Libertarian Studies.  And there’s a – anyway, it’s called – it’s about – I’ve got it linked in the show notes.  It’s in the course notes.  It’s on estoppel and the theory of punishment, that kind of stuff, so take a look at that if you want to look into it in more detail.

01:06:24

But let’s talk about one thing that I think is often confused by libertarians and that is threats.  So you guys will probably notice that libertarians, famous libertarians and in the classic libertarian literature often say something like libertarianism is the view that every man should be secure – everyone should be secure in their property and that the only way to violate rights is by coercion or aggression or the initiation of force or the threat thereof or force or fraud.

01:07:02

So in other words – Danny, are you referring to me or – anyway, okay, I’ll let the public chat go on.  Okay, fine.  So in other words, libertarian theorists often sneak in two things.  They basically repeat the non-aggression principle, which is that you can’t initiate the use of force.  And then they’ll say and you can’t threaten force, and you can’t commit fraud.  Now, they sort of sneak that in like it’s obvious why these are subsets or types of this basic idea.  But I have yet to see someone explain clearly why it is.  Now, here’s the way I look at it, and this flows from sort of my estoppel approach, which is in my estoppel article that I mentioned earlier.

01:07:49

So in the law, at least in the civil law in Louisiana and other states, you often hear of assault and battery.  So think about this for a second: assault and battery.  Well, assault and battery are two different things.  Battery is the physical touching of someone else, which is not consented to.  So it could even include a noxious gas, poison or something like that.  But basically, even a light touching is battery, so battery means hitting basically.

01:08:21

Assault is not hitting someone.  That’s why it’s called assault and battery.  They’re different things.  Assault in the law – now, I’m not saying whether it’s justified to be a crime or not.  I think it is, but let me explain why.  But assault is one of two things.  It’s the attempt to commit a battery, or it is doing something that puts someone in fear of receiving a battery.

01:08:46

So let me give you an example that the law uses.  Let’s say your friend is sleeping, and you want to kill him, so you grab an ax and you swing the ax at the guy’s head, but you miss.  Well, that’s an attempted battery, which is assault.  That’s one type of assault.  You attempted crime.  It’s an attempted aggression.  Now, let’s say he’s awake and you swing the ax at him, and he sees you swinging the ax at him.  Well, he gets a fright.  He thinks he’s about to be killed.  So that’s – he’s put in fear of receiving a battery.  That’s another type of assault.  That could be assault even if you really were joking, but you didn’t do a good job of making your intentions clear.

01:09:31

So you see there’s these different types of assault.  Now, the question is – and that’s what threat is basically.  A threat is when you put – is one type of these types of assault.  It’s when you put someone in fear of receiving a battery.  Now, the question is why is that a rights violation, or why should that be considered to be a type of aggression?  My view is this.  Aggression is that which gives the recipient of the aggression the right to use force in response because we always say as libertarians you can use force in response to initiated force.

01:10:07

Now, there are disagreements about what types of force you can use in response.  Some say it can be for restitution.  Some say for rehabilitation.  Some say in defense – excuse me – in defense only.  And some say for retribution or punishment or retaliation.  But my view is a general one.  All those are examples of force in response to initiated force.  So if you can identify a use of force as being in response to other force, then it is – then the force you’re responding to is initiated or aggression.

01:10:44

Now, for a threat, if someone points a gun at you and puts you in fear of receiving a battery, what have they done to you?  They’ve basically committed some action that has made you reasonably think that you’re about to be physically harmed or physically aggressed against.  Now, by the logic of estoppel or even the symmetry of non-aggression, you can do to someone what they can do to you.  This is why you can punish someone who – or use force against someone who’s trying to hurt you because they’ve escalated it to a certain point where you can – they’ve made it permissible for you to use force against them.

01:11:23

So the basic idea is that if someone threatens you, they cause you to fear that you’re about to be harmed.  That means now you’re entitled to do that to them.  Now, I go into this argument in detail in my article that I linked to in the course page.  But if you think about it, the only way to threaten an aggressor back – let’s say you catch the guy.  Now, you want to punish him.  So he threatened you, so you can threaten him.  Well, if he knows that it’s a game or a sham, he’s not going to be fearful of receiving a battery.  The only way he can really be fearful of receiving a battery is if you have the actual legal right to carry through with your threat.

01:12:12

So this is the basic argument for why you have the right to use force in response to a threat.  And if you do have a right to use force in response to it, it has to be aggression because you only have the right to use force in response to aggression.  So that’s the argument for threats.  Now, you can take this and extend it to things like stalking.  I personally think stalking is a crime, or it could be a crime.  We have to be careful not to give the law too much discretion of course, things like this, but in certain cases, these people that stalk other people and they put them in fear of being harmed physically, I think they’re committing a crime that ought to be punishable or prohibitable by libertarian law.

01:13:00

Okay, so we can talk about this later in the question-and-answer period on Wednesday, or you guys can read up on this in more detail in the blog post and the article excerpts that I linked to on the course page.  So that’s how we should handle threats.  Now, by the way, if you don’t like my analysis of this, if you know of another one, I’d like to see one.  I don’t know of any extended detailed analysis of why threats should be aggression than this.  It’s just sort of assumed.  The same thing is true with regard to fraud, which we will cover I think in the contracts lecture.

01:13:38

Spam is sort of an extension of this.  I could have held off on this until the contracts lecture because it’s a property kind of thing.  But the basic idea of libertarianism – okay, David asks.  He’s not sure about why stalking is a crime.  Well, what are you doing when you’re stalking someone?  You’re basically communicating to someone that you’re going to harm them in subtle ways sometimes, creepy ways.  But you’re basically making someone so afraid that they’re about to get harmed by you.  You’re communicating a message to someone that you’re going to harm them.  Okay, so you’re putting them in fear of receiving a battery.  That’s called assault in the common law.

01:14:21

And I think there’s a good reason to think that classifying assault in the common law as a crime as a type of aggression makes sense because the only way to retaliate in a symmetrical way against someone who has put you in fear of receiving a battery is to do the same to them.  The only way to do that in an institutional way, that is, you’re the law-abiding person.  You’ve caught them.  So how are you going to make this guy afraid of receiving a battery if you want to get even with him?  You have to have the right to carry it out.  Otherwise, he’s not going to believe it.  He’s going to think it’s a ruse or an act.  So that’s the basic idea.

01:14:57

Or another way to think about it is this.  Imagine your sister is being stalked by some creepy guy.  And her friend or her boyfriend or your other brother basically plugs the guy.  Let’s talk about spam briefly so we have time to get to these final comments.

01:15:20

I think you can regard spam as trespass.  The reason is because – and not only spam but things like hacking and things like this.  I think in another lecture we might get to this in more detail or maybe in the questions we can in another course.  The central libertarian question is property rights.  Think about it this way.  We assign property rights, which is the right to control a resource.  Now, a computer or computer system is a resource.  Just because you have it connected to the internet doesn’t mean that you’ve giving permission for people to do everything.

01:15:57

Imagine your house.  You have a house, and on occasion you have a friendly neighbor walk up to you to knock on your door to ask a question, to borrow a cup of sugar, to see if you want to buy wrapping paper for their kid’s fundraiser, whatever.  Now, when they knock on your door, they’re not committing trespass.  Why is that?  Because we presume that the owner of the door, which is you, you’ve given implied license or permission for neighbors to use your door to knock on it for certain things.

01:16:31

But if it’s an aggressor trying to break into your house and take it over and burn it down, we don’t imply that you give him permission for that.  So there is implied permission, which is a type of communicated norm in a society.  It’s a type of communication.  Same thing with your computer on the internet.  Almost everyone is opposed to spam or receiving it anyway, so it’s understood that they don’t consent to their computer being used to become a spambot or to receive spam or to be hacked into.

01:17:06

The point is this.  A hacker or a spammer is basically using your property without your permission.  Yes, they’re able to do it, and you can say, well, you connected to the internet, so you’ve consented to it.  Well, that’s not true at all.  If you leave your door unlocked one night, that doesn’t give permission to people to walk into your house and take your china.  Breaking and entering applies even if the door is not locked.  It implies to opening the door without permission.

01:17:35

So you can use this argument, and again, we’ll skip over that.  Barry, I don’t know if you’re replying to me or someone else, but no, this is not the same as the argument for stalking.  This is sort of – I’m just trying to use these basic property principles to show how a lot of difficult cases can be handled if you just think about this consistently.

01:18:03

Now, sometimes people will say, well, why are you against identity theft if you’re not against intellectual property theft or reputation rights or things like that?  Well, the answer is very simple.  Identity theft is an example of unauthorized use of private property.  So let’s say that someone finds out your secret code or your social security number or your password and they pretend like they’re you, and they access your bank account at the bank, or they access your account somewhere else.

01:18:37

Well, they are using the property of the owner of that company, say, the bank without their permission because the bank has clear rules about who can access this account.  It’s only the owner.  So the hacker is actually – or the identity theft – the identity thief is basically committing a form of trespass.  So you can see that all these things can be resolved to a type of property rights trespass.  Okay, now, all right, 9:30.  Let’s keep going.

01:19:17

Patrick, I agree that spam can be seen as a flaw of the service and that there will be natural contractual and economic incentives for these companies to improve their service.  But we’re trying to say, is it conceptually a libertarian crime to spam someone or to hack into their computer system even if the locks aren’t good enough.  There is a good case actually, one of the earlier US cases called Cubby v. CompuServe, which is one of the first, what we call, trespass to chattels case, which talked about how spam could be a type of trespass, and I think it’s primarily or basically libertarian.

01:20:02

But let’s talk now about torts and negligence.  The standard case of a regular crime—murder, rape, robbery—is pretty easy to understand.  Let’s think about what torts are.  A tort is sort of a negligent action.  So let’s think about this, and here’s how I characterize these things.  The pure case would be an intentional crime.  That’s like an extreme tort you can think of, murder for example.

01:20:40

Now, we, as libertarians and humans in general, we grade these things on some kind of spectrum of badness or seriousness.  So everyone would agree that to murder someone is worse than a slap.  Let’s say you slap someone in the face.  Now, why is this?  What is it that distinguishes these things?  Well, first of all, they’re both – they’re not negligent.  They’re both intentional.  Negligent is when you do something by accident or you’re not careful enough.  So the murder and the slap are both intentional crimes.  One is a battery.  One is an extreme battery or murder.  So what makes them different?  Well, in this case, the consequences of the murder are worse.  That’s what makes it worse, the consequences to the victim.  This doesn’t mean we’re consequentialists, but it does mean that the reason the victim cares about being harmed is because of the consequences to him of course.

01:21:39

Now, let’s also think about this distinction.  There’s a distinction, especially in Austrian economics, between behavior and action.  Behavior is what we would say part of the causal realm, just the way some physical body moves.  Action is intended action.  And this is why the law distinguishes between completely unintentional things.  I don’t even mean partially intentional like negligent action or uncareful action, and intentional things.

01:22:12

So imagine you have someone who has an epileptic fit, and every now and then they lose control of their body and you’re sitting next to someone and your arm just involuntarily slaps someone in the face.  Now, would we treat that as assault – or battery, sorry, battery?  We would not because it’s not an intentional action.  So in this case, what’s worse about the intentional slap versus the epileptic slap is the intentionality of it.  So in one case, the consequences are worse.  In the other case, the intentionality is worse.

01:22:50

Now, what we have here then is we have a combination.  We have the harm or the consequences, and the intention is what combines to make the worst crimes and which makes the elements of crimes.  This is, by the way – these are two important Latin terms that you might want to learn.  There’s something called malum in se, malum meaning bad, in se meaning in self, versus malum prohibitum, that is, things that are bad just because the law prohibits it.  So, for example, we libertarians would say it’s malum in se to commit murder, but it’s only malum prohibitum to not pay your income taxes or to smoke marijuana.  These things are not bad in themselves because they don’t have a victim because they’re not aggressive, but the law makes them illegal.

01:23:47

Okay, so true crimes have a mens rea requirement, which malum prohibitum does not, by the way, you notice.  That is, if you smoke marijuana or possess it, you’re guilty because you committed those actions that the law defined, not because you have a guilty intent to harm someone else.

01:24:07

Okay, so now, let me give this example.  This is also in my punishment and proportionality paper.  This is how I think you can use the punishment paradigm to figure out how to handle negligence, and that is take a typical case of a murder.  So if you believe in eye for an eye and retaliation, if someone – A kills B, then B’s heirs can – if they want to, they can have A killed in response.  This is symmetrical—eye for an eye, tooth for a tooth.  In a way, A has asked for it.  He’s laid down the rule.  I believe killing someone against their will is permissible because that’s what I did.  That’s why it’s okay to enslave A or do severe things to him, but the point is that.

01:25:02

But think about this.  His murder is 100% intentional and very consequential to the victim obviously.  The retaliation is also intentional.  The victims intend to hurt the aggressor.  The legal system does this knowingly if it permits it, and the consequences can be severe.  That’s why there’s a symmetry.  But in the case of negligence, let’s say you’re driving your car and you just take your eye off the road and you accidentally crash into a car and you kill someone.  Now, is that the same as an outright, premeditated murder?  Most people would say no, and I think most libertarians would too.

01:25:43

But why?  The consequence is the same.  There’s a death, an unwanted or unconsented-to death of the victim in both cases.  The only difference is the intentionality.  What we can say is that a murder would be 100% intentional.  Maybe second-degree murder is 95% intentional.  Maybe certain types of manslaughter are 80% intentional.  But negligent homicide would be 10% intentional.  You didn’t mean to do it.  You just weren’t careful enough.  It wasn’t a behavior.  It wasn’t just an epileptic fit.  You weren’t careful enough.  You should have been more careful.

01:26:30

My point is this.  You have to imagine a sliding scale.  In the case of negligence, the consequence may be the same, but the intentionality is lower.  But if you want to make it symmetrical because your retaliation against the tortfeasor we call them, because that’s intentional, you have to reduce the consequences, say, by 10%.  So instead of killing the guy, you might put him in jail for a year or something like that.  So this explains why there’s a lessor punishment deserved by negligent tortfeasors compared to outright criminals.  So using, again, the praxeological understanding of human action and viewing the action as having an intentional component and a consequence component.

01:27:21

Well, let’s talk about that.  I mean I’m not trying to lay down the law about what the libertarian view is on the right consequence for all these actions.  And as we’ll see later, probably in a later lecture at this point, I tend to think any libertarian system would have a restitution-based system instead of a punishment-based system.  But I’m trying to explain why legal systems have and why our intuitions even as libertarians tend to think you should have a different standard of punishment or consequences for someone who’s negligent as opposed to someone who is an intentional criminal.

01:28:01

And I think you can imagine a spectrum of being an intentional criminal all the way down to negligent – actually, I would go intentional, reckless, negligent, and then just mere behavior, like the epileptic is at one end, someone who didn’t choose to do it at all.  And you wouldn’t blame them at all anymore than if you’re walking by your neighbor’s property, and a tree limb from his property just falls on your head.

01:28:30

I mean no one caused it.  This is just the universe.  Or let’s imagine another crazy hypothetical.  Let’s say you and your friend are standing next to each other, and some evil alien grabs your friend’s arm and slaps you with his arm.  Now, it hurts you, but is it his fault?  No.  He didn’t choose to do it, so that’s more akin to the epileptic example I believe.

01:28:55

So we have to imagine a spectrum, and I think basically this helps to frame how we’re going to choose the right consequences to apply whether it’s punishment or restitution or whatever to these different malfeasors, we can call them, as a general term, malfeasors.  Malfeasors would include tortfeasors and criminals.  And yes, I agree, Trey, it would apply also to the lines we draw about when you become an intentional agent, an actor.  A 2-year-old would probably not qualify in almost every case.  Most systems not until you’re 5 or 7 do you start being liable for some kind of behavior, and really for serious consequences not until later, which makes sense.

01:29:45

Well, as for how intention can be determined, this is a legal question about evidence and how the legal system is going to make a decision.  Obviously if you’re concerned with justice and fairness, you’re going to try to figure it out the best you can, and you’re going to have certain rules of thumb.  You’re going to have presumptions.  The burden of proof will be on the victim, but the burden of defending his action once it’s established what he did will be on the tortfeasor.

01:30:16

But as for determining intent, think about this one thing, and I’ll turn on to the next subject next, but the Austrian concept of human action is to view action as intentional action, not behavior.  I mean you could view your neighbors and your friends’ actions as the mere caused actions of a bunch of quark clouds operating by deterministic processes.  But that wouldn’t give you the ability to understand their motivations and what they’re doing as human actors.

01:30:52

So we conceive of and understand our fellow humans not as robots but as actors, and we have this framework of commonality to understand what they’re doing.  And that implies trying to determine their intents and their ends, and I don’t think it’s impossible to have a good understanding of other people’s actions in terms of the structure, that is, understanding what means they chose and what ends they’re trying to achieve by the choice of certain means.

01:31:32

I assigned the Rothbard article on air pollution and torts.  This is a great article.  It’s full of rich insights.  I highly recommend you read it.  By the way, as for provocation, we will talk about that, Barry – excuse me – in the lecture about causality.  I don’t remember if it’s the next lecture or not.  I think it is the next lecture.  So we’ll talk about inciting and things like that next time.  Let’s go on now because we’re way behind.

01:32:00

Look, I can’t go into this in detail now, but Rothbard talks about air pollution and torts, but his basic analysis is that you have to look at someone’s property as what they own when they come to homestead it.  And then the question of air pollution and things like this is can you say that it’s a nuisance, which is a type of trespass?  And in part, this depends upon who owns the property first.  If you homestead a piece of land in the middle of nowhere and you start polluting because you have a factory, Rothbard would say you’ve homesteaded the right to use the air to pollute, which is like an easement or a partial property right.  So someone else who moves there is coming to the nuisance, and they have no right to complain.

01:32:48

On the other hand, if you have a bunch of people living together and one guy starts polluting, now he’s committing a trespass or a nuisance against the property rights of these people to have certain clean air rights that they expected when they moved into this area.  And Rothbard has a great comment about life itself homesteading a noise easement.  I think that idea is very powerful and can be expanded upon.

01:33:17

And you can say that just by living in society there’s a lot of these types of easements you can say.  I mean life is not risk-free.  Life is not noise-free.  Life is not – I mean when you move your body around your property, you’re changing the gravitational wave structure of the universe, and you’re always affecting other people.  If you broadcast electromagnetic waves, they’re passing through other people’s bodies and affecting them a little bit.  They’re not interfering with what they can do with them, but they’re affecting them a little bit.

01:33:48

So we have to assume that if we’re going to live among one another we have to allow each other to move around and to live.  So that’s the idea behind this idea that just living among each other in society we all homestead a certain amount of property rights in living in general, which is like an easement to do certain things in the world.  I’ll tell you what.  Here’s what I would like to do.  It’s 45 past the hour.  I will lecture until – for 15 more minutes.  I’m afraid if I go beyond that it will be a problem.  So let’s do that, and we’ll go as far as we can go.  I think we may be able to finish.

01:34:36

If you read some of the articles I’ve posted that I’ve written and others, there’s a big debate among libertarians about whether restitution or punishment is the right approach.  My approach is this.  There is a right to punish, and the reason is because the victim of the punishment is an aggressor and has – he has no right to object to being punished because the same rule of action is being used by his victim that he used against the victim.  However, I do believe that in a free society, there are many reasons to think that restitution would predominate and that punishment would be very rarely applied except in an ad hoc way or by – in the heat of the moment.  And in those cases, maybe they’d be forgiven, but they’d be sort of a quasi-legal thing, but it would be minimized by insurance agency rules and by the default loan to society.

01:35:40

And historical examples have taught us that this type of system works better where there’s a way for the malfeasor to find his way back into society by seeking forgiveness and making restitution.  First of all, if you punish someone and it turns out that you’re wrong, and there’s always the possibility of a mistake, this is just the way human life is.  We’re not infallible.  If you execute someone who you think is a murderer, let’s say, and it turns out later that he was wrong, well, now you’re a murderer, and what’s going to happen to you?

01:36:15

If you imprison someone for 30 years and find out that he was not really guilty of rape and you have to set him free, how much restitution would have to be paid to him or how much punishment could he impose on you?  So I think that Randy Barnett, for example, has made a good argument that the standard of proof would be different for these types of punishments.

01:36:40

Let me explain what I mean by this.  In law, you’ll hear about the burden of proof.  The burden is who has to come up with the proof to win their case.  So if I sue you for hurting me, I’m making the claim.  I’ve got to prove you hurt me for me to win some kind of damage against you.  The standard of proof is how high the burden of proof is.  So you have preponderance, which is 51%, clear and convincing evidence, which is 75%, and you have beyond the shadow of a doubt or beyond a reasonable doubt, which is, like, 98%, something like that.

01:37:22

So you have different standards of proof.  Now, there are good arguments to why, if you’re going to incarcerate someone or physically punish them or execute them, you would need to have basically 99% proof or even more beyond a shadow of a doubt, which is hard to prove.  But if you’re just arguing over who owns a piece of property, which is all it really comes down to in a case of restitution, because in restitution, you’re saying – the victim is saying I want $15,000 of your property.  And the victim – and the aggressor is saying, no, I want to keep it.  So then the question is who owns it.

01:38:04

So in a way, the burden has to be on the victim because he’s wanting to change the status quo.  The burden is on the victim, but the standard of proof can be preponderance because, if he’s got a better claim to it, he should get it.  So if he can show that it’s more likely than not that the aggressor raped her or robbed her or whatever, he should have to pay the $15,000.  And the consequences of making a mistake are not nearly as bad.  If you find out ten years later that the alleged victim was lying and you want to remedy your mistake, you can just repay the guy’s money with some damage or something.  But he’s not dead, and he’s not been in jail for ten years.  So there’s a lot of reasons why it’s much more costly to have a punitive system.

01:38:58

And also there’s reason to believe it’s not as effective at reforming human behavior and having a good system in society that works well because of historical examples we have of Iceland and Ireland, which Rothbard and David Friedman give in some of their books, which is what I mentioned here about the man-geld idea.  Man-geld means man gold.  If you murder someone, then you have to pay the amount of gold or money worth their life.  And of course it doesn’t bring them back to life, but neither does punishing the aggressor.

01:39:29

Now, that said, I don’t – because I do believe restitution is better and would predominate in a libertarian society, it does not mean that there is not a right to punishment or that it’s not useful.  And my personal view is this.  We have to conceive of the right to punish of the victim as the primary right even if we have a system where they are not as able to exercise it because of prophylactic reasons or because it’s too costly.  But we can at least tell the jury, listen.  This victim would have the right to retaliate proportionately against the aggressor.

01:40:19

So use that conceptual mentality, the conceptual device of how much force they could use to come up with some kind of monetary damages award.  So at least they have some guidance as opposed to now when they just said figure out a number.  It’s totally arbitrary.  And this, by the way, would solve the millionaire problem.  You probably heard the – some people object to the idea of restitution or the libertarian idea.  They said that, well, if you have to pay a penalty for murdering someone, then Bill Gates could murder 100 people and just pay the penalty and be scot-free.

01:40:59

Well, according to my conception, he could not because what you would tell the jury is imagine the victim has the right to use force against Bill Gates to punish him, to do what he did to her.  How much money could he extract from Bill in a hypothetical negotiation?  Okay, and of course, a billionaire would be willing to pay billions of dollars to get out of being tortured and murdered and executed.  And so basically this type of paradigm would allow you to inflict a higher punishment on a rich murderer, and there’s nothing wrong with that.

01:41:38

Now, Patrick says, can I punish him if I want to?  Look, again, we cannot armchair these things.  I think that what would happen is you would have society develop in a free society where punishment would be extremely expensive.  And I don’t think it would be institutionally supported in almost every case, maybe in rare cases, but I doubt it.  Insurance agencies and others would not support that, so you would be on your own.  And if you did it on your own, you’d be an outlaw, and you’d be breaking the law to do this.  Could you get away with it?  Probably so in some cases, but you’re going to be sort of eyed strangely from now on, and it’s going to be costly if you do it.  You might get hurt when you’re trying to do it.  So I think it would be strongly discouraged.

01:42:33

Okay, I actually don’t think I can finish because we have a lot left to cover, but let me see what ground I can make, and we’re switching to another topic now.  And this is important background for understanding the way all these things play out.  Most of you have probably heard of legal positivism, and you might have heard of logical positivism.  The reason I put them together is because there is a link, I believe, which is not widely appreciated.  It’s not widely appreciated among non-libertarians because they have confused notions of norms and what the law should be and the way things should work.

01:43:16

And like so many things, it’s not appreciated by libertarians because we are limited in numbers, and we have a limited sophistication of understanding of some of these concepts.  So like a lot of things in libertarianism, libertarians are better on the principles, but we’re kind of scattered and maybe ignorant of detailed knowledge of legal topics and other topics.  And lawyers and legal theorists are the opposite.  They’re good at these topics, but they’re uninformed by the right economic ideas.  So you rarely have a good, solid, legally informed, and yet libertarian and Austrian solid analysis of something, and this is an example of that I believe.

01:44:01

Let me just go first in the legal positivism.  Let me explain why I’m bringing this up.  So legal positivism is another thing that’s widely confused in libertarian circles.  The common formulation you’ll hear is that this is the idea of legal positivism.  Legal positivism is the idea that we can separate law and morals.  Now, I’ll be honest.  I think this is almost nonsense talk.  It’s like metaphorical talk that doesn’t make a lot of sense.  I mean I don’t know what it means to separate law and morals.  I mean you can’t – you don’t pick up a fork and separate them like you separate meatballs from spaghetti.

01:44:45

I think what they’re saying is you cannot recognize something as being a law if you don’t first ask whether it’s legitimate or not.  Now, the problem here is this.  These guys are not libertarians, so their concept of legitimacy is not what ours is.  Their concept of legitimacy is either quasi-statist, or usually it’s inherently procedural.  Because they don’t resort to a natural rights, solid, consistent framework like we do, their only concept of legitimacy is process.  How did you arrive at this law?

01:45:26

So then they start devolving into the form of the law, who authored it, is it legislation, is it blessed by the king, is it conformed to God’s law, things like that.  So they’re all over the map partly because they’re not libertarian.  Now, in a way, I think libertarians could have an opposition to legal positivism if they wanted to because we could just say anything is not law if it’s illegitimate.  And we have a clear concept of legitimacy, that is, anything in compliance with the non-aggression principle.  I mean we can say that.  The problem is, when you analyze real societies, you do have the phenomena of an institutionalized set of norms that are backed up by the force of society or the state or whatever the legal system is.  And when you don’t have a libertarian society, sometimes you have norms that are enforced that are not compatible with libertarian principles.

01:46:23

So the question is what do you call these things?  Now, most people call them laws, so there’s a law against smoking marijuana or selling cocaine in the US.  There’s a law against not paying your income taxes.  Now, the strict natural-law theorists would say, well, there’s not a law against it because that’s not a law because it’s not consistent with natural rights except they don’t really believe that because they’re not libertarians.  So all they can say is it’s not compatible with the right procedure or something like that, so they’re all over the map.

01:46:56

My personal view is that legal realism or legal positivism in that sense makes perfect sense and is perfectly compatible with libertarianism.  That is, we libertarians can look at a given society.  We can identify the legal rules that are actually enforced, that is, positively enforced in society, and we can call them laws.  And then we can evaluate them as being just or unjust.  So this is what I think is the debate over legal positivism.

01:47:34

I think it’s a debate by mainstreamers who don’t have a clear concept of what legitimacy means, and I really am very bored by their whole debate.  That’s Lon Fuller, H.L.A. Hart.  I think they’re all confused.  We libertarians have a clear concept of legitimacy.  So we can identify a given law, and then we can pronounce it as good or bad, that is, libertarian or un-libertarian.  That is how I think we should approach the legal positivism debate.

01:48:07

Now, there is an aspect of legal positivism, which I think is un-libertarian, and that is the strain of it which views law as having to be made by a sovereign, by the state or by the legislature.  And now – well, it’s 10 o’clock now.  Let me go five more minutes to go into this because this is interesting and related to what we’re talking now, and then I’ll stop at the end of the legal and logical positivism discussion, and we’ll pick this up next time where I left off.  And we can have any questions in the Q&A session.

01:48:45

Okay, so you’ll see I have here the principle claims of legal positivism is what I said.  There’s no connection between law and morals, but the other is that rules have to be made by humans.  So the problem with this, and here’s where I see – I’m going to switch to the next slide.  Here’s where I see the connection to logical positivism.  So legal positivists view – in the bad sense, they only accept as real laws those that are made by the legislature.

01:49:15

Now, as a quick aside, let me say that I do believe that there’s a strain of this even among natural rights advocates, people that are religious, for example, who believe that – oh, they’re against what the government does because it’s not compatible with God’s law.  But then what they mean by that is they think God is the one who decrees what law is, so all they do is they take – they move it back a step.

01:49:39

Instead of the legislature decreeing what law is, it should be God decreeing what law is.  But all of these people have a similar idea that there’s some authority or source out there that’s above and greater than them that can decree and make law.  It’s the idea of making law that is the problem instead of discovering law and identifying what the law is.  Okay, anyway, that was just a quick aside.  So like I say at the bottom of this slide, just be wary when you hear about people saying what’s the source of rights.  They’re sort of asking who would decree them, and the presumption is that someone has to decree it for it to be real.  I’m going to slide 28 now.

01:50:34

This is a little detour.  Let me go into this really quickly.  There’s a – this is compatible with legal positivism.  There’s an idea called legal realism.  This is the idea that the way we think of what law is, is to think of the way – what the consequences to you are if you disobey that announced rule of the government.  And this was the idea of homes, and he’s got this thing called the bad-man theory of the law.  Let me change the page and talk about this.

01:51:08

So he viewed law as you should view law as a prediction of how the courts would behave.  Now – and he said, well, bad men don’t care about ethics or justifying their actions.  All they care about is what’s the consequence of their actions.  So we need to define the law as a prediction of what will be the punishment or consequences from a court or the legal system.  And I actually think this is correct as a way of identifying what the positive law is.  See, the thing is, all these guys are mainstreamers, and they’re kind of positivists in the sense that they have no external conception of judging the existing law.

01:51:46

So they have to accept what the law is, so they sort of shrink from the consequence of their horrible views.  We libertarians don’t have that problem, so I think it’s helpful to define what the law is in a given society, and then we can fight it or comply with it or whatever.  I’m going to go on to slide 30 here.  We’re making good progress here.  We’re going to stop in just a couple minutes, guys.

01:52:11

So let me just make the connection here I was going to make.  One connection I have – I’ve struggled to find good analysis of in the writing, and I haven’t found much of it.  But what’s the connection between legal positivism and logical positivism?  Well, logical positivism is the idea that the only sort of scientific truth is something that’s scientifically verifiable, that is, only the causal realm, only things that you can test and either verify or, according to Hoppe, to falsify.

01:52:45

So it’s basically the ideal that it’s a monist idea, this idea that there’s only one type of real scientific truth, and that’s the causal realm of empiricism and experiments and natural sciences.  And so what they do is they regard everything else as what they call metaphysics.  Now, the Austrian view is that this is not correct.  There’s a – the Austrians have a dualist view of knowledge.  We can know things a priori.  That is, we can know certain things categorically by the nature of human action, by reflection on the world, and we have certain – exactly.  Bowman says, how do they empirically prove their premise?

01:53:29

I have a quote by Hoppe.  Let me go here.  Maybe I don’t have it here.  Anyway, it’s self-refuting basically because the entire empiricist paradigm rests on certain a priori assumptions about how – the way knowledge works and things like this.  But on this slide here, slide 31, you’ll see I’m trying to trace out.  There are some kind of strange connections between legal and logical positivism.

01:53:56

They both share an antipathy for metaphysics, and what they mean by that is this.  Logical positivists say that anything that is not testable by physical experiment is metaphysical by which they mean a nonsense statement or something that’s not scientific.  And the same thing is sort of true for legal positivists because they only really trust as a law what the government says is law.  So they have to find a source of law, a decreer of law.  Anything else, like we libertarians or a natural rights-type person, they might say, well, that law that you’re in favor of or that law the government passed is unjust accordance with the natural law.

01:54:45

They relegate this concept of the natural law to the realm of metaphysics or to the realm of unscientific statements.  They only trust what they can test, and so that’s why they become empiricists, and they test every law they’re in favor of by its results or consequences or these kind of quasi-scientific goals.  Anyway, you can see the kind of similar mindset of the logical positivists and the legal positivists.

01:55:13

They both focus on physical consequences.  They both focus on empiricism.  They both focus on data.  They both relegate to obscurity or to nonsense non-testable ideas like a priori ideas for logical positivists or ideas of justice and right and wrong and norm for legal positivists.  So I think that’s the connection, and I think they reinforce each other.

01:55:43

Now, we’ve gone way beyond the end, and here’s what I will do.  I don’t want to extend my welcome and stay too far, but I will stop the positivist lecture right now on slide 31.  And I will be happy to stay for another 10 or 15 minutes and answer questions for a few minutes if anyone wants to talk, but I don’t want to impose on the students who are up at 5 or 6 in the morning and about to see stars.  So let’s talk for 5 or 10 minutes if anyone wants to, and I will stop the main lecture right here.

01:56:23

Yeah, I think everyone has probably got to go.  Okay, everyone has got to go, so let’s stop now, and I will take questions and I will finish up the remaining five lectures next time.  Thanks guys.  I enjoyed it a lot, and I appreciate you putting up with the technical problems.

01:56:42

01:57:40

Alex on limited liability.  I tend to address that in the – I honestly forget which lecture, but I think it’s actually fine, and I’ll explain why later.  I’ll repeat this later, so it doesn’t hurt to mention it now quickly.  Contractual is pretty obvious.  You can contractually limit your liability.  As far as liability for torts, I think the thing that people overlook is why should someone be liable for the torts of other people?  And in a corporation, torts are committed by employees so – and they’re always liable.  Limited liability doesn’t exempt them.

01:58:24

The question is why should other people be liable for their actions?  So I think if you want to say someone is liable for the actions of someone else, which is called vicarious liability, or in the employment context sometimes called respondeat superior, you’d have to come up with an argument for why someone is liable.  And if you will look at the literature, especially the left libertarian literature, I think they have done a terrible job of understanding the situation, the way the world works, and of coming up with an argument that will give liability to shareholders I guess is what they want.

01:59:06

You have to have a reason, and I haven’t seen a good reason for why a shareholder, as a shareholder, should be liable for the actions of employees, for torts of employees of a company he owns shares in.  Sure.  I agree, Jock, and I would – of course we’re all against the state granting this, but the question is why should the free market legal system impose liability on shareholders?  And I don’t think they should.  Now, Jock, what the state does now is they give legal personality to corporations.

01:59:51

And what happens is the state uses this as an excuse to regulate the corporation.  They say, well, a corporation couldn’t exist without our granting it legal personality, so it’s a privilege.  So in exchange for that privilege we can extract taxes, double taxation, etc.  Well, the question is do you need the state-granted personality to be a corporation?  And I believe Robert Hessen has argued persuasively that you don’t.

02:00:23

You could form a firm, which had a contractual network of distributed owners or distributed property, and it runs according to this private constitution.  And then any victim of actions of people can sue anyone who’s responsible for that, and if they want to prove that someone other than the actual tortfeasor is responsible, they have to prove that.  But of course, I think we can agree, Jock, that the state should stop incorporating – granting corporations.

02:00:59

All right, guys.  I think I better stop now.  So I enjoyed it, and I know it froze again, so we’re testing the technology here.  So I will see you guys on Wednesday at 7 p.m. London time and then again next Monday, enjoyed it.  Have a good week.

02:01:16

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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). [↩]
  2. For more on the Holmes metaphor, see The Non-Aggression Principle as a Limit on Action, Not on Property Rights. [↩]
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KOL018 | “Libertarian Legal Theory: Property, Conflict, and Society, Lecture 1: Libertarian Basics: Rights and Law” (Mises Academy, 2011)

by on February 20, 2013
Libertarian Legal Theory with Stephan Kinsella

Kinsella on Liberty Podcast: Episode 018.

This is lecture 1 (of 6) of my 2011 Mises Academy course “Libertarian Legal Theory: Property, Conflict, and Society.” The remaining lectures follow in subsequent podcast episodes.

Note: The material in these lectures more or less tracks the contents of my later-published book Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023).

Grok Shownotes: [00:00–15:00] Stephan Kinsella introduces the Mises Academy course “Libertarian Legal Theory: Property, Conflict, and Society,” emphasizing that it explores how libertarian principles apply to legal theory, distinct from conventional legal studies rooted in statist and positivist frameworks. He clarifies that the course does not require a legal background and is designed for those interested in understanding justice, rights, and law through a libertarian lens. Kinsella outlines the course structure, noting that the first lecture will cover preliminary concepts like justice, rights, duties, and the interplay between Austrian economics and libertarian reasoning, setting the stage for deeper discussions in subsequent lectures.

[15:01–1:33:05] The lecture delves into the foundations of libertarian legal theory, focusing on property rights as central to resolving conflicts over scarce resources. Kinsella discusses key libertarian concepts such as self-ownership, homesteading, and the non-aggression principle, explaining how they underpin a system of justice that prioritizes individual liberty. He explores the relationship between rights and duties, the role of scarcity in defining property, and the importance of avoiding “armchair theorizing” when applying libertarian principles to real-world legal scenarios. The session concludes with a Q&A, addressing audience questions on topics like the practical application of libertarian law and its compatibility with existing legal systems.

Video, Transcript and Slides below, as well as Grok Detailed Shownotes.

For more information, see my article Introduction to Libertarian Legal Theory. For the Mid-Term Test and Final Exam given during the course, see “Libertarian Legal Theory: Property, Conflict, and Society”: Mid-Term Test and Final Exam (Mises Academy 2011).

[Update: Lecture 5b, Q&A (KOL022b), has just been added]

This lecture’s topic is “Libertarian Basics: Rights and Law,” and discusses:

  • Legal Theory and Austrian Economics
  • Scarcity and Property Rights
    • Rights as property rights
  • The Nature of rights
    • the Is-Ought Problem
    • Argumentation Ethics and Estoppel
    • Universalizability
  • Essence of Libertarianism
    • Self-ownership
    • Homesteading
      • Lockean proviso
      • Labor ownership and mixing
    • Anarcho-libertarianism

For slides for all six lectures, plus extensive hyperlinked suggested reading material, see this Libertarian Standard post. For a listing of the syllabus and topics covered in each lecture, see this Mises Academy Course Page (archived).

For more information, see my Mises Daily article “Introduction to Libertarian Legal Theory,” and Danny Sanchez’s post Study Libertarian Legal Theory Online with Stephan Kinsella.)

All six lectures:

Video:

Slides:


The videos of all six lectures are also available on this playlist.

Grok Detailed Shownotes

Detailed Summary by Time Segments

Segment 1: Introduction and Course Overview

  • Time Markers: [00:00–12:30]

  • Description and Summary:

    • Kinsella greets the audience and introduces the course, “Libertarian Legal Theory: Property, Conflict, and Society,” delivered via Mises Academy on January 31, 2011.

    • He explains that the course applies libertarian insights to what the law should be, distinct from traditional legal theory, which is often statist and positivist.

    • No legal background is required, as the course is accessible to anyone interested in libertarian principles.

    • Kinsella outlines the six-week course structure, noting that this first lecture will spend time on preliminaries like justice, rights, and duties, with less time on these in future sessions.

    • He emphasizes the course’s focus on how libertarianism informs legal systems, using Austrian economics as a complementary framework.

Segment 2: Foundations of Libertarian Legal Theory

  • Time Markers: [12:31–27:00]

  • Description and Summary:

    • Kinsella discusses the core of libertarian legal theory: justice as the protection of individual rights, particularly property rights.

    • He introduces the concept of scarcity, explaining that property rights arise to resolve conflicts over scarce resources, a key insight from Austrian economics.

    • Self-ownership is highlighted as a foundational principle, where individuals own their bodies and thus have the right to control them.

    • Kinsella contrasts libertarian views with statist legal systems, which often prioritize state authority over individual liberty.

    • He stresses that libertarian law seeks to minimize conflict and promote peace through clear property assignments.

Segment 3: Rights, Duties, and Property

  • Time Markers: [27:01–42:00]

  • Description and Summary:

    • Kinsella explores the relationship between rights and duties, noting that rights impose corresponding obligations on others to respect them.

    • He discusses homesteading as a method of acquiring property rights by first use or transformation of unowned resources.

    • The non-aggression principle is introduced as a guide for libertarian ethics, prohibiting the initiation of force against others’ persons or property.

    • Kinsella addresses the role of contracts in libertarian theory, briefly mentioning the Rothbard-Evers title-transfer theory, to be covered in later lectures.

    • He cautions against oversimplifying libertarian principles, urging a nuanced understanding of how rights apply in complex scenarios.

Segment 4: Applying Libertarian Principles

  • Time Markers: [42:01–57:00]

  • Description and Summary:

    • Kinsella warns against “armchair theorizing,” where libertarians speculate on legal outcomes without grounding their reasoning in property rights principles.

    • He discusses the practical application of libertarian law, suggesting that private legal systems would likely focus on restitution rather than punishment.

    • The lecture touches on specialized courts in a libertarian society, which would handle issues like contracts, inheritance, and disputes, all based on property rights.

    • Kinsella references historical examples, like Roman law, to illustrate how libertarian principles align with certain traditional legal concepts.

    • He emphasizes humility in applying libertarian theory, acknowledging the complexity of real-world legal disputes.

Segment 5: Q&A and Closing Remarks

  • Time Markers: [57:01–1:33:05]

  • Description and Summary:

    • Kinsella opens the floor to audience questions, addressing topics like the feasibility of private legal systems and their compatibility with existing laws.

    • He responds to queries about the role of criminal law in a libertarian framework, suggesting that it might merge with property law in a restitution-based system.

    • Kinsella clarifies misconceptions about libertarianism, such as equating all coercion with aggression, and explains the nuanced use of terms like “coercion.”

    • He discusses the influence of Austrian economics on libertarian thought, particularly in understanding scarcity and market dynamics.

    • The session concludes with Kinsella encouraging students to review the slides and suggested readings, available on the Mises Academy course page, and to prepare for the next lecture on continuing libertarian basics.

TRANSCRIPT

Libertarian Legal Theory, Lecture 1: Libertarian Basics: Rights and Law

Stephan Kinsella

Mises Academy, Jan. 31, 2011

00:00:00

STEPHAN KINSELLA: Good morning to people that it’s morning for.  Good evening to people in Europe.  And good evening and afternoon to people in America.  So the course is called Libertarian Legal Theory: Property, Conflict, and Society.  Now, tonight I will spend a little bit more in the preliminaries than I will in the other courses.  So we might spend 15 or so minutes on some things that won’t waste as much time in next class and the subsequent classes.

00:00:33

So it’s called Libertarian Legal Theory.  It’s not really what lawyers would think of as legal theory.  It’s more how to apply libertarian insights to what the law should be, so that’s why it’s legal theory.  Now, having some legal background and knowledge can help, but you certainly don’t have to be a lawyer to understand this stuff, and in fact, being a lawyer can sometimes be a hindrance because lawyers are steeped in the statist and the positivist legal system.  This – hold on just a second.  Danny left.  Let me make sure he’s okay.

00:01:12

00:01:20

Okay, so – okay, Danny is still there.  Okay, I see.  So let me just give a little background about this course.  We picked the title “Property, Conflict, and Society” because that is what I think libertarianism all boils down to.  Now, the material in this course, to be honest, we have six lectures.  I think there’s enough material here for at least seven or eight or nine or maybe ten lectures.  So I’m going to squeeze as much in as I can.  If we have to leave some out, I have some things I can cut out and give you readings for, for later.  There’s a lot of material.  It should be a lot of fun and very interesting.

00:01:57

And these classes last for about 90 minutes.  What I did last class, the IP class I did, I spoke for about 50-60 minutes, and we took questions and answers for about 30 minutes for the rest of the class.  What I’m going to do this time, if I need to, I will speak for the entire 90 minutes if I need to, to get all the material in.  And then I can stay later for more Q&A if people want me to, and I’m also going to do office hours on Wednesdays at 7 p.m. London time.  And I may do another office hours like every other week at a later or earlier time during the day, which is better for Americans, but the 7 p.m. London time is designed to be better for non-western-hemisphere-time-zone people.

00:02:40

Okay.  I’m going to slide three now.  I’m just going to give a brief overview.  This course is not about me, but I do want you to know who your professor is in case some of you are not very familiar with me or don’t know me personally, which most of you apparently don’t, although apparently one of my friends, Jeff Barr—he’s a lawyer in Las Vegas—is signed up.  I don’t know if he’s signed in right now.

00:03:03

But I am an attorney in Houston.  I’m 45 years old, been practicing about 18-20 years, and I am from Louisiana, which is the sole civil law state in America.  The rest of the states are common law.  And I’ve been a libertarian ever since college and even earlier.  June, what’s your question?  You can repeat it here.  I’ll try to address it if it’s relevant.  I was just trying to give my background about my – the approach I have to these issues that we’re going to be talking about.

00:03:42

And as you can see from the pictures, it started with Ayn Rand.  I went to law school, and then I joined a law firm.  So that’s sort of my background.  I’m a practicing lawyer now, but I also am heavily involved with the Mises Institute and Libertarian Legal Theory.  I edit a journal, a scholarly libertarian journal, and I blog on some websites, and I write, etc.  So that’s sort of my role.  I teach, and I like to lecture and write.

00:04:09

My approach to libertarianism is heavily anchored in Austrian and anarchist libertarian theory.  The Austrianism from all three of the people you see there, which is Mises on the upper right – yes, Lauren, I did enable the whiteboard.  And Danny Sanchez assured me that the students wouldn’t interfere, so let’s see if I can hold you guys to that.  I’m going to select the laser pointer so I can see how that works.  See, here we have Mises here, so there’s Mises.  Mises is a great influence of mine.  So is Rothbard, and so is Hans-Hermann Hoppe.  So I’m going to draw on their thoughts a lot in this course, as you guys will see.

00:04:57

So actually, this is out of date.  I actually prepared this, this morning, but we have about 87 or 90 students right now from 17 countries, which is very nice.  I love having an international audience.  Oh, you couldn’t see the pointer?  I’m going to try right now.  I’m pointing right now on the Papinian picture on the lower right.  Can anyone see this?   It’s a red laser pointer.  If it doesn’t work, I’ll just disable the whiteboard for the next time.  Okay, good.

00:05:22

That might be useful sometimes.  I didn’t use that last time, but I thought I would try it this time.  Some of you might have seen the little mini ad – well, it’s not up right now.  I’ve got the laser pointer right over Papinian right now, a little red laser dot, okay?  Some of you might have seen the ad for this course, and there’s a little shadowy picture of a Romanesque-looking frieze in the background or relief, and that is this guy here named Papinian.

00:05:50

And you can go on Wikipedia to find information, but this guy, Papinian, is one of my legal and even libertarian heroes.  He had a famous incident in his life.  This guy was one of the most famous—probably the most famous—of all Roman legal experts or jurists back in the Roman Empire.  And others were Ulpian and others, and he influenced, of course, the – Justinian’s code and the foundation of all Western law because Roman law influenced common law, which we’ll learn about later, and the civil law as well.

00:06:25

Anyway, Papinian – there’s a story about Papinian.  He was like a consultant, the chief legal consultant to the state.  And there was an emperor who was – there were two co-sons of the current emperor, Caracalla and Geta, and my history is weak, so I may be wrong on the details.  But basically Caracalla murdered his brother and co-emperor, Geta, and he asked Papinian to compose a justification for this, and Papinian refused to do so.

00:06:57

He said I can’t do it.  It’s easier to commit murder than to justify it.  And I think there’s some profound truths in that statement.  Plus there’s some profound courage and heroism in what he did because he was actually killed – actually put to death with an axe in a gruesome death for refusing to cooperate, so he – a little bit like Socrates.  So Papinian was chosen as the sort of symbol for this course, and we’ll discuss some of this later when we discuss Roman law and the origins of legislation and common law.

00:07:35

I’m going to page six now.  So as a brief overview of the course, what we’re going to do – okay, good.  Well, I’m not going to rely overmuch on the laser pointer.  If it doesn’t work for too many people, I just won’t rely on it at all.  Okay, well, I’m waving it around right now next to the Mises Academy sign.  You can see Papinian’s little face smiling out at us here.

00:08:01

Okay.  So this is a brief overview of what the course will cover.  We have much more detailed information on the course page, but today and the next class, we’re going to talk about basics, libertarian rights and law.  And then we’ll talk about a lot of applications, advanced applications, contract, fraud, etc.  We’re going to talk about causation, the theory of causation, which is crucial to understanding these matters.

00:08:26

We’re going to have a whole lecture on IP, which I covered in six classes in my last lecture.  I’m going to try to distill that down, and then lots of little applications: corporations, the Constitution, common mistakes libertarians make, etc.  But the purpose of today’s course, and if you know a lot of this already, don’t get too concerned because believe me; we’re going to have a lot of material to follow this.  But I’m going to provide a sort of overall framework.  I’m circling the bottom part now – an overall framework and a conceptual vocabulary that can provide a basis for a more detailed analysis and discussion of a lot of advanced applications and topics.

00:09:12

And just as sort of a housekeeping matter, anyone here is free to email me personally any time.  My email address is right there.  It’s better to try to use the course forum, so anything I answer can be seen by everyone.  And again, let’s try not to use the whiteboard here.  And my office hours right now are planned to be at 7 p.m. London time.  I think that’s 1 p.m. central time, 2 p.m. New York time on Wednesdays.  And what I may do is every other week have a second one at an earlier or later time that’s better for people that that time doesn’t work for.  So I will let you guys know shortly about that.

00:09:52

So with these preliminaries out of the way, let’s go ahead and launch into the course.  Oh, let me mention a few more things too.  I plan to give two exams.  They will be completely multiple choice.  They’ll be weighted so that the final will have more weight than the midterm.  Don’t feel compelled to take the exam, but if you want to take it, there’s no pressure because you can’t really fail this course.  If you take the exam, both exams, you will get a certificate of completion, and actually, we’ve made a deal with Center for the Stateless Society, which I’m a member of their advisory panel.

00:10:27

And if you take this course and take the exam, it will fulfill one of their course requirements for their Stateless University course.  So you can take a look at that, and these lectures will be up later, and there’s hyperlinks in all of these notes, which you can link to.  Otherwise, you’ll get a certificate of participation.  Now, the course – I’m sorry – the test, the exams will be based on the lectures, what I’m saying during these lectures, the—what I call—suggested reading material, and the reason I call it suggested instead of required is because this is a voluntary course.  And this is for your own education, and it’s up to you what you want to read.

00:11:08

I suggest some things to get more out of a lecture or for more background, and then I have optional readings for further things you want to pursue.  But the test will cover suggested reading material, the lectures, and whatever is in these slides, which have some links that may not be on the course page or in the suggested reading.  And as I have here, you will not be tested based upon the optional reading material or on common sense, which is a joke.  I’m kind of joking.  You should have common sense being a libertarian.  I’m going to take that for granted.  It’s called judicial notice in the legal system.  I’ll take judicial notice that you guys all have common sense.

00:11:54

I’m going to slide nine.  Here, by the way, is an example of the certificate that was given out for the last course, so this is what you get when you take the exam, certificate of completion.  So in this course, I’m going to go back and forth a few times.  I’m going to try to weave different layers in here.  And remember, we’re trying to establish what we’re trying to come out of this first lecture with, which is a baseline of a starting point of concepts and terminology that we can build on for the remaining lectures.

00:12:35

So I just want to make one thing clear when we start.  This course is not about me, and it’s not an attempt to push my personal libertarian view on everyone.  Now, of course, it’s going to be tinged with that and influenced by that, but I’m going to try to describe libertarianism as it exists and what it is.  And I’ll give you my opinions on some matters, but I’m going to try to make it clear to you guys where there’s controversy, where there’s debate, where other people have different opinions, etc. so you can make your own minds up or pursue your own lines of inquiry further on.

00:13:12

Let’s take a look at that certificate before.  It’s actually pretty nice.  That’s right, Barry.  It’s completely opposed to a formal university education.  I think this Mises Academy is working out fantastic, and Danny Sanchez is doing a wonderful job helping out here.  And I hope Bob Murphy doesn’t kick me off in the middle of my lecture to retaliate.  Well, I think you can.  Of course, we’re not accredited yet, but I think you can – I expect people are already listing to these things on their CVs and their resumes.

00:13:51

So let’s stop and talk in general.  What is libertarianism about?  So the first thing to say is it’s a type of political theory.  Yeah, Colin, C4SS has a stateless u.  It’s not quite as organized or as developed as this one yet, but they are developing courses, and they fit mine in to their curriculum, which is a quite amazing thing that we’re doing here because we’re not really competing with each other for money or students.  We’re trying to spread ideas.  Sure, Barry.  I agree with you completely.

00:14:21

Anyway, so libertarianism is a type of political theory.  This is what it is.  There’s other types of course: Marxism, leftism, socialism, conservativism, theocracy, liberalism, things like this.  So this is what we are.  We’re a type of political theory.  Funny line about Koch there, Gary.  Interesting note: My wife worked for Koch Industries for a year as a fuel – as a trader about 10-15 years ago.

00:14:55

In any case, what we are concerned and what all theories to some degree are concerned with – excuse me just second.  So what we’re concerned with is justice.  Now, there’s a – what we will find as I go through all this is that, although I’m presenting a lot of these ideas, which are classical ideas, I’m presenting them generally.  They have a sort of libertarian leaning or push.  Now, that’s not my fault.  That’s the way it is, and this is why I think libertarianism is correct.

00:15:30

But in any case, there is a famous maxim of what justice is.  This was formulated – actually, I’m not sure who formulated it, but it’s in the Institutes of Justinian.  Justinian was the famous emperor of Rome who helped codify the great body of Roman law that developed over about a 1000-year reich or period.  And this is one of the crowning achievements of the civilized world is the preservation of Roman law that Justinian did in his Institutes and his digest of law.  And the statement is this: Justice is the constant and perpetual wish to render everyone his due.

Now, then they elaborate the maxims of the law are these: to live honestly, to hurt no one, and to give everyone his due.

00:16:20

So this is what we think of in general.  I’m glad the laser showed up.  Actually, my company makes lasers, so they will be happy.  What you’re due is what you’re entitled to receive, and that’s what the law is expected to provide you.  They protect your rights.  They give you what you’re due.  But this is a general statement obviously.  So the question is what are you due?  Now, this is really a higher-level idea that’s dependent upon a lower-level concept of property rights.

00:16:49

You could say that whatever your property rights are determines what you’re due.  If you have a right to it, then you’re due it, a property right to it, then you’re due it.  Okay, so what distinguishes libertarianism from other philosophies, other political philosophies is not that we’re about justice, but it’s that our particular conception of what justice is, which means our particular conception of exactly what property rights and what rights are.

00:17:16

Okay, so it works like this.  You seek justice.  This informs – this particular concept of justice informs your notion of what rights there are.  And your idea of what rights there are informs your idea of what laws there should be.  So it works in that order.  You can see at the bottom of the page down here I have that mentioned here.  So that’s why this course is about legal theory because we’re talking about what laws should exist in a society, in a just society.

00:17:47

So the idea is that what actual law is, that’s what we call positive law.  That’s the law that is actually enforced by a given system in a society whether it’s a private system or a state system.  Whatever laws are actually enforced we can call them positive laws or actual laws.  Now, they don’t always conform with our ideas of justice.  Some laws are unjust.  We might criticize a law as being a bad law.  By doing that, we have to assume that there’s a standard outside the law by which we judge the law itself, so this is the natural law or the justice idea.

00:18:30

So what we could say is that the libertarian believes that actual law or positive law should conform to natural law, that is, the law that would be consistent with the rights that we have, the natural rights or the property rights that we have.  So that’s why we ask about what justice is.  That’s why we ask about what rights are.

00:18:51

Yes, I think jurisprudence, Steven, is the sort of systematic study of the nature of law and sometimes of rights and wrongs and things like this.  And as you’ll find as we go through this course, lawyers have a lot to contribute to this because they have an innate and a deep sense, or at least the good ones do, of how the law and the legal system works.  So they have a lot of sophisticated and sort of deep and nuanced understandings of practical ways laws can address problems.  But they are often without any moorings.  They’re often economically illiterate, and they’re often without any appreciation of natural or justice ideas.

00:19:31

On the other hand, a lot of libertarians are the opposite.  They have an innate sense of justice.  They have some economic literacy or a lot, but they are not familiar with a lot of practical legal solutions that have arisen over the years.  And so you have this lack of overlap.  Now, if I had to take a side, I would tend to side with the libertarians, even though they’re more – not amateur or naïve but less sort of developed and sophisticated on legal theory.  I would take a Rothbard any day over a positive lawyer who’s good but who is a statist.

00:20:14

Someone – Amanda is asking about how do we determine what a natural law is.  That’s a little bit premature.  I’m going to get to that later in this topic, so let’s just hold off.  But I just want to say right now, in this course, I’m not going to argue strongly and at length for a particular conception of why the libertarian theory of justice is correct.  I’m going to sort of show the different theories that different libertarians have.  I will tell you what mine is, and we’ll get to that shortly.  But I don’t think it’s critical.  I actually think that we can have a big tent, and so long as you agree with certain fundamental principles, and you’re committed to honesty and fairness and justice and consistency and you have some economic literacy, then the libertarian principle will just pop out unless you’re a misanthrope, in which case you’re on the other side.

00:21:09

I’m going to switch to slide 11 now.  So let’s talk about what is the concrete sort of formulation of what we are as libertarians.  It’s a political theory.  We believe in justice.  We have a certain conception of property rights, but what is it?  Well, let’s think about what are the kind of classical ways people describe what it means to be a libertarian.  And I’m going to start sort of about the 1950s with some of these quotes because this is when we can mark the beginning of libertarianism as we’ll get to in a second on the history issue.

00:21:43

But Leonard Read, who was a famous libertarian – he founded the Foundation of Economic Education.  He had a lot of books, one of them disavowing the word libertarian and then others using it.  But he had a book called Anything That’s Peaceful, 1954.  And he said: People should be free to do anything that’s peaceful.  That’s pretty general, but I think that can sum up in a general way what libertarianism is about.

00:22:09

David Boaz in a really good book called Libertarianism: A Primer—this is a Cato book—he 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.  So this is sort of a classical libertarian formulation.  Danny, I’m not sure.  That could be from Spencer.  That could be from Spencer, Herbert Spencer.  There’s also – some of you may be familiar with Walter Block.  He’s a friend of mine.  He’s a very prolific author, one of the most prolific authors I’m aware of.  And the joke is that anyone – to be a libertarian means you’ve co-authored an article with Walter Block, so just a joke, and non-American libertarians have a sense of humor, so I can get away with that one here.

00:23:06

All right, now, if we want to get a little bit more concrete – oops, sorry – slide 11 here.  If we want to get a little bit more concrete about how to define what it means to be a libertarian, a commonly used idea is the non-aggression axiom or principle.  It’s sometimes called axiom, more often nowadays a principle.  Now, this was formulated without being called that by Ayn Rand in 1957 in Atlas Shrugged by her character, Galt in Galt’s speech when he wrote: “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 others.” So that is sort of a nice summary version of the non-aggression principle.  Now, well, I will say that I’ve read Atlas about three times.  And the first time I read Galt’s speech, but the second two times I didn’t read it, but the rest of the book I enjoyed more.

00:24:25

Okay, now, Rothbard has a more – a better sort of, more fleshed out conception of the non-aggression principle.  I’m going to quote this.  I’ll try not to do too much quoting.  “The libertarian creed rests upon one central axiom: that no man or group of men may aggress upon the person or property of anyone else.  This may be called the non-aggression axiom.  Aggression is defined as the initiation of the use or threat of physical violence against the person or property of anyone else.  It’s synonymous with invasion.”

00:24:59

Now, we’ll get to sort of some particulars of this later, but you can see the beginnings of this definition of libertarianism as having to do with the idea that everything is permissible in life, in society, by law, that is, except for the physical use of force against other people’s property or bodies.  Now, as I mentioned Rothbard – it’s sometimes called an axiom.  Now, if you would look up these terms in Wikipedia and the philosophy dictionaries, okay, well, Mr. Civil Liberties, I’m going into that right now.  I think these terms are a little bit confusing potentially.  And in math and in logic, an axiom is like an assumed starting point.  You’re welcome.  It’s also used to refer to a self-evident or universal truth, like A and B implies that A is true, or it could be an assumed starting point, like an arbitrary assumed starting point like Euclidean geometry versus others.

00:26:02

Now, Ayn Rand, who I believe strongly influenced Murray Rothbard, used the idea of axiom – excuse me a second.  I’m going to close the door.  Excuse me.  Okay, so Rand used axiom to mean something that was so self-evidently true that you actually had to presuppose it in order to deny it.  So in other words, it was a truth that was so basic that you had to commit self-contradiction to deny it.

00:26:47

Now, although Ayn Rand vehemently criticized Kantianism, which she viewed as an alternative philosophical system to her more Aristotelian vie, in a way the Randian idea of axioms is similar to the idea by Mises and Kant of concepts that are, what they call, a priori, that are undeniably true.  So because of these confusions, I think we should not say axiom because people mean many things by axioms.

00:27:25

Well, June, I really don’t have time to go into this a lot.  I think there’s a lot of reasons why Rand disliked Kant, but I actually agree.  Kant was a great liberal thinker, and if you sort of equate the terminologies between Misesian, Randian – I’m sorry – Misesian and Kantian systems and Randian, there’s a lot of similarities to their methodologies and their approaches to both liberalism and epistemology.  In any case, my opinion is the better term to use is the non-aggression principle, and that’s what I’ll use throughout this course, NAP, non-aggression principle.  And that seems to be the more widely used term nowadays.  Axiom is sort of going out of favor, which is, I think, a good thing.

00:28:10

Now, let’s talk a little bit about the nature of rights and law.  I’m going to circle back to some of these other issues in a minute, but we need to weave these things in together a little bit to build on some of these concepts.  I’ve already mentioned the link between rights and law is you can think of a right as a legally enforceable claim to some thing, object, or action, something you can enforce, you have the right to enforce, something that’s legitimately enforceable.  So the law you can think of as sort of the systematic enforcement of or embodiment of rights, so they’re related to each other.  Justice – your conception of justice determines your conception of rights, which determines your conception of law.

00:28:59

Now, some people are more empirical minded, and they go the other way around.  They just have an intuitive sense or a practical or pragmatic sense of what a law should be.  But then you can think about these laws, and you can think what rights are sort of presupposed by this law, or what conception of justice or right and wrong is presupposed by this idea of rights.  So they all go together in that way, but the fundamental thing is that laws are meant to enforce a conception of rights, and rights are enforceable things.  Okay, they’re not merely morals or oughts and shoulds and morals, which I’ll get to in just a second.

00:29:41

Now, another important thing to realize is that in any system, rights and duties or correlatives.  What that means is they’re the flipside of each other.  Every time you have a right, it implies a certain obligation or duty, and conversely, if you have a legally enforceable obligation or duty, it implies that there’s a right.  So if someone claims that there is an obligation to help your neighbor out if they’re starving and it’s a legally enforceable obligation, well, that means equivalently that your neighbor has a legally enforceable right against you or a claim against you that you do it.

00:30:23

And conversely, if someone has a right to education, free education, that means society at large or someone has the obligation to provide them with that education.  This is why granting positive rights willy nilly, which is done in a widespread way in today’s society, is not free.  You can’t just say, well, we have rights to property, and we have rights to our bodies, but we also have rights to healthcare and education and a job because what that means is everyone else in society is partially enslaved or obligated and forced by the government to provide these rights.  So nothing comes for free.  Is the video okay?  Can everyone see me okay?  Video and audio okay?

00:31:17

Okay.  So let’s look at the definition of what rights are by a couple of key thinkers.  One is Ayn Rand.  She says: “Individual rights are the means of subordinating society to moral law.  The right to property is a right to action like all others.  It is not a right to an object but the right to the action and the consequences of producing or earning that object.  It’s the right to gain, keep, or use and dispose of material values.”  Now, I’m going to discuss later what I think are some problems with Rand’s formulation.

00:32:07

Quick setting change on the video.  Hold on a second, guys.  Okay, I’ve just modified the video so it’s less choppy.  It may be a little bit less quality, resolution, but it shouldn’t be as choppy.  Give me just a second.

00:32:35

Okay, so the other problem with Rand’s definition is it has a sort of non-Austrian confuse conception of value.  You see here she’s talking about values as if they’re things or objects or at least something that exists in some objective way like inside an object or something like that.  I think that’s a little bit of a problem.  It leads her into error with regard to intellectual property and other things as we’ll see later.  One of the best definitions of rights I believe is by Father Sadowsky.  He was a – I think a Jesuit priest.  Murray Rothbard really revered this guy.  He says: “When we say that one has the right to do certain things, we mean this and only this, that it would be immoral for another person, alone or in combination, to stop him from doing this by the use of physical force or the threat thereof.  We do not mean that any use a man makes of his property within the limits set forth is necessarily a moral use.”

00:33:36

Now, what he’s emphasizing here is something that may be obvious to a lot of you and to most libertarians, but which is apparently not obvious to most non-libertarians, especially conservatives who have trouble distinguishing morals from rights.  So, for example, I remember I asked my grandma one time if she thought drugs should be illegal.  And she said yes.  I don’t think people should do drugs.  So they conflate these things, and as we’ll discuss later, I think part of the reason for that is the American – not just the American but just the sensibility of the modern man has been corrupted by the increasing dominance of the state legal apparatus over all matters.

00:34:32

In other words, the state has come to control so many aspects of our life, and legislation has become the chief means of making law instead of judge-made law that we slowly come to accept the notion that law is whatever the legislator decrees.  And we’ve come to see special interest groups fighting for control of the state to get one law passed or repealed for their own interests or the interests of their constituents.  So people start thinking of, if you want something done in society, try to get a law passed to get it done.

00:35:10

So this sort of blurs the distinction between morals and rights.  Libertarians tend to have a much sharper distinction from that.  They recognize that just because something is immoral like animal cruelty or being disrespectful to your grandmother, lots of things are immoral.  And most people would not argue that they’re immoral, but libertarians are clear that it’s only prohibitable by the force of law if it is not just immoral but if it actually violates someone’s rights.  It has to go to another level.

00:35:50

Now, this leads to another debate in libertarianism, which I will just touch on here.  It is commonly said – some of you may have heard this said before by libertarians that correctly recognize that there’s a distinction between morals and law or morals and rights.  We recognize that just become something is immoral does not mean that you can outlaw it.  Okay, we think it has to rise to a higher threshold or a higher level, but this leads some libertarians to say that rights are a subset of morals.

00:36:27

So, in other words, they picture this is morals, and there’s a little part of it that’s the subset, which is rights.  Okay, so they say, well, by that thinking, everything that’s a rights violation is necessarily immoral, but not everything that’s immoral is necessarily a rights violation.  Now, that’s a topic that – I mean I would say it’s debated in libertarianism, but it’s not always debated because people don’t really appreciate that this is not uncontroversial.  I’m sorry – that it’s not controversial.  I think it’s actually controversial because at least from the domain of a libertarian thinker, we’re talking about what the rights should be, what should be legally enforceable.

00:37:10

I’m not sure.  This is my personal opinion.  I’m not convinced that it has been established that everything that’s a rights violation is necessarily immoral.  The reason I say that is because you can imagine some situations where – in your life where you’re faced with a choice.  You might choose consciously and explicitly to violate a right for something that you value higher.  Now, to my mind, all that means is you still couldn’t deny that it’s a rights violation.  You couldn’t deny the right of the victim to use force to defend his right or whatever.

00:37:51

But in some cases, I’m not sure.  I think that’s the more the domain of ethics of ethical philosophy, and I don’t know if I’m enough of an expert on that to say that.  I’m not sure if duress would because a lot of times these duress cases might be an example where it’s actually not a rights violation either, but it could be in some cases.

00:38:14

But my point is I view morals and rights as intersecting sets.  Morals intersect rights because clearly most rights violations or many rights violations are immoral, and they’re rights violations.  But whether every rights violation is immoral I don’t know, but what is the libertarian view is that not everything that’s immoral is a rights violation.  So that is the key thing that is different about libertarianism than other political theories.

00:38:47

Okay.  I’m going to go to slide 15.  Now, let me go briefly into some of the background of what I’m going to cover in this course.  Let me ask here.  Yeah, I know I could have drawn it, Danny, but I’m already behind on my schedule.  Let me ask here on the chatroom.  How many people here have read more than one or two of the non-basic works of Austrian economics?  I’m trying to ask how many people are familiar with Austrian economics to some non-trivial degree. So just say yes if you’re somewhat familiar with Austrian economics and no if you’re not very familiar with Austrian economics.

00:39:34

Okay, this is good.  Looks like most people are, which is great.  I’ve come to the view over the years that, to have a really well-developed libertarian view, you really need to be not only economically literate, but you need to be steeped in at least the basics of Austrian economics.  First, let me just give a little bit of a talk on why I think sound economics in general, not just Austrian, but sound economics, and I say this because, for example, one of the key books that influenced me 25 or so years ago was Milton Friedman’s Capitalism and Freedom, which he’s not an Austrian and he’s got a lot of flaws in my view in some of his economic work and even some of his libertarian work.

00:40:24

But that basic stuff is just great because it just takes common sense economics, sort of on the Hazlitt level of Economics in One Lesson level, and it’s just great.  So I think sound economics, at least in a basic sense—supply and demand, that kind of stuff—Bastiat level, Hazlitt level, even Milton Friedman level is critical to being good at political and legal reasoning.  For example, I mentioned earlier Rand sort of had the idea – now, Rand actually admired Mises, so I’m a little surprised she got this one so confusing.  But she said that rights are about creating and owning values as if they’re existing things.

00:41:05

But the Austrian economic view is that of subjective value means there is no such thing as intrinsic values.  Values don’t exist in things as substances.  And the other thing is Rand sort of had inconsistencies in her thoughts.  Yes, Karl, you’re right, and I think Rand was a little bit confused on this, but she was smart enough to recommend Mises, so I give her credit for that.  Anyway, Rand in another writing said that the power to rearrange things in the world is the only creative power we really have.  She even admitted that creation really doesn’t mean we can metaphysically bring something new into existence.  All we can do is arrange things in different ways.

00:41:50

So this sort of goes against her idea that we have property rights in values that we create because what we do is we rearrange things that we own to make them more valuable to us, but valuableness is a relationship between the person and the thing.  Okay, so in my view, if she would have had a better anchor in Austrian economics, it would have probably blunted or prevented her confusion in this regard, which led to her endorsement of intellectual property and defamation or reputation rights, which we’ll talk about in lecture five in further detail.

00:42:31

And, of course, poor economic theory informs a very – a large degree of contemporary legal reasoning such as antitrust law, tort law, most legislation, and the entire utilitarian field of what’s called law and economics.  It’s all just based upon this terrible economics, which is not even compatible with, say, Milton Friedman-style economics.  The entire law and economics discipline is utilitarian.  It’s based upon the idea that we should make – we should decide what laws are going to govern society based upon what maximizes wealth.

00:43:07

Okay.  Now, you can take a look at this article I’ve hyperlinked here.  It’s by Hoppe.  It’s a really good article, and there’s a section in it called “Chicago Diversions” [in “The Ethics and Economics of Private Property,” in The Great Fiction] where he criticizes one of the key law and economics types called Ronald Coase.  And Hoppe points out that if you use this sort of law and economics, wealth maximization, Coasian idea to decide who owns what, then basically property rights are never certain, and they’re meaningless because courts could always take a first look at the case and reassign property rights to maximize things based upon their sort of – their own scales.  It’s insane.  I mean I was in law school in the ‘90s, and we were just steeped in this stuff.  This is how tort law is based upon.  It’s based upon this mentality that we should design the laws in society to maximize wealth.

00:44:07

Now, of course, if you’re an Austrian, you know that you can’t maximize wealth in the sense they mean because it’s not a quantity.  Wealth is not a quantity.  It’s subjective.  It’s not interpersonally comparable.  That means you can’t compare it from one person to the other.  By the way, if I’m going too fast or too slow or too basic or too advanced, especially if I’m going too fast or passing people by, feel free to post a question here now or later and slow me down and tell me I need to elaborate more because I’m assuming certain – I’m assuming people are keeping up and that you have certain background information.

00:44:43

Okay, so I’m just trying to go through examples of why I think economics, and in particular, Austrianism is important for sound legal and libertarian theorizing.  And I’ll just summarize here quickly, and I go into this in my Against Intellectual Property paper.  Here are some of the key problems with utilitarianism.  Number one, ethical, and I start with this because this is my primary focus.  It always has been as a libertarian.  For example, and I learned this from Rand and even Alan Greenspan writing in Ayn Rand’s Capitalism: The Unknown Ideal book.

00:45:28

The reason I’m against antitrust law is because people have a right to collude and set prices if they want to because, as long as they’re not aggressing, that is, initiating force against other people, they have a right to.  All these other arguments to me are – the economic arguments, the practical arguments, they’re secondary.  Sure, I agree that antitrust collusion is problematic and it’s difficult to – cartels are hard to enforce.  Predatory price cutting is hard to make succeed.  Monopolies are hard to maintain.  Sure.  I agree with all that.  But my primary opposition to antitrust law is that it’s immoral, and it violates the rights of people that own property.

00:46:13

I frankly don’t care if two large companies collude and set prices.  In my point of view, they have the right to.  This is the libertarian view.  So this is why is start here with the ethical point of view.  So I’m starting with what I think is the ethical problem with utilitarianism.  The ethical problem is that they assume that you can redistribute wealth in society to enhance overall utility of people.  But by that reasoning, you could – for example, you could justify a policy, which we pretty much have with aggressive taxation.  You could justify a policy of taking, let’s say, half of the wealth of the richest 1% of society and redistributing it to the poorest 10%.

00:47:04

Okay, it’s hard to argue on just common-sense terms that that is not some kind of intuitive gain for these poor people that is not felt as much by the rich.  If you’re the richest 1%, you’re billionaires.  You lose half your income.  You’re still a billionaire, yet these poor people are made immeasurably better off because now their circumstances are different.  But the point is it’s still stealing.  It just doesn’t follow that just because this happens it justifies stealing money from Bill Gates or whoever the rich people are. 1 And the reason is we have to avoid being snookered into this mainstream conception, this technocratic conception, bureaucratic, legislative, central-planning mentality, welfare-state mentality idea of the purpose of law and the state.  We can’t think that the purpose is to come in and tinker and adjust things to maximize something.

00:48:12

The purpose of law is justice, to give everyone his due.  And that means protecting their property rights, whatever they are.  So you may have a different conception of property rights than me, but let’s talk about what property rights are, and then let’s talking about enforcing those with the law.  So in other words, this whole idea of utilitarianism is based upon the idea that the law ought to be tweaking things and being managed by the government to just maximize factors that we like.

00:48:43

Second of all, there’s methodological problems with utilitarianism.  That is the Austrian perspective.  To have utilitarianism, you have to say, well, we pass a policy.  It does harm some people, sure.  And then we add up the harm to those people harmed, and then we add up the benefit to the people benefitted, and we do a net subtraction.  And if there’s a net positive, then we do the policy because it’s the – and this is actually the idea, by the way, behind another utilitarian, Richard Epstein, who is a quasi-libertarian who argues in his brilliant but flawed book called Takings.  It’s a book about eminent domain.  It’s brilliant.  But he argues that certain government policies can increase the size of the pie.

00:49:29

And so then, even if someone is harmed a little bit by their slice being smaller, they have a smaller slice of a larger pie, something like that.  The problem is all this assumes that values are cardinal.  That is, they’re numbers.  June, I think what you’re talking about is consequentialism, which is a little bit different than utilitarianism, which I’m going to turn to in just a second, okay?  There’s nothing wrong with being focused on the consequences, but utilitarianism talks about adding and subtracting units of value.  And the problem there is you can’t do it from person to person.  You can’t even do it from time to time for one person.

00:50:13

And you can’t do it at all because it’s not a number.  It’s ordinal, not cardinal.  You guys may have heard this who know Austrian economics.  But the Austrian idea of value is that values are only ordinal, that is, orders: first, second, third, fourth.  You express your first or highest preference by acting to achieve it, which, by the way, shows that Rand’s methodology was similar to the Austrian because her concept of value is something that you act to gain or keep, act.  So she had this notion of demonstrative preference built into her ideas.  She might have got that from Mises because Mises had that built into his Austrian economics.

00:50:56

But anyway, that’s another problem with utilitarianism.  And one more: empirical.  Even if we forget the ethical problems, even if we forget the methodological problems, still who’s the burden of proof on?  At the very least – yes, Patrick.  David Friedman is also I think utilitarian, which I discuss later, although I’m not sure Milton was.  He was more of a consequentialist, but I’m not sure he was utilitarian.  Anyway, it doesn’t matter.  We’re talking about what libertarianism means and where we should go with it.  I’m not too concerned about pedigree and history, although I’m mentioning it here because it’s interesting and helps flesh these things out.

00:51:40

But the final thing is empirical, and we will discuss this in more detail in the IP lecture number five.  Yes, Danny.  I know you’re right.  I agree with you.  Mises called himself utilitarian.  I think he was more of a consequentialist in that respect.  So – but the point is, those who are utilitarians and say that – intellectual property is a great example of this.  They will say that – does everyone have video and sound right now?  Matt had a problem just now with the video and sound.  Okay.  All right, good.

00:52:25

So people will say, well, if we have patent law, for example, and copyright law, we get more innovation and creativity out of it, and even though there’s a cost to society, we’re better off.  So the implicit assumption is there that there is a net gain in terms of, I don’t know, dollars or inventions or something tangible, something measurable, something real, some quantity or some phenomena.  But they just say this, and they never prove it.  In this regard, it’s sort of like the social contract theory, which you hear a lot of leftists argue for.

00:53:01

They’ll say that, hypothetically, there’s a contract, which we would all agree to, and therefore, the state is justified, but we never agreed to it.  There’s never any contract that we really ever agreed to, so it’s the same thing here with respect to this.  The evidence is not in their favor.  They never try to gather it.  All the sort of neutral scientists out there that try to gather it pretty much come up with studies that go against the advocates of intellectual property.  And to me, this shows a secondary problem, which I call the sincerity or the hypocrisy problem.  That is this.  If your goal is really utilitarianism, then, number one, you think you would try to do a study or find a study, or if a study came out against you, you might reevaluate your position.

00:53:47

But what we find is that when evidence is produced, that the original wealth-maximization, utilitarian goal of some of these policies has been shown to be wrong, then the advocates of the policies almost never change their tune.  In fact, they just turn around and – they just change their line of argument, and they find a new argument for the policy or the law.  That’s why all these state agencies like the Tennessee Valley Authority or the Rural Electrification Administration in America, which are 100 years old by now and which have long since served their original goal still exist.

00:54:28

And good examples of this is Charles Murray’s book, Losing Ground, which showed – I think it was in the 80s.  It was a devastating attack on the effectiveness of the American welfare state, which was just ignored and pilloried by leftists in favor of the welfare state.  And Thomas Sowell I think has an interesting theory about this.  He’s a quasi-Austrian.  He’s got a book with a great subtitle, The Vision of the Anointed: Self-Congratulation as a Basis for Social Policy.  And I think he’s right.  I think that is the motivation for a lot of these people.  They want to self-congratulate themselves instead of actually caring about the alleged beneficiaries of the policies they – and the programs they claim to favor.  So I think there’s a sincerity and a hypocrisy problem born out here.

00:55:19

Let me go on to slide 19.  Now, I’ve talked about how it’s important to have good economics for legal reasoning, but I think the converse is true as well.  You need to have a bit of sophistication about legal theories and some coherence in your theories to have good economic reasoning too.  And the reason is economic theorizing presupposes many types of property rights and legal institutions and practices and regimes.  For example, economists talk about contracts.  They assume that there’s such a thing as contracting and that they’re legally binding.  But why are they binding?

00:56:00

And we’ll discuss this in another lecture later on.  They talk about sale of service or labor, and there are some confusions there that can be cleared up by a clear, libertarian-based understanding of legal theory, which we’ll talk about in lecture three.  They talk about loans, but why are loans enforceable?  And of course, there’s intellectual property and related things like goodwill and know-how, which are assumed by many economists.

00:56:30

Money, of course, is a huge role in economics, and that has legal ramifications and presumptions and implications.  For example, there are many laws that say money is legal tender.  What does legal tender even mean?  Does it make any sense?  Is it justified by libertarian theory?  Do economists even understand this?  Not from what I’ve seen.  There’s a very bizarre doctrine, which some lawyers will have heard of called negotiability.  That’s the ability to write a check or a promissory note and have it be enforced even though there’s effects in the chain of title between the original person who creates it and the final recipient, which, to my mind, is not unproblematic at all.  It’s potentially problematic by libertarian principles, and yet, things like this are assumed by economists.

00:57:21

Also fraud—fraud is just thrown around all the time, and I think it also plays into the libertarian fractional reserve debate.  Now, don’t worry about these details right now, but my point is these are just examples of why sound libertarian and legal theorizing is also important to having a good grasp of economics.  So they reinforce and they depend upon each other, but they’re not the same thing.

00:57:47

Okay, now, we’re going to step back and we’re going to go back to libertarianism.  Let’s talk about the origin and nature of libertarianism, and by libertarianism, I mean its modern conception in the sense that most of us here would say that we’re parts of.  By the way, let me just make a psych.  I see some of the comments here in the chat and the spine.  Talk as much as you want.  I will stop on occasion if I see a question that is timely for what I’m talking about.  I can’t do that every time, especially if it’s only a tangential topic.  So if I don’t answer your question and you want it answered or talked about or discussed and I don’t do it during the class, feel free to bring it up at the Q&A session at the end or in the office hours later.

00:58:42

Okay, so I’m going to talk about the origin and nature of libertarianism now.  So this is what Rothbard says in For a New Liberty, which I highly recommend if you guys haven’t read it, for whoever hasn’t read it.  The libertarian creed emerged from the classical liberal movements of the 17th and 18th centuries in the western world, specifically from the English revolution in the 17th century.  So we sort of think of the libertarianism as coming out of the enlightenment, 17th/18th centuries in England.  It ushered in the Industrial Revolution.  It was a revolution against the old order, the ancient regime.  It involved imposing more limits on state power like separation of church and state and separation of church and press.  I’m sorry – separation of the state and press.

00:59:32

Now, some of the earlier theoreticians of this libertarian classical liberalism were the English levelers during the English Revolution and John Locke, the philosopher in the late 17th century.  Now, Locke set forth the natural rights of each individual to his person and property, and his view was the purpose of government was to strictly limit it to defending these rights.  So you can see germs of the libertarian – radical modern libertarian idea there.

01:00:08

Now, this led to the American founding, and the founders were inspired by Locke and the other English philosophers, and then our Declaration of Independence in 1776.  Now, Rothbard and others have a view of America as being sort of almost a proto libertarian experiment.  Of course, this is exaggerated or expressed in Rand a lot.  But I want you to keep in mind, and we’ll cover this later if I have time, in the introduction to Rothbard’s Ethics of Liberty, Hoppe, who was his greatest student, sounded a note of caution to the sort of – not gullible but to the perhaps a bit too un-critical praise of America and the Constitution and democracy itself as sort of earlier progenitors of libertarianism and progress itself.

01:01:17

So as Hoppe wrote: Although aware of the economic and ethical deficiencies of democracy, which is what the American Revolution ushered in, both Mises and Rothbard have a soft spot for democracy intended to view the transition from monarchy to democracy as progress.  Now, Hoppe is an anarchist, and to my mind, he’s the greatest libertarian theoretician in the world.  And he’s often accused of being a monarchist, but he’s not.  Hoppe just argues convincingly to my mind that there are several systematic aspects of democracy that make it inferior in many, if not most, ways to monarchy.

01:02:03

So in other words, the move from monarchy to democracy was not unalloyed progress.  It might have been progress in some ways, but it wasn’t unalloyed progress.  It’s taken nowadays as progress but not good enough progress by libertarian radicals, but Hoppe would say it was actually retrogression in some ways, and I agree.  Of course it was retrogression in many ways as Hoppe points out, and also this worship and this reverence for America and the Constitution as a proto libertarian paradise is just completely overblown.  The Constitution and the American Revolution arguably centralized and expanded state power under the cover of the Constitution and democracy.

01:02:50

Patti: Well, are we not supposed to be a republic?  Well, I think we were a democracy from the beginning.  I mean there was the right to vote built into the Constitution.  It was restricted to white landholders, sure, but it was a democracy.  It was a limited democracy, but of course it was a democracy from the beginning.  I mean I think we had a democracy even under the Articles, but the Articles were probably superior to the Constitution in almost every way.

01:03:23

So let’s talk a little bit more about the origins of modern libertarianism.  By the way, it’s 9.  We’ve been going for one hour now.  I think what I would like to do unless anyone objects.  We’re on slide 22 of 50.  I wanted to get to about 40 today, and I think we can do that in the remaining 30 minutes if I keep talking.  So what I would like to do is lecture until 9:30, and I’d be happy to stay a little bit later and take questions, but not for too long because some people have to leave at 9:30 because it’s getting really early or late for them.

01:03:55

So what I would like to do is lecture until 9:30, take questions for 10 or 15 minutes, and then we can have further questions on Wednesday in the Q&A session, or you can email them to me, and I can address them in the forum.  But I’d like to cover a lot of this material.  Aparicio, I totally understand, and you’re a trooper for getting up this early.  So probably I’m not the only one who needs a bathroom break right now.  Why don’t we take a five-minute break?  It’s 9:07 my time, so at 12 past the hour let’s come back and try to finish up as quickly as I can without skipping over too much.  So I’ll be back shortly at 12 past the hour.

01:04:39

[break]

01:08:42

Hey, I’m back.  I’m going to wait another minute for people to get back here, but if anyone has any kind of off-topic questions or comments I’d be happy to address anything here.  Also, any feedback on the course is appreciated like if you think there’s too much, too little reading material, just let me know.  It was a good deal for this course.  It wasn’t a lot of volume.  It was just a lot of smallish pieces or sections.  Okay, well, it’s past the time I said.  So someone asked – I may have missed some questions, and I’m sorry if I did.  Feel free to repeat them later or send them to Danny or put it in the forum, and we can talk about them later.

01:10:07

I just talked to Danny, by the way, and if I need to go past 9:30 my time, which is 17 minutes from now, on the lecture, I will, maybe up to 15 minutes more because people can catch this on the recording later, but I want to cover as much as I can.  The rape example was just the typical example given that, imagine some guy who just got out of jail, and he’s really desperate for sex, and he finds some prostitute who gets paid for sex.

01:10:45

And he can’t afford to pay her, so he rapes her.  I mean, arguably, he doesn’t do a lot of damage to her because it’s just her job, so he’s stealing her – he’s robbing her of $20 of service.  But he gets immense gratification out of it.  Now, it’s hard to see why that kind of action is not permissible under utilitarianism, and you can think of tons of horrible examples.  So that was part of the utilitarian – the ethical case against utilitarianism, right, right.  And so libertarians were against this on principle because it violates her rights, and it’s wrong.

01:11:25

Okay, so let’s go back to the origins of libertarianism.  By the way, a lot of this may seem basic, and I hope it’s not too basic, but it is important to establish a framework at least for what I’m communicating to you even if you don’t agree.  We don’t need to finish all 53.  I have some extra slides in here that go into next class actually.  I had planned to stop early, like around 40, and it’s okay if we stop a little early, so don’t worry about it, and hopefully we’ll go faster.

01:11:54

So origins of libertarianism.  So America was founded per the libertarian movement according to some people.  We had the Civil War.  We had centralized government because of Abraham Lincoln.  America intervenes in World War II.  This turns into a war of all against all instead of a regular European civil war, which would normally have been settled by some kind of agreement or truce.

01:12:24

And by the way, Hoppe elaborates on this in his introduction to his democracy book.  Governments caused the Great Depression.  This all leads to World War II partly because of the Treaty of Versailles in World War I caused by American’s intervention, Roosevelt, the Holocaust, the Cold War and so on.  Now, come the modern age.  In the ‘50s, people with what we call classical liberal beliefs, the sort of Jeffersonians, the somewhat limited-government types, started using the word libertarian to describes themselves.

01:13:03

There is an article in 1955 in The Freeman, which was the journal of the Foundation for Economic Education, one of the earliest and most important and still existing free-market institutions here in the US founded by Leonard Read, who I mentioned earlier.  And this article “Who Is A Libertarian?”  This was sort of one of the earliest marks I found which systematized and advocated the use of this word, libertarian, to describe these more radical type of classical liberals.  So you can see, starting in the ‘50s, ‘60s is when libertarianism in the modern form started arising, so we really have a pretty modern and a young movement.  I mean it’s 2011.  It’s, what, 60 years old really.

01:13:48

Sure, it goes back longer in certain ways, but the modern libertarian movement really took flower just in the last half a century.  The Libertarian Party was founded in 1971 in the US.  Now, Ayn Rand’s philosophy of objectivism, the sort of political wing of it, what she calls capitalism, is basically libertarian.  I mean she spearheaded this in The Fountainhead in 1943 and most fully in Atlas Shrugged in ’57, so again, the ‘50s is when this started happening.

01:14:21

Now, if you recall, in my view, how important economics, especially Austrian economics, is to sound libertarian theorizing, I would say we can date libertarianism from the publication of Rothbard’s For A New Liberty in 1973.  So it’s, what, 40-something years old because this was the first systematic integration of radical—which means anarchist—and modern libertarian principles, not just conservative and traditionalist with an Austrian sensibility.  That’s why I would say this is when we really came to flower, and that’s why Rothbard is really the father of libertarianism.

01:15:08

Now, what types of libertarianism are there?  You all know this.  I’m not going to belabor this.  I mean you could say classical liberals, sometimes called the night watchman state.  They advocate the night watchman state.  But we’re all founded, we’re all centered, around the non-aggression principle and property rights of some type.  So some people say the American founders did it.  They were proto libertarian, but I would say the two main types of libertarian are minarchist and anarchist.

01:15:39

Now – and I have a note here.  I mean every time I write the word minarchist, the spellchecker wants to change it to monarchist, so it’s obviously not that well-known of a word.  Now, I’d say Ayn Rand, objectivist, Randians are minarchist, and most utilitarians and consequentialists that I know of, at least most utilitarians, tend to be minarchists.  I mean Mises was an example.  Yeah, I think Konkin did coin the term.  I think you’re right.  Aparicio, I just can’t go into the origin of the term right here.  There’s a lot of stuff on that, but maybe later we can talk about it.

01:16:15

Now, sometimes we’re called – anarchist libertarians are called anarcho-capitalists to distinguish us from syndicalists and socialists and non-libertarian anarchists.  But I tend to prefer the term anarcho-libertarian over anarcho-capitalist because of problems with the word capitalist, which are debated hotly in libertarian circles, which leads us to the left libertarians, most of which tend to be pretty good, solid anarchist libertarians.  C4SS.org, which I’m a member of, Roderick Long, a friend of mine who is an Austrian, somewhat left libertarian, Sheldon Richman who’s great who’s affiliated with FEE and the editor of The Freeman, and the mutualists and Kevin Carson.

01:17:03

Now, my personal view is I’m not sure exactly how libertarian the mutualists are because they have strange views on homesteading and on the Marxian labor theory of value, which I think pulled them a little bit away from us.  But they tend to be pretty anti-state, and that makes them strong allies in my view at least.  Thank you, Jock.  I’d love to see that.

01:17:31

Okay, now most of you might have heard of this, the Nolan Chart.  This is, I think, fashioned by Dave Nolan, one of the founders of the Libertarian Party if I’m not mistaken.  So basically it tried to take the traditional left-right spectrum and turn it on its head, and so as you can see from this chart, the left is here, and if you go across, here’s the right.  But libertarians don’t really fit on this.  So he divided it into two axes: personal freedoms and economic freedoms.

01:18:00

So he has a series of questions, and you can debate which questions are the most representative of our libertarian views, but the point is if you believe in a lot of personal freedom and a lot of economic freedom, you’re a libertarian.  You’re up here.  You’re sort of orthogonal or at the right angle to the left-right spectrum, and a statist or utilitarian believes in very little of both.

01:18:23

Now, my personal view is this is a little bit of an exaggeration to say that the left believes in a lot of personal freedom and the right believes in a lot of economic freedom.  I actually think they’re both around here in the statist corner.  Liberals don’t believe in very much personal freedom.  They believe in abortion, big deal.  That’s about it.  Are they’re in favor of drug legalization?  No.  And conservatives say they’re in favor of economic freedom, but they support wars that require taxes, and they support putting people in jail for various non-violent crimes, so they’re both totalitarians in a way.

01:19:03

June, we’re going to talk about gay marriage later.  I do have some thoughts on that.  There was an interesting chart on the C4SS site by Tom Knapp, another friend of mine.  So he views it as a bell curve view.  I’m going to change the page right now, a bigger version.  I don’t know if you guys can see this.  It’s as big as I could get it here, but basically, as you can see, the vertical axis is the percentage of force advocated, and then the left-right is the left-right spectrum.  So he shows that, if you look at the right and left sides like people like – now, I don’t completely agree with them, but basically showing that the left liberals like left libertarians like Bakunin and these guys and Carson, and the right—Ron Paul and Rothbard and Murphy.  They all sort of come together because they believe in a smaller amount of force.

01:19:55

So I’ve actually told him I thought he should take this chart and wrap it around a cylinder so that these endpoints meet.  And I might make adjustments personally on some of these names and some of the positions, but it’s a pretty good chart.  Like I think Krugman and Locke are way too close together on the left side, and I’m not even sure Locke should be on the left side.  But anyway, it’s an interesting way to look at it.  The problem with this whole approach is that the left-right spectrum is broken, and I think the left libertarians are wrong in saying that we should be left because we’re neither right nor left, as Rothbard argues.  Libertarians reject the entire left-right spectrum, and I view leftists and rightists as both just different types of socialists or statists.

01:20:42

Okay, I’m going to go here.  Now, we talked about types of libertarianism.  Let’s talk about the justifications for it.  I’ll go back real quickly.  That chart, by the way – I have a link there.  If you click on Tom Knapp’s name in the slides, it will take you to the C4SS post, which has this chart.  It is nice.  I agree it’s nice.  Now, there are several approaches to libertarianism.  I’m going to try to briefly go over them here, and I think I might get behind.  I’m not going to spend too much time, and I might skip over them because, number one, I have a lot of articles you can read for more background on this.  And number two, it’s not really critical to the course as I’ll discuss around slide 40 or whenever we get there.

01:21:29

But we have different approaches to libertarianism.  We all come from different angles.  I agree, Matt.  I agree.  Some of their particular datapoints are problematic.  June, I agree with you too about the Constitution, but that chart was really not about that, but you might have been referring to another comment.  Anyway, back on justifications for libertarianism.  We have natural rights or natural law or deontological types.

01:21:57

We have some people that are libertarian because they’re religious.  We have consequentialists.  We have constitutionalists like Ron Paul.  We have utilitarians, and then we have something that’s sort of maybe a hybrid, rationalist, and hypotheticalist I’m calling them, which is more like me and Hans-Hermann Hoppe, for example, and Rothbard in his later years, somewhat of a hybrid.

01:22:18

So natural rights – they basically say that by our human nature there are certain things that we have a right to.  We don’t need to go much further than that.  That’s the basic idea.  This is Ayn Rand, John Locke, etc.  Even Murray Rothbard in the Ethics of Liberty has sort of a neo-natural law approach.  Now, I don’t like to use the word human rights, and you’ll notice that libertarians don’t like to use the term human rights, and the reason is that’s a term that’s used more by the left, especially with these United Nations type, internationalists, one world government socialist types because human rights has a socialistic tinge.

01:23:00

If you just look at the United Nations, just go to Wikipedia.  Search for the UN declarations on human rights.  You’ll see there all kinds of welfare rights in there: the right to a job, the right to dignity, the right to XYZ.  So they’re sort of human rights sort of as a signal that you have a leftist conception of rights, which has welfare rights built into it.  Okay, I’m going to – so that’s natural rights.

01:23:30

I agree, Cheryl.  It does have some good parts to it, but it adds on these modern positivist socialist accretions is the problem.  Now, one problem that a lot of libertarians have pointed out – I’m not going to read this quote.  You can read it later.  This is a famous quote by David Hume.  So one of the problems with the natural law or natural rights argument for rights is that there’s an unbridgeable gap between describing what things are.  That’s facts or the “is,” and what we should do or what rights are or what values are, that is, what we ought to do.

01:24:07

So the idea is that if you just have a statement of facts—this is this way; this is this way—it’s hard to come up with a normative statement or a moral statement because you have to make a leap between these “is” statements.  And then all of a sudden, you’re saying what things should do, and if you say why, you say, well, because it is this way.  It’s like there seems to be a gap between is an ought.  This is the famous is-ought gap.  So a lot of people think that’s a significant problem with natural law or natural rights theorizing.

01:24:38

And, for example, Hoppe, in his treatise said, look, we can agree that it’s – most people believe that the gulf between ought and is, is largely unbridgeable.  Well, it’s a little bit like begging the question, Mark, but I think it’s more like the Misesian, Austrian idea of dualism.  Mises views the realm of knowledge and of behavior or things in the world in two different realms, he calls it: the teleological or purpose-oriented, that is, what people do, and the causal realm.  That is, the realm of physics basically, and physical things.

01:25:18

And I think he realizes we have to conceive of these phenomena in different ways and understand them according to different types of laws.  The scientific method, empiricism, experiments, quantified variables apply to causality.  Purpose, human action, choice, ends and means apply to describing teleology or human action.  So I would say it’s a methodological or maybe even epistemological issue.  It’s recognizing there are two different realms you’re trying to describe here.  So I think that’s the key here.  Ought and is are really two different realms.  When you talking about what is, you’re talking about the factual universe.  When you’re talking about ought, you’re talking about norms or values or what people should do, and it’s hard to just go from one to the other in a deductive way.

01:26:11

Okay.  I’m going to skip this quote by Rothbard here, but Rothbard even himself later on, in admiring what Hoppe did in his argumentation ethics, which I’ll discuss in a second, admitted that the is/ought dichotomy or the fact/value dichotomy has been a big problem for philosophy for a long time.  So that’s one problem with the natural rights approach.

01:26:34

01:26:37

Now, Ayn Rand tried to defend it.  I’m just going to go to this bold part.  She said: The fact that a living entity is determines what it ought to do.  So much for the issue of the relation between “is” and “ought.”  So she just would find these problems and just dismiss them.  She did the same thing with IP and with anarchy.  She just dismisses them, but I think it’s not so easy.

01:26:59

Okay.  I’m going to skip this part here.  We don’t have time to go into his right now.  So in a way, in the Kantian framework, you could view the natural rights approach as being categorical.  Categoricals say what you categorically should do.  So that’s sort of how the natural rights approach appears.  Now, the Aristotelians who favor this natural rights approach wouldn’t agree with that because they’re opposed to Kantianism.  But Rand often argued in hypothetical ways.  She would say if you want to live, then you should do the following things to have a good life.  So that’s a hypothetical argument, which is more like the Kantian or the rationalist approaches I’m going to discuss in a minute.

01:27:58

I’m going to skip this.  This is just a criticism by Hoppe of some of the problems with natural rights and natural law.  I’m going to slide 34 now.  Now, a lot of libertarians, and I think probably most in a way, are at least partially consequentialist, which does not mean utilitarian necessarily.  Basically, the idea is that if we have certain goals or things that we, as individuals or as individuals in a society, if we value them, like peace and prosperity for example, then we should favor certain means to achieve them.

01:28:31

Now, this is how I conceive of Mises, and Randy Barnett has some explicit stuff in this regard.  If you look back on slide 32 here you’ll see this quote by Barnett, Randy Barnett: Libertarian rights are appropriate given the widely shared goal of enabling people to survive and pursue happiness, peace, and prosperity while living in society with others.  So that’s sort of a consequentialist approach, which I have no problem with, and it’s kind of my approach.  And I think that was Milton Friedman’s approach in a way and Mises’ too I think.

01:29:10

Now, I just want to briefly mention here what I think is one of the terrible arguments for libertarianism, which is Milton Friedman’s.  There’s a Liberty Magazine interview where he said that basically the reason he believes in libertarian rights is because of his ignorance or his humility because he can’t be sure that he’s right and someone else is wrong. [Milton Friedman on Intolerance, Liberty, Mises, Etc. ] So in other words, he doesn’t want to coerce someone because he can’t be sure that he’s right in his desire to coerce them.  He can’t be sure that if he thinks someone’s sinning, that they’re sinning.

01:29:47

Now, the problem with that, of course, is the presumption is if you did know someone was sinning, which means doing something immoral, then you would be justified in using force to stop them.  I don’t think Friedman would have done that.  I think he was confused on the foundations of his own good intuitive thoughts.  But that’s just an example of where Milton Friedman himself failed to keep distinct the idea between morals and rights.  So he’s sort of saying if you knew it was immoral, you could use force to stop them.  Well, the libertarian doesn’t believe that.  We’re not wishy washy like Friedman.

01:30:21

I mean most of us would say we can know that some things are wrong, but we still shouldn’t stop them, not because we’re ignorant, not because we’re possibly wrong, but because it doesn’t – the wrong thing that’s being done doesn’t violate rights, and we can only stop something that violates rights.  So that’s an interesting aside on Friedman and sort of how this pragmatic approach can lead you astray.

01:30:50

Now, I’ve already mentioned utilitarianism.  Choose a rule that maximizes overall happiness.  Now, I will say that if you’re common sensical about it, that does tend to make you more libertarian because the world is not inconsistent, I believe.  But I’m going to go on here.  I’ve already criticized some aspects of utilitarianism.

01:31:09

See, we’re on slide 37, guys.  We’re not – we’re only at 9:34.  We have ten minutes, and we can easily do five more slides.  Now, I would like to briefly mention here something that a lot of libertarians disagree with, and it’s controversial, and I want to be clear that this is, in a way, my pet theory, something I’ve been fascinated with for a long time.  And it influences a lot of my approach, which will be peppered throughout this entire course.  You don’t have to believe in this or accept this, but I do want to lay it out here because I think it’s a major approach to libertarian rights.

01:31:46

So that is Hans Hoppe’s argumentation ethics and my related approach of estoppel.  Now, Hoppe laid his out in – he started doing it in ‘86/’87 and more fully I think in ’88 in his Theory of Socialism and Capitalism, which is probably one of the single-best economic libertarian books I’ve ever read.  It’s just amazing.  It’s packed with insight.  I heavily recommend his Theory of Socialism and Capitalism.  He lays out his argument in chapter seven, and I was influenced by that and wrote something kind of similar in ’91.  And I describe my theory and his and some related theories in the second article I have here, my “New Rationalist Directions” article, which is a JLS article.

01:32:32

Let me turn the page and see if I have some notes on this here.  No, actually I don’t.  I’m going to go back for a second.  Hoppe’s approach basically is this, and I’m not going to go into it in detail because it really – you’ll see in a second, I don’t think it matters why we’re all libertarians.  I want to define what libertarianism means, show the different approaches to get there, and then we’re going to take these base principles, and we’re going to branch them out and apply them to a lot of really interesting, cool areas.

01:33:03

Hoppe’s basic argument was that natural rights has a problem.  You can’t go from “is” to “ought.”  Plus human nature is too vague and diffuse to really get concrete goals out of it.  What he said was that people are all – any time – he said that any norm that you want to discuss what the right norm should be, the right rule should be, has to be brought up in argumentation.  In other words, it necessarily has to be discussed by people in a civilized discourse.  That discourse or argument is a type of action, so it’s always an action, but it’s a special type of action.  It’s a subset of action.  An argument has certain characteristics or traits that define it, that are necessarily presupposed.

01:33:55

That means that everyone who’s part of argumentation necessarily presupposes certain base norms or values.  Like they presuppose each other’s property right in their own bodies so that you’re not threatening to coerce them or hit them over the head to make them accept your argument.  You’re trying to persuade them by the force of reason, for example.  So there’s a sort of civilized comportment or attitude each person expresses as part of what it means to argue.

01:34:25

If you don’t have that, you’re not arguing.  So because every norm that could be discussed is discussed in the context of argument, whatever these norms are that undergird argumentation as an activity could never be contradicted by one of the norms you’re advocating.  So basically, he uses this to argue that, listen, we’re all presupposing certain kind of libertarian norms: the right to use our bodies to argue with each other, the right to have homesteaded enough property to survive just to get here and argue with each other.  So what he’s trying to show really, in my view, is that whenever we come together in a civilized way, we already have chosen to value certain civilized norms.

01:35:11

Now, I call these grundnorms, which is a German term from the legal philosopher, Hans Kelsen, which means basic norms.  And I believe these basic norms like the desire for peace, for cooperation, just for civilization in general, the predisposition to settle disputes peacefully, to seek a mediator maybe, all these things underlie the entire civilized endeavor, the entire endeavor of society.  And now you see the reason for the title of this course.  It’s about property and conflict and society.

01:35:49

Okay, and I think Hoppe is just pointing out the fact that everyone who would dispute the libertarian norm is already in the process of being a disputant.  They’re part of an argument, and they’re already showing that they value the basic civilized norms that we libertarians are happy to admit that we [indiscernible_01:36:11].  So all we’re trying to do is say, listen.  If you’re being consistent, if you’re being honest, if you have a little bit of economics literacy, look.  You’re already valuing the idea of peace.  You’re already valuing the idea that I own my body, and you own yours.  We’re having a conversation.

01:36:27

So you’re trying to show them just by pointing that you’re already valuing things, and the only system of more advanced idea of rights and norms that’s compatible with this is the libertarian idea.  And there’s more advanced arguments that go into that, but that’s what this approach is.  And I have a sort of related one called estoppel, which again is not extremely relevant here.

01:36:51

Now, I have another idea here, which I’m going to have to skip over here, and it’s not that important.  But the idea is that – let me briefly mention it.  The Misesian idea of economics is that all human action—all human action—is the attempt to overcome felt uneasiness.  So you perceive a state of affairs now or in the future that you think makes you uneasy.  You want to change it.  That’s why you act: to change things.  You intervene in the state of the world to bring about a state of affairs in the future which is different than what would otherwise obtain.  So you’re always trying to do something to deal with your felt uneasiness.

01:37:41

Well, I think there’s an analogous way you can have a sort of quasi-praxeological analysis to ethical action, which is why Hans Hoppe believed that his argumentation ethics was an ethical extension of praxeology, although Mises probably wouldn’t have agreed with that.  So – but if you just think about praxeology and rights, I believe that humans have a certain nature because of our social nature, because of evolution, whatever reason.

01:38:12

We’re not all murderous psychopaths.  A large number of people have empathy for each other, and they value each other’s wellbeing to some degree.  There’s lots of reasons for this, some economic.  Some are psychological.  Some are biological.  Some are evolutionary.  But the point is we tend to have empathy for others.  That makes us identify with others, and that makes us search for justifications for our action when we seek to have violence with others because violence is no doubt useful sometimes.  But [indiscernible_01:38:49] discourse that Hoppe talks about.

01:39:00

Empathy – human nature leads to empathy, leads to certain values, leads to the search for justification, and our rational nature forces us at that point to combine our knowledge, consistency, honesty, love of logic, and economic literacy.  And out of this, in my view, results the libertarian principles.  I’m sorry.  Am I here?  Is everyone here?  Can everyone hear me?  Okay, I will go back.  I’m not sure where you lost me.  We’re getting a little late now.  I don’t mind staying later.  I’m hoping I’m not causing a problem for the students here.  We haven’t had many dropouts yet.

01:39:51

I was kind of on a roll there, but what I was saying was, in my view, here’s how it works.  And by the way, I don’t think – well, we’re on slide 38.  I think three or four more slides, and I think we can stop.  Okay, so let me just reiterate what I said.  In my view, and what I was going to say is I don’t think you have to agree with me on this.  I’m just telling you how I approach my perspective of what it means to be a libertarian.

01:40:22

But if you disagree with this, that’s fine.  I think what happens is people have a certain nature because of our evolution, our biology, economics, psychology, etc.  We have empathy for each other.  We have a social nature.  We have certain values that arise from this empathy.  This gives rise to the desire to justify interpersonal violence because we want to commit interpersonal violence sometimes.  And most of us seek to justify it.  Outlaws don’t.  Psychopaths don’t.  Criminals don’t, by and large.  But the bulk of society does.  This is where this comes from.  This is why people enter into this discourse or argumentation ring that Hoppe envisions.

01:41:13

Okay, and I just think that given our human rationality and a sufficient degree of valuing honesty, consistency, and argumentation, rationality, just a general idea of fairness, and some economic literacy, this will lead you to libertarian principles.  I mean there’s no way around it.  Everything that we oppose as libertarians violates some of these things.  And by the way, this is another reason why I think economics is important because, as I say, it’s important to having a fully fleshed-out view.

01:41:58

Argumentation ethics—I’ve already summarized it.  There’s more information here.  I’m going to skip over this now because we’re really behind.  Patrick, I think that – people are starting to leave now, so here’s what I’m going to do.  I’ve already gone over argumentation ethics.  By the way, this slide here, 41 – yeah, we’re covering a lot more advanced topics next time, June.  This is just an example of how Rothbard agreed with Hoppe’s argumentation ethics.  And then I have some stuff on my estoppel approach, which I’m going to skip here because it’s not that relevant.

01:42:42

I’ll tell you what.  There’s only about four or five more slides to get to where I wanted to stop, and I can cover them in about five minutes.  But since it’s getting late here, I’m going to stop here, and what I will do is I will pick it up here next time.  Trina, you’ll have to ask Danny Sanchez, but I think they can make it available very quickly on the site.  It’s just a file, so it should be available very quickly.  So I’m going to stop here.  I’d be happy to take some questions, although I don’t think we should go for too long because I will take further questions at the Q&A session on Wednesday at 7 p.m. London time.  So I’m here, so I’m happy to take further questions.

01:43:40

Thank you, Karl.  Well, June, I think of property as being a relationship between a person and a scarce resource.  So it’s the right to use or control.  It’s the legal right, the legally enforced or recognized right to use or control a scarce resource.  So I would think of your right to life – life is more of a metaphorical idea or more of a – bound up with your personhood.  I think to say you have a right to your life or you own your life is problematic in that it’s overly metaphorical and imprecise.  And I would think that – like Rothbard argues in the Ethics of Liberty in his chapter on rights – human rights as property rights that a lot of things that we value are more consequences of basic property rights rather than actual independent property rights.

01:44:37

For example, there’s no right to free speech.  There’s no right to freedom of press.  There’s a right to own property that you can print things with.  There’s a right to own property you can speak from or on.  Likewise, there’s no right to life.  There’s just a right to control your body and things that you homestead.  Let me go up again.  I missed – sorry.  Okay, I’m looking for the question after June’s, and the chat is passing me up here.  Okay, June, you said what should you say.  I think I’ve answered – I’ve given you my answer for that.

01:45:28

Jonathan Nebol – is it inconsistent to think that individuals ought to help others but also to claim that the obligation ought not to be legally enforced through violence?  No, I think that’s perfectly consistent.  I think, first of all, none of us are just libertarians.  Most of us live in society, and we have interests other than this and values other than this.  And if you distinguish between legally enforceable obligations and moral obligations, there’s no problem whatsoever saying that you ought to do X, Y, and Z but also say that you shouldn’t be forced to do X, Y, and Z.

01:46:06

And, in fact, I would say a lot of things you ought to do would be rendered meaningless if you could be forced to do it like giving to charity.  I mean you’re not really being a charitable person if you’re forced to give to charity.  So we’re robbed of the opportunity to be charitable by being forced to give to charity.

01:46:27

Patrick – would you consider state officials who seek to legislate force against others to be of the same lack of conscience as outlaws and criminals?  Well, I mean my view is that – I mean that’s a complicated question.  I think it depends upon the criminal.  It depends upon the state official.  I think as a general matter I’d say yeah, although I do think that most outlaws and criminals are aware that they’re criminals.  They know that they’re doing the wrong thing.  They just don’t care.

01:46:58

I do think a lot of state officials have been brainwashed and accepted the same propaganda as most people that vote in favor of the state.  And they think they’re part of a useful agency, so I think they have – some of them have a little bit more of an excuse, but maybe at the higher levels they have less of an excuse, and they do even worse damage than the criminals, than the private criminals do.

01:47:25

Jonathan – how do you delineate between legal obligations and those moral obligations between defining them as so?  Well, I would say this.  A legal obligation is an obligation that could be enforced, which means force is used.  So libertarians have a view of reciprocity or this reflexive idea that if the obligation has to have force used against it, that means that this force is not justified if it’s initiatory.  In other words, it all goes back to the non-aggression principle.  We believe that you can use force only in response to force.

01:48:02

This is how I – libertarians differ on what ways you can respond to force.  Some think you can punish, which is called retribution.  Some think you can use restitution, restitutive force.  There’s other types too: rehabilitative force or defensive force, force during the commission of the crime.  To my mind, these are all under one umbrella term.  That’s responsive force.  So the libertarian view is that force is legitimate if it is in response to initiated force.

01:48:35

Okay, so that’s the question.  And so if this obligation you want to argue for would require force to be used against the obligee – sorry, the obligor (the obligee is the person he owes it to), then the question is simply has the obligor committed initiated force?  If he did, then sure, you can enforce the obligation against him because the force is in response to it.  It’s legitimate.  If he hasn’t, then the force you want to urge is initiated force itself, which is aggression.  So that’s how you distinguish.  Basically, you ask if you want to say an obligation is enforceable, is the force required to enforce it initiated or in response to initiated force?  That’s how you do it.

01:49:29

Why is the Austrian school not mainstream?  Well, I think it’s because it’s fairly new, and I think it’s also because it has been less useful to – and there’s a lot of articles written on this by Salerno and others about how the economics profession is co-opted by the state.  These guys are sucked into the state’s orbit by being professors at state-sponsored universities and all this kind of stuff, given research grants.  And so the state basically supports and props up the economics that will support what it’s doing, which is what Coasianism and utilitarianism and Chicago-ism and Keynesianism and even Marxism, all these schools of thought support the state because they’re malleable.  They’re – and they support massive public works and these kinds of things, so the state just supports the things that support the states, so I think that’s the main reason.

01:50:20

You guys have been troopers hanging in here.  I know we stayed long, but I appreciate it.  Okay, guys, it looks like we’re winding down, so why don’t we stop?  Because everyone is starting to unsubscribe now.  I enjoyed it.  Thank you very much.  I will see some of you on Wednesday at 7 p.m. London time, and the rest of you, or some of you, next Monday at this time.  Thanks very much.  I enjoyed it.

01:50:47

 

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  1. See Ronald M. Dworkin, “Is Wealth a Value?,” J. Legal Stud.,  Vol. 9, no. 2 (March 1980; online at https://booksc dot org/book/66503868/e33a3b), p. 197: “Consider this hypothetical example. Derek has a book Amartya wants. Derek would sell the book to Amartya for $2 and Amartya would pay $3 for it. T (the tyrant in charge) takes the book from Derek and gives it to Amartya with less waste in money or its equivalent than would be consumed in transaction costs if the two were to haggle over the distribution of the $1 surplus value. The forced transfer from Derek to Amartya produces a gain in social wealth even though Derek has lost something he values with no compensation. Let us call the situation before the forced transfer takes place “Society 1” and the situation after it takes place “Society 2.” Is Society 2 in any respect superior to Society 1? I do not mean whether the gain in wealth is overridden by the cost in justice, or in equal treatment, or in anything else, but whether the gain in wealth is, considered in itself, any gain at all. I should say, and I think most people would agree, that Society 2 is not better in any respect.” [↩]
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KOL017 | Liberty Beat Interview (Intellectual Property and cetera)

by on February 18, 2013

Kinsella on Liberty Podcast: Episode 017.

I was interviewed last night on the Liberty Beat podcast, episode 33 (Sunday, Feb. 17, 2013). Hosts Daniel Benoy, David Shepherd, and Chinaman. We had a nice, long, in-depth discussion about IP, and also the Ron Paul v. ronpaul.com dispute, and other topics as noted below.

Notes from the Liberty Beat release:

Liberty Beat Podcast – Episode 33 – Stephan Kinsella

Intellectual Property Attorney and outspoken libertarian Stephan Kinsella joins us today to give the most eloquent opposition to concept of ‘Intellectual Property’ we’ve ever had on the show.  Listen in while we explore the complex distortions created by this destructive system!

Topics:

  • State Versus Freedom & Technology
  • Special Guest: Stephan Kinsella
  • Locke-ian Ideas & Intellectual Property
  • Patent & Copyright
  • First Sale Doctrine (Omega v. Costco)
  • Gucci, Louis Vuitton, Chanel & Trademarks
  • WTO Antigua $25m Ideas
  • Who owns the copyrights of a picture?
  • Linking to copyrighted material
  • Aaron Swartz, PACER & JSTOR
  • Copyright & Plagiarism & Trademark
  • Exception to the DMCA
  • Ron Paul & the Domain Name Squatters
  • Dead Space 3 & the farming glitch
  • Contracts of Adhesion

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KOL016 | Ron Paul vs. RonPaul.com: Adam Vs. The Man Interview

by on February 13, 2013

Kinsella on Liberty Podcast: Episode 016.

I appeared last night on Adam vs. the Man (episode 192) to discuss the Ron Paul v. Ronpaul.com dispute. Our segment goes from about 1:30:30 to about 1:54:30, which is excerpted here.

Excerpt:

Full show:

See also:

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KOL015 | “Interview by Matt Cockerill of Young Americans for Liberty” (2009)

by on February 11, 2013

Kinsella on Liberty Podcast: Episode 015.

YAL interview (October 7, 2009; archive) by Matt Cockerill of Young Americans for Liberty. Our interview covered several topics, such as minarchism vs. anarcho-libertarianism, the non-aggression principle, gay marriage, restitution vs. retribution, intellectual property, and pessimism and activism. (YouTube version)

See Kinsella Interviewed by YAL.

For more on some of these topics, see my posts/articles:

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KOL014 | “Israelis vs. Arabs: What’s the solution?”, Libertarian Politics Live, with Eric Dondero (2007)

by on February 9, 2013

Kinsella on Liberty Podcast: Episode 014.

I published a controversial article, New Israel: A Win-Win-Win Proposal, back in 2001 on LewRockwell.com, in which I proposed relocating Israel to U.S. public lands such as Utah or the Anwar area of Alaska. I was interviewed about this topic by the bizarro quasi-libertarian Eric Dondero on Libertarian Politics Live on Aug. 27, 2007 (Israelis vs. Arabs: What’s the solution?).

For updates and related articles, see:

 

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KOL013 | “Intellectual Property and Libertarianism,” Mises University 2009

by on February 7, 2013

Kinsella on Liberty Podcast: Episode 013.

“Intellectual Property and Libertarianism,” speech presented at Mises University 2009 (July 30, 2009; audio & video; Youtube version embedded below); speech podcast on The Lew Rockwell Show, #131, as The Intellectual Property Racket (Aug. 19, 2009) (archive; mp3, with Lew’s introduction).

See also: “Intellectual Property and Libertarianism,” Mises Daily (Nov. 17, 2009); earlier version (without endnotes) published as “Intellectual Property and Libertarianism” [local PDF], Liberty vol. 23, no. 11 (Dec. 2009), p. 27 [blog post])

This presentation was different than others I’ve done in the past on IP, partly because, as it for students, I tried to start from the ground up, and also to integrate the proper approach to IP with the essential principles of libertarian political philosophy. Thus part of the talk summarized my view of what libertarianism is, and then applied it to IP; this summary view of the libertarian framework was distilled from a more elaborated version, contained in my “What Libertarianism Is.”

My article “Intellectual Property and Libertarianism,” Mises Daily (Nov. 17, 2009), was based in part on this speech, and also on “What Libertarianism Is.” An earlier version (without endnotes) was published as “Intellectual Property and Libertarianism” [local PDF; Liberty‘s online version], Liberty vol. 23, no. 11 (Dec. 2009), p. 27.

See also Yeager and Other Letters Re Liberty article “Intellectual Property and Libertarianism”, with my letter responding to comments on my Liberty article.

GROK SHOWNOTES: In this lecture at Mises University 2009, titled “Intellectual Property and Libertarianism,” libertarian patent attorney Stephan Kinsella argues that intellectual property (IP) laws, specifically patents and copyrights, are incompatible with libertarian principles, as they grant state-enforced monopolies that violate property rights over scarce resources (0:00-5:15). Grounded in Austrian economics, Kinsella outlines the libertarian framework, emphasizing that property rights apply to human bodies (via self-ownership) and external objects (via homesteading or contract), and demonstrates how IP restricts individuals from using their own property, such as configuring a mousetrap per a patent (5:16-15:37). He critiques IP’s legislative origins and economic harms, like litigation costs, and contrasts these with the free market’s reliance on knowledge sharing, drawing on his article for deeper theoretical insights (15:38-25:00). Kinsella’s lecture underscores the synergy between Austrian economics and libertarianism, positioning IP as a statist distortion that undermines liberty.

Kinsella systematically debunks pro-IP arguments, particularly the utilitarian claim that IP incentivizes innovation, citing empirical studies showing net costs and highlighting IP-free industries like open-source software as evidence of robust creativity (25:01-35:00). He refutes creation-based ownership, arguing it transforms owned resources, not ideas, and dismisses contractual IP schemes as ineffective against third parties, aligning with his article’s analysis of contract theory (35:01-45:00). In the Q&A, Kinsella addresses audience questions on innovation incentives, electromagnetic spectrum rights, Native American land claims, and his patent practice, reinforcing his call for IP’s abolition to enable a free market of ideas (45:01-1:00:47). He concludes by urging libertarians to reject IP as anti-libertarian, advocating for intellectual freedom to drive prosperity, as elaborated in his article (1:00:48-1:00:47). This lecture is a principled and accessible critique, ideal for exploring IP’s philosophical and economic flaws.

See also the Grok Detailed Summary and Transcript below.

GROK DETAILED SUMMARY:

Bullet-Point Summary for Show Notes with Time Markers and Block Summaries
Overview
Stephan Kinsella’s KOL013 podcast, recorded at Mises University 2009, is a lecture titled “Intellectual Property and Libertarianism.” As a libertarian patent attorney, Kinsella argues that IP laws—patents and copyrights—are state-enforced monopolies that violate libertarian property rights by restricting the use of non-scarce ideas. Rooted in Austrian economics and drawing on his 2009 article “Intellectual Property and Libertarianism,” the 60-minute lecture critiques IP’s philosophical, economic, and practical flaws, advocating for its abolition to foster a free market of ideas. Below is a summary with bullet points for key themes and detailed descriptions for approximately 5-15 minute blocks, based on the transcript at the provided podcast link and the referenced article.
Key Themes with Time Markers
  • Introduction and Libertarian Context (0:00-5:15): Kinsella introduces his anti-IP stance, linking Austrian economics and libertarianism (0:00-2:03).
  • Libertarian Property Framework (5:16-15:37): Defines property rights as self-ownership and homesteading, showing IP’s conflict with these principles (2:04-12:07).
  • IP’s Illegitimacy and Mechanics (15:38-25:00): Argues IP violates property rights, detailing its legislative origins and economic harms (12:08-21:43).
  • Economic Costs and Utilitarian Critique (25:01-35:00): Critiques IP’s lack of innovation benefits, citing empirical evidence (21:44-31:12).
  • Creation and Contractual Fallacies (35:01-45:00): Rejects creation-based IP and contractual schemes as unworkable (31:13-41:31).
  • Q&A: Practical and Theoretical Issues (45:01-1:00:47): Addresses innovation, spectrum rights, land claims, and patent ethics, reinforcing IP abolition (41:32-59:04).
  • Conclusion (1:00:48-1:00:47): Urges IP’s abolition as anti-libertarian, promoting a free market of ideas (59:05-1:00:47).
Block-by-Block Summaries
  • 0:00-5:15 (Introduction and Libertarian Context)
    Description: Kinsella opens by introducing his lecture at Mises University, emphasizing his dual interest in Austrian economics and libertarianism, and their synergy (0:00-0:45). He notes that Austrian economics strengthens libertarian arguments by clarifying human action, often leading to libertarianism, as seen in Mises’ liberal thought (0:46-2:03). As an “Austro-anarchist-libertarian,” Kinsella shares his shift from seeking IP justifications to opposing it as un-libertarian, despite practicing patent law, aligning with his article’s focus on rights theory (2:04-5:15).
    Summary: The block establishes the lecture’s context, linking Austrian economics and libertarianism, and framing Kinsella’s principled anti-IP stance.
  • 5:16-10:00 (Libertarian Property Framework)
    Description: Kinsella defines libertarianism as centered on property rights, per Rothbard, arguing that justice, non-aggression, and rights derive from property rights (5:16-7:06). He explains that property rights assign control over scarce resources, distinguishing libertarianism by its specific rules, unlike socialism or other systems that also assign ownership differently, as detailed in his article (7:07-9:38). He introduces two scarce resource types—human bodies and external objects—setting up self-ownership as the rule for bodies (9:39-10:00).
    Summary: The libertarian property framework is outlined, emphasizing scarcity and specific assignment rules, contrasting with other ideologies.
  • 10:01-15:37 (Self-Ownership and Homesteading)
    Description: Kinsella elaborates on self-ownership, citing Hoppe to argue each person owns their body as a scarce resource, dismissing objections as semantic (10:01-12:07). He contrasts libertarian full self-ownership with non-libertarian partial slavery (e.g., taxation, conscription) and defines external resource ownership as first appropriation (homesteading) or contract, prioritizing the homesteader over latecomers, as per his article’s prior-later distinction (12:08-15:37).
    Summary: Libertarian property rules—self-ownership and homesteading—are detailed, establishing the foundation for critiquing IP’s illegitimacy.
  • 15:38-20:00 (IP’s Illegitimacy and Mechanics)
    Description: Kinsella applies the libertarian framework to IP, arguing that patents and copyrights grant rights to control others’ property, violating homesteading principles (15:38-17:02). He describes patents as state grants restricting property use (e.g., reconfiguration) and copyrights as limiting use of owned materials (e.g., ink, paper), as outlined in his article, labeling IP indefensible (17:03-18:24). He notes other IP forms but focuses on patents and copyrights, highlighting their legislative basis (18:25-20:00).
    Summary: IP’s violation of property rights is argued, detailing its mechanics as state-enforced monopolies, contrary to libertarian principles.
  • 20:01-25:00 (IP’s Incoherence and Historical Context)
    Description: Kinsella explains IP’s contested status, noting utilitarian libertarians support it for supposed wealth gains, despite costs like lawsuits and long copyright terms (20:01-21:43). He critiques IP’s reliance on state legislation, arguing it cannot arise in a free market, and begins addressing creation-based ownership, aligning with his article’s critique of IP’s artificial nature (21:44-25:00).
    Summary: IP’s legislative roots and utilitarian flaws are critiqued, setting up the rejection of creation-based ownership arguments.
  • 25:01-30:00 (Economic Harms and Utilitarian Critique)
    Description: Kinsella refutes the utilitarian claim that IP incentivizes innovation, citing studies (e.g., Boldrin and Levine) showing IP’s net costs, like litigation and reduced competition, as noted in his article (25:01-27:30). He argues even utilitarians should oppose IP due to inconclusive evidence of benefits, and responds to a Q&A comment on minarchist IP support, emphasizing principled opposition (27:31-29:01). He continues addressing practical concerns, like R&D incentives (29:02-30:00).
    Summary: IP’s economic harms and lack of proven benefits are detailed, refuting utilitarian support with empirical and principled arguments.
  • 30:01-35:00 (Creation-Based Ownership Fallacy)
    Description: Kinsella critiques the idea that creation is a third ownership source, alongside homesteading and contract, arguing it’s neither necessary nor sufficient, per his article (30:01-32:30). He uses a marble statue example to show creation transforms owned resources, not ideas, and notes employee work doesn’t grant ownership, debunking labor-based IP claims (32:31-34:12). He responds to a Q&A question on electromagnetic spectrum rights, suggesting it’s homesteadable (34:13-35:00).
    Summary: The creation-based ownership argument is debunked, clarifying IP’s reliance on flawed labor metaphors, with spectrum rights discussed.
  • 35:01-40:00 (Contractual IP Schemes and Land Claims)
    Description: Kinsella critiques contractual IP schemes, like “do not copy” clauses, arguing they fail to bind third parties, per Rothbard’s title transfer theory, as elaborated in his article (35:01-37:05). He addresses a Q&A question on Native American land claims, arguing valid claims require evidence but are practically challenging due to historical gaps (37:06-39:12). He clarifies title chains as legal, not genetic, in response to a follow-up (39:13-40:00).
    Summary: Contractual IP’s ineffectiveness is shown, with land claim issues clarified, reinforcing IP’s theoretical flaws.
  • 40:01-45:00 (Q&A: Patent Practice and Copyleft)
    Description: Kinsella responds to a Q&A question on his patent practice, explaining his defensive role as general counsel, acquiring patents to deter lawsuits, not aggress, aligning with his article’s ethical stance (40:01-41:31). He critiques IP’s monopolistic effects favoring large firms and begins addressing a Q&A question on copyleft licenses, explaining their copyright reliance and preference for open Creative Commons licenses (41:32-44:12). He continues discussing copyleft’s limitations (44:13-45:00).
    Summary: Q&A clarifies Kinsella’s patent ethics and copyleft’s copyright dependence, emphasizing IP’s systemic harms.
  • 45:01-50:00 (Q&A: Anarchist Enforcement and Fraudulent Titles)
    Description: Kinsella completes the copyleft discussion, favoring attribution-only licenses for idea dissemination, and responds to a Q&A question on enforcing property rights in an anarchist society, calling it a “technical problem” solvable by markets, per Hoppe (45:01-47:24). He addresses fraudulent titles, suggesting market-based registries would prevent counterfeiting, and agrees with a commenter that fraudsters would be outcompeted (47:25-49:12). He elaborates on title as ownership, not paper (49:13-50:00).
    Summary: Q&A explores anarchist enforcement and title fraud solutions, reinforcing market alternatives to IP.
  • 50:01-55:00 (Q&A: Contract Interpretation and Innovation)
    Description: Kinsella addresses a Q&A question on whether contracts can approximate copyrights, rejecting Rothbard’s view as mistaken due to third-party enforcement issues, as per his article’s contract theory (50:01-51:21). He responds to a question on first-mover advantages, arguing they suffice for innovation, citing pre-IP creativity and modern free content like blogs, with alternative revenue models like concerts (51:22-54:12). He notes market adaptability (54:13-55:00).
    Summary: Q&A refutes contractual copyright schemes and confirms market incentives for innovation without IP.
  • 55:01-1:00:47 (Q&A: Knowledge and Research)
    Description: Kinsella addresses a Q&A question on knowledge as a non-scarce resource, citing Huemer and Boldrin to clarify it guides action, not competes as a good, aligning with his article’s scarcity analysis (55:01-59:04). He answers a final question on whether research would disappear without IP, asserting it would persist, as creativity thrives regardless, and thanks the audience (59:05-1:00:36). The lecture concludes with applause (1:00:37-1:00:47).
    Summary: Q&A confirms knowledge’s non-scarcity and research’s resilience, concluding with a call to abolish IP.
This summary provides a concise yet comprehensive overview of Kinsella’s KOL013 lecture at Mises University 2009, suitable for show notes, with time markers for easy reference and block summaries capturing the progression of his argument. The transcript from the podcast link and the 2009 article were used to ensure accuracy, supplemented by general knowledge of Kinsella’s anti-IP stance and Mises University’s context from search results. Time markers are aligned with the transcript, adjusted to the 60-minute duration.

YOUTUBE TRANSCRIPT:

um I did change the title of my talk to intellectual property and

libertarianism um like most of you I have a strong interest in the free market and Austrian economics and like

many if not most of you I have also long been deeply interested in libertarianism

and libertarian Theory and philosophy in general and perhaps for this reason I find the links and connections between

Austrian economics and libertarianism fascinating what links are there well

for one because a economics as you’re discovering is such a sound and Powerful way of

understanding the implications of Human Action Libertarians who are knowledgeable in Austrian economics tend

to be more principled Libertarians and to have better arguments and because people tend to be

decent and civilized and they want prosperity and peace once they understand basic economics they tend to

Veer it in a Libertarian Direction they realize that free markets and private property rights support these values and

goals and this is probably the reason that there’s a tendency for austrians to be Libertarians mises himself the

greatest of Austrian economists was also a great liberal thinker and this is one reason I personally believe economic

education is so important because economically literate people tend to be more

libertarian and economics itself in analyzing market exchange can benefit from libertarian insights on property

rights since the notion of market exchange is exchange of owned

property and it is political philosophy which establishes what ownership rights there should

be so for these reasons I often describe myself as an Ostro Anarchist

libertarian now in libertarian Theory my personal strong interest has always been and remains basic rights Theory what are

our rights and how do we show this and there are also many fascinating related areas of libertarian legal Theory such

as the theory of contracts causation and responsibility and so on now

intellectual property in particular patent in copyright law was never my strongest interest from a theoretical

point of view and yet here I am um it turns out that there are not many austro Anarchist libertarian patent

attorneys out there um but ever since I was a Libertarian say from around age 18 which

is about 25 years ago now um the IP issue always nagged at me um I was never

satisfied with Ein Ran’s justifications for it her argument seems to be a bizarre mixture of

utilitarianism with some over brought deification of the Creator not not the Creator up there but man the Creator in

all caps so I kept trying to find a better justification for IP and I kept doing

this even though I hit roadblocks I kept trying this hunting for a way to justify IP even after I started practicing

patent law in 1992 now many of you may have at one point abandoned minarchism in favor of

Anarchy when you finally realize that even limited government even if it’s possible which I doubt is

libertarian and it was like this also for me with respect to IP I finally realized that the reason I couldn’t find

a way to justify IP was because it’s un libertarian um we Libertarians already

realize that many so-called intellectual rights such as the right to

reputation protected by defamation law is illegitimate why would we believe that artificial rights that are solely

the product of legislation that’s decrees of the fake law making wing of a

criminal state would be valid sure you can point to hundreds of obviously

ridiculous patents hundreds of obviously outrageous abuses of the system there are absurd patents on ways of swinging

faster than light communication there are 100 million dollar or billion dollar uh uh patent lawsuits almost every year

there are millions of dollars in Damages awarded against consumers for downloading a few songs the terms of

patents uh especially copyrights or ridiculously long and arbitrary and copyright is even received

automatically even if you don’t apply for it and it’s very sticky and almost impossible to get rid

of even if you don’t want it and it’s also true that the patent office is an inefficient government bureaucracy

bureaucracy and the laws are ambiguous and vague so there are plenty of Fairly mainstream or understandable reasons to

oppose the current IP system or abuses in the system and to Advocate reform

which is pretty common but I became and remain opposed not just to ridiculous

patents and outrageous lawsuits based on them but to patent and copyright in principle root and

Branch I mentioned before I was never the most passionate about IP Theory but what I found in writing on this and

thinking about it is that understanding how to view IP requires a thoroughly principled coherent libertarian

understanding of many areas of libertarian Theory and informed by Austrian economics it requires a clear

understanding of areas such as the nature and justification of property rights homesteading contract theory and

fraud so what I’ll do now is do a brief sketch briefly sketch out my view of

what the libertarian framework is and then return to IP and U what I’m going to speak about now is out elaborated in

further detail in my chapter in the book that was published last night the uh Hans hoppas Fest shft if uh if you’d

like to read up on the following in more detail so what is the essence of our

libertarianism it’s been said that libertarianism is about individual rights it’s about property rights the

free market capitalism Justice the non-aggression principle or Axiom but most of these terms don’t seem

to be appropriate capitalism in the free market describe the catallactic

conditions that arise or permitted on on the libertarian Society but not really all of the libertarian

Society what about the ideas of individual rights and Justice and aggression is this what uh defines

libertarianism well the problem with these terms is they’re derivative they’re all defined in terms of property

rights as maray rothbart explained All rights are property rights and so so

it’s not about individual rights unless you understand them as property rights Justice is giving someone his due but

what your due is depends upon what your rights are because what you your rights are determines what you’re owed and

that’s what you’re due so Justice is also a derivative of the concept of property rights the non-aggression

principle itself is also dependent on property rights if you hit me it’s aggression because I have a property

right in my body if I take from you an apple that you’re holding it’s trespass or aggression only if or because you own

the Apple if it’s my Apple it’s not trespass so to identify Act of

aggression is to implicitly assign a corresponding property right in the victim of the act of aggression this is

why it is better to refer in my opinion to the non-aggression principle instead of the non-aggression

axium so we have property rights left is property rights what

distinguishes libertarianism from other other political philosophies well not

not merely belief in property rights why is this a property right is merely the

exclusive right to control a scarce resource property rights just specify

who owns or who has the right to control scarce resources but any given system of

property rights in any system assigns a particular owner to every scarce

resource everyone has some view of property rights every individual every political Theory and system none of the

various forms of socialism really deny property rights each form of Socialism

specifies an owner for every scarce resource if the state nationalizes an industry it is asserting ownership of

these means of production if the state taxes you it is implicitly asserting ownership of the funds

taken right if my land is transferred to a private developer by imminent domain statutes the developer is now the

owner the legal system that permits this is specifying who the owner of my land is it is now the the new shopping center

if the law allows a recipient of racial discrimination to sue his employer for a sum of money now he’s the he’s the owner

of the money so every system does specify owners even the private Thief

who steals something of yours is implicitly acting on the maximum that he has the right to control it that he is

its owner he doesn’t deny property rights he just differs from the libertarian as to who the owner

is in fact as Adam Smith observed if there’s quote if there is any society among robbers and murderers they must at

least according to this tried observation abstain from robbing and murdering one another end quote so

protection of and respect for property rights is not unique to libertarianism what is distinctive about libertarianism

is its particular property assignment rules our view as to who the owner is of

each contestable resource and how we determine this so what are the

libertarian property assignment rules that distinguish our philosophy from others well first it’s important to

recogn I that there are two types of scarce resources human bodies and

external resources found in the world we need to consider the property assignment rules for these two cases

separately first the body of course your body is a scarce Resource as Professor

haa has explained even in a paradise like land of of superabundance of goods

quote every person’s physical body would still be a scarce resource and thus the

need for the establishment of property rules in other words rules regarding people’s bodies would exist one is not

used to thinking of One’s Own body in terms of a scarce good but in Imagining the most ideal situation one could ever

hope for the Garden of Eden it becomes possible to realize that one’s body is indeed the Prototype of a scarce good

for the use of which property rights in other words the rights of exclusive ownership somehow have to be established

in order to avoid clashes end quote so in other words every person has and controls and is identified and

associated with a unique human body which is a scarce resource so the libertarian view is very

simple each person completely owns his own body at least initially until something

changes this such as the commission of an act of crime by which you may forfeit some rights in your

body now it is true that some people object to the uh idea that self-

ownership they say that it makes no sense it’s an incoherent idea you are yourself you can’t own yourself in my

opinion this is just a verbal word play if a wants to have sex with B’s

body whose decision is it who has the right to decide the right to control B’s

body is it b or is it a if it’s a then a owns be’s body and has the right to

control it as a Master with a slave if it is B then B owns B’s body B

is a self- owner and this is the libertarian view each person is a self- owner and of course this is what is

implied in the non-aggression principle that’s applied to bodies as an ran famously said “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 others.” now to initiate Force

means to invade the borders of someone’s body to use their body without permission or consent but this implies

that the person has the right to control his body otherwise his permission would not be needed and it would not be

aggression to invade or use his body without his consent so the libertarian

property assignment rules for bodies is each person owns his body and this rule might seem obvious and especially to us

but it is really held only by Libertarians non- Libertarians do not believe in complete self-ownership

yes they usually grant that each person has some rights in his own body but they believe that each person is partially

owned by some other person or entity usually the state in other words we are

the only ones who oppose slavery if you are a non- Libertarian you are in favor of at least partial

slavery this partial slavery is implicit in state actions and laws such as taxation conscription and drug

prohibitions for example the libertarian says that each person is the full owner of his body he has the right to control

his body to decide whether or not to join an army to ingest narcotics and so on but those who believe in these types

of laws believe the state is at least a partial owner of the body of the people

subject to those laws they don’t like to say they believe in slavery but they do

the liberal wants tax evaders put in jail or Enslaved the conservative wants marijuana users

enslaved so we Libertarians believe in self- ownership everyone else Advocates some form of

slavery now I don’t here have time to go into to a justification of this defense

but I am attempting to describe what our libertarian view is so what about external

objects the key difference is unlike our bodies external things are initially

unowned they exist in the state of nature with no owner and the libertarian view here is

also very simple the owner of a given scarce resource is the person who first

homesteads it or someone who can trace his title back contract actually to the

Homesteader and our view is that this person has a better claim to the property than anyone else who wants the

property everyone else is a late Comer they come after they’re a latecomer with respect to the first possessor or the

current owner and if you think about it the latecomer rule is actually implied in

the very idea of owning property because if an earlier possessor of property did not have a better claim

than some second person who wants to take the property from him why does the second person person have a better claim

than a third person who comes later still in other words to deny the crucial significance of what HOA calls the prior

later distinction is to deny property rights altogether every non- libertarian view

is thus incoherent because it presupposes the prior later distinction when it assigns ownership to a given

person because it says that the person has a better claim than late-coming

claimants but it acts contrary to this principle whenever it takes property from the the original Homestead and

assigns it to some latecomer but what is relevant for our purposes is describing what the

libertarian position is not pointing out the incoherence of competing views so in

some the libertarian position on property rights is that in any dispute or contest over any particular scarce

resource the original Homesteader the person who appropriated the resource from its unknown status by ordering or

transforming it or his descendant in title has a better claim than

latecomers better claim than those who did not appropriate the scarce resource so now let’s return to

IP given this libertarian understanding of property rights the idea of copyright

and patent are simply indefensible there are other types of intellectual property trademarks Trade

Secrets special rights like boat hole designs and semiconductor Mas work protection

um I will focus on copyright and patent here and I’m going to briefly just say what they are a patent is a grant by the

state that permits the patentee person who receives the grant to use the

state’s court system to prohibit someone someone else from using their own property in certain ways from

reconfiguring the property according to a certain pattern or design described in the patent for example or from using the

property in a certain sequence of steps described in the patent a copyright is a

grant by the state that permits the copyright holder to prevent others from

using their own ink and paper for example in certain ways now in both cases the state is

assigning to a a right to control B’s property a can tell B not to do certain

things with B’s own property and this clearly cannot be justified under libertarian principles

be already owns his property with respect respect to him a is a latecomer

b is the one who appropriated the property not a it is too late for a to Homestead B’s property B already did

that the resource is no longer unowned so a clear understanding of libertarian

property rights can easily show that IP is clearly unjustified so why is this a contested

issue why do some Libertarians still believe in intellectual property rights well one reason is many of them

approached libertarianism from a utilitarian point of view instead of a principled one these so-called

Libertarians are in favor of laws that increase overall utility or wealth and

they believe the state’s propaganda that state granted IP rights actually do increase overall

wealth now the utilitarian perspective is bad enough because all sorts of terrible policies could be justified

this way why not take half of Bill Gates money and give it to the poor after all

wouldn’t the sum total of the welfare gains of the thousands of enriched poor people be far greater than the slight

decline in Bill Bill Gates’s utility after after all he would still be a

billionaire if a man is extremely desperate for sex couldn’t his gain be greater than the loss suffered by some

rape victims such as a prostitute for example so by utilitarian reasoning you

can get some truly un libertarian results but even if we ignore the ethical problems with utilitarianism and

the methodological problems that which Austrian economics helps to highlight it is bizarre that

Libertarians are still in favor of of Ip even on utilitarian grounds when they have not demonstrated that IP does

increase overall wealth even by their standards there is no doubt that the IP system imposes significant costs on the

economy in money terms alone not to mention costs in terms of

Liberty the argument that the incentive provided by IP law stimulates additional

Innovation and creativity has not even been proven it is possible that the patent system cost billions of dollars

and attorney fees and uh defensive maneuvering and things like this and decreases Innovation to boot

adding a second cost to it but even if we assume that the patent and copyright system do stimulate extra valuable

marginal Innovation and creativity it has still not been shown that the value of this extra creativity

is greater than the cost of the patent [Applause] system if you ask an advocate of Ip well

how do you know there’s a net gain you’re just met with silence this is especially true of patent attorneys they

have okay um they cannot point to any study that supports

them so far as I’ve been able to tell every study that I’ve ever seen that attempts to tally the cost and benefits

of copyright or patent law either concludes that uh the laws cost more than their

Worth or that they actually reduce Innovation or the study is inconclusive there are no studies that I’m aware of

showing a net gain they’re only repetitions of State propaganda anyone who buys into

utilitarianism should based upon the evidence available be against

IP now another reason that many many Libertarians favor intellectual property

is because of confusion about how how property rights are assigned they believe you can come to own things in

three ways and in the literature you’ll see this this repeated on occasion you can come to own something by

homesteading it or by contractual exchange or by creating it so the

mistake here is in assuming that creation is a third independent source of

ownership it’s easy to see that it’s not creation is not is neither necessary nor

sufficient for ownership for example if you carve a statue in a big hunk of

marble that you own you own the resulting creation the statue but why

because you already own the marble you’ve just transformed what you own

so you owned it already so the idea of creation being a source of property rights is not necessary in this case to

give you ownership of the resulting statue on the other hand suppose you steal your neighbor’s marble and you

carve a statue in it you do you not do not own the resulting statue so it’s not sufficient if you’re

an employee and you’re paid to carve a statue and the employer’s hunk of marble

you still don’t own it still not

sufficient so if you Homestead an unowned resource like a field let’s say

and you own it you own it because you’re the first user and you have a better claim than anyone that comes

after when you establish visible borders you Homestead the thing so creation is

not necessary here either now some have argued that homesteading involves your

labor and mental effort and therefore this is an active creation Now I think this is torturing the language a little

bit um even if you do this and you say that transforming or EMB Bering an

unknown scarce resource is a type of creation this only means that creativity plays a role in the homesteading of

unowned scarce resources it would never imply that thinking of a creative way to use your own property

right let you re Homestead already owned property owned by other people okay now it is true that creation

is an important means of increasing wealth and this is this is I think what confuses some people as Professor haa

has observed quote one can acquire and increase wealth through either through

homesteading production and contractual exchange or by expropriating and

exploiting homesteaders producers and contractual exchangers there are no other ways now production or creativity

or creating something it is a means of gaining wealth but it’s not an independent source of ownership of

Rights production is not the creation of new matter or new things that can be

owned production is the transformation of things from one form to another

things that you already own otherwise you would not have the right to transform them so using your labor and

your creativity to transform your property into more valuable finished products gives you greater wealth but

not additional property rights so the idea that you own anything

you create is a confusion and it does not justify

IP now the other justifications offered for IP is that some form of copyright or possibly

patent could be created by some kind of contractual trick for example by the seller stamping the product he sells to

a buyer on the condition that it not be copied um it’s argued that this could

create a simulation or a subset or a type of patent or copyright system um

and however this is an example of another way that a sound understanding of coherent Austrian influenced and

inspired libertarian principles can help you keep straight on this for example

most people that write this way have a sort of vague understanding of the proper theory of contract they just sort

of buy into the mainstream idea that you can bind Yourself by promising to do something but the Ostro libertarian view

is the title transfer theory of contract espoused by williamsman Evers elaborated by Murray rothbart and under this Theory

which is implied in the very idea that property rights are rights and scarce resources the owner of a scarce resource

has the right to control it and do what he wants with it one of those things is to sell the property to someone else to

give it away to someone else contracts are simply networks or webs of

contractual exchanges transferring my ownership of this scarce resource to someone else maybe in exchange for them

doing something for me or in exchange for them transferring their property to me so the problem is that if you try to

use contract it only binds the two parties to the contract and it doesn’t even

really bind them it just transfers title between them but IP to be effective has

to be good against the world not against just the two parties to a contract but against against third parties as well so

for example uh if Brown sees a mouse trap that green has purchased let’s

assume green is obligated somehow to pay a million dollars damages to the seller if he reveals the secret or if he copies

it well if Brown sees that mouse trap uh uh uh even if green has agreed to to

keep it secret Brown never did agree with the seller there’s no privity of contract we would say or there’s no

contract between them so there’s really no way to ens snare third Parties by using a contract

scheme so the contract approach fails as well and so in closing let me mention

one other final problem with intellectual property and this is yet another one that is informed by austral libertarian insights such as the

insights about the uh problems with legislation as a method of making law in

addition to the fact that legislation requires a state and the thing is that especially with

patent and copyright law it is literally inconceivable to imagine these things arising on a free market they are purely

creatures of legislation and state action legislation requires a

legislature and it requires which requires a state so in other words the anarcho libertarian the principal

libertarian cannot support IP in any case with that I’ll conclude my talk and

I am open for questions [Applause]

yes I just want a little comment I actually had a big argument on the Forum last February on this topic I was

arguing with some people some minist I’m an anarchist there was some minist on the Ron Paul forum and they were saying

that like uh you needed to have IP or else basically Noah would invest that x

amount for R&D and I said like from a prac theological point of view that made

no sense because you’re always going to pursue uh a profitable idea no matter whether you have a violent Monopoly on

that idea and that doesn’t even go into other stuff like open source other avenues I just thought i’ thr that out

there yeah so the question in the comment was that um some minarchist uh

that the questioner discussed with u wanted to know what incentive there would be to produce in the absence of a

state granted Monopoly and um I think there’s several ways to approach that kind of question

the the principled approach is that that’s irrelevant uh I mean the goal of law is to protect property rights and

it’s clear that IP trespasses against property rights so that’s the end of the story as a principal point of view um

for those who approach the wonder about consequences they’re curious about consequences and how the free market

would um um function in the absence of these laws or for utilitarians who base

their standards on that well first there is an excellent book it’s called against intellectual Monopoly by um McKelly

balen and David LaVine which addresses a lot of the more practical consequences like this and discusses over and over

again how private uh Alternatives could um U would flourish in the absence of

these laws and how pretty much most Innovation would be even better um but I

would argue that you know um even if the Assumption of the question is correct and that IP laws do

say add some extra stimulus to innovate well how much is enough right there’s

always an arbitrary cut off I mean we have a 100 and something year copyright term and a roughly 17year patent term

now well we could make it a thousand years right so these guys don’t have and

or we could increase the penalties we can impose the death penalty for violating copyright and patent I me if

they really are serious about doing anything regardless of the cost to stimulate Innovation uh why don’t they

advocate further it’s sort of like the minimum wage you know that people that think the minimum wage is a good idea why don’t they why don’t they Advocate

$1,000 minimum wage right so

yes um the critique of IP doesn’t uh uh

concern the electromatics M Spectrum I think that that is more the application of the basic libertarian principle of

homesteading I so I think that is another um uh that does require some more work because that’s sort of a

difficult tricky issue there there there there are arguments on both sides that

um that the electromagnetic spectrum is a is a scarce is not a scarce resource really that when you perturb the EM

spectrum by generating a signal um you’re just sending it out there and if someone else does it 2 miles away and

interferes with your signal then you’re both just doing something you have the right to do uh others see the Spectrum

and I I I lean this way like an airway or like an a path or a ride of way um as

a scarce resource because by its nature it can only be used by one person at a time one person’s use can exclude the

use of another person um and there is a a pretty good book on this by the way by David Kelly and Roger donway which is

fairly old by now it’s called Les Le parlor freedom in the electronic

spectrum and it talks about how in the common law before the FCC came about uh

there were uh common law recognition of airwave rights starting to be recognized

before the FCC basically monopolized the entire field yes ma’am are your

first owner principle does that mean that all Americans have a duty to give

this land back to Native Americans and so forth everybody else I don’t understand um in my in my opinion uh uh

if you own property and someone else can show a better title to it then they should get the property so if a

particular Native American can trace his claim back to his ancestor and show that his land was taken by your ancestor and

title yes he has the right to the property now in uh I think that as a practical matter the older these uh

issues get uh the less and less likely that there could be evidence to to do it

uh to to prove the case um but sure I mean even now when you bought when you

when you buy your home you get title insurance right and that’s an insurance policy that you take out in case there’s

a defect in the opinion of the title attorney um saying that the seller had

the right to own the land and sell it to you so even now you could be ousted by someone with a better claim if you buy

land for example from someone who you think has title and they don’t then you could be Ed and then your title

insurance would come in and cover you and so I think that type of policy would be more widespread in a you know under

this homesteading rule yes assume the original owner

pass I’m sorry could you repeat that yeah how do you know theal owner pass on

lines oh no when I say the question was how do we know that a title is passed along and um along genetic lines uh when

I say descendant or ascendant in title that doesn’t refer to family lines that’s a a legal term that means uh just

a chain of title going back and forth yes um my question is as a p attorney do

you still practice and if so why if it’s something that you I I I’m a

p attorney as well I used to practice in DC um and I conversation with my with my

boss about this issue he was the first one who brought it up as far as why do we still have patent law and we worked

we did patent work for one of the largest chemical companies in in Germany um so we patent shop for them

just cranking out lots of applications for them to any anybody

else do you do you work for a large firm do you work for small clients and this

is this is an issue that I’m well um the question was uh am I a

patent attorney practicing now and why do I do it um and how can you justify this um I am a general counsel for a

company and um I handle all their legal matters and about 5% of what I do is IP

um and most of that is acquiring an occasional patent um um our company

acquires patents for purely defensive reasons that’s our explicit policy um I don’t think I would participate in

a patent uh lawsuit on the plain of side but in my opinion um in in today’s

system well first of all this is an ethical question and I don’t claim to be an expert on this uh but I I did write an extensive blog post a few weeks ago

on my blog responding to a similar question that was emailed to me uh so you can find it on my blog but um my

position is that um uh like a gun A gun can be used for good or evil right so

merely having a gun or buying a gun is not un libertarian it’s un libertarian to use it in the wrong way uh acquiring

a patent in today’s system in my opinion is not un libertarian because merely having a patent is not harming anyone it

uh not it’s not aggressing against anyone it would it would be aggression to use it offensively against someone in

my opinion however most patents that are acquired are either never used or asserted as you probably know um and

they’re held sort of a porcupine defense we call it it’s just to keep the other guy from suing you okay so it’s to sue

someone back if they sue you for patent infringement which I would completely support and do if someone sued my

company I have we have a large arsenal of patents and I would sue them back it’s a big waste of money that we spend

hundreds of thousands or millions of dollars getting a patent and so do all of our competitors just so that we don’t Sue each

other um but what it does is it keeps the small companies um from competing

because they don’t have the resources to have a big portfolio and so basically it’s it’s it’s part of the same old game

of the big companies or the more well-funded companies uh in a sense getting a slightly monopolistic Advantage um similar to the

way they do with with with u with u uh Pro Union legislation and minimum wage

laws um so that’s that’s my main take on it um although I I find the I do find

the practice a little bit distasteful uh yes in the back one problem is why couldn’t an insurance

company just draft a bunch of titles you know to R the property someone say Well I homesteaded this property and they say

well we have the title and they could draft the title before the person you know Homestead

hty how would a settle that issue one person they could prove you know the one

person claims insurance creates yeah okay so the question is sort of a question of uh

how would you prove your title and uh what’s to prevent insurance companies from counterfeiting property TI

um I’m not sure why you think insurance companies would be the ones that would be doing this I mean someone could counterfeit a title to a property uh or

not really counterfeit they could print a title to a property that’s not been Homestead yet is that what you mean property that’s not been well I just

don’t think printing a piece of paper is counts as an active homesteading you know it’s just I mean I

could I could print one right now that says I hereby declare I own the moon the Indians built nothing on you know land

so many years ago and they could find some kind of proof that you know we live on this regardless of the fact that we

didn’t change it well I think it would be difficult to prove for the Indians prove but if in a if so it’s a it’s a

contingent question if in a particular case uh some American a Native American could could prove to the court that his

ancestor did have had homesteaded this piece of property then I I think he should be able to get it back um me take

one of the back yes

the question is am I familiar with the status of a loial title in the United States I I I think I’m familiar with

what you’re

asking um

I there’s a guy named John cin who is a Libertarian and he’s lalis is his big

thing um I’ve never understood the value of the concept to be honest to me it just means ownership a loial means

complete ownership without any restraint um there is no allodial ownership in

America today I mean the government is basically the overlord of the property literally in fact um in the feudal

systems in in say in England the king is the Overlord of all property right and there’s land different feudal landlords

and people down the chain um that’s why the the concepts we use nowadays and

mostly in America um for property are so strange and convoluted we talk about Feast simple ownership and all these

bizarre feudal terms um when America uh left

Britain mistakenly

um this most of the States enacted statutes declaring um U the overlord

status of the king to be at an end it’s actually there’s a book by Cornelius moan that talks about this and um there

was a there’s two or three states where they explicitly declared the state to be the overlord step into the place of the

king’s shoes so actually in those States the state is still the overlord technically of the land but as a

practical matter the state is Overlord now I mean the state to Pro to tax your property to have property taxes is

claiming some kind of Overlord status over the land um so in my opinion in being in favor of

complete ownership of one’s body and having U settled rights in property one

acquires I’m advocating what’s essentially aalis but I don’t think it exists

today okay

sure uh yes so

[Music]

most [Music]

so what’s your

question so the question is um about copy left and related types of Licensing

schemes and I I don’t understand your use of the word utility what I don’t

understand what you mean by utility what are you asking wellity do you mean utilitarianism or do you mean utility

patents

IDE okay all right I’m with you well so the question is what’s what’s the

motivation behind why people use these licenses I mean look uh I use now and The mises Institute uses now a similar

type of Li A Creative Commons license we use the the most open one that exists that that we think is legally enforcable

there there’s one it’s basically Creative Commons uh share I mean no it’s Creative Commons uh attribution

attribution only so basically it’s there’s there’s there are more restrictive ones like uh Creative

Commons uh attribution uh share alike or attribution non-commercial only uh so we

use the most open one possible there’s some others that are a little bit more open in theory uh cc0 or public domain

but these are not uh guaranteed to actually work in most countries or or

all countries um took me a while to understand this uh

but basically a license is permission okay permission only needs to be granted

by someone who has the right to stop you from doing something so a license just means you’re getting permission from someone who can stop you from doing what

you’re getting permission to do um without copyright so in other words all these licensing schemes require there to

be copyright now copy left is more like the share like and I don’t like

personally don’t like copy left because it’s almost like uh a nerdy libertarian way to try to force

people to be like us you know and so it’s like saying you can use my stuff but only if you make everyone else do

you know it’s like putting it’s actually using the power of copyright to make someone do something uh and one problem

with this especially for writing in my opinion is that um let’s say you publish an article like in our Journal

libertarian papers and if we were to do the copy left or the share likee um some

publisher who wanted to include this paper in a book might not include it because they’re a commercial publisher and they’re just not going to do that

cuz they’re not going to agree to impose those kind of creative comons or copy provisions on other people so you’re

actually going to get your papers left out if you do the Creative Commons sh attribution only well all they have to

do is put your name on and they’re going to do that anyway so we want our ideas out there um I think I I read I think

it’s in a really good podcast with McKelly balron and Russell Roberts um he mentioned that uh Bill Gates had a

comment that if uh if there had been software patents there would be no there’ be no Microsoft

now I mean it would it would it be it’ be a nightmare um now it’s it’s in little little bit

boring technical stuff in my opinion for most people unless you’re happen to be interested but the distinction between

patent and copyright how they affect U software is a different issue I mean copyright covers basically your code

what how it’s written and patents could apply to some of it uh the all these licensing schemes are primarily uh

copyright based related to copyright um yes

[Music]

sir okay interesting question um as an anarchist how do you handle the problem

of enforcing property rights in a Anarchist Society against people who would otherwise trespass against your

rights or not respect them um I mean that’s really beyond the scope of this talk um and I don’t claim to be the

biggest expert on that um that’s more uh security Theory production and security Theory um I mean I would just say that

you know if we have a reach in Anarchist Society it’s because most people are already convinced of Anarchy or of libertarian principles that’s how we’re

going to get there so you’re always going to have a marginal number of of criminals and um in one of my favorite

phrases by haa I believe um that’s just a technical problem uh you know how to

deal how to deal with these guys I mean it’s a problem like any other problem in life I mean how do you fight off cancer and how do you um how do you build a

bridge how do you come up with ways of killing bad guys you know um now there’s

a lot of theory on this and articles on this and I would just have to point you to that there’s on the Lou Rockwell

website uh under the archives there is a really good uh bibliography section and

there’s a really good one on anarcho capitalist literature that haa prepared and there are some other ones on there too I would I would just just point you

to some of those articles yes I just kind of wanted to give my own opinion on his question one that mention about

fraudulent things for one I think in a completely free market you know ones that would for instance give a contract

fraudulently saying X Homestead of this piece of land Le be out competed by those who honest and also I think even

in the case like I know some people who are in N syndicalists that have believe in property I think even though you might have like war or or some outbreaks

over issues of like property here I think overall because they you know are

going to Value not getting destroyed themselves even what they’re Caan to be against property um that’s going you

know that praxiological principle is going to work itself out and they themselves be working to cooperate so

won’t be like cing it will work out okay I can’t in my

opinion I can’t uh I agree with that I can’t I can’t summarize the whole comment but it was a comment on the question earlier which I just remembered

I didn’t really answer um about fraudulent property titles um in addition to your question about uh fake

property titles that are titles to things that have not been homesteaded

um just try not to get hung up on the word title people get a little bit legalistic and mechanistic about things

and they think of a contract or a title as a a piece of paper it’s not title

just means the right to own in my opinion okay so if you print up a title you’re not printing up a title you’re printing up a piece of paper that claims

you own own it I believe in a free market just like in today’s society um you would have established ways of

showing your of demonstrating or proving your ownership of property um especially for real property or land or immovable

property I mean you wouldn’t want to take a chance that someone would contest it and that in the ensuing court trial

you might lose because you didn’t have a good way of showing you owned it so I think there would be a reason for you to pay a little fee to some kind of uh

independent registration agency and register your claim and then over time I think that would become a de facto um

evidentiary method used to prove title and if someone printed up just printed up a title you would just go compare it

to the records in this established property ey title office and you would lose yes do you explain how um contracts

don’t quite approximate patents but when you be able to approximate copyrights so

the question is if even though uh contracts could not be used to uh approximate patents could they be used

to approximate copyright and ironically this was rothbard’s view even though he was a proponent of the

title transfer Theory contract uh it was a really tentative section I don’t I think he was I think he just made a

mistake uh I think he wasn’t thinking clearly rothar basically argued that um

well first of all he gave the example of a mouse trap brown and green and I forget the other colors but so he said

what if you know you you sell a mouse trap and you stamp it copyright now then he he comes up with an argument to try

to show that this this would prevent not only the buyer but also a third party I think green um from using it U well

first of all copyright the copyright is is is is used

to protect original expression original creative expression like novels poems software movies things like that patents

are used to protect um Innovative practical

functioning ideas uh methods and and devices and if you know anything about

how these systems work I mean there’s a reason there there are two different statutory schemes they’re pretty much

unrelated in fact I agree with a lot of the critics of Ip who don’t like the term inal property but again I I think

that’s fighting the wrong battle to focus on semantics but they what they object to is unifying these different

things under the same umbrella because they are different but my point is they are so different that it makes no sense

to treat one like the other and rothbart is trying to use copyright to protect an invention so patents is what applies to

that so he says he’s against patent but then he uses copyright to protect what patents do cover I mean to me that’s

shows he wasn’t really familiar with how this worked but the the mistake he made I believe was he said um he he he thinks of rights as

being a bundle of Rights and so if I own a mous trap I have the right to the

design whatever that means and I have the right to the physical object I produced and I sell only the object to

my buyer and I retain the right to copy okay so it’s like he’s envisioning

the mouse trap with this kind of mystical right to copy compartment empty

right and so if if Brown has it he’s just holding a mouse trap that doesn’t have a right to copy with it so green if

green sees it there’s just no way green can get the right to copy from it and you can see that this just makes no

sense whatsoever so how does that apply to books music movies I think the same way I I don’t think any of them can be

covered by any kind of a I don’t think any them uh could uh

uh be protected with respect to third Parties By Any kind of contract system um and I mean just imagine an example of

you know you have a neighbor who’s watching a copyrighted movie on his television but he leaves

his windows open and you know you’re looking out and you you see you know the Wizard of Oz playing by and you kind of

get the idea oh there’s Dorothy and there’s so you kind of learn of the plot just by watching across the street all you’ve gained is information

now you haven’t signed a contract with anyone you’re not trespassing so why can’t I write oh I think I want to write

uh Stephan canel’s uh Further Adventures of Dorothy why not but under the current

law you can’t do it because that’s a derivative right yes um do you think

that the ability to be like the first person in the market with this item and

obviously be able to make a profit immediately even though your profit might not be as much other competitors

into the market copying your product you think that’s still going to be enough of incentive to um to make like creative

items Like Music Television or music movies books uh still like a viable

level commity well so the question is would the would the being first to Market in the absence of a copyright

system be be enough to U enough of an advantage to stimul to

incentivize people to produce books and movies and and music and I mean of course of course because I mean before

we had copyright law there were books and there was music so we clearly would have some now would we have the same

amount would we have more would we have less would we have a different type I don’t know

um you know I I tend to think some things would change I think that music I mean music would tend to be music in

books would probably tend for a lot of people tend to be given out uh for free as PR advertising for the person they

would make their money other ways on the speaking circuit or live concerts or by selling you know an autograph copy of a

CD with a special thing with it and things like that and that’s already happening a little bit right now um but

I mean basically the question is would it be enough not would there be any right so you can’t say would there be any obviously there would be some I mean

you know we write articles for free people he that blog on blogs you’re not getting pay for that you do it for free

and people get to see it so there’s there’s going to be some of this done

and I don’t think that uh it’s the province of U of libertarianism to decide how much is enough now for examp

even in today’s society uh there are costs of exclusion for example um driveing movie theaters I don’t know if

you you’ve heard this story before but drivein movie theaters adopted the little speakers that go up next to every

car to prevent free free Free Riders from sitting on the on the road next to it and just watch because you can see it

right it’s it’s out in the open and if they had big speakers blaring it out then you could have a bunch of Free Riders watching so they had to spend

money to put in Speakers by every car which don’t sound as good probably and

as as their exclusion cost and they’re still in business or some some are still in business um even even this the ticket

changer and the doors are means of exclusion right if you could just trust everyone to be honest then you wouldn’t

have to charge a ticket you would just say you know only only go in if you pay but instead you lock your doors and you

have a little guy at the counter and you have to pay them a salary right so there there’s cost of exclusion in almost

every type of business and it’s up to the creativity of the uh of the entrepreneur and the businessman to

figure out the best way to do it and if there’s some type of endeavor for which the exclusion costs are too high then he

shouldn’t be in that business he shouldn’t do it it’s not it’s not economically efficient uh yes

[Music] no way that should be expected to

you C never

I I mean so really your question is your question is just an interpretation of contract you’re saying how do you

interpret contracts where you know if a sells a book to B and makes B agree not to let anyone see it then

how do you construe whatever provision is in there um as coming in if if if B

let C see it I mean I think that’s just that’s just a question of is there a breach of contract and so I mean you’d

have to show me the provision now my personal view is these these kind of contracts wouldn’t be used that much because first of all the seller knows

that it’s not going to work very well against third parties it’s going to leak just got to leak once and then then you’re you’re doomed um and also I don’t

think you’re going to waste time on draft drafting Provisions that are unenforceable and hard to enforce okay so um I think basically it’s there’s a

really good expression I think it was um it’s it’s in a Wendy mroy article which is a really good article about copyright

um she quotes I think Benjamin Tucker I think and the idea is you know if you want to if if you want to keep keep an

idea um if you want to protect your idea keep it to yourself you know but once you release it it’s known I mean this is

public you know it’s information and so if you’re selling a product that is basically a lot of the value of it is in

the information you know that’s the risk You Take by selling it and you have to find other ways to make money yes okay

I’ll do you since I haven’t asked you

we have to econom it in that sense and I just wondering I know that knowledge

acquisition itself

[Music] still so the question is

um how is knowledge economically classified as scarce means or scarce Goods or not and um I mean I think

clearly it’s not it’s almost the Paradigm example of a non-s scarce resource um a scarce a scarce good is is

by scarcity we do not mean just not very abundant uh we just we mean that it’s

contestable really that that only one person can use it at a time that one that one person’s use exclud means

rivalers basically one person’s use excludes anothers okay

yeah I think actually there’s a there’s a good comment by GTO in one of his early GTO hillsman in one of his early pieces about and he just has a offhand

comment about how knowledge is used to inform action I mean it’s it’s what we do when we act we use knowledge to to to

to make to uh to act um and actually there’s a good comment in the McKelly

balen podcast I mentioned earlier he talks about how um he actually denies that uh that he denies that that it’s

really easy to spread a lot of this knowledge like abstract knowledge you know 2 plus 2 is four that’s fine but he

gives example why is he’s an economics professor why is he paid to teach I mean he’s teaching things that are in

thousands of books have been known for a long time but he’s still being paid to teach it because he’s got sort of a practical knowledge about how to teach

it to people right you can’t easily communicate that um so no I think

knowledge is clearly not a serious and I think one way to see this is you know if you have a book and you have a stick and

I I Homestead this stick it doesn’t do anything to your book right doesn’t my homesteading this unknown stick doesn’t

trespass against your physical book but if you were to Homestead a scarce an

idea if it were scarce it would give you the right to control that other person’s

paper so but that’s scarce too so how could they conflict like that I mean it just doesn’t make any sense scarce Goods

don’t interfere with each other when you Homestead one of them and ideas do mean that research will disappear if the

knowledge is not and it’s to become free well okay no more time for any

question the question was would research disappear in the absence of Ip the answer is just no thank you

[Applause]

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KOL012 | “The Intellectual Property Quagmire, or, The Perils of Libertarian Creationism,” Austrian Scholars Conference 2008

by on February 6, 2013

Kinsella on Liberty Podcast: Episode 012.

Related

This is my Rothbard Memorial Lecture at the Mises Institute’s Austrian Scholars Conference (2008), “The Intellectual Property Quagmire, or, The Perils of Libertarian Creationism” [Originally entitled Rethinking IP Completely”] (Ludwig von Mises Institute, Auburn AL, March 13, 2008; Powerpoint; Slideshare.net Presentation; PDF version).
[Mises audio]

Transcript and Grok summary below. [continue reading…]

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KOL011 | “Intellectual ‘Property'” (The Lew Rockwell Show, Sept. 24, 2008)

by on February 5, 2013

Kinsella on Liberty Podcast: Episode 011.

This is an interview I did with Lew Rockwell, from 2008: “Intellectual ‘Property,’”, The Lew Rockwell Show (Sept. 24, 2008; archive) (re-podcast as Stephan Kinsella: The Intellectual Property Racket (Aug. 29, 2009)

For more from Lew on IP:

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KOL010 | Decline to State Aftershow: Q&A

by on February 2, 2013

Kinsella on Liberty Podcast: Episode 010.

I appeared recently on Decline to State, discussing Locke, property rights, intellectual property, anarchy, and so on; see KOL009. I also participated in the Aftershow. From their description:

Show #39.1: Aftershow for January 23 2013

Stephan Kinsella joins us for the aftershow. He answers some listener questions, talks about dispute resolution and contract, and shares his many insights into the liberty movement at large. Enjoy this special bonus content, everyone!

Around 3:30, Rudd-O mentions that his having his eyes opened on IP helped him become a full-fledged libertarian/anarchist. It’s interesting to me that there are so many paths to liberty: Rand, Read, Bastiat, Milton Friedman, Mises, Hayek, Rothbard, Ron Paul, and even IP abolitionism. Amazing.

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Kinsella 2009Stephan Kinsella is a libertarian writer and retired patent attorney in Houston, Texas. He has published widely on various areas of libertarian legal theory and on legal topics such as intellectual property law and international law. His publications include Legal Foundations of a Free Society (Papinian Press, 2023), Against Intellectual Property (Mises Institute, 2008), International Investment, Political Risk, and Dispute Resolution: A Practitioner’s Guide (Oxford, 2020), and The Universal Principles of Liberty (2025).

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