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Mises Academy Webinar: Stephan Kinsella addresses Obama's Patent Reform: Improvement or Continuing Calamity?Kinsella on Liberty Podcast, Episode 164.

Friday, Sep. 23, 2011, I conducted a Mises Academy Webinar discussing the America Invents Act, signed into law Sept. 16 2011 by President Obama. I discussed the webinar in a Mises Daily article, Obama’s Patent Reform: Improvement or Continuing Calamity? and discussed the AIA in further detail in The American Invents Act and Patent Reform: The Good, the Meh, and the Ugly.

In the webinar, I:

  1. summarized the basic problem with patent law from a free-market perspective;
  2. presented a series of real patent reforms that could make significant improvement in patent law (short of abolition);
  3. explained and critiqued the relevant changes made by the America Invents Act;
  4. briefly summarized other imminent IP legislation and treaties on the horizon; and
  5. responded to questions from attendees.

The slides used in the webinar are provided below.

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KOL163 | CTIR Interview on Intellectual Property

Kinsella on Liberty Podcast, Episode 163.

I was interviewed yesterday by James Sirois of the Critical Thinking is Required podcast, episode 27. The shownotes are below:

Released: December 2, 2014      By: James

In CTIR Interview 27: Stephan Kinsella (Intellectual Property), I interview Stephan Kinsella about intellectual property. Specifically, we discuss copyright, trademark, patent, and trade secret law. Additionally, we analyze how these various types of law stifle innovation and competition.

Critical Thinking is Required is a political and educational podcast for individuals with endless curiosity.

Thank you for listening to CTIR. If you enjoyed the show, please share it with your friends.

http://criticalthinkingisrequired.com

Thank you Mevio’s Music Alley for providing license free music.

The intro and outro song is titled “Power Within Me” by Junga World.

Sources:

http://www.stephankinsella.com/ http://mises.org/library/against-intellectual-property-0 http://www.scotusblog.com/2014/12/argument-preview-justices-will-use-rare-look-at-trademark-law-to-consider-broad-and-narrow-conceptions-of-trademarks/

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Kinsella on Liberty Podcast, Episode 162.

Interview on IP and libertarianism by Fabrizio Sitzia, LibertariaNation.org (Italy) (April 15, 2012; recorded Feb. 23, 2012)

I was interviewed Feb. 23, 2012, by Fabrizio Sitzia of the Italian libertarian group LibertariaNation.org. It was posted on YouTube. We discussed intellectual property and related issues such as SOPA, plagiarism, IP-by-contract, and other libertarian issues such as prospects for liberty in the future; the importance of technology, the Internet, and globalism; Ron Paul and electoral politics; and libertarian sentiments and receptiveness among today’s young people. (See also Italian Libertarian IP Debate.)

More info at the LibertariaNation post Intervista a Stephan Kinsella (English translation from Google translate).

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Rothbard on Leonard Read and the Origins of “Libertarianism”

In a previous post I observed that modern libertarianism originated with the thought of Rand, Rothbard, Friedman, Hazlitt, and Read in the 1960s and 1970s (and that the term “libertarian” can perhaps be traced back to 1802). I’ve also argued that the key figure of modern libertarianism, ultimately, was Murray Rothbard, “Mr. Libertarian.”1 I still think this is right, but it’s interesting to note that in Rothbard’s journal Libertarian Forum, this distinction was bestowed upon Leonard Read in his obituary, in Vol. 17.5-6, May-June 1983, Rothbard (presumably it was Rothbard, as the editor), wrote:2

More than any other single person, Leonard was the founder of the modern libertarian movement. …

In addition, more than anyone else Read coined the name “libertarian” for the current movement. Before that, we had no single name, awkwardly going back and forth between “individualist” and “true liberals”. The problem with the latter phrase is that the quasi-socialists had already succeeded in appropriating the term “liberal”, and calling ourselves “true” anything was confusing and hardly persuasive. And the term “individualist” tended to confuse political philosophy with possessing a spirit of individual autonomy. Read and a few others launched the term “libertarian” for the freedom philosophy, and it stuck—the only case I know of when we were able to appropriate a word from others. For before that, communist-anarhcists had often referred to themselves as “libertarian.” The first time when we were referred to publicly as “libertarians” was in an odious book, published in the 1950’s, by a certain Ralph Lord Roy, entitled Apostles of Discord. There was a repellent literature in those days of works written by aggressive centrists and “moderates” who pilloried all “extremists” as per se evil. Roy, a Social Gospel Protestant, wrote his book to attack both Communist and ultra-rightist “extremists” in the Protestant church. That was par for the course in those days, but lo and behold! he included a chapter called “God and the ‘Libertarians'”, spotting quasi-anarchistic extremists then centered around a libertarian publication for Protestant ministers called Faith and Freedom.  Libertarianism had arrived on the American ideological scene.

Ironically, as Rothbard goes on to note, “In later years, Leonard Read drew away from the libertarian movement which he had named and founded.”

 

  1. Libertarianism After Fifty Years: What Have We Learned? (transcript). []
  2. The PDF and HTML versions of the journal are apparently down now, but .mobi and epub versions are available here. []
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Below is an unedited (raw) transcript of my Yale speech “Balancing Intellectual Property Rights and Civil Liberties: A Libertarian Perspective,” available at KOL151. [click to continue…]

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Below is an edited transcript of my presentation “Argumentation Ethics, Estoppel, and Libertarian Rights” delivered (by remote video) at the 6th Adam Smith Forum, Moscow, Russia (Nov. 2, 2014).

Video and audio for the speech, plus further information and related resources, are available at Kinsella on Liberty Podcast, Episode 161.

 

Argumentation Ethics, Estoppel, and Libertarian Rights 

Stephan Kinsella
6th Adam Smith Forum, Moscow, Russia
Nov. 2, 2014
(Edited transcript)

Hello. This is Stephan Kinsella. I am speaking today from Houston, Texas in the United States. I am happy to be able to present to the Adam Smith Forum and I appreciate the invitation to speak. I did speak here in 2011,1 remotely that time as well. I was unable to attend in person. And I hope to remedy that someday and to visit Moscow and Russia. But I appreciate the invitation.

Today’s topic will be on “Argumentation Ethics, Estoppel, and Libertarian Rights”. I have spoken and written on these topics before. More detail can be found in the notes to the podcast I will do of this lecture after the event. But if you want to follow up you can go to my website which is stephankinsella.com and I will have resources available there, primarily a previous Mises Academy course called “Libertarian Legal Theory” and also a course on the social theory of Hans-Herman Hoppe.2

So a brief introduction. I am an attorney in Houston, Texas. I am a long-time libertarian and follower of the Austrian School of Economics, primarily the thought of Ludwig von Mises, Murray Rothbard and Hans-Herman Hoppe, and also have been an anarchist libertarian for quite some time. I have developed my own set of views about libertarian rights and related matters and that’s what the topic of today’s conversation will be. [click to continue…]

  1. KOL108 | “Why ‘Intellectual Property’ is not Genuine Property,” Adam Smith Forum, Moscow (2011).  []
  2. See:

    []

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Kinsella on Liberty Podcast, Episode 161.

This was my (remotely delivered) presentation at the 6th Adam Smith Forum, Moscow, Russia (Nov. 2, 2014):

From the programme:

“Entitled “Argumentation Ethics, Estoppel, and Libertarian Rights,” Kinsella discusses the nature and definition of libertarianism and surveys different arguments and theories for its particular conception of rights and politics, including natural rights, consequentialist, and utilitarian approaches. He concludes with an overview of two more recent and unique approaches to justifying libertarian rights, the “argumentation ethics” approach of Austrian economist and political philosopher Hans-Hermann Hoppe, and Kinsella’s own “estoppel” theory of rights.”

This is my second speech at the Adam Smith Forum; the first was “Why Intellectual Property is not Genuine Property,” 3rd Adam Smith Forum, Moscow, Russia (Nov. 12, 2011), also via remote video. [click to continue…]

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KOL160 | Bad Quaker on IP, Hoppe, and Immigration

Kinsella on Liberty Podcast, Episode 160.

I was on Ben Stone’s “Bad Quaker” podcast yesterday, episode 449. We discussed IP and then some of Ben’s previous comments on Hans-Hermann Hoppe’s views on immigration law.

Related links:

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In the June 15, 1969 issue of The Libertarian Forum, in an article “Massacre at People’s Park,” Murray Rothbard writes:

The cry has gone up that all this was necessary to defend the “private property” of the University of California. In the first place, even if this little lot was private property, the bayoneting, gassing, torturing, and shooting of these unarmed park-developers would have been “overkill” so excessive and grotesque as to be mass murder and torture and therefore far more criminal than the original trespass on the lot. You do not machine-run [sic] someone for stealing an apple; this is punishment so far beyond the proportion that “fits the crime” as to be itself far more criminal than the original infraction. So that even if this property were legitimately private the massacre is still to be condemned.

Secondly, it is surely grotesquerie to call the muddy lot “private property”. The University of California is a governmental institution which acquires its funds and its property from mulcting the taxpayers. It is not in any sense private property then, but stolen property, and as such is morally unowned, and subject to the libertarian homesteading principle which we discuss below. The people of Berkeley were homesteaders in the best American—and libertarian—tradition, taking an unused, morally unowned, muddy lot, and transforming it by their homesteading labor into a pleasant and useful people’s park. For this they were massacred.

This has hints of the leftist and left-libertarian view of property rights—that if there is “taint” or “original sin” in the origin of title to current possessed resources, then the title is not legitimate, and the resource may be regarded as “unowned” and is legitimately subject to homesteading. Why something that is stolen is to be regarded as unowned, as opposed to owned by some dispossessed claimants and original owners, is not clear, and seems to contradict later writing by Rothbard.1

But in any case, later writing by Rothbard, as of 1974 at the latest, seems to reject any such implications. As I noted in my post Justice and Property Rights: Rothbard on Scarcity, Property, Contracts…, Rothbard published his article “Justice and Property Rights,” 1974, and in two forms: first, in Egalitarianism as a Revolt Against Nature and Other Essays, which is available online here; and also, a second version, in Property in a Humane Economy, Samuel L. Blumenfeld, ed. (one of these versions, I can’t remember which, was included in The Logic Action One, which is not online). The two pieces seem identical but the latter version, from the Blumenthal collection, appends an important concluding paragraph that is not present in the earlier version:

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.

It appears that language was 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.

Or, as Rothbard wrote in ch. 9 of The Ethics of Liberty (1982):

To sum up, for any property currently claimed and used: (a) if we know clearly that there was no criminal origin to its current title, then obviously the current title is legitimate, just and valid; (b) if wedon’t know whether the current title had any criminal origins, but can’t find out either way, then the hypothetically “unowned” property reverts instantaneously and justly to its current possessor; (c) if wedo know that the title is originally criminal, but can’t find the victim or his heirs, then (cl) if the current title-holder was not the criminal aggressor against the property, then it reverts to him justly as the first owner of a hypothetically unowned property. But (c2) if the current titleholder is himself the criminal or one of the criminals who stole the property, then clearly he is properly to be deprived of it, and it then reverts to the first man who takes it out of its unowned state and appropriates it for his use. And finally, (d) if the current title is the result of crime, and the victim or his heirs can be found, then the title properly reverts immediately to the latter, without compensation to the criminal or to the other holders of the unjust title.2

I do not see a closely corresponding passage in For A New Liberty (1973) (I stand to be corrected on this), so it appears to me that sometime between 1969 and 1973, Rothbard’s thought on this matter developed.

See also the related thoughts of thinkers like Mises and Hoppe on this issue, as discussed in Mises, Rothbard, and Hoppe on the “Original Sin” in the Distribution of Property Rights.

  1. I’ll have to find this language; I forget where it is. []
  2.  But cf. some arguably inconsistent comments elsewhere in ch. 9, and also in ch. 10. []
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Do Business Without Intellectual Property (Liberty.me, 2014)

Do Business Without Intellectual PropertyMy monograph Do Business Without Intellectual Property was released by Liberty.me earlier this year. The PDF file is here.

I release this material, insofar as legally possible (see Copyright is very sticky!), with a CC0 “no rights reserved” license.

The Table of Contents is listed below. A Liberty.met seminar discussion of these topics  is available at “Practical Solutions to the IP Trap.”

Table of Contents

  • INTRODUCTION 3
  • WHAT IS IP? 5
  • WHY DO BUSINESSES NEED TO CARE ABOUT IP? 5
  • SHOULD WE ABOLISH IP? 6
  • IP VERSUS PROPERTY RIGHTS 7
  • HISTORY OF PATENT AND COPYRIGHT LAW 9
  • INTELLECTUAL PROPERTY IS CONTRARY TO FREE
  • MARKETS AND HUMAN FREEDOM 10
  • WHY DOES IP PERSIST? 12
  • IP, INNOVATION, AND FREEDOM 13
  • WHAT SHOULD YOU DO? 14
    • First, Do No Harm 14
    • But While IP Exists … 15
    • To IP or Not to IP 16
    • Steps You Can Take Now 17
  • EXAMPLES OF IP CONTRARIANISM 18
  • PUBLISHING AND COPYRIGHT 19
    • Music without Intellectual Property 21
    • Inventing without Intellectual Property 21
    • Dying without Intellectual Property 21
    • Patents 22
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KOL159 | Seminar: “Practical Solutions to the IP Trap”

Practical Solutions to the IP Trap - flyerKinsella on Liberty Podcast, Episode 159.

This is my seminar, Practical Solutions to the IP Trap, delivered to Liberty.me members on May 19, 2014, based on my monograph Do Business Without Intellectual Property (Liberty.me, 2014). This talk provides an overview of IP and the issues faced by people in their careers and lives and offers suggestions as to how to ethically and practically navigate challenges posed by the existing IP system.

Youtube version below.

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My exchange with a high school teacher from Norway, whose class had some questions about the libertarian approach to certain issues.

I am teacher at a high school in Norway. During my classes I have spent some time trying to explain libertarianism to my students, and I have used some of your articles, and of course Murray Rothbard has been central.

Some of the students have really dug into the material, to my surprise really. Regarding the extent anyway.

I am writing to you because I simply have trouble answering their questions up to a point, and I would sincerely appreciate it if you would help me with some questions here:

1) What happens on a territory – in a stateless society – where a person or a group of persons are starving to death because nobody will employ them, do business with them, help them etc. What are they supposed to do? Starve to death because, after all, those who wont help them have gained their properties just and should thereby not be attacked? What if survival for them triumphs “justice”? Will this not be an unstable society? Is it not easy to understand that these people will choose war rather than death?

2) Mobility: How can a stateless society avoid that a rich misantrophe uses his rights to block important trade routes and roads?

3) Is it reasonable to accept that private persons can own nuclear weapons or high-tech modern war weapons?

4) The ethics of Liberty by Rothbard; do you hold this as the primary work in freedom ethics, and do you find any flaws in it? Or is it as you see it flawless, and thereby a document which should be basis for a “common law”?

5) There has been some talk about Rothbards work on children here in Norway; is it correct that he meant that not feeding ones child should not be a punishable offense by common law? Do you support this and his reasoning behind it?

Best regards,

[X]

[click to continue…]

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Below is an edited transcript of my speech “Libertarianism After Fifty Years: What Have We Learned?” delivered at the NYC LibertyFest (Brooklyn, NY, October 11, 2014; available at Kinsella on Liberty Podcast, Episode 152). The original title was “Libertarianism After Fifty Years: A Reassessment and Reappraisal” but I was allotted only about 15-20 minutes so condensed the scope and could only touch briefly on many of the matters discussed.

Libertarianism After Fifty Years: What Have We Learned?

Stephan Kinsella
NYC LibertyFest, Brooklyn, NY
October 11, 2014

Introduction

Hello. I’m glad to be here. Thank you to Ian and Mike for the invitation. I do have my eleven year old son with me. It’s the second or third time he’s seen me speak. He’s been to Auburn with me. I went to NYC Comic Con with him on Thursday. So turnabout’s fair play although it was fun. Comic Con was great.

I have fifteen minutes. My topic is “Libertarianism After Fifty Years – What Have We Learned”? If I get cut off I will continue this in a private podcast, if I run out of time. You can find more information, if I run out of time, because this is a big topic for fifteen minutes.

This is my own view of libertarianism. It might not be shared by everyone here. But what I would like to talk about is—what is the libertarian movement? How old is it? Where did we come from?

In my view, the libertarian movement is about fifty years old—the modern libertarian movement. I think we can date it, you know, the glimmers of the movement started with Ayn Rand and Isabel Patterson and Rose Wilder Lane with their books in 1943. Of course, there are precursors to the libertarianism in the Enlightenment and classical liberal thought. There are other writers, Leonard Read, Milton Friedman. But I think we can really date the dawn of the modern libertarian movement to 1957 with the publication of Atlas Shrugged by Ayn Rand. And then the works of Rothbard, more importantly, with Man, Economy and State in 1962.1

So the movement is about 55, 45 years old. It’s a relatively young movement as far as ideologies go and political philosophies go. We still have our disagreements over certain controversies like abortion and other issues. But a lot of progress has been made in the last fifty years. We’ve had a lot of development, partly because of incessant libertarian internal debate, criticism by outsiders, criticism by minarchists, criticism by insiders. But at the fifty year stage, I do think it is a good time to step back and reflect and think what have we learned over the last fifty years. How we could use this going forward to further refine and develop our ideas. [click to continue…]

  1. The following is an excerpt I wrote to a Foreword for a forthcoming libertarian book:

    Modern libertarian theory is only about five decades old. The ideas that have influenced our greatest thinkers can be traced back centuries, of course,[1] to luminaries such as Hugo Grotius, John Locke, Thomas Paine, Herbert Spencer, David Hume, and John Stuart Mill, and to more recent and largely even more radical thinkers such as Gustave de Molinari, Benjamin Tucker, Lysander Spooner, Bertrand de Jouvenal, Franz Oppenheimer, and Albert Jay Nock.[2]

    The beginnings of the modern movement can be detected in the works of the “three furies of libertarianism,” as Brian Doherty calls them: Rose Wilder Lane, Ayn Rand, and Isabel Patterson, whose respective books The Discovery of Freedom, The Fountainhead, and The God of the Machine were all published, rather remarkably, in the same year: 1943.[3] But in its more modern form, libertarianism originated in the 1960s and 1970s from thinkers based primarily in the United States, notably Ayn Rand and Murray Rothbard. Other significant influences on the nascent libertarian movement include Ludwig von Mises, author of Liberalism (1927) and Human Action (1949, with a predecessor version published in German in 1940); Nobel laureate F.A. von Hayek, author of The Road to Serfdom (1944); Leonard Read, head of the Foundation for Economic Education (founded 1946); and Nobel laureate Milton Friedman, author of the influential Capitalism and Freedom (1962).

    The most prominent and influential of modern libertarian figures, however, were the aforementioned novelist-philosopher Ayn Rand, the founder of “Objectivism” and a “radical for capitalism,” and Murray Rothbard, the Mises-influenced libertarian anarcho-capitalist economist and political theorist. Rothbard’s seminal role is widely recognized, even by non-Rothbardians. Objectivist John McCaskey, for example, has observed, that out of the debates in the mid-1900s about what rights citizens ought to have,

    “grew the main sort of libertarianism of the last fifty years. It was based on a principle articulated by Murray Rothbard in the 1970s this way: No one may initiate the use or threat of physical violence against the person or property of anyone else. The idea had roots in John Locke, America’s founders, and more immediately Ayn Rand, but it was Rothbard’s formulation that became standard. It became known as the non-aggression principle or—since Rothbard took it as the starting point of political theory and not the conclusion of philosophical justification—the non-aggression axiom. In the late twentieth century, anyone who accepted this principle could call himself, or could find himself called, a libertarian, even if he disagreed with Rothbard’s own insistence that rights are best protected when there is no government at all.”[4]

    We can date the dawn of today’s libertarianism to the works of Rand and Rothbard: to Rand’s Atlas Shrugged (1957); and, especially, to Rothbard’s Man, Economy, and State (1962), Power and Market (1970), and For A New Liberty (1973), plus his journal The Libertarian Forum (1969–1984). For A New Liberty stands today as a brilliant, and early, bold statement of the radical libertarian vision. By the mid-60s, the modern libertarian movement was coalescing, primarily behind the non-initiation of force principle and the “radical capitalism” of Ayn Rand, and Rothbard’s systematic libertarian corpus based upon the non-aggression principle or axiom. It is no surprise that the Libertarian Party was founded in 1971, as these ideas, and the liberty movement, were gaining steam.

    In the ensuing decades many other influential works appeared expounding on the libertarian idea, such as Linda and Morris Tannehill, The Market for Liberty (1970), John Hospers, Libertarianism: A Political Philosophy for Tomorrow (1971), David Friedman, The Machinery of Freedom (1973), Robert Nozick, Anarchy, State, and Utopia (1974), Henri Lepage, Tomorrow, Capitalism (1978), Samuel Edward Konkin III, New Libertarian Manifesto (1980), Jan Narveson, The Libertarian Idea (1988), Anthony De Jasay, Choice, Contract, Consent: A Restatement of Liberalism (1991), Richard Epstein, Simple Rules for a Complex World (1995), Charles Murray, What It Means to Be a Libertarian: A Personal Interpretation (1996), David Boaz, Libertarianism: A Primer (1998), Randy E. Barnett, The Structure of Liberty (1998), and, more recently, Jeffrey A. Miron’s Libertarianism, From A to Z (2010), Jacob Huebert’s Libertarianism Today (2010), Gary Chartier’s The Conscience of an Anarchist (2011), and Gerard Casey’s Libertarian Anarchism (2012).

    [1] For more on this, see Brian Doherty, Radicals for Capitalism: A Freewheeling History of the Modern American Libertarian Movement (2008), and David Boaz, The Libertarian Reader: Classic and Contemporary Writings from Lao Tzu to Milton Friedman (1998).

    [2] See Boaz, The Libertarian Reader, id.

    [3] See Doherty, Radicals for Capitalism, id.

    [4] John P. McCaskey, “New Libertarians: New Promoters of a Welfare State” (April 14, 2014), See also Wendy McElroy, “Murray N. Rothbard: Mr. Libertarian,” LewRockwell.com (July 6, 2000). []

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Answers to Questions About Libertarian Punishment and Estoppel

An interchange with someone with questions about one of my articles, which sets out my “estoppel” theory of libertarian rights. For more background on these issues, see the links interspersed below, and those in the following endnote:1

From Mr. S:

I just read your article “A Libertarian Theory of Punishment and Rights”, which was very interesting, thank you.  It raised a number of questions in my mind which I wanted to raise with you in case you’ve dealt with them elsewhere and can point me to these sources.

(Note that I am ignoring for now that both aggressor and victim may have protection insurance policies and so the punishment scale might already have been agreed to; I’m more focused on what a libertarian judge should decide in the absence of preset penalties.)

  1. I raised with [a certain libertarian philosopher] the problem of failed attempts.  You deal with this a little in the area of assault (p.640), but not sufficiently to answer my question.  If A shoots at B but misses, what is the punishment B can levy on A?   Is it just that B can shoot at A and miss, which seems pointless?   But if that wouldn’t instill in A the same amount of fear that B suffered, per your assault example, is B justified in actually hitting A with the bullet and potentially killing him, with A being estopped from complaining about this?  Should failed attempts be punishable at all?  According to Rothbard, neither deterrence nor rehabilitation are valid bases for punishment; rather, only restitution and retribution are appropriate.  But in my example, there is nothing to be restituted and retribution would imply shooting and missing.  Then, to make things more interesting, what if A shot at B and missed, and B didn’t even know A had shot at him, so never suffered any fear (but witnesses saw it and reported A)?   Again, what is the basis on which failed attempts should be punishable?  In a failed attempt there has been no physical invasion of body or property, and mental distress cannot be the basis for action since one cannot have property in one’s feelings (that would raise a host of conflict-creating problems).
  2. It seems to me that the estoppel principle should be more narrowly stated.  In your examples, you say that if A murders B then  A is estopped from complaining about being murdered as punishment.  Yet shouldn’t this be restated to say that A is estopped from complaining about being murdered as punishment by B or his representative?  In other words, I don’t think you mean to imply that A is estopped against the whole world from complaining about being murdered; D (a complete stranger) cannot murder A and then claim that by A’s action in murdering B, A is estopped against anyone from complaining.  Yet that would be one reading of the estoppel principle as stated, since A has by his actions apparently indicated that he sees nothing wrong in murder, so it could be open season on A.
  3. If, as stated on p.635, the goal of punishment is to equalize damage suffered, not just the actions that caused the damage, then that could work against the victim.  If nice person A beats up gang member B, since B is used to getting beaten in his daily life the damage suffered is probably not that great.  Thus he would have to reduce the punishment beating he exacts on A.  Perhaps the theory should be that the victim can exact the greater of (x) equalizing action and (y) equalizing damage.  However, saying “should” is somewhat normative, and I wonder what the positive theory behind such a “greater of” concept would be.
  4. That raises a broader point: what is actually being estopped and therefore what forms the basis for outlining the bounds of punishment: (A) the actions of the aggressor [e.g., punching the victim], (B) the result caused [e.g., burst spleen] or (C) the damage suffered by the victim [e.g., inability to continue working as a laborer]?  Can an aggressor be estopped from any one of these that was not obvious at to him at the time?  If so, then does estoppel not really rest on what the aggressor has actually acknowledged by his actions, but rather what a “reasonable aggressor” should have realized what he was doing?
  5. Moreover, why can the victim choose to exact a dollar remedy for a physical aggression (leaving aside the situation where the aggressor bargains for this with the victim to avoid physical retaliation)?  Under estoppel the aggressor has only acknowledged he does not believe hitting is wrong, but it doesn’t mean he has acknowledged that taking someone’s money is wrong.  It seems that the broader the range of remedies the victim is entitled to exact, the looser the connection to the aggressor’s actions which give rise to the estoppel.  We could end up effectively concluding that the aggressor indicated by his actions that he does not believe in the sanctity of private property at all, and thus any punishment is warranted.  Surely that’s not where we should end up?
  6. What is the theory underlying why heirs can take action on behalf of a murder victim (assuming there is nothing in the victim’s will saying so, and there is no protection policy for which the heirs are the beneficiaries)?  If each person’s body is his own property, how can an heir claim to have been damaged when only the victim’s body was invaded?

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