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KOL058 | Guest on Gene Basler Show: Anarcho-capitalist issues (2010)

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Kinsella on Liberty Podcast, Episode 058.

I appeared on the Gene Basler Show (May 30, 2010), discussing a variety of anarcho-libertarian matters–environmentalism, nuclear power, state propaganda in government schools, class action lawsuits, reparations, how to achieve an anarcho-libertarian society, animal rights, positive rights and obligations, forced heirship, and so on (an edited transcript to appear as a chapter in Gene Basler, Environmental Non-Policy: Interviews on Environment, War and Liberty, forthcoming August 2011).

Transcript:

Gene: I’m pleased to welcome as my guest Stephan Kinsella. Are you there, Stephan?

Stephan Kinsella: I’m here. Glad to be here, Gene.

Gene: Thanks for coming on. Let me read Stephan’s profile on Wikipedia: “Kinsella is General Counsel of Applied Opto-Electronics, Incorporated, of Sugar Land, Texas. A practicing intellectual property attorney and former adjunct professor of law at South Texas College of Law, where he taught computer law, Kinsella is actively involved with libertarian legal and political theory, and is adjunct scholar of the Mises Institute, as well as the former Book Review Editor for the Institute’s Journal of Libertarian Studies. He is also a contributor to the news and opinion blog at LewRockwell.com and is the creator of Libertarian Papers, a peer-reviewed online journal published under the Creative Commons Attribution 3.0 License. He writes that, after college, he “began to put more emphasis on Austrian economics and paleo-libertarian insights of Rothbard, Hans-Hermann Hoppe and Rockwell”.

“Kinsella’s legal publications include books and articles about patent law, contract law, e-commerce law, international law and other topics. Kinsella has also published and lectured on a variety of libertarian topics, often combining libertarian and legal analysis. Kinsella’s views on contract theory, causation and the law, intellectual property, and rights theory (in particular his Estoppel Theory) are his main contributions to libertarian theory.

“In contract theory, he extends Murray Rothbard’s and Williamson Evers’ title transfer theory of contract, linking it with inalienability theory while also attempting to clarify that theory. Title transfer theory of contract: Kinsella sets forth a theory of causation that attempts to explain why remote actors can be liable under libertarian theory. He gives non-utilitarian arguments for intellectual property being incompatible with libertarian property rights principles. He advances the discourse ethics argument for the justification of individual rights, using an extension of the concept of Estoppel.”

Welcome to the show, Stephan.

Stephan Kinsella: Thanks very much, Gene.

Gene: Okay. Here at Anarcho-Environmentalism, we, namely I, argue that there are indeed real environmental concerns out there. We argue that air pollution, water pollution, etc., are indeed real environmental concerns, that Global Climate Change ain’t one of ‘em, and that market and voluntary solutions are preferable to government or policy-based solutions. I guess my first question for you is, as an expert in patent law, do you think the existence of patent law is really nothing more than just one more way government runs block for favored and well-connected market participants by protecting environmentally irresponsible means and methods of production? And if so, does this not logically follow that patent law harms the environment?

Stephan Kinsella: Well, that’s an interesting connection. For years now, I’ve been trying to trace out all the harms from patent law. Environmentalism is not one I have made yet. I could see that some arguments could be made. I do think that patent law is a type of protectionism, similar to minimum-wage law and antitrust law, sort of counter-intuitively, and that they do protect the larger companies. For example, most of the smaller entrants to businesses or to new markets don’t have a large patent portfolio or the ability to get it, but you get these large, established market participants; they amass large patent portfolios. And what this does is, it basically protects them from suits from each other. Because if one guy sues another guy, then they could be counter-sued, based upon the other guy’s portfolio. So you can think of these guys as big porcupines. They all have large defensive quills, but they’re sometimes afraid to sue each other. Or they do sue each other, then they all come up with a settlement, and they cross-license to each other their patents. Of course, what it does is it lets them keep operating. Now they pay a hefty fee to do this. They pay a lot of fees to lawyers and the patent office, but they get these monopolies to practice that basically isolate and insulate this kind of cartel. A new market entrant has no protection: He has no porcupine quills, so basically he’s at the mercy of all these established cartels, and it’s much harder to get into the new market. How this leads to environmental abuse, I’m not quite sure. I’d be open to the argument.

Gene: Let’s say I were to pepper my one-acre property in wind-whipped Cypress, Texas, with windmills and solar panels and back-feed it into the grid, and suddenly I would find myself providing energy for my next-door neighbor and then everyone on the street and then everyone in the HOA. They’d put a stop to me right quick, even though I wasn’t actually polluting anything. The energy companies have a monopoly on the provision of energy, is that not correct?

Stephan Kinsella: Well, certainly the energy market is heavily regulated; in some ways it’s less regulated than it used to be, but certainly there’s not a completely free market in the provision of energy, so yeah, I would agree with you to that extent, that you can’t just–that’s yet another limit on the ability of small companies and small entrepreneurs to come up with new ideas and disrupt the services and enter into these kinds of markets.

Gene: I want to say here that Block and Rothbard both posit the view that government protective legislation serves to provide a green light for industry to pollute with impunity, and this is consistent with what you say about patent law, providing similar protections. So even without any further deeper study, I do see some basic-level consistencies with those two positions.

I’ve got another question for you, since we’re on the topic of patents. Are those people merely conspiracy theorists, who claim that there are patents sitting on shelves for all manner of human-friendly and environment-friendly technologies from 200-mile-per-gallon carburetors to Teslan ionospheric energy capture technology, etc.? Are these people just conspiracy theorists, or is there in your opinion some substance to these claims?

Stephan Kinsella: Well in a word, yes. They’re basically ignorant conspiracy theorists. I understand their skepticism. I understand their motivation to distrust the establishment and the entire patent system, but the essence of a patent is that it’s a public document. So if there’s a patent on something, you can look it up right now in the patent database. So if there were 200-mile-per-gallon carburetor inventions out there that were being kept off from market by some patent power of some patent holder, at least we would know about it.

Now there is the ability of the military–the government–when you submit a patent application to a patent office, it’s done in secret, and before you can file it in another country, you have to get permission from the US government. So what they do is, you submit a patent to the government, to the PTO in DC, Virginia area, and the first thing they do is they send it to the NSA and all these secret groups, and they first make sure really that there’s nothing really they want to get their hands on, right? New nuclear technology or something extremely useful to the military, dangerous for other people to find out about. If they find that, which is rare, then they would send a secrecy order to the applicant tell these guys we’re taking over this idea, we’re going to pay you some money and you have to keep quiet about it. Too bad, so sad, but thanks for filing it. Now that is really rare, but that wouldn’t be a patent; that would just be someone’s idea that the government has told them, you’d better keep this quiet: we’re going to keep a cap on it.

But the normal process is that you file the patent, you get your permission to publish from the government after it passes the review of these other agencies, and then it becomes published 18 months after you file it. And so it’s public to the world even if you don’t get a patent on it. So I think this is the type of conspiracy theory that undermines the credibility of libertarianism, in my opinion.

Gene: Excellent. Okay just to be clear, you’re opposed to this federal government’s first right of refusal, right?

Stephan Kinsella: Well, absolutely, I’m opposed to the entire patent system in the first place. I mean, I’m opposed to the federal government existing. The federal government is a criminal organization. So in fact from an environmentalist point of view, I mean I’m hesitant to say I’m an environmentalist, because of the connotations and baggage and the socialist and private-property-ignorant undertones of a lot of environmentalism. However, of course, if you were in favor of the environment, the last agency you would entrust to protect it is the—is any government, especially the United States central government.

Gene: Yes, I understand that the hesitation or reluctance to take seriously anything that has the term or the stamp of “environmentalism” on it. I would direct your attention to Block, who stated in an essay called “Environmentalism and Economic Freedom: The Case for Private Property Rights”. He states,

“Before making this seemingly quixotic endeavor we must be sure we’re clear on both concepts. Environmentalism maybe non-controversially defined as a philosophy that sees great benefit in clean air and water and to a lowered rate of species extinction. Environmentalists are particularly concerned with the survival and enhancement of endangered species such as trees, elephants, rhinos and whales, and with noise and dust pollution, oil spills, greenhouse effects and the dissipation of the ozone layer. Note, this version of environmentalism is a very moderate one, moreover it is purely goal-directed, it implies no means to those ends whatsoever. In this perspective, environmentalism is in principle as much compatible with free enterprise as it is with its polar opposite: centralized governmental command and control.”

Basically he goes on, and he describes the various types of environmentalists from the watermelons who are green on the outside, red on the inside, who actually see environmentalism as a movement: nothing more than a means to achieve their world-socialistic ends. He also talks about true greens who believe that humans are the blight on the planet, and in order to save the planet and all life on Earth, the species has to check out. And he and Rothbard both note that they are never the ones to volunteer their kids to check out first.

Stephan Kinsella: Right, and I’ve read almost everything Walter’s written. In fact I set up and I run his website for him, and I agree with almost everything Walter says. And I agree with that, although that may be an uncharitable characterization of some libertarian environmentalists. In the strictest sense I would say I’m an environmentalist, and so are all libertarians, in the sense that their policies, if followed, would, of course, optimize the ability of environmentalists to protect their values and achieve their values and also to protect the environment itself.

Now as to particular goals: I think Walter’s right that we have to focus on means and ends, and that if your goal is to minimize the reduction of species and things like this, as long as you choose peaceful means, it can be compatible with libertarianism. I don’t think it is libertarian itself: that is, it’s not implied by libertarianism. I personally don’t have a strong desire to prevent species from going extinct. I mean, if you understand the history of the Earth, this has been going on for millions and millions of years, and it’s a natural part of life that some species evolve into life, and some go extinct. And I think Man is as natural a part of life as anyone else. That said, I don’t think government should be involved in interfering one way or the other with these processes, and I think that a proper environmentalism has to strictly respect property rights.

Gene: Good. That’s our position: that through the strict application and defense of private property rights, all environmental concerns boil down strictly to torts. And if it can’t be boiled down to tort, then basically it ain’t a real environmental concern. I mean, this is Rothbard’s position.

Stephan Kinsella: I don’t know. Well, I mean, a couple of recent examples: obviously the BP Spill. Now, I cannot say whether this is result of government intervention4, although ideally in the government-free world we would be about a hundred times richer, and presumably with a lot more wealth at our disposal, many more safety devices would be used in all kinds of activities. So these kind of things would be probably less likely to happen anyway. But the 75 million dollar cap that Congress granted the industry, 10, 15, 20 years ago when they did this, which BP is apparently going to ignore and pay claims anyway, that cap obviously was un-libertarian. Although it’s not libertarian for the government to step in and force tort claims either. So you can’t say that the $75 million should be abolished in the sense that the state should hold BP liable for all the tort claims, because what you’re doing is favoring one criminal mafia, which is the government, going out to pursue justice on behalf of all the people that it rapes and pillages on a daily basis.

Gene: Right, which is a complete logical fallacy.

Stephan Kinsella: Exactly.

Gene: Rothbard discusses this somewhat in “Law, Property Rights and Environmentalism”, which, as you did not have time to prepare for this interview, you may not have read in a few years, but he does talk about the illegitimacy, not as it pertains to the environment particularly, but the illegitimacy in general of class action lawsuits. If I am not even aware of this class action, and then yet am bound by its outcome?

Stephan Kinsella: Exactly.

Gene: Do you agree with Rothbard on that?

Stephan Kinsella: Well, I can’t say I agree completely. I mean I don’t disagree with him. I think it’s a provocative idea he had. Rothbard was so broad-sweeping in the scope of what he covered. And he sometimes went without a net, and he sometimes ventured into areas that not many people had talked about before. And so I think sometimes he just blurted out what his view was, and he could only give so much attention to all these views. I think that class actions was one that he gave a reasonable sort of first approximation approach to. I am not so sure that in a free market, that a class action-type idea would not emerge in some form. Number one: you could have it done contractually, which I’m sure Rothbard would agree with. For example, you could have some kind of network of private defense agencies, and insurance company agreements, and inter-agency agreements that basically provided for something like this and if so, then that would be permitted.

Gene: Inter-arbitration agency agreements included, yeah?

Stephan Kinsella: Absolutely. And number two: There are lot of practices that we frown upon now, because they’re established by the legislature, like the statute of limitations, or class action lawsuits, but, of course we can understand the idea behind them, and sometimes it makes a little bit of sense. Even trademark law for example. In my IP writing, intellectual property writings, most of my fire is aimed at patent and copyright, which are the biggest offenders, but even trademark and trade secret have big problems. And trademark for example, although you could say that in one aspect trademark could be justified on libertarian grounds, and that is the extent to which there’s fraud being committed upon a consumer by a merchant, right? So let’s say you sell someone a fake Rolex watch—this example actually proves that this almost never happens. The guys that buy Rolex watches on the street for 10 dollars: they’re not really being defrauded. They know it’s a fake Rolex watch. The seller knows it’s fake. The buyer knows it’s fake. So there’s no fraud being occasioned upon the consumer. But let’s say there’s a really good knock-off merchant that succeeds somehow in getting a bunch of fake Louis Vuitton purses in the actual Louis Vuitton stores and Neiman Marcus and the Galleria or something. I suppose you could imagine a case where the law evolved so that Louis Vuitton itself has the right to sue on behalf of the defrauded customers, because they’re too diffuse to sue on their own, and you could sort of pre-suppose their consent. Like they’d be outraged that they were ripped off, and they would all consent to Louis Vuitton being their agent to sue on their behalf. Now, I think this theory is a stretch, but you could see how some of these sort of presumed-consent causes of action might emerge. And I think something like class actions could possibly emerge, but I’m not aware of any good work that’s been done based upon solid libertarian principles to argue in favor of class actions. So, I would say that barring that and until someone comes up with one—and I don’t have one, I would tentatively go with Rothbard’s negative opinion about class actions.

Gene: Right. Well he considered class action suits to be legitimate as long as all the parties involved know about it. I think he cites example of 292 polluters polluting the air in Los Angeles County, a county of 7 million inhabitants. And if I’m one of those 7 million inhabitants and I didn’t know about the law suit, but I would be required under current or existing federal statutes to be subject to the outcome to that suit!

Stephan Kinsella: Right.

Gene: That means that I myself would never have recourse to sue one, or some, or all of the 292 polluters myself. So it seems to me like that protection actually helps to limit the liability of the polluter, because if you had the risk of an obscene number of lawsuits from an indeterminate number of complainants, all of whose property had been trespassed by your polluted water or your polluted air, then you would really have a much, much stronger incentive to engage in non-polluting methods of production, in my opinion.

Stephan Kinsella: Well, that’s interesting. I’ve never heard it put that way. There’s something to that. I think it’s possible: I mean, I think the state’s mechanism messed up everything. But for example, something like what you’re proposing is happening with the Google Books. This Google Print thing they’re doing where they’re trying to digitize all the books. So Google’s worried about copyright liability, and so they actually wanted there to be a class action law suit. And it was instituted by a small group of librarians or something like that, and Google is happy to settle! They just want a final judgment, right? And they know that once they get this final judgment, it’s going to basically bond everyone who’s in this class, even if they didn’t officially join the class, and will basically immunize them from liability going forward. Now, in a way that’s a good thing, in this particular case, because copyright is problematic in the first place. But the point is, they’re using the class action kind of mechanism in their defense, because no one else is going to be able to have the clout and the size and the stature of Google to go negotiate the similar things. So basically it would give them sort of a unique exemption from copyright liability, so they can proceed with their Google print project, right?

But the other complaint about class action is usually the other way around. I would say the typical libertarian complaint about it is that it violates the rights of the plaintiffs, who are forced into it, not the rights of the defendant, the victim, because you say that the liability is lessened for the defendant, but it’s not really, because the plaintiffs who never actually joined in, are considered to have joined in. So their damage is counted as part of the damage. Now I know that one big lawsuit is less damaging than a hundred smaller, a thousand smaller lawsuits, but still, the sum total of the damage is added up. But these individual plaintiffs who are left out, you could argue that their rights are the ones that are violated. This is why I mention the statute of limitation and things like this. I could see a set of rules evolving where there’s notice given in newspapers, if you don’t take advantage of your rights, after certain point in time, it’s either practically or legally difficult to assert your rights, once you’ve had a chance to do so. And if this was the venue to do it, and you didn’t join in when you could have, and you didn’t opt out, then I don’t know if this is the biggest libertarian travesty of all time.

Gene: Probably not, but you do agree with the supposition that statutes of limitations would likely emerge in a market arbitration environment?

Stephan Kinsella: Well, I mean not technically, because a “statute” is a decree by legislature of a state, so of course–

Gene: Right. But the concept would likely emerge?

Stephan Kinsella: The basic idea: I think it would arise for a couple of reasons. Number one, it could arise by virtue of these private agreements among arbitration agencies like I mention, but it could also arise as a matter of practical necessity. Let’s say for example, in theory, let’s say you have a legal system that recognizes the right that you own your property, unless and until someone else shows up that has a better claim. But the problem is, there’s a time limit on that, because even if in theory some long descendant of an Eskimo, or some Cro-Magnon from 75,000 years ago could show up and show that somehow you’re on his ancestors’ property that was taken from him, and he has a legitimate claim to it. Basically, at a certain point in time, it’s just impossible to gather the evidence needed to establish, to prove your case. So at certain point in time, it’s going to be, as a practical matter if nothing else, impossible to prove your claim. So after a hundred years, 50 years, 500 years— something like that—it’s going to be impossible. I could imagine rules of thumb arising that say, “Listen, a strong burden of proof arises that the property of someone that holds it now is valid property after a certain period of time.”

That’s why I think property title insurance would be a much bigger player on the market, in a free market. You would basically just have title companies. That would be their business. They would specialize in trying to find out who has a good claim to this property, and they would give insurance. So, if you own a house and some Native American can show that his ancestor owned it 240 years ago, and you have to give your house up, then you get a reparations claim from your insurance agency, and you move on.

Gene: All right. Okay. I don’t want to go too far from my topic here, but this really captures my interest here. You’re familiar with agorism, correct?

Stephan Kinsella: Absolutely.

Gene: The principle of the practical application of market anarchism, and advocating the widespread use of black market and grey market activities, engaging in free exchange without including the state as a third party hand-snatcher in the transaction. You are familiar with that?

Stephan Kinsella: Yes. I think Lew Rockwell or Murray Rothbard one time mentioned the grey market or the black market: they said, “In other words, the free market.”

Gene: Oh that’s great! That’s beautiful. I’ve never heard that. Oh you mean, oh in other words you mean the free market.

Stephan Kinsella: Right!

Gene: Wherein no gang of thugs extracts his pound of flesh off the top of any transaction.

Stephan Kinsella: Right. Calling it a black market is almost a pejorative, implying that there’s something shady about it right? It’s a little shady because you have to be shady to get away from the government’s claws, but really it just means the free market in operation.

Gene: That’s beautiful. Well the reason I bring that up here, is because you talk about market insurance policies. Why not–we’ll call it the Kinsella and Basler Title Insurance Company–why not start homesteading vast tracts of federally-owned land and communally-unowned ocean, just on paper, say “Hey! Here, everybody! Claim your title.” So that in 2012 or 2015 or 2020, when this whole pyramid, global pyramid collapses, people could have already established their claim to various acres of land or water?

Stephan Kinsella: Well, I mean– Gene: I know it’d be a fun exercise and nobody, we’d have no–

Stephan Kinsella: I am not opposed to it. I think it would be one of many competing theories about how to deal with the disposition of assets. The question would arise whether—are these assets actually owned right now by the federal government, or are they not owned by the federal government? Now, arguably the federal government asserts ownership claims, and at least with respect to forest lands and things like that, whereas they own them in the sense that they physically prevent people from using them in ways that they don’t permit. So in a legal sense, the federal government is the owner of these things. Of the ocean? Not so much. Really there’s no strict ownership claims of the entire ocean, established or otherwise.

Gene: Okay, but in the highly unlikely event of total societal breakdown, Armageddon a la Gerald Celente, and the governments’, albeit illegitimate under libertarian law, claims to ownership to these properties are unenforceable anyway, why not have already in place a title recording agency?

Stephan Kinsella: Well, you could. You could, and in fact, I’ve proposed with some of my libertarian friends, kicking it around before, similar ideas such as, let’s go ahead and have a libertarian Nuremberg War Crimes Tribunal right now, because were going to have too many people to pass judgment upon when our day comes. So let’s go ahead and decide now, go ahead and get them decided. So let’s go ahead and decide George Bush’s fate and Dick Cheney’s fate, so that when the day comes–and all the librarians who worked for the government—what was their fate for taking government money? And policemen and school employees —let’s go ahead and make a decision.

But in a way, these armchair exercises: what’s the point? The only point of this would be to build your argument up and be ready to present it to whom? To people who are willing to listen to reason, and in my opinion that’s only going to be useful if we achieve anarchy in the peaceful process of illumination, that is, not as a result of some societal breakdown. I think the result of societal breakdown would not be good right now, because we would just get something even worse. The federal government might go away, but the reason the federal government exists now is because most people have the delusion that the federal government is legitimate, and that the state is legitimate and that institutionalized violence is legitimate. And I don’t think that that delusion will disappear when the state disappears. They’ll just be ripe for the next demagogue or something like that. So I don’t think any of these claims would do any good, because who are you going to address them to? The next warlord that takes over?

Now, on the other hand, if we do achieve anarchy by a peaceful process, a gradual evolutionary process of enlightenment, where people become gradually more economically literate, for example, which could happen over time. For example, right now, most people are much more literate about the evils of communism than they were 20 years ago. Right? Just the fall of Russia itself educated almost everyone to a degree. So it’s possible that this can happen even without formal education. So if we achieve anarchy the peaceful way, it will only be with the gradual enlightenment of the human species. Basically we’ll become more and more libertarian in our thinking. And if that happens, then of course these people will be more susceptible to libertarian arguments and to the questions: What do we do with the state parks? What do we do with the roads? What do we do with the assets that are held by the government that we’ve now disbanded? Who do we give them to, to do justice? Right? Do we give them to the neighboring people? Do we give them to the taxpayers? Do we give them to the victims of bombings in Iraq? Who’s the first claimant on these resources? But I don’t think we’ll be the guys who filled out a book on a website that said, “I stake my claim to Yellowstone”.

Gene: It would mainly serve as a means of furthering an argument. We’re speaking with Stephan Kinsella, libertarian legal theorist. Stephan, you just got done stating that through gradual human enlightenment are we going to achieve anarchy. It sounds like a generations-long process. Might I posit at least a claim that if we overcame a few obstacles like state-monopolized education that there are maybe a few obstacles that might speed along that process?

Stephan Kinsella: I agree with you. In my wish list sometimes, when I’m asked what is the worst thing that is in society or the worst thing that the government does, or the first thing I would choose to change if I could. There’s a long list of things that you would choose, you would change first if you could. It could be abolishing the outrageous and immoral and evil drug laws. It would be abolishing the income tax, but I think if I had to choose one thing, it would be abolishing all involvement of the government in education. That would be the first thing I would change probably, because I think that is a primary way that the government indoctrinates society and creates cannon fodder and democrat zombies who go around saying, “If you don’t like it here, leave,” or–

Gene: It creates idolaters to the State.

Stephan Kinsella: Yeah. They say, “Well, I know it’s bad, but we got the right to vote! We are the government.” They say all this bullshit. You hear it over and over again. You can almost predict what their answer is to something you say.

Gene: Especially here in Texas.

Stephan Kinsella: Well, I think so, but I see it everywhere I go. Someone should write an article on the expected programmed responses to arguments like, you shouldn’t vote because your vote is wasted, and of course the automatic response is, “But if everyone thought that…” So there’s just a litany of things that they learned from Saturday morning cartoons and in government schools.

Gene: I want to ask another question regarding free-market environmentalism. Is nuclear energy as we know it today merely a stepping stone on the way to other forms of energy that may soon emerge on the free market horizon?

Stephan Kinsella: Well, I’m an electrical engineer by background, I’m a patent attorney, so I have some familiarity with this. I can’t claim to be an expert on this, and to predict what’s going to happen. Of course, the government has heavily distorted the energy industry including the nuclear industry. In both ways: in both terms of subsidies in the past, from corporate subsidies, limitations of liability, and in terms of the imposition of liability from outrageous tort-type awards and regulatory controls and things like this. Now my opinion is that the only, the only mass-scale source of energy in the world that is safe and clean is nuclear. The other would be natural gas and fossil fuels, but they’re not necessarily safe or clean, although natural gas is somewhat clean. And those are going to someday run out, unless the abiogenic theories are correct, which I’m not convinced that they are. Soft sources of energy are fine, to a degree. They shouldn’t be subsidized by the state, of course, which they are now, but they’ll never be anything more than a drop in the bucket. Now, you have the environmentalist saying we should conserve more: well, that’s nonsense. Energy is life. We need more energy. Energy feeds production, and so nuclear is the—I think we should go a hundred percent nuclear in my opinion. Well I think the free market should be allow to go a hundred percent nuclear.

Gene: If the market were unfettered, that’s what would it do, you say?

Stephan Kinsella: That’s my opinion. Yes, I think it certainly would. I think nuclear would be by far the most prevalent. It would probably provide almost all of our needs, especially if the pollution caused by fossil fuel was internalized and not externalized. Now, if fossil fuel was the only fuel source available to us, I think we should use it. It’s better to have somewhat polluting energy than to have none, okay? But we do have nuclear, which would be just almost a perfect energy source. I’m talking about fission. There’s some nuclear waste, but it can be dealt with. At least it’s localized, and it doesn’t go into your lungs, and we know what to do with it. Now, down the road will there be other types of nuclear that use the actual waste itself? There’s promising research with thorium and there’s a possibility–

Gene: Thorium with “th”, correct?

Stephan Kinsella: Yes, thorium. And then there’s a possibility of even fusion, but the problem is that environmentalists, whenever–this is another one of those programmatic things, if you mention nuclear fission, they’ll say, “Well, I’m in favor of nuclear but nuclear fusion,” but they know that this is a hundred years away, so they’re just coming with something to pretend like they agree, but they don’t really agree, right? So in other words for real human life here and now and for the next 5 generations, they’re not in favor of any clean mass source of energy, and by the way this my litmus test for environmentalists. If someone claims to be an environmentalist and they’re not in favor of nuclear power, then in my opinion, either they’re an idiot, they’re ignorant or they’re evil. They’re misanthropic. In other words, they really want humanity to starve off because of lack of energy, or they know nothing about physics and engineering and technology, in which case they should really be quiet and just read their papers.

Gene: Or they are of the camp that environmentalism is merely a tool to be used to advance, further the cause of world socialism.

Stephan Kinsella: Right, Which is misanthropic, right? Which I view as misanthropic. What is your view about nuclear power?

Gene: Well, I think that in a free market, there’d be a whole hell of a lot more nuclear power plants all over the world, and that in a free market–I again view nuclear energy as a stepping stone to other methods. I also feel that the nuclear waste argument that the stuff never breaks down is akin to Carl Sagan, who had to admit his apocalyptic predictions about the Kuwait oil fires were incorrect, and that in just a short amount of time, I can’t remember when Carl Sagan died, but I remember him coming out saying something about, “Well, my dire predictions of the Kuwait–the virtual nuclear winter that was going to be caused by the Kuwait oil fires—was incorrect, and that the environment righted itself much more quickly than any of us doomsday predictors had ever predicted”. And that’s kind of my opinion about nuclear waste, where it’s a pretty clean energy as energies go, and that markets and what Terry Anderson calls “enviropreneurs” have ways of dealing with such things.

Stephan Kinsella: Well, okay. First of all it’s bizarre that you have just as an average consumer who’s an environmentalist and you know when you mention nuclear power they’ll say, “Well what do you do about the waste?” I mean it’s not really their business what you do about it. That’s an entrepreneurial problem. I mean if I invite someone to dinner at my house, they don’t say “Well, what are you going to do with the waste of the dinner?”

Gene: What will you do with the bones? Haha!

Stephan Kinsella: I’ll figure it out! It’s up to me. It’s my problem.

Gene: It’s not your problem.

Stephan Kinsella: Yeah. And not only that: the volume of nuclear waste produced by nuclear power plant is so many orders of magnitude smaller than what’s produced by conventional processes, that it is just such an easier problem to deal with. Not only that, nuclear power comes from radioactive materials that are already radioactive in the ground. We take ‘em out—they’re spread out all over the place–we take ‘em out. We use ‘em up, and now we know, if we get rid of them, we know where they are now. All right?

So, before they were in the ground, radioactive, now they’re back in the ground radioactive, but we know where they are. Fourth of all, it’s either high-level or low-level radioactive waste. If it’s high level, that means it’s burning out at a fast rate, which means it’s not going to be radioactive for very long. If it’s low level, it’s going to last a lot longer, but it’s not as much of a problem, and furthermore, right now, the regular energy production processes already generate low-level radioactive waste. Even coal and things like that. So there are just so many ignorant views about nuclear power. Granted, it is too mixed up with the government, and they should be completely free, but humanity needs energy to survive, and that means nuclear. In my opinion, we will go nuclear, there is no doubt about it. There is no debate. There is no stopping it. It’s only a question of do we do it soon enough to stop tragedy or do we do it later? But we will go nuclear because there is no choice.

Gene: So you state that we will go nuclear not because I say it’s a good idea but because simple economic laws dictate it.

Stephan Kinsella: Yeah, I think the only way we won’t go strongly nuclear is if there’s more fossil fuel than we’re aware of, or the abiogenic theories are correct. And we’ve got some of these shale-oil extraction techniques and things like this or natural gas and other things. So, it could be but I still think they are inferior because they kill a lot more people with all these accidents from transportation, explosions, mining and not to mention pollution going to people’s lungs.

Gene: Do you support the idea of unilateral nuclear disarmament, while were on the topic of nuclear?

Stephan Kinsella: That’s a difficult question. My first answer is yes, because I don’t trust these governments that we have in place right now to have these weapons at their disposal. So my view would be any state that exists should disband. A any state that has nuclear weapons should get rid of them, so I guess that would imply unilateral nuclear disarmament.

Gene: I guess it’s kind of pushing Rothbard’s Button, isn’t it? How trustful are you that the other guy’s not going to shoot them at you as soon as you do it?

Stephan Kinsella: Well certainly. I mean, yeah. Obviously I would prefer the United States territory to be free to govern itself, right? And would private defense agencies and insurance agencies of the people that live here develop deterrants against external statist nations? Yeah, I think they would, and they should be able to. So to me, nuclear disarmament means taking it away from states, because states are nothing but big criminals.

Gene: Exactly. Well nuclear weapons are designed to kill civilians. They could only be conceived of by the sick mind of the state.

Stephan Kinsella: Yeah, I think that’s true. I think that’s true. I don’t think that as a libertarian you could say that nuclear weapons are per se, aggressive or illegitimate, there are some imaginable uses of nuclear weapons that are peaceful. For example, we may—maybe we should use a tactical nuke to stop this BP thing in the Gulf, but of course no one would ever consider that, because that’s not politically correct, right?

Gene: Wouldn’t be politically correct…

Stephan Kinsella: Well I mean you have to weigh your options. If that’s the best solution, we should do it, right? But it would be terrible but– Gene: That would be the nuclear equivalent of dynamite or TNT, which is something that was invented I guess arguably for market purposes and pervertedly used for warfare, so I can see, I can see the free market going from nuclear energy as a form of providing energy to a grid, to using it to make an explosion for tactical purposes of whatever method or means of production or cleaning up whatever accident might arise on the part of the market. I agree with that possible—possible—invention on the market.

Stephan Kinsella: Well, your comment calls to mind what we talked about earlier, about antitrust law. Most people think of these things being the government imposing a regulation on big business and the big business grumbling about it, not liking it. Where in reality we know that basically it helps a lot these big businesses by basically erecting barriers to competition. Well likewise I think in a way, although the US has the biggest nuclear arsenal, there’s too many constraints to really using it, so it’s not that useful. They get this nuclear disarmament, or “you can’t use nukes” mentality going, and how does that help them? Because we’re the only nation that really can build these conventional weapons like the ones we used in the last Iraq war, like what are they called? the MOAB, the mother of all bombs? They’re conventional, they’re dynamite, or something like that, right? But they have the yield of some of the early nuclear weapons. They’re incredibly powerful, and no country in the world, almost, except some of the super powers can even conceivably build these things. Except us, right? We’re permitted to use them because well, it’s not nuclear, right? So basically we’re the only nation that’s permitted to use what’s the equivalent of nukes, because we prevented everyone from using the nukes that we have.

Gene: Interesting. Do animals have rights?

Stephan Kinsella: Some of them do. Humans do so–but other than humans, I don’t believe that animals have rights.

Gene: What is Aristotelian Essentialist Realism?

Stephan Kinsella: Hahaha! You got me there!

Gene: “The concept of individual natural rights is most at home in a theory of reality that sees the world as a plurality of determinant classes or kinds of entities that act in accordance with their natures. Humans are one such class. An entity’s nature established by what kind of thing it is, can either be realized to some degree or not. The more an entity’s nature is realized, the more good we say it is. We speak of a good peach as a peach that is most fully realized its nature as a peach and has the best taste when one bites into it.” I’m reading from the Journal of Libertarian Studies: “Putting Humans First: Why We Are Nature’s Favorite” by Tibor R. Machan– how do you say his name?

Stephan Kinsella: Tibor R. Machan. Yeah.

Gene: I find this interesting because the concept of animals having rights is at the forefront of some types of environmentalists’ argument. Are you familiar with this whole idea of–?

Stephan Kinsella: Yeah. Yeah. I’m close to Tibor and I’ve read that piece actually, and I know the he specifically himself has addressed, well he’s a more Neo-Aristotelianism type of libertarian philosopher and he has addressed the animal rights claim himself. I’ve met–I mean literally–I’ve met environmentalists or animal righters I should say, and if you push them: “Do rocks have rights?” I mean they said–they looked at me in the eye and said, “Yes, rocks have rights.” So, in other words, they have no conception of what “rights” means. They basically, they’re not really rigorous thinkers. Most of the people I’m talking about, the ones that will just sort of blithely say, “Yes animals have rights; so do we,” because they associate the wrong characteristics with these entities that give them rights. Basically what they’re saying is they like rocks, they like nature. They don’t have anything against this rock, And animals can feel pain for example which is one of the arguments, so we all feel pain. That’s the basis of rights. So I think they grab on to the wrong characteristics for rights or they conflate morals with rights, which is typical thing of non-libertarians, right? If they think something is bad or wrong, then it right away occurs to them that there must be a rights violation, because they’re willing to make a law based upon it.

Gene: Interesting. So that’s the premise behind people who think this. OK, they think that if it hurts then it must be a violation of rights.

Stephan Kinsella: Well yeah. That was Peter Singer, right? I think that was his idea, based upon the idea of capacity to feel pain. But other people based it on this idea of, they’re kind-hearted people and they’re kind to their pets. They don’t want to see animals unnecessarily suffer. And so they think it’s wrong to torture an animal, which it probably is, and therefore the government should make a law about it. Because they have no coherent theory about what the natural role of the government is. What the proper role of rights is, right?

I asked my grandma one time, “Do you believe people should do drugs?”

“No”.

I said, “Do you think it should be illegal to do drugs?”

“Yes.”

“Why?”

“Well I don’t think people should do that.”

Gene: Yeah. It’s a completely logical non sequitur. Okay. I get that.

Stephan Kinsella: They don’t get the difference between “this is wrong” and “this should be illegal”. But they don’t realize that “this should be illegal” has a correlative that there’s a right being violated somewhere, and they have no theory of rights to back it up. They just have their preferences, their moral preferences, or their value judgements about what they like and don’t like, or what they think is wrong or right.

Gene: Do you agree with Rothbard’s position that we will assign rights to dogs and cats, just as soon as they write on a placard and agitate for them?

Stephan Kinsella: Yeah, I do. I think Leonard Peikoff had a similar thing about mosquitos: he’ll give the mosquitos rights when they ask for them. It’s kind of a cute statement, but there’s a grain of truth in it. They don’t have the intelligence necessary to even ask for rights, which is correlated with their ability to respect our rights, which is the basis of rights and in my opinion other rights –it’s a correlative–it’s a relational thing, right? I respect your rights; you respect mine. It’s like an agreement. So morals by agreement in a sense, right? So, an animal cannot agree to respect your rights: that’s why they don’t have rights themselves. Although I don’t claim to be an expert on this, this is a little bit beyond where I claim to…

Gene: Okay. Well as it pertains to environmentalism and our claim that environmentalist concerns are only solved through the rigorous protection and enforcement of private property rights, this is on-topic in that regard, because we’re talking about rights. Are there such thing as collective rights or only individual rights?

Stephan Kinsella: There’s only individual rights.

Gene: And is there such thing as collective property ownership? Or I guess in an anarchistic society, there’s no reason why there couldn’t be collective property ownership.

Stephan Kinsella: I agree with that. I think there certainly could be collective ownership, because people can act cooperatively, so of course there can be collective or cooperative action among people. But that doesn’t mean that the collective agencies exist that are some kind of separate entity with separate rights. Society or some community is only composed of individual human beings that themselves have rights.

Gene: Are there such things as positive rights?

Stephan Kinsella: I think there are such things as positive rights. I think libertarians go a little bit astray when they so blithely say there are no positive rights. For example, if I contractually agree to do something. Now, the person I’ve obligated myself to has a positive right to expect that I perform what I promised to perform. So there can be a positive right as a result of a contract, for example. Or if I commit a tort or a crime, I think there’s a positive right on the behalf of the victim to expect remediation or compensation or even rescue. Let’s say I maliciously push someone into a lake. Well, I think I have an obligation–who can’t swim, let’s say who’s drowning. I think I have an obligation to jump in the lake and rescue that person, right? So I created the obligation. So I would say there’s no uncreated or unchosen positive obligations, and correspondingly there’s no positive rights that don’t correspond to such kind of voluntarily chosen positive obligations.

Now, I also believe that having children for example, is a way of creating positive obligations: you voluntarily created a rights-bearing entity that by its nature, has certain dependencies and needs, and I think that’s analogous or akin to pushing someone into a lake. Creating an infant that has certain needs and who would die without being cared for, is akin to pushing someone into a lake who can’t swim. And so you created that by your purposeful, voluntary human action, and I believe that that gives rise to a positive obligation to care for the child as well.

But, other than these cases, which are all the results of voluntarily chosen human action, I don’t think there are any positive rights.

Gene: Wow. So how would the violation of such a positive obligation to care for an infant through, say neglect, be enforced in the market, do you think?

Stephan Kinsella: Well, I don’t know if it could be. I don’t think perfect justice is possible, and sometimes an institutional mechanism to enforce some kinds of rights could be worse than the harm we’re trying to prevent. Abortion may be an example of this. Even if you argue that abortion, at least at a late stage, is some kind of act of murder, the nature of the relationship between the mother and the fetus and the privacy of that relationship is such that the only way to prevent it and to monitor these kinds of things, is to basically assume some kind of right to supervise and to monitor and invade the privacy of people who presumptively have committed no crime.

Theoretically a woman could become pregnant, and abort a child at 2 months, 3 months without anyone ever knowing she was pregnant, and it’s just something that sort of metaphysically she can get away with, right? Now I’m assuming that if some type of arguable proto-crime–I’m not saying I agree with that; in fact, it’s a grey area to me—but the point is there’s some things that you just cannot assume that we can enforce. However, in the case of a parent that is not fulfilling their obligations to care for their kids, I think that the only realistic enforceable way to enforce that would be, number 1, to respect the rights of the child to run away, or to choose a new guardian, or even the rights of someone else to come in and liberate that child when it becomes presumptively obvious that the child is being so abused, that we can presume that the child would prefer to have a different guardian.

That is sort of in accord with Rothbard’s idea, that when a child says, “I want to run away”, he gets the right to run away. Now–

Gene: And I think I can see a private arbitration agency upholding that.

Stephan Kinsella: Absolutely. Now, as a practical matter what’s going to happen realistically. You’re going to have a cousin or a sister or a grandparent or a friend who’s going to just see what’s going on. They’re just going to take the law onto their own hands. They’re going to risk their lives, and they’re going to go steal the child, basically! Then the question would be, in some kind of ensuing arbitration, “Who gets to keep the child?”

I would say that the liberator gets to keep the child, in a sufficiently egregious case. Now, if in the rare case where the parent was wealthy, then I suppose that you could actually take some of their assets to support the child until they were 18, or something like that, but as a practical matter, that’s almost never going to be the case. The kind of parent that is going to abandon a child– Gene: Is not one of means. Stephan Kinsella: Is not going to have means.

Gene: Well I think that the case is a theoretical case, and it’s probably, as a practical matter, probably going to be extremely rare because things like marriage and parenthood in a market society would very likely have pre-arranged contractual set-ups in which the parties would’ve agreed—

Stephan Kinsella: Yeah…

Gene: Not to engage in abuse and neglect, etc., etc. I’m sure it isn’t always going to–

Stephan Kinsella: I agree with that. The problem with these contracts it that they can only bind the parties to the contract. They can never bind the child, for example. So, let’s say a husband and wife agree, that if the wife is abusive, the husband gets the kid. Well, what if the husband is abusive, too? Their agreement doesn’t mean they get to decide for the child, who has independent individual rights.

Gene: But their agreement would contain some sort of clause stating that, “We agree to submit to the decision of a third-party arbitrator as to the fate of the child.”

Stephan Kinsella: They could, they could.

Gene: I mean, contracts they already do that.

Stephan Kinsella: Yeah they could in that case, but I just think that the arbitration agreement is only the sort-of pre-stated desires of the parents, and that’s only relevant when the parent’s desires are relevant. Sometimes what the parents want is not relevant, right? If the parents are abusive, let’s say, then who cares what they want? They both want to keep the kid, but they don’t get to.

Right now, in the law, or at least in some states, or at least there was before—I was adopted myself in Louisiana, and the law in Louisiana based on a civil law jurisdiction, was that, if you’re adopted legally, say, by a new set of parents, now you have this right to inherit from your parents. And in Louisiana there’s something called “forced heirship” which means that the parents cannot disinherit you.

Gene: Really?

Stephan Kinsella: Yeah. You have to get what is called the legitime, or forced portion and–

Gene: So there’s no such thing as “I disown you” under Louisiana code?

Stephan Kinsella: Well, you can, but there are enumerated causes. In other words, you can disown someone if you’re a parent and if the child strikes you, or if you’re in jail and the child refuses to bail you out when they have the ability. There are 18 causes listed and any one of these things, if you do one of these; then your parents can disinherit you if they want to. But if you don’t do any one of those things, then you can’t be disinherited. Now, actually this was the law until about 15 years ago and then the constitution in Louisiana was changed to permit disinherison at age 23. So, now the law in Louisiana is that until the age of 23, there’s forced heirship.

It’s an interesting concept, because I always thought that there was something slightly libertarian to this, in the sense that it sort of recognizes the parents’ obligation to care for a child that they brought into the world, right? To support this dependent being. Now, whether should be 23 or forever or what, I don’t know. But there’s something I like about the idea.

Anyway, the thing I was mentioning is, what the interesting part about it is, that if you’re adopted by new parents, then you have the right to inherit from them, and in Louisiana it would be forced heirship. You have to inherit. But the funny thing is, you don’t lose the right to inherit from your biological parents.

Gene: Really?

Stephan Kinsella: It stays there. Now technically, one of the causes for disinherison is you don’t contact your parents for more than 2 years. So I suppose, you could say that the adopted child could be disinherited because they didn’t contact their unknown, long lost biological parents for more than 2 years, because they didn’t know who they were. It’s not really their fault, and they might not even know they’re adopted, but it’s interesting that a lot of adopted children, say in civil law jurisdictions like France, Louisiana and Spain, etc., if you’re adopted, you technically have the right to inherit from two sets of parents.

Gene: Very interesting. We’ve been talking with Stephan Kinsella, libertarian legal theorist. I very much appreciate your time on the show. Thanks for taking the time to talk to me. So we’ll go ahead and end it here, and after you hang up, I’m going to share some of your bibliography with my listeners. Thank you. Thanks again for joining me on the show.

Stephan Kinsella: Thanks, Gene. I enjoyed it.

Gene: Okay. That was Stephan Kinsella. Very interesting. We didn’t really go off-topic as much as you might think. This is really why I head him on, because he’s an attorney and he’s a patent attorney, and he discusses libertarian legal theory. Things like rights; things like property rights; things like patent law, and things like government corporate partnerships are kind of what he talks about, and I probably could ask him a ton more questions if I had had more time to prepare. He agreed to this interview just about 45 minutes before we had it. Those of you who listened in or who are listening in on the podcast, because now that the live streaming portion of the show is over with, feel free to e-mail me.

Stephan Kinsella keeps a blog called www.stephankinsella.com. It’s about Austro-anarchist libertarian legal theory. Let me read a little bit of what he says here.

“Statism and the Global Warming Bandwagon,” by Stephan Kinsella. November 2, 2009.

“An edited version of my reply to a global warming alarmist on another thread:

“I’m against the state. I’m against junk science. I’m against science used by liberal arts and women’s studies majors from Brown. who now infest the state to advance their anti-capitalist interests.

“I believe we are in an interglacial period. I believe the evidence trotted out so far by global warming advocates is spotty and selective, and almost always insincere and agenda-driven, or driven by pure ignorance. I believe that global warming would probably be good, but is not going to happen. I suspect that even if it were happening and even if it were bad, the cost of stopping it would far exceed its damages–that is, that it’s not worth it to stop it; that human survival is more important, ultimately, than environmentalist concerns; moreover I would never trust the state to make this assessment, or to impose the “right” regulations to ameliorate the “problem.”

I think that the global warming advocates are not interested in real science or real debate: they want to just take their temporary popularity in the polls, and among the arts and croissant crowd, among the DC jetset bored housewives and ditzy Hollywood stars and parlay that as quickly as possible into legislation sponsored by corrupt pols like Nancy Pelosi; i.e. they just want to win, right away, as quickly as possible before the public starts to catch on, or yet another pseudo-science fad catches its eye.

The primary enemy is the state. Any scheme that involves them as a part of the “solution” to a posited problem is obviously flawed. I have no wish to cooperate with or endorse that criminal gang’s legitimacy. Period.”

Very good. Very interesting. I would point out to Stephan vis a vis his statement, “before the public starts to catch on or yet another pseudo-science fad catches its eye”: the next pseudo-science fad is here, and it’s big. And it is making its way into mainstream media coverage, and that is the “fact” that overpopulation is going to cause the planet to dry up and destroy the environment a la Easter Islands.

So, global population control, in the form of a worldwide one-child policy? We’ll see. It is making its way into mainstream discourse. So, I am not a conspiracy theorist: there are people out there positing this.

Stephan Kinsella also talks about Howard C. Hayden. (Here is a link to the letter he discusses on his blog, Physicist Howard Hayden’s one-letter disproof of global warming claims: http://blog.mises.org/10939/physicist-howard-haydens-one-letter-disproof-of-global-warming-claims/ Stephan Kinsella: “Physicist Howard Hayden’s one-letter disproof of global warming claims.”

(I should probably read this with a separate podcast, ‘cause this is really good stuff, but it directly relates to Stephan Kinsella, and when it came out back in October 2009, I read this back then.)

Stephan Kinsella: “Physicist Howard Hayden, a staunch advocate of sound energy policy, sent me a copy of his letter to the EPA about global warming. The text is also appended below, with permission.

“As noted in my post, “Access to Energy”, Hayden helped the late, great Pëtr Beckmann found the dissident physics journal Galilean Electrodynamics (brochures and further Beckmann information here; further dissident physics links here). Hayden later began to publish his own pro-energy newsletter, The Energy Advocate, following in the footsteps of Beckmann’s own journal Access to Energy.

“I love Hayden’s e-mail sign off: “People will do anything to save the world… except take a course in science.” “Here’s the letter.” http://blog.mises.org/10939/physicist-howard-haydens-one-letter-disproof-of-global-warming-claims/

Thanks for tuning in. Good night.

 

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