From my July 20, 2014 Daily Bell interview by Anthony Wile, “Stephan Kinsella on Libertarian Legal Theory, Self-Ownership and Drug Laws.” I have to point this out so many times over and over to people, that I thought I’d put it in a separate post.
Anthony Wile: You’ve called the following a fallacy: “If you own something, that implies that you can sell it; and if you sell something, that implies you must own it first. The former idea, which is based on a flawed idea about the origin and nature of property rights and contract theory, is used to justify voluntary slavery; the second, which is based on a flawed understanding of contract theory, is used to justify intellectual property.” Can you elaborate please?
Stephan Kinsella: I discuss this in more detail in some podcasts such as
- Tom Woods Show: Against Fuzzy Thinking;
- Libertarian Legal Theory: Property, Conflict, and Society: Lecture 6: Applications Continued;
- Common Libertarian Mistakes (Fraud Etc.); and
- Correcting Some Common Libertarian Misconceptions.
This is hard to elaborate in a quick interview. But here is a summary answer.
Ownership means right to control. It is not automatically clear why this would imply the power or ability or right to stop having the right to control it. My view is that we own our bodies not because of homesteading but because each person has a unique link to his body: his ability to directly control it. Hoppe recognized this decades ago, as I point out in How We Come To Own Ourselves. I had to find an old German text of his and have it translated, to find out his early insight on this, from 1985. This has implications for the idea of the voluntary slavery contract and the so-called inalienability debate. (For my views on this, see A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability and Inalienability and Punishment: A Reply to George Smith.) In fact, the idea of homesteading one’s body is obvious nonsense. A homesteader is an actor; an actor already has a body. It is inconceivable to imagine an actor homesteading his body. Homesteading, or original appropriation, has to do with the acquisition of property rights, by already body-owning actors, in external scarce resource in the world that were previously unowned. For these resources, they are acquired by intentional action and thus can be abandoned – or, thus, sold, or given, to others. So ownership of external resource does imply the capacity to contract, or sell, but self- or body-ownership does not, because they have different bases. The point is that ownership as a legal concept does not imply the right to sell. Too many libertarians just assume that it does. They are used to the right to sell in the case of ownership of external resources and thus assume that right to sell is some inherent right of ownership; it is not.
The converse mistake is the assertion that if you sell something you must have owned it. Otherwise you could not have sold it. So pro-IP advocates observe that people are paid to teach or to provide information or to invent. So they reason that the person being paid must have sold something. And to sell it, you must have owned it. You can only sell things that you own, right? Well what was sold? It was the information that you were paid to come up with or transmit. Therefore, information is an object of a sale contract and must be an ownable thing. Of course, the argument is rarely put this explicitly, mostly because people making such arguments are legal naïfs, but if it was, it would be easier to show how ridiculous and flawed it is. Contracts are simply ways owners of resources grant, or deny, permission, to others, to use the resource, whether temporary or permanent (as with a lease versus a sale) or whether partial or complete. Often this involves exchange where two owners of two resources exchange title to these things: my apple for your pear. My coin for your milk. And so on. But some title transfers—contracts—are only one-way: a gift, or donation, say. Or if I agree to perform some action within my capability on the condition that you give me a monetary payment, this is a one-way title transfer: only the money is being transferred. People confuse this because they analogize it to a normal bilateral exchange and wonder what is being exchanged in the service contract, and they assume the thing being sold is labor and that it must be ownable. This is just wrong. A careful study of Rothbard’s truly revolutionary and path-breaking title-transfer theory of contract is a good idea for people who want to argue this way. (See my A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability; also Justice and Property Rights: Rothbard on Scarcity, Property, Contracts….) But the point is that you cannot use this confused legal reasoning to shore up the arguments for ownership of labor, or for ownership of the “fruits of one’s labor,” of or IP. Just because I can persuade someone to give me money on the condition that I invent something for them or teach or divulge to them some information does not mean that inventions or information is an ownable object.