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Hoppe and Intellectual Property: On Standing on the Shoulders of Giants

From the Mises Blog, July 31, 2006

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Hoppe and Intellectual Property: On Standing on the Shoulders of Giants

TAGS Monopoly and CompetitionPhilosophy and Methodology

It is often the case that the great intellects advance ideas so rich and prescient that they anticipate, in however embryonic form, ideas that are more fully developed later on. One of my favorite examples is Hans Hoppe’s monumental argumentation ethics defense of libertarian rights, where Hoppe gives credit to Rothbard for recognizing, in a brief passage, the insights that Hoppe builds on more systematically: As Hoppe writes:

[T]his defense of private property is essentially also Rothbard’s. In spite of his formal allegiance to the natural rights tradition Rothbard, in what I consider his most crucial argument in defense of a private property ethic, not only chooses essentially the same starting point—argumentation—but also gives a justification by means of a priori reasoning almost identical to the one just developed. To prove the point I can do no better than simply quote: “Now, any person participating in any sort of discussion, including one on values, is, by virtue of so participating, alive and affirming life. For if he were really opposed to life he would have no business continuing to be alive. Hence, the supposed opponent of life is really affirming it in the very process of discussion, and hence the preservation and furtherance of one’s life takes on the stature of an incontestable axiom.”

Hoppe, Economics and Ethics of Private Property, pp. 186, quoting Rothbard, The Ethics of Liberty, p. 32; see also Hoppe’s A Theory of Socialism and Capitalism, n. 14 at p. 236; and Hoppe’s Introduction to The Ethics of Liberty, text following note 29; and Hoppe’s Murray N. Rothbard: Economics, Science, and Liberty, paragraph containing n. 24.{C}This is probably why Rothbard immediately recognized the power of Hoppe’s argumentation ethics, when he wrote:

In a dazzling breakthrough for political philosophy in general and for libertarianism in particular, he has managed to transcend the famous is/ought, fact/value dichotomy that has plagued philosophy since the days of the scholastics, and that had brought modern libertarianism into a tiresome deadlock. Not only that: Hans Hoppe has managed to establish the case for anarcho-capitalist-Lockean rights in an unprecedentedly hard-core manner, one that makes my own natural law/natural rights position seem almost wimpy in comparison.

Rothbard, Beyond Is and Ought, p. 44; see also Rothbard, Hoppephobia.

I’m sure other good examples of this phenomenon can be found (commenters? let’s have it!), but one that came to mind tonight also involves Hoppe, in my view our greatest living libertarian theorist, and the humble author of this post. To-wit: in my Against Intellectual Property, I argued that one problem of IP is that its advocates make arbitrary distinctions: patents last 20 years, instead of 14 or 83, for example–and that one way to avoid the arbitrariness would be to advocate infinite patent terms:

By widening the scope of IP, and by lengthening its duration to avoid making such arbitrary distinctions as Rand does, the absurdity and injustice caused by IP becomes even more pronounced …. by extending the term of patents and copyrights to infinity, subsequent generations would be choked by ever-growing restraints on their own use of property. No one would be able to manufacture—or even use—a light bulb without getting permission from Edison’s heirs. No one would even be able to build a house without getting permission from the heirs of the first protohuman who left the caves and built a hut. No one could use a variety of life-saving techniques, chemicals, or treatments without obtaining permission of various lucky, rich descendants. No one would be able to boil water to purify it, or use pickling to preserve foods, unless he is granted license [i.e., permission] by the originators (or their distant heirs) of such techniques. … Such unbounded ideal rights would pose a serious threat to tangible-property rights, and would threaten to overwhelm them. All use of tangible property would by now be impossible, as every conceivable use of property, every single action, would be bound to infringe upon one of the millions of past, accreted IP rights, and the human race would die of starvation. … Any system that elevates rights in ideas to such an extreme that it overrides rights in tangible things is clearly not a suitable ethical system for living, breathing human beings. No one living can actually act in accordance with such an unrestricted view of IP.

Notice, now, how such reasoning is already anticipated in Hoppe’s earlier work (and even, as Hoppe argues, that of Rothbard):

Taking his cues from the very same sources, Rothbard then offered this ultimate proof for these rules as just rules: if a person A were not the owner of his physical body and all goods originally appropriated, produced or voluntarily acquired by him, there would only exist two alternatives. Either another person, B, must then be regarded as the owner of A and the goods appropriated, produced, or contractually acquired by A, or both parties, A and B, must be regarded as equal co-owners of both bodies and goods.

In the first case, A would be B’s slave and subject to exploitation. B would own A and the goods originally appropriated, produced, or acquired by A, but A would not own B and the goods homesteaded, produced, or acquired by B. With this rule, two distinct classes of people would be created—exploiters (B) and exploited (A)—to whom different “law” would apply. Hence, this rule fails the “universalization test” and is from the outset disqualified as even a potential human ethic, for in order to be able to claim a rule to be a “law” (just), it is necessary that such a rule be universally—equally—valid for everyone.

In the second case of universal co-ownership, the requirement of equal rights for everyone is obviously fulfilled. Yet this alternative suffers from another fatal flaw, for each activity of a person requires the employment of scarce goods (at least his body and its standing room). Yet if all goods were the collective property of everyone, then no one, at any time and in any place, could ever do anything with anything unless he had every other co-owner’s prior permission to do what he wanted to do. And how can one give such a permission if one is not even the sole owner of one’s very own body (and vocal chords)? If one were to follow the rule of total collective ownership, mankind would die out instantly. Whatever this is, it is not a human ethic.

See also p. 142 of A Theory of Socialism and Capitalism; and The Idea of a Private Law Society.

Ah… when we peons stand on the shoulders of giants, I sometimes wonder if we ever even see over their heads.

Update: see also the concluding portion of my Ideas are Free: The Case Against Intellectual Property speech transcript, noting Hoppe’s comments on IP at a 1988 panel discussion on ethics with Rothgard, David Gordon and Leland Yeager, in the following exchange:

Question: I have a question for Professor Hoppe. Does the idea of personal sovereignty extend to knowledge? Am I sovereign over my thoughts, ideas, and theories? …

Hoppe: … in order to have a thought you must have property rights over your body. That doesn’t imply that you own your thoughts. The thoughts can be used by anybody who is capable of understanding them.

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Comments (14)

  • Geoffrey Allan Plauche
  • My major problem with Hoppe’s argumentation ethics is that, unlike the Rothbard passage cited in the beginning of the post above, it operates on a sort of Kantian realist philosophical foundation and without a broader moral framework while attempting to provide the entire backbone of a political theory. Rothbard’s account of discussion and life takes place within the context of a broader ethical framework, namely a teleological and neo-Aristotelian/Thomist one. The philosophical foundations matter. I think Hoppe’s argumentation ethics may have some merit, but only if fitted within a neo-Aristotelian philosophy and ethical and political theory.
  • Published: July 31, 2006 8:29 AM

  • Geoffrey Allan Plauche
  • Notice, also, that Objectivists can make a similar performative contradiction argument. (I can’t recall if Rand does explicitly, although she probably argued something like this at some point.) The fundamental alternative for man is the choice between life and death. Once you’ve chosen life, and the fact that your still alive and acting to further your life demonstrates that you’ve so chosen, then you are obligated to live your life according to Objectivism. To do otherwise is a performative contradiction. This is because a human life is one that is rational and Objectivist ethics is the most rational of ethics and most conducive toward living a human life.

    (Not that I endorse such an Objectivist argument, by the way; I disagree with the Objectivists who think that the choice to live is pre-moral.)

  • Published: July 31, 2006 9:17 AM

  • Stephan Kinsella
  • Plauche:

    Your critique that Hoppe’s argument “operates” on the wrong “foundation” and does not have the proper, broad “moral framework” just seems too vague, general, and loosey-goosey to respond to. All I gather from this is, “I like Rothbard better than Hoppe.”

    Re Objectivism: Um, sure:

    “[A]s Rand maintains, all ‘oughts’ are hypothetical, based on valuing one’s life ….”The point is not that one has to be alive in order to act to achieve anything. The point is that being pro-life is what makes end states qualify as values. Only choosing to hold one’s life as a value gives one the stake in one’s actions that is required for the whole issue of evaluation to arise ….

    Contrary to biological determinism, one does not have to pursue any goals or proclaim anything to be of value. But contrary to subjectivism, if one does, the action or proclamation logically depends on implicitly accepting one’s life as one’s ultimate value….

    The issue of justifying choices arises only in the context of having already chosen to live. The choice to live is not extra-moral, but pre-moral; it is a precondition of all moral evaluation.




    Harry Binswanger, Life-Based Teleology and the Foundations of Ethics, The Monist 84, 99-100 (1992). As Ayn Rand states:

    Life or death is man’s only fundamental alternative. To live is his basic act of choice. If he chooses to live, a rational ethics will tell him what principles of action are required to implement his choice. If he does not choose to live, nature will take its course.

    Ayn Rand, Causality Versus Duty, in Philosophy: Who Needs It 95, 99 (Signet 1984). 

    See also the Wikipedia entry on Objectivism:

    Central to Objectivist ethics is the concept of “value.” Rand defines value as “that which one acts to gain and/or keep.” At the most fundamental level, the pursuit of values arises out of need; specifically, the need to determine what an individual should pursue in order to maintain his life if he so chooses to live. Rand does not hold that values are “intrinsic” — that there are values an individual must pursue regardless of his wishes. And, she does not hold that they are “subjective” — that there are values that should be pursued because an individual says they should be pursued. Rather, she believes that values are “objective.” By this she means that there are values that should be pursued if one chooses to value his life. For example, food would be an objective value; in other words, it would be “objectively” true that food is required for survival. For Rand, all moral imperatives are hypothetical. There are no “categorical imperatives” as in Kantianism which an individual must perform regardless of his desires. In Objectivism, imperatives are conditioned on an individual choosing to value his life. They do not exist for an individual unless he makes this choice. Rand says, morality is a “code of values accepted by choice.” According to Leonard Peikoff, Rand holds that “man needs [morality] for one reason only: he needs it in order to survive. Moral laws, in this view, are principles that define how to nourish and sustain human life; they are no more than this and no less.”[12] Objectivism does not say there is moral requirement to choose to value life. As Allan Gotthelf points out, for Rand, “Morality rests on a fundamental, pre-moral choice.”[13]


  • Published: July 31, 2006 9:48 AM

  • Paul Edwards
  • “All I gather from this is, “I like Rothbard better than Hoppe.””

    And on the question of Hoppe’s thesis, even Rothbard liked Hoppe better than Rothbard.

    Funny that.

  • Published: July 31, 2006 11:44 AM

  • Person
  • Stephan, if I post in this thread, will you delete all of my posts in this thread once I back you into a corner and/or follow your posting style? I just want to make sure I’m not wasting my time first. Thanks.
  • Published: July 31, 2006 12:29 PM

  • Stephan Kinsella
  • Person, just keep it intelligent and civil; on point, and serious. If you veer from these standards I’ll delete you. If you don’t, I wont. ‘kay?

    BTW: since you believe in IP–I hereby claim a logoright in my “posting style”, and forbid you to “use” it. Use your own posting style, please.

  • Published: July 31, 2006 12:42 PM

  • quasibill
  • Question from someone who admittedly hasn’t read the source material thoroughly, so a mere reference to where the answer can be found is all that I require:

    How does Hoppe (or Kinsella, or whoever supports the argumentation ethics) respond to the likely Georgist (or even strict Lockean) extension of the theory? Specifically, how can you draw the line prior to the space (and therefore the ground) you occupy, at least to the extent that you must, somewhere, have that space, in order for the doctrine to be universally applicable?

  • Published: July 31, 2006 1:14 PM

  • Curt Howland
  • Wow. And all I want is an ice-cream cone. Guess we all have to start somewhere.
  • Published: July 31, 2006 2:25 PM

  • Paul Edwards
  • quasibill,

    Do you mind re-phrasing that question?

  • Published: July 31, 2006 2:55 PM

  • quasibill
  • Paul,

    I don’t mind re-phrasing it, I’m just not sure I can 🙂 My problem is, as I noted, little familiarity with the source material. Furthermore, I’m asking a question from a perspective I don’t necessarily share. However, it seems to me that if you posit that you require self-ownership to engage in an honest debate (if you’ll permit that admittedly not totally accurate paraphrase), you also, by current limitations, require ownership of a given space on planet earth – at least somewhere. In other words, you require the existence of some place that you can exist where you are allowed to make your argument. If all habitable (in the most basic sense of surviving outside of several hours) land on Earth is currently owned, and in a hypo, all owners claim that you cannot advocate the right to bear arms on their property, is there a contradiction under Hoppe’s theory for the person who has just attained majority and owns no property?

    I’m not sure if I’ve even asked the question properly this way, but it’s at least a start. The fundamental question I’m trying to get at involves the Georgist or strict Lockean concern over real property.

  • Published: July 31, 2006 3:10 PM

  • Stephan Kinsella
  • Quasibill, have you seen my elaboration on Hoppe in my Defending Argumentation Ethics? It’s available at www.stephankinsella.com/publications.
  • Published: July 31, 2006 4:56 PM

  • Paul Edwards
  • Quasibill,

    “I don’t mind re-phrasing it, I’m just not sure I can 🙂 My problem is, as I noted, little familiarity with the source material. Furthermore, I’m asking a question from a perspective I don’t necessarily share.�?

    That’s cool, i get you. And I think you’ll find it a very worth-while thing to investigate at some point. I found it to be pretty mind bending to work it all through and took me several iterations to get it well enough so I felt I could comfortably argue it.

    “However, it seems to me that if you posit that you require self-ownership to engage in an honest debate (if you’ll permit that admittedly not totally accurate paraphrase),�?

    Or more precisely that from a praxeological analysis of the act of argumentation, i.e. the purpose of argumentation, to truly debate, one presupposes both listener and proposition maker are self-owners.

    “you also, by current limitations, require ownership of a given space on planet earth – at least somewhere. In other words, you require the existence of some place that you can exist where you are allowed to make your argument.�?

    You presuppose this right to stand and right to exclusive control over your body (right to yourself) while in the act of argumentation. “Presuppose�? is the key word. The word cannot be over emphasized and in fact, to me it seems, so much confusion over Hoppe’s thesis arises from overlooking the importance of the term. What it means is that regardless of one’s true circumstances, whether one is about to be murdered for stating the wrong premise, the wrong reasoning or wrong conclusion from the listener’s perspective, as one makes this argument that may ultimately end his life, one necessarily and regardless, still presupposes that while he makes the argument, he has a right to his body, his standing space, and his survival. It follows not from observing true empirical circumstances, but rather from what it necessarily implies to truly perform the human act of argumentation. Its praxeologically deduced.

    “If all habitable (in the most basic sense of surviving outside of several hours) land on Earth is currently owned, and in a hypo, all owners claim that you cannot advocate the right to bear arms on their property, is there a contradiction under Hoppe’s theory for the person who has just attained majority and owns no property?

    “I’m not sure if I’ve even asked the question properly this way, but it’s at least a start. The fundamental question I’m trying to get at involves the Georgist or strict Lockean concern over real property.�?

    Instead of taking my swing at it, I’ll just cut and paste Hoppe’s answer to what seems to me to be a similar question at http://www.hanshoppe.com/publications/econ-ethics-appx.pdf titled “FOUR CRITICAL REPLIES�?.

    “…What about newcomers in this situation, who own nothing but their physical bodies?
    Cannot the homesteaders restrict access to their property for these newcomers and would this not be intolerable? I fail to see why. (Empirically, of course, the problem does not exist: if it were not for governments’ restricting access to unowned land, there would still be plenty of empty land around!) These newcomers come into existence somewhere – normally one would think as children born to parents who are owners or renters of land (if they came from Mars, and no one wanted them here, so what?; they assumed a risk in coming, and if they now have to return, tough luck!). If the parents do not provide for the newcomers, they are free to search the world over for employers, sellers, or charitable contributors – and a society ruled by the homesteading ethic would be, as Conway admits, the most prosperous one possible! If they still could not find anyone willing to employ, support, or trade with them, why not ask “What’s wrong with them?” instead of Conway’s feeling sorry for them? Apparently they must be intolerably unpleasant fellows and had better shape up, or they deserve no other treatment. Such, in fact, would be my own intuitive reaction.�?

    Does that answer address the essence of your question?

  • Published: July 31, 2006 5:19 PM

  • quasibill
  • Stephan,

    I’ve seen it, but, as yet, I haven’t had a chance to sit down and really give it the time required for a meaningful read. It’s on my list. I was just hoping to “shortcut” to the one issue that seems to jump out at me. Alas, it appears that I’ll have to do it the old fashioned way!


    That quote from Hoppe, while informative, doesn’t really address my issue. I’m going to have to do some more reading, apparently, before I can make sense of the fundamental uneasiness I’m feeling right now.

    My last crack before deciding to just do it the right way and RTFAs is this:

    Does Hoppe claim that his ethic extends to ownership beyond the arguer’s body? If so, how are the lines drawn? I have no problem with the theory as far as self-ownership is concerned. However, I think that moving beyond self-ownership into ownership of other objects brings another value into play, whereupon the possibility of a conflict (in theory, if not in actual practice) arises – I agree that the land monopoly I posit is highly unlikely to arise in reality. However, it is possible, in which case self-ownership conflicts fundamentally with land ownership, and the “proper” resolution of the conflict depends on a balancing test, and not deductive reasoning. And as a result, the extension beyond self-ownership can’t be universally true, as it wouldn’t be true in a possible (though unlikely, I agree with Hoppe’s quote) circumstance.

    Like I said, no need to reply if I haven’t made myself any clearer – I need to read the source material anyway.

  • Published: August 1, 2006 7:48 AM

  • Stephan Kinsella
  • Quasibill, here is an excerpt from my paper summarizing HHH’s argument:

    The universalization principle filters out many possible norms, but many possible, mutually incompatible, and nonlibertarian candidates remain (“anyone who drinks alcohol will be punished”).


    “However, there are other positive norms implied in argumentation aside from the universalization principle. In order to recognize them, it is only necessary to call three interrelated facts to attention. First, that argumentation is not only a cognitive but also a practical affair. Second, that argumentation, as a form of action, implies the use of the scarce resource of one’s body. And third, that argumentation is a conflict-free way of interacting.” (TSC, p. 132; emphasis added)

    Participants in discourse cannot deny the existence of scarcity (discourse is a form of action, after all, and action implies scarce resources, in one’s body and in external objects) nor the possibility of conflict over these scarce resources. They also value the ability to participate in argument (they are engaging in it, after all) and thus its practical preconditions, namely the ability to actually use scarce resources in order to survive (for argumentation is not possible without survival). And because argumentation/discourse is cooperative, civilized, peaceful activity, and because “justifying means justifying without having to rely on coercion” (TSC, p. 133), participants in discourse necessarily value being able to use scarce resources in a conflict-free way. One adopting a civilized, peaceful stance and trying to justify a norm cannot coherently advocate non-peaceful norms. In fact, the very attempt to justify a resource allocation norm is an attempt to settle conflicts with regard to the use of that resource. Thus, a participant in discourse could never justify the proposition that there is no value to being able to use resources, or that conflict should not be avoided, or that cooperation and peacefulness are bad things. Valuing the avoidance of conflicts also presupposes the value of attempting to find rules that make conflict avoidance possible. I.e., property rules.

    Accordingly, participants in discourse, in particular those seeking to justify proposed norms, implicitly recognize the value and legitimacy of assigning specified property owners to specified scarce resources – for reasons that are universalizable and that make conflict-avoidance possible. However, property rights make conflict avoidance possible by establishing perceivable boundaries to property indicating the property’s borders and who the owner is, and by basing the assignment on universalizable rules that could be accepted as fair by all potential arguers. For this reason, the assignment of property rights has to be based on some objective link between the claimant and a particular resource.

    What all this means is that anyone ever attempting to (argumentatively) justify any norm is already presupposing a host of norms and argumentative rules. The substantive presupposed norms rule out many proposed norms, even if they are universalizable. For example, a rule such as “no one should ever be able to use any scarce resource” could never be justified. It is incompatible with the speaker’s evident value for the ability to use scarce resources, because he has to use (and be able to use) the scarce resource of his body in order to engage in any activity, including argumentation. And he, or someone, had to be able to use other scarce resources such as food, shelter, etc., so that the arguers are alive and able to argue (remember, discourse is a practical affair, and requires the speakers to be alive, to have control of their bodies and their standing room, etc.).

    In addition, a rule specifying that all resources, or even some resources, should have no owner at all, simply does not allocate ownership in the scarce resources at issue, i.e. it does not fulfill its function of conflict-avoidance. Unless property rights are allocated to someone, conflict over each scarce resource is possible; that is the nature of scarcity. (As a practical matter, most such rules also imply that, if a given resource should not be “owned,” then some person or agency is authorized to prevent others from using the thing. In which case the rule is in reality assigning ownership to the agency with control, and would need to be justified. For example, the public forests are said to be “unowned” but the federal government prevents homesteaders from moving in. Clearly here the federal government is asserting ownership. The necessity of justifying this cannot be avoided by the fiction that the property is not owned.)

    There is no way any norm can be justified that does not seek to assign ownership of every scarce resource to particular owners, based on an objective link between the owner and the owned resource. No rule could ever be justified if it refrains from deciding who owns a particular resource, or if it specifies that no one owns a resource. And any justification offered has to be universalizable. The reasons for all these requirements should be clear by now.

    Universalizability has been discussed. Particular owners must be assigned to each and every scarce resource – this is what any theory of property – any ethic – has to do. There must be an objective link between the owner and the resource, so that conflicts can be avoided, and also to comply with universalizability. “Every” scarce resource must be owned by someone, for conflict-avoidance and other reasons given above.

    To this point the case is fairly general, and only establishes the framework for examining various competing norms. The libertarian insistence on objective links between resources and owners, and its particular view of what constitutes such objective links, is what completes the case.

    Then, the following section in the paper shows “that libertarianism is the only theory of rights that satisfies the presuppositions of discourse, because only it advocates assigning ownership by means of objective links between the owner and the property. This link, of course, is first use, or original appropriation. Only the norm assigning ownership in a thing to its first user, or his transferee in title, could fulfill this requirement, or the other presuppositions of argumentation.”








  • Published: August 1, 2006 8:01 AM

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