Stephan Kinsella is a patent attorney, a long-time libertarian theorist and lecturer in the Austrian-anarchist-Rothbardian tradition. Kinsella is also Director of the Cente for the Study of Innovative Freedom (C4SIF.org), Founding and Executive Editor of Libertarian Papers), blogger at The Libertarian Standard and has a podcast, Kinsella on Liberty. The topics discussed in this interview include Ayn Rand, Argumentation Ethics, Religion, Intellectual Property and Bullying.

Keir Martland: Thank you very much Stephan for agreeing to take part in the interview. Could you start by stating why you are a libertarian and, perhaps more importantly, what your definition of libertarianism is?

Stephan Kinsella: As for why I am a libertarian and how I define it: I explain some of this in How I Became A Libertarian (published as “Being a Libertarian” in I Chose Liberty: Autobiographies of Contemporary Libertarians, compiled by Walter Block; Mises Institute 2010) and also in What Libertarianism Is .

I am 47, a patent attorney in Houston; I was born in Louisiana. I was always interested in science and literature, and in high school, around 11th grade, a librarian at my Catholic High School suggested I read The Fountainhead. That increased my interest in philosophy and made me interested in economics (Austrian, in particular) and political theory. This was maybe 1980 or so, 33 years ago, when I was about 15. I quickly became fascinated by all this and when I went to college (to study electrical engineering), I devoured lots of works on philosophy, economics, political theory, including works by Rand, Milton Friedman, and then Bastiat, Rothbard, the Tannehills. By the time I got to law school in 1988 I was becoming a Rothbardian Austrian-Misesian-anarchist libertarian, and soon became very influenced by Hans-Hermann Hoppe’s thought.

At first I thought of liberty and libertarianism in terms of the non-aggression axiom or principle. As I learned more about history, economics, politics, philosophy, anarchy, and law, I tried to refine my views, and now I think the NAP is more of a summary or consequence of more primary views. I think libertarianism is best described as the political philosophy developed from pro-peace, pro-cooperation, pro-prosperity “grundnorms” as informed by economic insights.

I think libertarianism is the view that the only political norms that are justified are those compatible with the values or grundnorms that are actually held, and that necessarily must be and are held, by people engaged in the civilized, rational, peaceful pursuit of norms. Libertarianism is best characterized by essentially self-ownership (meaning: body-ownership) and the Lockean-compatible rule of homesteading of unowned scarce resources combined with the right of contractual transfer of title to these owned resources. The NAP is a short-hand codification of this but is derivative of or dependent on it; it is not primary. The basic libertarian view is: justified rules of interpersonal conduct are those that comport with the basic rule that when there is a scarce resource, i.e. a rivalrous good over which conflict is possible, there ought to be a norm specifying an owner, so that conflict can be avoided and the resource may be used peacefully and productively, and that this norm is: (a) in the case of human bodies, each person himself has a better claim to that body, simply because of his direct control over it; that is, at least prima facie: until and unless he performs some action (tort, contract, crime) that changes this default presumption; (b) in the case of external resources, the person who has the earlier claim to the resource has the better claim. In other words, self-ownership plus first-use and contract (plus special rules to address torts or crimes). Non-aggression means that using or invading the borders of the body or Lockean-acquired resources of another is prohibited unless the owner consents. That is why property theory is more primary than the idea of aggression; we cannot know if A’s forceful action to take an object possessed/controlled by B, is rightful, or aggression, unless we know who owns it.

Keir Martland: Your idea of ‘grundnorms’ is essentially consequentialist. You’ve written elsewhere that, while utilitarianism is flawed, consequentialism is not to be shunned by deontological or natural rights libertarians. Would you say that any deontological system must be compatible with the grundorms of peace, abundance and co-operation?

Stephan Kinsella: On consequentialism vs. deontological arguments: I agree somewhat with Randy Barnett in ‘Of Chickens and Eggs’ and in the introduction to his book, ‘The Structure of Liberty’. I also agree with Rothbard’s assessment of Hoppe’s Argumentation Ethics. The idea, as Rand noted herself, is that the moral is the practical, and vice-versa, so we should not expect consequentialism and principled arguments to be opposed; they should complement each other. (I have other problems with utilitarianism itself, as I explain in Against Intellectual Property, available at www.stephankinsella.com.)

Hoppe sees his argument as a variant of natural rights arguments, but focused on the nature of justificatory argumentation, not on man’s nature per se – Rothbard agreed with this. I think that by constructing a “transcendental” argument as Hoppe does, it is a natural rights argument but one that builds on some kind of necessarily presupposed grundnorms of any possible participant in any discussion about what norms are justified. So it is consequentialist in a sense, but it is about the rules and norms that one must favor (if one has a sufficient degree of honest, sincerity, and economic literacy) if one favors certain other basic values or consequences such as overall human peace, prosperity, and so on. Since no one can coherently propose a non-peaceful norm in an inherently peaceful activity like discourse, the presupposed values can be taken as an ultimate, unchallengeable “given.” So then you weave the givens, with logic and knowledge of human nature and economics, and you then realize that the only possible political or interpersonal norms that could ever be justified, as even possibly compatible with the necessarily presupposed grundnorms or values, are libertarian norms. All socialist norms conflict with the basic norms that all civilized people necessarily presuppose and adopt by virtue of participating in society and in engaging in sincere, rational discourse.

I can put it in a more practical way, too. Less transcendental, so to speak. Each human who is rational and grows up in a society that is the current manifestation of human history and civilization, can see the benefits to his own life, to being part of that society. If a sufficient number of people did not now and had not always also had social norms like empathy and so on, we would not have arrived at the advanced state of society we are in now. But happily, a large enough amount of humans have (for evolutionary and social reasons, I believe) a sufficient degree of empathy for others and respect for others’ rights, that we have always a type of “working libertarianism,” though it is not consistent enough. If you just take the top 80% of humans, the ones who by and large respect the rights of others, then if there are a small minority who are malevolent, sociopaths, whatever, then we have to regard them as merely a “technical problem” to be dealt with like any other challenge or threat in life. On the latter see and also “The Division of Labor as the Source of Grundnorms and Rights,” and “Empathy and the Source of Rights,” linked in note 14 of What Libertarianism Is.

And, yes: I do think that any deontological (or: principled) system must be compatible with the grundorms of peace, abundance and co-operation. I think these ways of looking at it dovetail. There is only one reality, after all; the blind men describing the elephant while detecting only parts of it or from different perspectives are talking about the same elephant, after all. That is why I think Kantianism (at least: realistic Kantianism of the Mises-Hoppe type) is not incompatible with, say, Aristoteleanism; in fact I see many similarities in the way Rand justified her “axiomatic” concepts with the way we can justify “a priori” propositions. For more on this see Mises and Rand (and Rothbard).

Keir Martland: Why did you depart from the ideas of Rand in favour of Rothbard? Was it a problem with her epistemology or reasoning, or her conclusions? One of the two must have appeared to be inconsistent with the other for you to have found Objectivism unsatisfactory.

Stephan Kinsella: Here is where I disagree with Rand. First, the cultishness, the cult of personality, the closed mindedness, the refusal to engage the mainstream, the humorlessness, the silliness of elevating your personal preferences to some kind of Holy Writ.

I still agree with the 4 main Randian tenets, but I would disagree with her application of them. On “capitalism” I would call it libertarianism, instead of focusing on one aspect of the economic arrangement we could expect in an advanced libertarian society, but that is more of a semantic quibble. I call myself an Austrolibertarian or anarcho-libertarian, not an anarcho-capitalist, just to try to be clear and to try to avoid the quibbling launched in part by the left-libertarians who go crazy over the word “capitalism”; they have succeeded in ruining the word for us.

I think she is wrong to think her capitalism-essentially, libertarianism-implies the state. Very wrong. And associated views on war, etc, but that is just her error in application.

I also think she is wrong in her over-reliance on confused intellectual property ideas in her rights theory. I think the Randian Quattro – reality, reason, self-interest, capitalism – implies anarchy, individualism, freethinking, and that intellectual property is fascist. They did not realize that their basic principles imply anarchy and that IP is evil. They were wrong on this.

I also was misled by her and her followers’ admonitions not to read libertarians like Rothbard, and their bizarre complaints that libertarianism was both incompatible with “capitalism”, while also saying Rothbard and others “stole” the idea of the non-aggression principle from her (more of her IP mania). I also disagree with the Objectivist view that you have to agree on the whole philosophy to be a good libertarian. Nonsense. I am for reason and reality, sure; but as long as someone is opposed, on sufficiently principled grounds, to aggression, that makes me very happy.

I am drawn also to some aspects of Rand’s aesthetics but don’t consider that to be part of political theory per se, and again, she was too strident and dogmatic about it, elevating her personal tastes to some unjustifiably lofty status.

Rand and her followers also unfortunately lionize the American Founders and the Constitution. I heard that she initially was in favor of eminent domain because it’s suggested in the 5th Amendment; she finally opposed it. I suspect the same thing happened to her with patent and copyright, though – as a budding novelist with some self-interest in copyright for her works -she was not unbiased and never gave that up, unfortunately; theoretically, I believe her reluctant minarchism and her embrace of intellectual property were her biggest mistakes.

Keir Martland: Indeed, I doubt there are many libertarians who will be able to effectively reject the ‘tenets’ of Objectivism. One area of Rand’s writing, and probably the majority of libertarian theorists since, which upsets me is their idea that religion is to be hated and condemned. Fair enough, as long as you also hate and condemn the state. Yet, speculating about noumena is surely not ‘irrational’, just non-falsifiable.

Stephan Kinsella: Actually, though Rand and Randians are explicit atheists, they seem not to make religion a huge scapegoat; though they do think it is a manifestation of collectivism and irrationalism, and I agree with them on this. But for me, though religion is completely irrational, worship of the state is even worse.

I think the Objectivist idea is that if you are religious you are accepting irrational ideas, and that can tarnish your ability to think coherently and clearly about other matters. However, it turns out, it seems to me, that people have the ability to compartmentalize. That is why I think that in some ways the argument for liberty has to be narrow, and to appeal to views people already hold, and not some general lifestyle type issue. You don’t get a good job by “being a libertarian.”

Keir Martland: Just to clarify: in what way would you say religion is irrational? My tolerance of religion has greatly increased since I considered two points about religion: it is a mere speculation about noumena and is not a lie, per se; and it teaches some moral rules which are often good for people to adhere to. A further point to make is that it weakens the state vis-a-vis individuals.

Stephan Kinsella: I have been a fairly strident atheist for over 30 years. But I think my tolerance has also increased, and I am not anti-religion, really. But even if religion plays a social role in helping counterbalance state power that does not mean that its supernatural claims are true. I think it is irrational primarily for reasons Ayn Rand identified: the arguments for it are riddled with irrational claims or leaps. I almost never see a sincere argument for a supernatural realm as being actually true. For example: arguments of this type: how can you bear to live, believing that you die forever? Well, this is not a real argument; it is an appeal to “wishing makes it so,” which Rand rightly skewered. And theists routinely make bizarre, dishonest, insincere arguments, such as God must exist to explain existence – yet what explains God’s existence? And there is a tendency to moral conservativism and also to anti-science (e.g. Creationism and anti-evolution, which I regard as completely irrational), combined with the willingness of Christians (say) to combine their atavistic theistic views with pro-American (say) nationalism, which is sickening to me and which probably would have disgusted Christ, if he ever historically even existed.

I view modern religion as the remnant of primitive philosophy; you see the sun go up, you posit a sun-God to explain it. Not much of an explanation, but understandable for the times. To keep the religion going, it has to incorporate customs, morals, practices, so it does end up encoding a good deal of practical wisdom, but it’s so encrusted with the irrational bits that I can’t see how religion is an efficient mechanism to spread and perpetuate valuable social norms. Yet as bad as religion is, I see the modern religion of statism as being much worse.

Sometimes I believe that we evolved too quickly – that we came out of the trees too soon. I sometimes fear that reason SETI has detected no signals from outer space is that life eventually evolves to intelligence and then soon finds a way to destroy itself in some form of gray goo -nanotech, biotech, nukes, whatever – and that this is our fate too.

But my hope is that as humanity continues to evolve and free markets and technology advance, despite the efforts of the state and statists to stop it, that various shibboleths like statism, religion, superstition, pseudoscience, collectivism, racism, will gradually subside and we will become more rational, individualistic, scientific, tolerant, and cosmopolitan. Though it is statism that is my main concern.

Keir Martland: You’ve mentioned Argumentation Ethics and you side with Hans-Hermann Hoppe on a good deal, from epistemology to rights theory. ‘Estoppel’ is one of your contributions, which is loosely based on AE: what is ‘Estoppel’ and what is its use in libertarian rights theory?

Stephan Kinsella: Re Estoppel: I recently had a podcast discussing this, KOL 052 | Renegade Variety Hour: “Being Good Without God”. I have links to my and others’ writing on these matters in the Concise Guide to Argumentation Ethics, mentioned previously.

As a budding libertarian, and having just read Hoppe’s argumentation ethics, in 1988 or so, as a freshman in law school, I had an insight in contracts class, when I was exposed to the common law idea of estoppel. That idea is that, in some cases, if you would normally have a defense against contractual enforcement (because some formality was not met etc.) the other side could still win, if they showed that you are making an argument or assertion, to defend yourself against a contract breach claim, that is incompatible with some other statement you made earlier in the proceeding or in your dealings with the opponent. If you made a statement that the adversary relied on to his detriment, then you “will not be heard” to utter a new claim that contradicts your earlier statement. The law basically requires you to be consistent; this is a recognition of the importance of the law of non-contradiction.

I saw that this is how the non-aggression principle works, since the essential idea of libertarianism is one of reciprocity or symmetry: you may not initiate force but you may use force if it is response to force. Force in response to force is okay; force in response to innocuous actions is not. By using the idea of estoppel, I reasoned that the aggressor, who has used (initiated) force against an innocent person, is estopped from complaining if the victim proposes to use force (retaliatory) against him. By this mental construct you can see what types of claims can be justified and which cannot. A claim to object to aggression is justified, but a claim to object to punishment for committing aggression is not justified because it is inconsistent; you are estopped from objecting to being proportionately punished by your victim. The argument dovetails with and complements and relies upon aspects of Hoppe’s argument ethics, especially the universalizability principle.

Keir Martland: It’s great that both you and Jeffrey Tucker agree with Stefan Molyneux that aggression by a parent toward a child is aggression all-the-same. Further to this, I also like the analogy made by either Tucker or Molyneux that the state is the perfect example of allowing a ‘parent’ to do whatever he likes to his ‘children’. Something I am less inclined to agree with you on is your theory of bullying. More specifically, the statement that you would sue the parents of a child who beat up your child. Why not the bully himself?

Stephan Kinsella: Fair point; I can’t stand strongly by this fairly informal comment. To fully justify it one would need a fully-developed theory of strict liability and vicarious responsibility, which no one has developed that I know of, to my satisfaction (including me). Maybe the child-bully should be the one sued. My point was not even that a lawsuit is the appropriate institutional remedy; maybe this is an unreasonable or disproportionate response, in most cases. My point was to emphasize that kids who bully are literally committing aggression, and creating victims; and their actions should not be laughed off or dismissed as in “oh, kids, you know them!” It is appropriate to focus on the victim and to condemn aggression. The Institutional responses to it, those details, are of less concern. In reality, in a free society, I expect these things to be much less common and to be handled speedily by private customs and arrangements-e.g. the school would contact the parents of the bully and make it clear it’s not tolerated, etc.

Keir Martland: Speaking of Stefan Molyneux, whom all readers of ‘The Libertarian’ hope will make a speedy recovery, to what extent is ‘Universally Preferable Behaviour’ the same theory as Argumentation Ethics?

Stephan Kinsella: I think UPB, as far as I grok it, is getting at some of the same insights that are in argumentation ethics. I think it is less rigorous and coherent, as are many other “fellow traveler” arguments I allude to in my Concise Guide article, but it is pushing in the same general direction I think.

Keir Martland: What, or who, finally convinced you of the absurdity of intellectual property? And, on a less serious note, how painful is it being a patent attorney when you’re the leading libertarian against IP?

Stephan Kinsella: Honestly, I cannot remember. I think it was a combination of Tom Palmer, Wendy McElroy, perhaps Sam Konkin, and to some degree Murray Rothbard, plus my growing appreciation for the role of scarce resources/means in action from reading people like Mises an Hoppe. I think I always really knew it was bogus; Rand’s argument on IP never made sense to me. As I started law school and then started practicing IP I turned my attention to it more because I knew I had to make up my mind. Then I realized things fell into place when I rejected IP; and clarifying these issues in my mind helped me reorganize my approach to related matters in legal and political theory.

I did hardcore patent prosecution for a solid decade, 1992-2002 or so, then got burned out on it primarily because it’s just a drain. But then, also, because I started hating the patent and IP system even more and more. So even if I help clients now acquire patents, and mollify myself that it is helping them defend themselves against patent aggressors in a horrible system, it’s still not pleasant. I imagine that if I took $50k as a defense attorney from the parents of a kid accused of selling cocaine, I would know I was doing a good thing but would feel uneasy about it. In any case I try to focus now only on projects for clients that I feel morally justified about; I refuse to actively help someone use patents to attack innocent victims. I turned down a client just last week, telling them I could never help you acquire patents if your intent is to use them offensively against your competitors.

Keir Martland: How optimistic are you that a stateless society will be brought about within your lifetime or the next generation’s lifetime? Are there any truly radical, consistent and effective think-tanks about anywhere in the world?

Stephan Kinsella: I am somewhat optimistic that the free market and technology will keep advancing, despite the efforts of the statists to stop it. And this will bring a gradual increase in appreciation for free markets and scorn for the state. I don’t see any binary or radical shifts, but more of a gradual change. Hopefully the state will become relegated more and more to the background. As for think tanks – well I am increasingly a fan of “agorist” or private solutions to private challenges that gradually invade the state’s territory and undermine it; just think of what email has done to the state postal services; what Skype has done to international long distance telephone service. I have long been a skeptic of the pie in the sky libertarian projects like floating nations and whatnot, but I am heartened by some more practical and recent ideas like General Governance , of which I am involved and which seeks to exploit some unique constitutional anomalies of the US Indian Tribes to spread free-ish “enclaves” within the US, the Blue Seed project, and even the failed but maybe-to-be-revived Honduran Free Cities Projects.

Keir Martland: Finally, Margaret Thatcher was the only UK Prime Minister to proudly proclaim her ownership of a copy of ‘The Constitution of Liberty’ by FA Hayek. While many libertarians seem to think that she was amazing, others, such as Sean Gabb, have criticised her policies very strongly. Do you have any thoughts on ‘The Iron Lady’?

Stephan Kinsella: My first vote, in 1984, when I was 19 or so, was for Ronald Reagan. That was my last vote for a Republican. Thereafter I voted Libertarian Party or abstained, and, lately, don’t waste time voting. So while I have some nostalgic affection for Reagan and Thatcher and some of their rhetoric, I cannot say I really admire very much any politician. I view them as almost inherently corrupt, dishonest, shallow, and evil. So, no, I have no fondness for Thatcher. I cannot see how anyone who rises to such a position of power in a modern social democratic state can be decent or principled.

Keir Martland: Thank you, once again, for taking part, Stephan.

Stephan Kinsella: Thank you! I enjoyed it.