[From my Webnote series]
On adding contingent postulates to make analysis “interesting” and useful, see
- Stephan Kinsella, Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023) ch. 5 n.36
No, he was not talking about marriage. He was talking about an aspect of the praxeological approach to economics, in which we start with certain incontestable (apriori) propositions (related to human action and its categories), and we explicitly introduce certain contingent facts to make the inquiry interesting. For example, we posit a society with money instead of a barter society. This insight of Mises has long intrigued me.
As I wrote in my article Knowledge, Calculation, Conflict, and Law (a review essay of Randy Barnett’s The Structure of Liberty):
… Barnett does not provide a rigorous argument showing where are the exact limits of the ability to deduce concrete rules. He evidently feels that the more abstract principles can, for some reason, be established by armchair theorists. If denizens of the ivory tower can do this, why can they not deduce or establish more concrete rules by simply considering more and more contextual facts? In the Roman law system—a somewhat decentralized legal system superior in many ways to the common law—Roman jurists (jurisconsults) helped develop the great body of Roman law by providing opinions on the best way to resolve disputes. These disputes were often purely hypothetical or imaginary cases, in which the jurists asked: “under such and such a possible or conceivable combination of circumstances, what would the law require?” 1 It is conceivable that a large part or even all of the legal code existing in a given society can be “deduced” in this fashion, and then these rules applied like precedents to actual controversies as they arise. As a libertarian (and, I confess, a lawyer), I must say that I believe I would be more comfortable living under a set of concrete rules deduced by libertarian philosophers than the (perhaps more concrete) set of rules developed under the actual common law.
Still, Barnett’s argument in favor of a common-law system makes sense, even to libertarians who favor a deductive approach to rights …. Legal rules must be concrete in the sense that the rules must take into account the entire relevant factual context. Since there are an infinite number of factual situations that could exist in interactions between individuals, a process which focuses on actual cases or controversies is likely to produce the most “interesting” or useful rules.26 It probably makes little sense devoting scarce time and resources to developing legal precepts for imaginary or unrealistic scenarios. If nothing else, a common-law type system that develops and refines legal precepts as new cases arise serves as a sort of filter that selects which disputes (i.e., real, commonly-encountered ones) to devote attention to.
26This is analogous to Mises’s method selecting certain empirical assumptions (e.g., assuming there is money instead of barter) to develop “interesting” laws based on the fundamental axioms of praxeology, rather than irrelevant or uninteresting (though not invalid) laws. …



















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