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:
- KOL018 | “Libertarian Legal Theory: Property, Conflict, and Society, Lecture 1: Libertarian Basics: Rights and Law” (Mises Academy, 2011)
- KOL019 | “Libertarian Legal Theory: Property, Conflict, and Society, Lecture 2: Libertarian Basics: Rights and Law-Continued” (Mises Academy, 2011)
- KOL020 | “Libertarian Legal Theory: Property, Conflict, and Society: Lecture 3: Applications I: Legal Systems, Contract, Fraud” (Mises Academy, 2011)
- KOL021 | “Libertarian Legal Theory: Property, Conflict, and Society, Lecture 4: Causation, Aggression, Responsibility” (Mises Academy, 2011)
- KOL022 | “Libertarian Legal Theory: Property, Conflict, and Society, Lecture 5: Intellectual Property and Related” (Mises Academy, 2011)
- KOL022b | “Libertarian Legal Theory: Property, Conflict, and Society, Lecture 5b: Q&A” (Mises Academy, 2011)
- KOL023 | “Libertarian Legal Theory: Property, Conflict, and Society: Lecture 6: Applications Continued; Common Libertarian Mistakes (Fraud Etc.)” (Mises Academy, 2011)
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
Segment 2: Property Rights and Non-Aggression Principle
Segment 3: Contracts and the Title-Transfer Theory
Segment 4: Applying Libertarian Principles to Legal Issues
Segment 5: Q&A and Closing
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. 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.
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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