Justice and Property Rights: Rothbard on Scarcity, Property, Contracts…

by Stephan Kinsella on November 19, 2010

From The Libertarian Standard, Nov. 19, 2010. Any updates to this post will be made here.

Update: for extended quotes from Rothbard and Hoppe about the problem of universal equal or communist ownership, see KOL468 | Is Group Ownership and Co-ownership Communism?

Justice and Property Rights: Rothbard on Scarcity, Property, Contracts…

Rothbard has so many amazing works. Some of my favorite of his articles include “The Mantle of Science,” “Law, Property Rights, and Air Pollution” (pdf), “Beyond Is and Ought,” “Toward a Reconstruction of Utility and Welfare Economics,” “Left and Right: Prospects for Liberty,” and various chapters in The Ethics of Liberty such as “‘Human Rights’ As Property Rights,” “Knowledge, True and False,” and “Property Rights and the Theory of Contracts.” I think my favorite collection of his works is The Logic of Action One and Two–just chock full of classic, amazing pieces [now online as Economic Controversies]. And yet another favorite is The Free Market Reader–one of the best introductions to free market thinking; see Rothbard’s opening chapter, “Ten Great Economic Myths” (also ch. 2 in another great collection, Making Economic Sense).

Case in point is his stunning, amazing article in The Logic of Action One, “Justice and Property Rights” [and, again, this is also in Economic Controversies]. This piece was published in two forms in 1974: first, in Egalitarianism as a Revolt Against Nature and Other Essays, and is available online here. The second version was also published in 1974, in Property in a Humane Economy, Samuel L. Blumenfeld, ed. (online here). Oddly, The Logic of Action One, at least the version online here, contains the original version of “Justice and Property Rights” from Rothbard’s Egalitarianism book; while Economic Controversies, which is otherwise identical in content to The Logic of Action, contains the Blumenfeld version that contains the extra paragraph.

Now, The Logic of Action is not online and not easy to find, but this article in my copy of that book is heavily underlined. But luckily the Blumenfeld book is online at Mises.org. The two pieces seem identical but the latter version appends an important concluding paragraph that is not present in the first one:

It might be charged that our theory of justice in property titles is deficient because in the real world most landed (and even other) property has a past history so tangled that it becomes impossible to identify who or what has committed coercion and therefore who the current just owner may be. But the point of the “homestead principle” is that if we don’t know what crimes have been committed in acquiring the property in the past, or if we don’t know the victims or their heirs, then the current owner becomes the legitimate and just owner on homestead grounds. In short, if Jones owns a piece of land at the present time, and we don’t know what crimes were committed to arrive at the current title, then Jones, as the current owner, becomes as fully legitimate a property owner of this land as he does over his own person. Overthrow of existing property title only becomes legitimate if the victims or their heirs can present an authenticated, demonstrable, and specific claim to the property. Failing such conditions, existing landowners possess a fully moral right to their property.

This part was no doubt added by Rothbard to combat the arguments of some, such as some left-libertarians, who want to argue that existing property titles are illegitimate because of their non-immaculate origins and, presumably, ought to be wrested from current nominal owners, especially the wealthy, and I suppose redistributed to the proles.

[Update: See Rothbard’s “Confiscation and the Homestead Principle,” from Libertarian Forum, vol. 1.6, June 15, 1969, which may be what Kevin Carson has in mind here:

I’m quite friendly to George, and think the lines between individualism and Georgism are a lot less harsh than (say) Tucker would have believed. But I believe a great deal of rent could be eliminated simply by removing subsidies to economic centralization and positive externalties created by taxpayers–not to mention by removing state enforcement of title to vacant and unimproved land. If as much urban infrastructure as possible were funded by user fees, and cities broken up into lots of mixed-use neighborhoods in which residential areas had their own miniature “downtown” cores, differential rent would be far less significant. I think a majority of George’s aims could be achieved by Tucker’s means, or even by a throughgoing application of Rothbard’s means.] ¹

This piece is just so full of great insights. Hoppe has noted previously that there are arguments in Ethics of Liberty that basically anticipated Hoppe’s “argumentation ethics” defense of libertarian rights (see my post Hoppe and Intellectual Property: On Standing on the Shoulders of Giants). [continue reading…]

From Rothbard’s “Confiscation and the Homestead Principle,” from Libertarian Forum, vol. 1.6, June 15, 1969. Here Rothbard writes:

Let us now apply our libertarian theory of property to the case of property in the hands of, or derived from, the State apparatus. The libertarian sees the State as a giant gang of organized criminals, who live off the theft called “taxation” and use the proceeds to kill, enslave, and generally push people around. Therefore, any property in the hands of the State is in the hands of thieves, and should be liberated as quickly as possible. Any person or group who liberates such property, who confiscates or appropriates it from the State, is performing a virtuous act and a signal service to the cause of liberty. In the case of the State, furthermore, the victim is not readily identifiable as B, the horse-owner. All taxpayers, all draftees, all victims of the State have been mulcted. How to go about returning all this property to the taxpayers? What proportions should be used in this terrific tangle of robbery and injustice that we have all suffered at the hands of the State? Often, the most practical method of de-statizing is simply to grant the moral right of ownership on the person or group who seizes the property from the State. Of this group, the most morally deserving are the ones who are already using the property but who have no moral complicity in the State’s act of aggression. These people then become the “homesteaders” of the stolen property and hence the rightful owners.

Take, for example, the State universities. This is property built on funds stolen from the taxpayers. Since the State has not found or put into effect a way of returning ownership of this property to the taxpaying public, the proper owners of this university are the “homesteaders”, those who have already been using and therefore “mixing their labor” with the facilities. The prime consideration is to deprive the thief, in this case the State, as quickly as possible of the ownership and control of its ill-gotten gains, to return the property to the innocent, private sector. This means student and/or faculty ownership of the universities.

As between the two groups, the students have a prior claim, for the students have been paying at least some amount to support the university whereas the faculty suffer from the moral taint of living off State funds and thereby becoming to some extent a part of the State apparatus.

The same principle applies to nominally “private” property which really comes from the State as a result of zealous lobbying on behalf of the recipient. Columbia University, for example, which receives nearly two-thirds of its income from government, is only a “private” college in the most ironic sense. It deserves a similar fate of virtuous homesteading confiscation.

But if Columbia University, what of General Dynamics? What of the myriad of corporations which are integral parts of the military-industrial complex, which not only get over half or sometimes virtually all their revenue from the government but also participate in mass murder? What are their credentials to “private” property? Surely less than zero. As eager lobbyists for these contracts and subsidies, as co-founders of the garrison state, they deserve confiscation and reversion of their property to the genuine private sector as rapidly as possible. To say that their “private” property must be respected is to say that the property stolen by the horsethief and the murdered [sic] must be “respected”.

[See also Rothbard on the “Original Sin” in Land Titles: 1969 vs. 1974; Murray N. Rothbard, “Confiscation and the Homestead Principle (1969),” Panarchy; Jeff Deist, “Rothbard on Slavery Reparations,” Power & Market (July 12, 2019)]

But of course Rothbard later implicitly repudiated these views, as can be seen in his 1974 article “Justice and Property Rights,” as I’ve explained here. [↩]

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Objectivism: Leonard Peikoff vs. the World

by Stephan Kinsella on November 14, 2010

My two recent LRC posts. For other posts on the antics of the hilarious Objectivists, see here and here.

Re: The Latest Objectivism Schism: Peikoff vs. McCaskey

Posted by Stephan Kinsella on November 14, 2010 02:22 PM

The most recent developments in the latest Objectivist schism (previously mentioned here):

Nov. 5: Peikoff elaborates.
Nov. 11 (?): ARI issues statement.

And now the various Objectivist seriosos will be compelled to Officially Weigh In (see Diana Hsieh’s posts here and here). Gotta hand it to the Randians: they are fun to watch. Grab some popcorn!

The Latest Objectivism Schism: Peikoff vs. McCaskey

Posted by Stephan Kinsella on September 8, 2010 12:13 AM

Every few years we get to witness another entertaining Objectivist purge or publicly announced “breaking” (see my previous LRC posts Breaking, Broken, Broke: Silly Objectivist Tendencies; I break for Randians; Re: I Break for Randians; More Randian than Thou).

The apparently declining numbers of the true believers might make one fear these antics will soon fade out. But not yet. The latest is the resignation from the Ayn Rand Institute‘s Board of Directors of John McCaskey, preempting a purge that was being threatened by Peikoff. Despite being on the Board and being an ardent Objectivist and supporter of ARI, McCaskey committed the unforgivable sin of disagreeing (in private) with a book Peikoff liked–David Harriman’s The Logical Leap: Induction in Physics. Pope Peikoff generously acknowledges McCaskey’s previous fundraising for ARI might “raise[] him one rung in Hell,” but it doesn’t stop damnation. Since his resignation, McCaskey has posted a review of Harriman’s book explaining his disagreements.

The Objectisphere is naturally abuzz with these latest hijinks: see Does A Leonard Ever Change Its Spots? and New Developments re Harriman Induction book. Expect to see previous positive references to McCaskey by True Believers go down the Memory Hole soon–such as this one by Peikoffian Diana Hsieh and his inclusion on the faculty of Objectivist Conferences.

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Kinsella on “Live and Let Live” Radio: Sunday, Nov. 14

by Stephan Kinsella on November 14, 2010

I’ll be a guest on the Austin-based radio show “Live and Let Live” tonight, discussing IP. The host is Gary Johnson; the time is 9pm CDT. I’ll be on during the second hour of the two-hour program, which is live on the Rule of Law radio network. It can be heard on www.ruleoflawradio.com and on affiliate stations, including 90.1 FM in Austin. The episode will be archived on ruleoflawradio.com/archive.

Update: audio is here.

[C4SIF]

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State Antitrust (anti-monopoly) law versus state IP (pro-monopoly) law

by Stephan Kinsella on November 12, 2010

From the Mises Blog; archived comments below.

State Antitrust (anti-monopoly) law versus state IP (pro-monopoly) law

11/12/2010 Stephan Kinsella

As discussed in previous posts, the state grants monopolies (patents and copyright) then penalizes companies for using (“abusing”) them, in contravention of state antitrust law–so that there is a “tension” between these state laws. ¹ (And of course the state exempts its own monopoly powers from antitrust regulations, and partially exempts the IP monopolies it hands out to supplicants.) On Techdirt, Mike Masnick points out another example of this “tension”: Once Again, Security Company Suggests Microsoft Making Its Own Software Secure Is An Antitrust Violation.

I have an idea. Eliminate the only true monopoly: the state and its agencies, its monopolization of the roads, courts, legal system, police, military, and also its monopoly-granting agencies–the USPTO (patent and trademark) and commerce department (copyright)–remove Microsoft’s copyright and patent monopolies but remove antitrust laws too and let them be.

True, large corporations often lobby for and benefit from (relatively speaking) antitrust and other regulations, but still, remove their state-granted monopolies and remove state anti-monopoly restrictions, and let the free market work. ²

Patents are state-granted monopolies, which are in “tension” with antitrust law; you can have and use this monopoly, even though it technically seems to violate the antitrust laws, so long as you don’t abuse it. This means that the larger companies who amass the large patent arsenals (and cross-license with each other) sort of have immunity from antitrust law while smaller competitors are not only subject to the anticompetitive effect of the patent monopolies possessed by the big players but also subject to antitrust law still. Absent antitrust law perhaps smaller companies could cartelize somehow to combat the patent monopolies of the big companies–for example perhaps they could form defensive patent pooling arrangements–pools that might under current law violate antitrust (I am not sure, have not looked into it in detail). I.e., the antitrust law (maybe) gives enough of an exemption to big companies to acquire large patent monopoly arsenals and to cross-license with each other forming anticompetitive barriers to entry but does not give enough of an exemption for smaller companies to collude and cartelize and form defensive patent pools. I sense that this is basically one thing that is going on.

Another example would perhaps be Big Sports. If I recall correctly federal antitrust law had to grant a special exemption to certain college or large sports leagues, so that they would not be hampered by antitrust law. I can imagine that the combined effect of antitrust law and the special exemption might give some favoritism to the NFL etc. This may be on point but not sure it’s the only one: http://en.wikipedia.org/wiki/Sports_Broadcasting_Act_of_1961.

Archived comments below:

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Bennette Sebastian November 12, 2010 at 2:31 pm

Libertarianpress.blogspot.com

Ohhh Henry November 12, 2010 at 4:58 pm

It is not unprecedented for different factions of government to fight with each other for the right to control and steal from the public. In Nazi Germany the rivalries between top leaders were notorious. It was said to be one of Hitler’s favorite management techniques, to give ambivalent orders for overlapping responsibilities to two or more of his underlings. In Mao’s Cultural Revolution the factional rivalries apparently got so heated that there were army units fighting in the streets with tanks. In these extreme cases it may have been the deliberate policy of top leaders to divide and control their underlings, or it may be a natural and inevitable result of total government.

Each government department naturally wants to expand forever. When the public has been so tyrannized that there is almost no activity left which is not already controlled by some part of government, the departments must then fight to displace each other if they want to expand. Given the recent lack of fresh, new wealth and unregulated, successful industries to control and plunder in America, perhaps you will see a turf war between the IP Zealots and the Trust Busters.

Stranger November 13, 2010 at 1:40 pm

The distinction is really quite obvious. Anti-trust law limits what you can do with your property, while IP laws limit what other people can do with your property (you are still free to limit or not limit other people’s access to your own property).

This makes anti-trust laws anti-economic, while IP laws are pro-economic.

Stephan Kinsella November 13, 2010 at 2:25 pm

Stranger, you are confused: IP laws tell others what they can do with their OWN property. For example one effect of a patent on a method for tweaking your engine to get better mileage would be that I cannot tweak my own car’s engine to get better mileage.

Stranger November 13, 2010 at 2:45 pm

There’s no need for me to explain this fallacy, as Rothbard already did so long ago in Man, Economy and State.

http://mises.org/rothbard/mes/chap10e.asp#7._Patents_Copyrights

Matthew Swaringen November 13, 2010 at 3:21 pm

You said “IP law” when you should have said copyright then. If you agree only with copyright you should clarify your terms. You engage in (perhaps unintentional) deception when you have spoken in defense of IP only to trump someone who gives a patent example with talk of how only copyright is valid.

Nevertheless, Rothbard was wrong.

“For literary creations are unique products of the individual; it is almost impossible for them to be independently duplicated by someone else.”

One might agree with this statement, but it only applies towards the whole sum of a book. Surely someone can write a similar plot, paragraph, character, or come up with a similar name? And yet copyright applies not only to entire books. There is “fair use” but fair use excludes the right to produce adaptations or extended works. Why would Rothbard disallow this? He might not disallow this, in which case his argument is not for anything like current copyright law. The problem is he doesn’t say, so exactly what copyright entails is entirely unclear.

He does imply copyright could be used for inventions that are sold, requiring the purchaser not to reverse-engineer them. But say that the purchaser does anyway, and a third party benefits who wasn’t party to that agreement. Say the third party has no knowledge of that agreement whatsoever, and produces a similar device. What recourse has the original seller against the third party? And what justification is there for recourse?

Rothbard didn’t think this through. And the reason he didn’t think this through is because the conditions of his time didn’t warrant a lot of thought on the subject. This is unfortunate. I think if Rothbard were from this era he would have come to the right conclusions. You may think differently on that matter, but what should at least be clear is that Rothbard didn’t spend nearly sufficient time to explain the whole of what his copyright entailed in comparison to the state, and all of it’s ramifications in a society where copying is nearly free.

“There would, however, be copyright for any inventor or creator who made use of it, and this copyright would be perpetual, not limited to a certain number of years. Obviously, to be fully the property of an individual, a good has to be permanently and perpetually the property of the man and his heirs and assigns.”

This idea is not so devastating when one thinks of an entire book and the rights to print and reproduce that book, except what if the heirs of the man’s heirs are fools and don’t give anyone the right to print the book, a choice the man would not have made? What if knowledge is lost to all because of their choice? This is ok? Perhaps to you it is, but to me it is a travesty.

When I think of land as property, I think of homesteading and improvements made to the land. But if an heir allows the property to be reclaimed by nature, does not exist on the land or use the land… is he the owner of it? I would say he isn’t any longer. One cannot gain land simply by claiming it, one has to do something to earn that ownership. And that something has to continue. To disagree with this principle is to say that ownership should last even when the scarce resources aren’t in use, and to say that I should be able to claim “all unused parts of the world” and shoot anyone who dares enter them.

ABR November 14, 2010 at 12:24 am

Rothbard believed that land once homesteaded must remain ‘owned’ until or if the owner declares otherwise.

Matthew Swaringen November 14, 2010 at 1:38 pm: I wouldn’t agree with him on that either.
Zorg November 14, 2010 at 8:34 pm: As I recall, he left the door open for abandonment of property in land.
His underlying assumption was that the present owner of record had
the superior *claim*. If another comes along to challenge that claim, then
that newcomer would have to show that his claim is superior.

Rothbard pretty much dismissed other theories of land ownership. He
talked about the importance of land being managed by absentee owners
and speculators even if it’s “unused” at present. I think he correctly sensed that there are a lot of pitfalls here. Some people have gone over the edge and seem
to want to start from scratch. If that is not a recipe for disaster, I don’t know
what is.

Rothbard just said that you’d have to challenge a title and then prove your
case. I don’t think he dismissed the idea that property could be considered abandoned at some point and that a “squatter” could homestead it. But he
was arguing against people – mostly socialists of one kind or another – who
still view property through collectivist lenses even when they give a nod to
private property.

I think there is more work to be done regarding land just like there is more
to be done on IP and other property issues. It does take time for these issues
to unfold and get the attention they deserve. Bad arguments take time to
reveal all their flaws just as good arguments need to be proven over time as they
withstand the attacks of less worthy arguments.

Latarsha Aunkst November 27, 2010 at 11:56 am

I’m sure I will get very angry reading more of this.

See Hsieh and Mossoff on IP and Sewing Machines; When Antitrust and Patents Collide (Rambus v. FTC); The Schizo Feds: Patent Monopolies and the FTC; The Schizophrenic State; Intel v. AMD: More patent and antitrust waste; Are Patents “Monopolies”?; Patents, Prescription Drugs, and Price Controls. [↩]
See note 10 and accompanying text of my article Reducing the Cost of IP Law (“Once again, as in the case of minimum-wage, social-security, and prounion laws, federal legislation works in favor of big business, … For a recent example, UPS is currently lobbying Congress to enact legislation that would redefine its rival, FedEx, as a trucking company rather than the airline it started out as in an attempt to make it easier for the Teamsters union to unionize FedEx drivers and raise their wage rates—and of course FedEx’s cost structure. See Del Quentin Wilber & Jeffrey H. Birnbaum, Taking the Hill By Air and Ground: Shift in Congress Favors Labor, UPS Over FedEx, Washington Post (September 14, 2007).

See also Murray N. Rothbard, Origins of the Welfare State in America, Mises.org (1996) (“Big businesses, who were already voluntarily providing costly old-age pensions to their employees, could use the federal government to force their small-business competitors into paying for similar, costly, programs…. [T]he legislation deliberately penalizes the lower cost, ‘unprogressive,’ employer, and cripples him by artificially raising his costs compared to the larger employer.… It is no wonder, then, that the bigger businesses almost all backed the Social Security scheme to the hilt, while it was attacked by such associations of small business as the National Metal Trades Association, the Illinois Manufacturing Association, and the National Association of Manufacturers. By 1939, only 17 percent of American businesses favored repeal of the Social Security Act, while not one big business firm supported repeal.… Big business, indeed, collaborated enthusiastically with social security.”); Llewellyn H. Rockwell, Jr., “The Economics Of Discrimination,” in Speaking of Liberty (2003), at 99 (“One way the ADA [Americans with Disabilities Act] is enforced is through the use of government and private ‘testers.’ These actors, who will want to find all the “discrimination” they can, terrify small businesses. The smaller the business, the more ADA hurts. That’s partly why big business supported it. How nice to have the government clobber your up-and-coming competition.”); Rothbard, For A New Liberty (2002), pp. 316 et seq.; Rothbard, The Betrayal of the American Right, 185-86 (2007) (“This is the general view on the Right; in the remarkable phrase of Ayn Rand, Big Business is ‘America’s most persecuted minority.’ Persecuted minority, indeed! To be sure, there were charges aplenty against Big Business and its intimate connections with Big Government in the old McCormick Chicago Tribune and especially in the writings of Albert Jay Nock; but it took the Williams-Kolko analysis, and particularly the detailed investigation by Kolko, to portray the true anatomy and physiology of the America scene. As Kolko pointed out, all the various measures of federal regulation and welfare statism, beginning in the Progressive period, that Left and Right alike have always believed to be a mass movement against Big Business, are not only backed to the hilt by Big Business at the present time, but were originated by it for the very purpose of shifting from a free market to a cartelized economy. Under the guise of regulations “against monopoly” and “for the public welfare,” Big Business has succeeded in granting itself cartels and privileges through the use of government.”); Albert Jay Nock, quoted in Rothbard, The Betrayal of the American Right, 22 (2007) (“The simple truth is that our businessmen do not want a government that will let business alone. They want a government they can use. Offer them one made on Spencer’s model, and they would see the country blow up before they would accept it.”).

See also Timothy P. Carney, The Big Ripoff: How Big Business and Big Government Steal Your Money (2006), and also Rothbard, Confessions of a Right-Wing Liberal (“This is the general view on the right; in the remarkable phrase of Ayn Rand, Big Business is “America’s most persecuted minority.” Persecuted minority, indeed! Sure, there were thrusts against Big Business in the old McCormick Chicago Tribune and in the writings of Albert Jay Nock; but it took the Williams-Kolko analysis to portray the true anatomy and physiology of the American scene. … As Kolko pointed out, all the various measures of federal regulation and welfare statism that left and right alike have always believed to be mass movements against Big Business are not only now backed to the hilt by Big Business, but were originated by it for the very purpose of shifting from a free market to a cartelized economy that would benefit it. Imperialistic foreign policy and the permanent garrison state originated in the Big Business drive for foreign investments and for war contracts at home.”)

[Update: But see Robert L. Bradley, Jr. and Roger S. Donway, “Reconsidering Gabriel Kolko: A Half-Century Perspective,” The Independent Review (Spring 2013). According to Sheldon Richman (private correspondence, Dec. 15, 2025: “I’ll give him [Donway] and Rob Bradley credit for showing that Kolko’s scholarship was flawed.”]

See also the Wikipedia article on Rothbard: “Rothbard was equally condemning of relationships he perceived between big business and big government. He cited many instances where business elites co-opted government’s monopoly power so as to influence laws and regulatory policy in a manner benefiting them at the expense of their competitive rivals. He wrote in criticism of Ayn Rand’s “misty devotion to the Big Businessman” that she: “is too committed emotionally to worship of the Big Businessman-as-Hero to concede that it is precisely Big Business that is largely responsible for the twentieth-century march into aggressive statism…”^[49] According to Rothbard, one example of such cronyism included grants of monopolistic privilege the railroads derived from sponsoring so-called conservation laws.^[50]” [↩]

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Laugh at the State, Mock the Regime

by Stephan Kinsella on November 11, 2010

[From my Webnote series]

From LRC and Libertarian Standard:

Laugh at the State, Mock the Regime

By Stephan Kinsella / November 11, 2010

Kathryn Muratore, James Ostrowski and I were recently discussing over email one proposal some people are bandying about as a response to the TSA naked scanner abomination (see Kathryn’s blog Stop TSA Scanners). The proposal is to serve the TSA by filing some kind of “Show Cause Order” in federal court, to demand the TSA “give a reason for them to continue to do these searches which are clearly unconstitutional”–thus you bury the TSA in paperwork and back them into a corner using this “Show Causes” maneuver. Now this sounds a little desperate and crankish to me, sort of like all these “common law court” nuisance liens the gold-fringe-on-the-“admiralty”-flag crowd like to file (which may be heroic, though futile, since the states just criminalize it).

But I don’t know; I’m not a litigator. Ostrowski’s view was: “I’m a big believer in direct action and not litigation. The best way to stop this is through a boycott and/or street theater–make fun of this odious practice.”

He has a good point. Earlier this year I was on a panel (discussed here) with Hoppe and DiLorenzo. In response to a question about the prospects for liberty, I noted the importance of economic literacy, in part to deflate the mistaken belief on the part of decent people that the state is necessary and legitimate. Without the tacit support of the state’s legitimacy, it could not exist. And this is why it is important to laugh at the state. Hoppe agreed, saying he has actually considered featuring a libertarian comedian at an upcoming event, and DiLorenzo explained that one reason he often mocks the state and its media cheerleaders is for this very purpose–he gave the example of ridiculing Rachel Maddow in a recent LRC post where he referred to her getting her “panties in a knot”. We need to show these people as buffoons and clowns and to make people take them less seriously. (See also the Mises Daily article Laughing at the Regime.)

So: laugh at them, mock them, ridicule them, jeer them, scoff. Do not take them seriously.

[Cross-posted from LRC]

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Libertarian Papers Submissions: Referees Sought

by Stephan Kinsella on November 10, 2010

From Libertarian Papers:

I am seeking volunteer referees to review 7 draft articles submitted to Libertarian Papers. I list the titles and Abstracts of a few of them below.

If you are potentially interested in reviewing any of these, or if you have any particular referee suggestions for any of them, please contact me. I’d be happy to send blind drafts to anyone who is interested in considering reviewing any of these.

***

1. “Government Through The Eyes of Emergence”
Abstract: Examining the legitimacy of government by using Reductionist and Emergent principals. The essay addresses issues on morality, the is – ought fallacy, and the misrepresentation of government.

2. “Choice and Language Shift”
Abstract: What is the adequate normative response to a growing trend of language shift in a given small linguistic community, either a minority or a majority community in a given liberal country? This essay attempts to answer this question. I shall analyze carefully whether the members of this small linguistic community choose to continue (or choose not to continue) to use their mother tongue. Carefully examining the ‘choice’ aspect of the decision to shift from language A to B is important for the analysis of a language shift scenario, as a proper understanding of the ‘shifting decision’ is crucial for any attempt to theorize about the proper governmental response to a language-shift scenario.

I shall analyze the decision to shift from one’s mother tongue to a different language, following three different theoretical perspectives: libertarian, left-liberal, and national/identity. Following which I shall analyze three potential governmental responses to a language shift scenario from the same three theoretical perspectives: libertarian, left-liberal and national/identity. The last part of the essay discusses arguments that may assist us in deciding among the potential governmental responses described.

3. “The Current Evidence for Hayek’s Cultural Group Selection Theory”
Abstract: In this article I summarize Friedrich Hayek’s cultural group selection theory and describe the evidence gathered by current cultural group selection theorists within the behavioral and social sciences supporting Hayek’s main assertions. Before concluding with a few comments on Hayek as a libertarian, I also describe three ways in which current cultural group selection theory has superseded Hayek’s views.

4. “Reexamining the Federal Monetary Powers”
Abstract: The present paper challenges today’s consensus that the Constitution plays no role in limiting the federal government’s exercise of its monetary powers. Noting a growing international consensus regarding the need for monetary reform and reviewing the Supreme Court decisions which led to today’s American monetary system, the author argues that unless the Constitution is returned to its proper role in limiting the federal government’s exercise of monetary powers, a legal system may emerge far beyond the control of the American people and absolutely contrary to their best interests.

5. “Praxeological implications for Belief and the case against Value Pluralism”
Abstract: In this brief essay, I outline the implications of Praxeology for a variety of kinds of Value pluralism. I attempt to show how action, logic and even belief itself, results in a self refutation of these doctrines.

6. “Mises’s Defense of Liberty: A Critique”
Abstract: What this paper attempts to demonstrate is that, in his treatise Liberalism, Mises’ defense of liberty is incomplete because his reasoning in favor of liberty for all is – not of a moral, but – exclusively of an economic kind. Without a moral justification, Mises’s defense –- once the aim of productivity has been abandoned–is forced to affirm with cold indifference that a society of slaves is no better or worse than one of free men. There exists a more comprehensive defense.

7. “Contemporary Philosophy Versus the Free Society“
(from introduction): Some would have it that we can have a philosophy of freedom without, well, a philosophy. In other words, they find it rather pointless to dwell on various philosophical topics, such as free will versus determinism, the problem of knowledge, what is the nature of right conduct and so forth. Instead they wish to focus on so called practical issues, such as how much prosperity or science or satisfaction is produced in a relatively free versus planned society. As if these considerations didn’t have some philosophical dimensions.

Without by any means implying that philosophical issues are exclusively central to a defense of a just system of human community life, it would be of some value to see what philosophy can—indeed, needs to—contribute to such a task. Let me take a brief look at some of the most important of these.

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Caplan: Why TV is Great for the Family

by Stephan Kinsella on November 9, 2010

Love this post by Bryan Caplan:

Why T.V. is Great for the Family

Yesterday my baby acquired a valuable life skill: He learned how to watch television. I’m thrilled for at least three reasons:

1. Television is fun. I don’t want my son to miss out on one of life’s great pleasures.

2. Television is a cheap electronic baby-sitter that allows parents of young kids to get a much-needed break.

3. When my son is older, the threat to deprive him of television will become one of our most convenient and effective tools of discipline. The naughty corner‘s usually enough, but when bad behavior persists, it’s time for a night without t.v.

Won’t t.v. stunt my baby’s cognitive development? Hardly. Twin and adoption studies find zero long-run effect on IQ of all family environment combined. Television’s isn’t just a drop in the bucket; it’s a drop in a bucket that doesn’t hold water.

One reason I like it is I’m sick of “Oh, I don’t have a television” snobs. Also of hand-wringing one-size-fits-all humorless drones.

Another development I like is the rise of the slackers and hackers and young who don’t have TVs anymore, not because they are anti-TV pretentious faux-intellectual snobs, but because they are cheap (though some pretend they are not) and prefer to use Hulu, laptops, Netflix streaming, and so on instead of paying for cable.

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Peikoff Watch: Nov. 4, 2010

by Stephan Kinsella on November 4, 2010

In recent Leonard Peikoff podcasts, we learn:

Peikoff forbids the Kindle version of Atlas Shrugged from using the text-to-speech option because he knows Ayn Rand would not have wanted this. I guess there are no blind Objectivists! (Episode 132, at 13:52-)
The proper use of profanity in sex;
It’s okay to use porn for masturbation but … maybe not (you might be enabling an immoral career choice);
If your neighbor has a yappy dog buy an “air” gun to shut him up and when that doesn’t work sue the neighbor;
It’s okay for the state to ban a political party during wartime, but not in peacetime;
Why the Tea Party might be somewhat beneficial, but not too much (okay this is a decent commentary);
What kind of sex life is appropriate for Eddie Willers;
Is it an Objectivist sin to look at Munch’s The Scream?

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Why Is Jonah Goldberg Still Here?

by Stephan Kinsella on November 2, 2010

From LRC 2010:

Why Is Jonah Goldberg Still Here?

Stephan Kinsella

Karen Kwiatkowski’s LRC article today, Why Is Jonah Goldberg Still Here?, reminded me of my 2001 LRC article On Jonah Goldberg’s Youthful Phase. Kwiatkowski pointed out Goldberg’s wickedness and dishonesty; my article noted his abysmal ignorance—or dishonesty—about libertarianism and his wicked statism—his sneering objection to the idea that libertarians oppose state violence. As Kwiatkowski observes, he’s not only in favor of state violence but apparently private violence too—namely, assassination of people who don’t go along with his pro-state violence bluster. What a vile person. Why is he still here?

6:54 am on November 2, 2010

Email Stephan Kinsella

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Against Intellectual Property in Italian

by Stephan Kinsella on November 1, 2010

Contro La Proprietà Intellettuale (Amazon.it), Italian translation of Against Intellectual Property, edited, translated, and with a preface by Roberta A. Modugno (Soveria Mannelli: Rubbettino Editore, Nov. 2010) (“Il giurista Kinsella non ama l copyright,” review by Alberto Mingardi, Domenica, 6 Marzo 2011, N.10) [Amazon Italy version]. An English version of Roberta Modguna’s Preface is pasted below.

The pdf and .doc files for another translation are available for download here.

***

Against Intellectual Property

Preface

Stephan Kinsella’s Against Intellectual Property is an important intervention in libertarian political theory. In order to appreciate its significance, one needs to situate it within the background of this political doctrine.

Libertarianism, a variant of classical liberalism, is an American political movement that originated after World War II.[1] Murray Rothbard, an economist and historian, was the principal exponent of one variant of libertarianism, and he is the chief intellectual influence on Kinsella. In general terms, libertarianism carried to extreme lengths the opposition to the New Deal of Franklin Roosevelt and the socialism of the post-1945 British Labour Party. Perhaps the most notable expression of this opposition was Friedrich Hayek’s famous The Road to Serfdom (1944), which warned that the patterns of thought found in advocates of the welfare state repeated dangerous ideas favored by pre-war Continental intellectuals. These thinkers, of whom Karl Mannheim was for Hayek the chief villain, showed themselves willing to suppress liberty, if necessary, in order to put into effect their economic plans. In so doing, Hayek argues, they paved the way for the totalitarian evils of Nazi Germany.

Hayek’s thesis aroused much controversy, but one group maintained that he had not gone far enough. Hayek, although strongly critical of planning, allowed substantial room for state intervention in the economy. He expressly repudiated laissez-faire, arguing that a genuine free market required a carefully constructed legal framework in order to operate properly. He allowed for state provision of basic welfare services, a position he elaborated at greater length in his The Constitution of Liberty (1960).

Libertarians such as the novelist Ayn Rand and Leonard Read, head of the Foundation for Economic Education, maintained that such concessions to contemporary opinion were unneeded and in fact harmful. Voluntary charity would suffice to take care of welfare, if given a chance; besides, the use of state compulsion violates individual rights.

Murray Rothbard, an economist who graduated from Columbia University in New York shortly after World War II, became attracted to the free market position of the Foundation for Economic Education, but he soon carried matters further to develop his own distinctive and radical variety of libertarianism. Rothbard attended the seminar conducted by the great Austrian economist Ludwig von Mises at New York University and soon became an ardent advocate of Mises’s system of economics.[2]

The economics of Mises fitted very well with libertarianism; Mises contended that all economic systems other than the free market were doomed to failure. Rothbard asked the question, if the free market works so well, why do we need a government at all? Could not private protection agencies assume all the functions commonly assigned to government? Rothbard answered that the free market could indeed be extended in this way, a conclusion that put him decidedly at odds with Mises. In taking this path, Rothbard was influenced by the nineteenth century American individualist anarchists Benjamin Tucker and Lysander Spooner, who had likewise opposed a monopoly state. He differed from these predecessors, though, in adding Austrian economics to their anarchism. Tucker and Spooner were, in Rothbard’s view, monetary cranks, who lacked an appreciation of the importance of sound money and capital investment.

In the foundations of his political philosophy, Rothbard again broke with his teacher Mises. As Mises saw matters, natural law was an outdated idea, which falsely claimed that certain subjective preferences had universal validity. One should rather, Mises thought, openly acknowledge that all ethical judgments are no more than expressions of personal preference. Contrary to what one might at first think, this course of action did not make an effective defense of the free market impossible. Quite the contrary, the fallacy of any attempt to intervene in the free market could be readily shown, without any appeal to controversial value judgments. One can defend the market by showing that interventionist measures fail to achieve the goals of their own advocates. The defender of the market thus stands acquitted of the charge of imposing his subjective preferences on those who do not share them.

For Rothbard, this was not enough. He believed, contrary to Mises, that ethics was an objective science. As he explained in Power and Market and The Ethics of Liberty, each person is a self-owner. No one can coerce or threaten to coerce him, unless he initiates force against others.

If this self-ownership principle is combined with the assumption that land and resources are initially without owners, a controversial conclusion readily results. (The Marxist philosopher G.A. Cohen has questioned the view that land begins unowned.[3]) If people own themselves, then they also own their labor. If they then mix their labor with land, they acquire it. This account is of course derived from John Locke; but Rothbard takes it to much more radical lengths than his great seventeenth-century predecessor. For Rothbard, Lockean acquisition of property leaves no room at all for a state or for any non-voluntary provision of welfare.

We have devoted time to discussing Rothbard because his thought forms the basis of Stephan Kinsella’s monograph on patent and copyright law. Like Rothbard, Kinsella takes the self-ownership principle as fundamental. He does not, though, ground morality in natural law, in the style of Rothbard. He instead follows the Kantian argument of Rothbard’s follower Hans-Hermann Hoppe. In his The Economics and Ethics of Private Property and other books, Hoppe developed a new argument for self-ownership, which modified the communication ethics of Karl-Otto Apel and Juergen Habermas,[4] under whom Hoppe had studied. According to Hoppe, anyone who denies self-ownership falls into a sort of contradiction. Hoppe’s argument has engendered much controversy among libertarians; but Rothbard viewed it with favor.

Even though Kinsella differs from Rothbard in rejecting natural law, the principal interest in Against Intellectual Property lies elsewhere. At first sight, one might wonder why a monograph on patent and copyright law would be of general interest to those interested in classical liberalism. Is not the topic of what protection, if any, inventions and books ought to receive of rather specialized interest? In defending his view, Kinsella extends standard Rothbardian libertarianism; and it is in this extension that the main importance of the work lies for those who wish to understand classical liberalism.

To understand Kinsella’s extension, we must first grasp his conclusion about patents and copyrights. He resolutely rejects these, as well as other forms of intellectual property. If Kinsella wishes to adopt this view, he of course needs to confront the question, how might a libertarian supporter of intellectual property defend patents and copyrights? The answer lies readily at hand. He would argue that because each person owns his own labor, people are also entitled to the products of their intellectual labor. Specifically, patents and copyrights are legitimate: they secure the property rights that are due to intellectual labor. The logic appears inescapable. If you are a self-owner, then you own your own labor; and if you own your own labor, then patents and copyrights are legitimate. How can Kinsella, who rejects patents and copyrights, avoid this repugnant conclusion?

The argument is no mere hypothetical possibility. As Kinsella makes clear, defenders of patents and copyrights have argued in the way just suggested. In particular, to followers of Ayn Rand, intellectual property is the central case of private property. Philosophers, called Objectivists, who accept her views argue in precisely the way sketched above. Kinsella pays particular attention to one such Objectivist philosopher, David Kelley.

In addition, the Austrian economist Israel Kirzner, although he does not address patents and copyrights directly, uses a variation of the argument for patents and copyrights as his central argument for all private property. As he sees matters, people who devise new uses for resources are in effect creating the resource and are thus entitled to own it.[5] For him, as for the Objectivists, ownership of one’s intellectual output is basic.

To return to our question: what is Kinsella to do? He cannot reject the first premise of the argument. To the contrary, he resolutely affirms it: people are self-owners. He responds to the argument instead by rejecting the contention that ideas can be owned. Only physical objects, and claims to them, can be owned. If Kinsella is correct, the argument for patents and copyrights that we have considered collapses. From the initial premise of self-ownership, nothing logically follows about patents and copyrights. Kinsella appears to have solved his problem.

Kinsella makes another important contribution to libertarian theory. He does not reject Locke’s labor-mixture account of initial acquisition of unowned land, but he supplements it with another argument. His new argument proceeds from a penetrating question: what is the need for private property at all?

Kinsella answers that private property stems from scarcity. If we lived in a world of abundance, in which everyone could have as much of any resource he wanted without detracting from anyone else’s share, there would be no need for individual property rights. It is only because this happy state of affairs is not to be found in reality that the problem of property arises. Because, contrary to our fantasy, there is not an abundance of resources available to everyone, any society faces a fundamental problem: how are resources to be distributed?

Here, then is our problem: owing to scarcity, property must be assigned to the various members of society. The task cannot be avoided. As Kinsella explains, human action involves the use of scarce means to attain ends. Given the scarcity of means, we need some system of distributing rights to these means, if incessant social conflict is to be avoided.

In a bold stroke, Kinsella argues that only one method of property assignment is rational. Libertarian property rights must be assigned to the first person to use unowned land or resources. How else could one proceed? Surely the first user has a better claim than the second or any subsequent user.

If Kinsella is correct in his derivation of property rights, he has constructed an argument, based on the inevitable social fact of scarcity, that enables him to defend exactly the property rights he supports.

An appeal to scarcity cannot be used to justify patents and copyrights. Ideas, unlike physical resources, are not inherently scarce. My use of an idea does not prevent you from using the same idea. No circumstances of justice compel us to devise a plan to distribute ownership of ideas. As is unfortunately not the case with physical objects, one person’s use of an idea does not interfere with the use of that idea by anyone else.

Patents and copyrights cannot be justified by an appeal to scarcity; but does this fact suffice to show that patents and copyrights should not exist? Perhaps there is some other sort of argument to justify them.

Kinsella blocks any effort to find such an argument by an ingenious move. What happens, he asks, if patents and copyrights exist? Then, people are restricted in the ownership of their own physical resources. If, e.g., you have a patent on the construction of a certain type of machine, then I am not at liberty to build such a machine, even if I own all the resources necessary to do so. If this is true, we face a difficulty. The argument from scarcity has already established that people have libertarian rights to such resources. If so, someone who owns the parts required to construct a machine is at liberty to assemble them, even if in doing this he relies on someone else’s ideas. Patents and copyrights contradict libertarian rights to physical objects, at least if one accepts Kinsella’s account of such rights.

Stephan Kinsella has given us a provocative and original account of libertarian property rights, in the course of a sustained polemic against intellectual property. Those interested in the political theory of classical liberalism and its most radical branch, libertarianism, will find this book essential reading. Kinsella’s arguments against intellectual property will shape all future discussion of this vital problem.

Roberta Adelaide Modugno

[1] For a general history of libertarianism, see Brian Doherty, Radicals for Capitalism, Public Affairs Press, 2007.

[2] See Roberta Modugno, Murray N. Rothbard e il libertarismo americano, Rubbettino Editore, Soveria Mannelli, 1998, for a more detailed account of Rothbard’s views.

[3] See G.A. Cohen, Self-Ownership, Freedom, and Equality, Cambridge University Press, 1995.

[4] See Karl-Otto Apel, Ethics and the Theory of Rationality: Selected Essays of Karl-Otto Apel, Volume 2, Humanities Press, 1996; Juergen Habermas, Moral Consciousness and Communicative Action, MIT Press, 1990.

[5] See Israel M.Kirzner, Discovery, Capitalism, and Economic Justice, Basil Blackwell, 1989.

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Hsieh and Mossoff on IP and Sewing Machines

by Stephan Kinsella on October 31, 2010

In Adam Mossoff in the WSJ, Objectivist Diana Hsieh admits IP is a “thorny” issue. Progress! The WSJ piece citing Mossoff notes: ¹

The Sewing Machine War was the first instance of what is today called a “patent thicket.” The disputes prevented Singer from selling his invention, and tensions ran high in and out of court: When Howe personally called on Singer, Singer threatened to throw him down a flight of stairs.

But there’s a happy ending to the story, as your machine-stitched clothes evince. The Sewing Machine War ended with a just and lasting peace in 1856, when Orlando B. Potter–a lawyer representing one of the plaintiffs–suggested a solution that Mossoff calls “groundbreaking but also breathtakingly simple”: The patent-holders would combine their patents in a “patent pool” and share the profits from selling the machines. The patent pool participants lived happily and wealthily ever after—or at least until 1877, when the last patent expired.

The happy ending is that the holders of patent monopolies granted by the states pooled them to form a united front to quash competition. Thus larger companies erect barriers to entry, partially monopolizing a field, with the help of the monopolies granted by the state. Ironically, the state then turns around and uses its own antitrust law against them–as the article notes, “anti-trust legislation today would likely render a smartphone patent pool an impossibility.” ²

Quoting Mossoff, the article says:

the fact remains that lawsuits are often no more than an invitation to negotiation. “Oftentimes the way a party signals to another party in one’s industry, ‘I’m serious about this–you need to speak with me,’ is by filing a lawsuit,” says Mossoff.

Ha! Extortion is an “invitation to negotiate.” The euphemisms for statist aggression are many and varied–collateral damage, and so on.

And most companies do reach amicable licensing agreements where they use one another’s technology for a fee.

Amicable! This means friendly. Yes. Very friendly to threaten to sue someone unless they pay you not to.

The article concludes:

So while the maze of patent lawsuits might seem like wasteful litigation, Mossoff cautions that the opposite might very well be true. Those who defend the patent system and intellectual property rights argue that it encourages innovation by ensuring that inventors get their due. “What the patent system is about is not what’s happening today or yesterday, but what’s going to happen tomorrow,” says Mossoff.

This seems to recognize that IP creates injustice, but that those who favor it think it’s worth it in the long run, for the sake of higher goals. This is exactly the structure of the argument normal statists use to endorse conscription, taxation, and so on–that the violations done to individuals are “worth it” for the greater good.