This is a lightly edited transcript of my speech “Correcting Some Common Libertarian Misconceptions,” delivered on May 28, 2011, at the Annual Meeting of the Property and Freedom Society, and podcast previously at KOL044 | “Correcting some Common Libertarian Misconceptions” (PFS 2011). The video and the powerpoint presentation are embedded below.
- KOL 045 | “Libertarian Controversies Lecture 1” (Mises Academy, 2011)
- KOL023 | “Libertarian Legal Theory: Property, Conflict, and Society: Lecture 6: Applications Continued; Common Libertarian Mistakes (Fraud Etc.)” (Mises Academy, 2011)
- KOL206 | Tom Woods Show: Five Mistakes Libertarians Make
- KOL185: Clarifying Libertarian Theory (Liberty.me, July 2014)
- KOL118 | Tom Woods Show: Against Fuzzy Thinking
- This speech was discussed previously on the Mises blog with extensive comments (archived here and pasted below), and also on my blog
Correcting Some Common Libertarian Misconceptions
by Stephan Kinsella
(Transcript of a speech delivered May 28, 2011, at the Annual Meeting of the Property and Freedom Society)
STEPHAN KINSELLA: Thank you Hans. Before I start, let me mention one thing. Today, this article will appear on Mises Daily – well, yesterday, but this is the current issue. So this is a summary of the Hoppian argumentation ethics theory, so anyone who’s interested in this idea you may want to take a look at this. Also, at the bottom of this page there’s an ad for an upcoming Mises Academy course I have here, which is starting July 11, the Social Theory of Hoppe. So it’s a six-week course where I’ll go into detail on Professor Hoppe’s economic and political theories. So anyone who’s interested in that, take a look.
I’ve taught two – well, three Mises Academy courses already, my Intellectual Property Theory twice and Libertarian Legal Theory. And in the course of doing these and in the course of my thinking over the years, I have started to collect a bunch of libertarian fallacies, confusions, and misconceptions, which I’ll try to go through here. And if you disagree with me, I guess I’m promoting some libertarian misconceptions.
So I’ll start with a fairly easy one that’s always sort of bugged me. You’ll find libertarians will use the word coercion quite often as a synonym for aggression. The word means coercion. This is more of a semantic point, but technically we’re not against coercion. Coercion just means to use force to compel someone to do something. So if someone is breaking into my house and I get my gun and I force him to leave, I’m coercing the guy, and there’s nothing wrong with that. So I think we just need to be clear on our terminology and avoid equating aggression with coercion. And libertarians will also, in like vein, sometimes say that we’re against violence or we’re against force, and of course we’re not. We’re only against the unjustified use of force.
By the way, this is a PowerPoint slide, and I have tons of links in here, and I posted this on my website this morning if anyone wants to look it up and look for – I’ve often got links to articles or blog posts that have further discussion of the topics in the slide, and my website is stephankinsella.com. By the way, in a like vein, I always get annoyed when people use the word capital-L libertarians to describe me or other libertarians. Libertarian with a capital L means member of the Libertarian party to my mind, and I’ve never been a member of the Libertarian party and don’t plan to be, although I did run for office one time under the Libertarian ticket in Texas.
A related idea is – you’ll hear this idea. When people talk about PDAs, private defense agencies in an anarchist or private property society, a lot of these guys almost sound pacifist in the sense that they say that you can only assert jurisdiction over someone who’s already signed up to be a customer of one of these PDAs who have agreements with each other. But, of course, I think that’s false. A criminal in effect consents to jurisdiction over him by committing an act of aggression. So you can think of it this way. There are two ways that force could be justified against someone that is invading the borders of their body, using their body or their property.
One would be consent. If someone gives permission or invites them like a girl invites you to kiss her. It’s not aggression because it’s invited or consented to. But committing aggression would be another way that you can think of as giving a type of consent to force being used against your body. And the reason basically is sort of the Hoppian argumentation ethics or symmetrical idea that you really have no grounds for objecting to force being used against your body if you are committing aggression yourself. You sort of agree to that type of rule of ethics. So these are some kind of initial ones. Let’s get into another one.
Restitution and punishment or retribution—these two things are often confused by libertarians. They’re all over the map. Some people believe retribution is primary. Some think restitution is primary. Some think we should have both. Now, my view on this one is that the general libertarian view is that we’re for non-aggression. But what that means is force that is not aggression is not impermissible. What that means is force that’s in response to aggression is what is permissible. So I think the general category of what type of force is permissible is responsive force.
Now, that includes different types of force. That includes defense, using force in self-defense because that’s in response to aggression or using force to achieve restitution after the fact or using force to incapacitate someone or to punish them for deterrents purposes or even for rehabilitation. All of these are examples of responsive force. So the purpose or the motive of the victim who is using his right to retaliate, his right to respond forcefully against an aggressor, that is what determines the characteristic of that force. So he might have a – he might want vengeance. He might want retribution, or he might want to threaten the victim. I’m sorry – threaten the aggressor and say I have the right to torture you or to jail you or to kill you even for the crime you committed. But I’ll bargain it away for an award of money, restitution.
So the purpose that the victim can put his right to punish or his right to respond forcefully to determines the type, but it’s up to him. Now, so I would disagree with the idea that there’s restitution is the only basis of a libertarian society because there is a right to respond with force to an aggressor. He basically is – his rights are not violated if an aggressor is – if force is used against him or in response to his aggression. However, this does not mean that in a libertarian society restitution would not be the dominant mode of justice, and I actually think it probably would. There are several reasons for this. Number one is that punishment is more costly than restitution. There’s always the possibility of error. If you make an error in an award of restitution, then that can be undone. If you make an error in punishment, it can never be undone, and it could lead to retaliation against you or a high award of damages from your insurance company or something like that.
Another reason it’s more costly is it is probable that the standard of proof would be higher to justify punishing an accused aggressor than to get restitution. Arguably you would need proof way beyond reasonable doubt to justify punishing, whereas it may only be a preponderance of the evidence standard for getting restitution because there the dispute is just over property. Basically you’re saying this purported aggressor, this alleged aggressor has $10,000. I claim that I am entitled to that money for damages for restitution to me.
So it’s really a property dispute at that point, and in a property dispute, while the burden of proof can be on the plaintiff, which would be the victim, the standard of proof could be just preponderance of the evidence. And for people who aren’t familiar, this is a legal standard. Preponderance of the evidence is basically more likely than not, 51%. And you can think of beyond a reasonable doubt is 99%, and there’s an intermediate standard in the US called clear and convincing, which is – I don’t know – 75%. And there are several other reasons that restitution would probably be the dominant mode of justice, although punishment you could imagine would happen on occasion in an ad hoc fashion, even in an institutional fashion.
Another reason that we need to keep in mind that there is a right to punish is that without the right to punish restitution, except in cases of property theft, is fairly arbitrary. If there’s rape or murder or assault or kidnapping, that can never be undone, and an award of money never truly compensates the victim for the crime that was done. And so there is just no objective way to determine how much money the aggressor should have to pay. And, in fact, in most cases, aggressors are usually low-lifes and don’t have any money anyway, so you need the right to punishment to determine the proper amount of restitution.
So, for example, if you know that you have the right to punish an aggressor proportionately for the crime they committed, the worse the crime the more severe the punishment could, in theory, be inflicted. Then that amount of punishment could be used to bargain with the aggressor for a more objective restitution award. And, in fact, this also solves the rich aggressor problem where people have said that if you just have a restitution award then Bill Gates can go around murdering because he can just pay off the $3 million set penalty for murder. But that actually would not be the case because the aggressor’s – the victims’ families would have the right to punish Bill Gates, and because he’s a billionaire, he would maybe pay $50 billion, half of his fortune, to avoid being punished. So there’s a sort of sliding scale there that comes into play.
So the right to punishment helps to make restitution more objective and helps to solve the rich aggressor problem. It’s often said that libertarianism believes that there are no such things as positive obligations, that we only believe in negative obligations. And typically what they mean is the correlative idea of the only duty we have is to avoid aggression. That is, you have to refrain from committing aggression, which means don’t trespass. Don’t invade others’ borders, and don’t use people’s property without their consent. But I think this is actually mistaken. Libertarianism does not oppose positive obligations. It’s just that they have to be voluntarily assumed.
So, for example, if you commit a crime, then you have – by that action you have acquired a positive obligation to, say, make restitution to the victim. If you commit a negligent act or even an intentional act like a tort, like you push someone in a lake, especially if they can’t swim, you do have a duty to rescue that person. You have a duty to mitigate the damage you’ve already done, whereas a passing-by stranger does not have a legal duty to rescue a drowning stranger. He may have a moral duty, and I think he probably does, but he doesn’t have a legal duty. But the aggressor or the tortfeasor does.
Other actions can also give rise to positive obligations in my view. For example, having a child gives rise to parental obligations. Now, they may be difficult to enforce, but in theory I do believe that there are legal obligations of parents to children, at least to a certain age, and I do discuss this in one of my articles. Now, some ask whether this – how this relates to the issue of abortion, and I won’t get into that here, but you could make arguments one way or the other. Now, what about just by mouthing words, by saying things? Does that give rise to positive obligations? Most people would think so because of a sort of standard mainstream understanding of what contracts are.
Most people think of contracts as binding obligations, binding promises. So you make a promise, and therefore it’s enforceable. This is problematic under libertarian theory for several reasons, and it is best explained by Murray Rothbard and Williamson Evers who have written a lot on this issue. Basically, they start from a propertarian perspective. The only right, as Rothbard argued, are property rights. Even the rights in your body can be viewed as property rights, and so the fundamental right is the right to control exclusively scarce resources that you have appropriated or come to own in some kind of way.
So a contract is simply viewed as an exercise of one of your ownership rights that is alienating the title to some property that you own. So a contract is not a binding promise. It is rather a title transfer. This may seem like just a minor semantic difference, but it’s not. It has lots of implications. It’s a much more clear way to view this whole area, and it has implications for inalienability, for example, which I’ll get to later if I have time. I also think that libertarians who say that there is free speech rights, for example, there are actually – as Rothbard explains, there are no free speech rights. There are no freedom-of-the-press rights. There are only property rights, the property right in your body. You can think of a couple of examples where – to show that there are no free speech rights, for example.
So in one example, if I own my body, then I’m free to use it to say words, so owning my body is sufficient to give me the right to speak. So the right to free speech is really a consequence or an implication of my more fundamental right to my body. So if you say there’s a right to my body and a free speech right, you’re double counting, so it’s redundant. It’s not necessary to say there’s a right to free speech. On the other hand, if you’re on someone else’s property, you have to abide by their rules. You may not speak on someone else’s property if they don’t permit you to.
So the right to free speech, if it existed, would trump their property rights, so it doesn’t exist in that case either. And furthermore, there are cases where speech and this is my opinion. A lot of libertarians would disagree. Even Rothbard has this view and Walter Block that incitement, for example, can never be a crime or that, say, a mafia boss or someone like that is only liable for the actions of his henchman or other people who perform the direct crime if there’s a contract or if there is coercion. So, for example, Walter would say that Truman was implicitly coercing the bomber and the pilot of the Enola Gay who bombed Japan.
But of course that is not always the case. There’s not always coercion, and I still think there’s liability. I discuss this in more detail in the article linked at the bottom of this page, but in my view we need to have a more general view of causation. We have to anchor it in the Misesian, praxeological structure of human action. We have to understand human action is the intentional use of means to achieve an end. That is what human action is, and the use of a means is using something causally efficacious in the world to achieve the intended end. And these means can be other human beings. As Mises explicitly discusses in Human Action with regard to economics and the division of labor, of course other humans in cooperative action can be our means to achieve our ends.
Now, this – another misconception of libertarianism – some libertarians make is they seem to have this fixed-pie responsibility mentality where they’re afraid to say that the mafia boss who gives an order – or let’s take a better example. A wife who seduces her boyfriend or promises him sexual favors and persuades her boyfriend to kill her husband so she gets the insurance money and gets rid of him, Walter Block would have to say that she’s not liable in that case because there’s no contract, and there’s no coercion. But of course I think that’s nonsense. Some libertarians would be afraid to say the wife is liable in this case because they think that that means 100% of the responsibility falls on her, and the boyfriend is no exculpated.
But of course this is not true. There’s such a thing as joint responsibility, and I think they’re both 100% responsible in that case. Cooperative crimes are possible, and in this case, if you look at the structure of the wife’s action, her end was the death of her husband, which is a crime. The means she selected as persuading her boyfriend, so it fits perfectly into the Misesian structure of action. So the point is, in some cases, speech can be the means of aggression. So imagine the firing squad captain, and he says ready, aim, fire.
Now, Walter might say – Walter Block might say that he’s not shooting the victim of the firing squad. He’s just saying words. I think this is just a too-simplistic view of the reality of human interaction and cooperation. Likewise, you stir up a crowd. You say lynch him and you get your way, and the crowd lynches this innocent victim. I think you’re responsible.
Now, there are obviously limits, and this is the job of judges and juries and legal science to figure out the limits, but we can’t just say there’s a right-line rule that speech is never aggression. Also I think that one way to view this problem, imagine you’re in a bar and you walk up to – some guy walks up to a big, burly biker and he just looks at him and says you’re mama is ugly. Now, some libertarians would say, well, if the biker punches him in the face, then that’s aggression. Even though the guy was asking for it, even though the guy is doing something risky and maybe immoral, technically the biker is committing aggression.
I don’t think that’s necessarily true. I think in that context you’re basically inviting a fight, so by the words your mama is ugly, you know you’re going to anger this guy, and you know he’s going to punch you, and you’re standing there ready to receive it. So it’s similar to stepping into a boxing ring or onto the rugby field. You’re consenting to the fight. But anyway, this is an example of how there can positive obligations assumed by word as well. So I mentioned already the contract issue, the confusion that contracts should be viewed as binding promises, but instead, as I mentioned, Rothbard and Evers argue they should be just viewed as exchanges.
Now, one related thing to this is this has implications for the body, alienability in the body. Now, Rothbard, who is great on the title transfer theory, tries to argue for why – and this relates to some of the debate yesterday about walking away and contracts. We – the body is a different type of property than acquired things, so we acquire property by appropriating it or by purchasing it. That means we – there’s a thing that – what used to not be owned. It was a formally unowned resource. And now, by our act of will and our physical embordering or possession of this object, now we have acquired it into our own ownership. Because of that, we’re now the owner. That means you have the right to the exclusive use of that thing.
You can consent to others using it. You can invite people, permit them to use, or you could deny them permission to use it, and you can use it yourself for whatever you want. But by the same token, because you acquired it, you can unacquire it. When you cease to have the desire to own it, you can abandon this thing. So the reason we can alienate title to some things that we own is because these are things that were previously unowned and that we didn’t own before. So you basically undo the ownership, the acquisition of this thing. So alienation of title is not part of property rights. It’s just an application of property rights to the specific type of – to the case of unowned objects, things that were unowned.
The body is a different matter. You don’t really homestead your body. You don’t see your body unowned one day and one day acquire it. You are a homesteader. Human beings are homesteaders. When we homestead objects, it is a human with a body doing the homesteading. So the body is clearly owned in a different way than things that we homestead. Because you don’t acquire your body in an act of homesteading, there’s no way to undo it by an act of will. This is the reason, in my view, for inalienability. It is simply that if I say I promise to be your slave, well, contracts are not promises.
They’re not binding promises, so that mere expression of words does not give rise to the right on the part of my would-be master or owner to use force against me. When he uses force against me, it’s aggression like, say, to keep me from running away when I change my mind. Now, it’s only justified if it’s not aggression. So it’s only not aggression if it’s response to my aggression. But by just saying I will be your slave, I didn’t commit aggression against this guy. I didn’t do anything like in the previous example of ready, aim, fire. I didn’t hurt this guy at all, and because I can’t undo the ownership of my body, there’s no title transfer either. So this, in my view, is the reason inalienability is the case for human bodies.
Now, Rothbard argues that it’s because our will can’t be alienated. I think that’s not correct. I think that it’s clearly the case that we can own other people’s bodies like criminals, for example. You’re in effect asserting ownership of a criminal’s body when you’re defending yourself against him or when you put him in jail. He’s basically a slave even though he disagrees. So it’s perfectly legitimate in some cases to, in effect, own someone else’s body even though they disagree. So there is no impossibility that prevents that, and if there’s no impossibility that prevents it in the case of a crime, there’s no impossibility that prevents it in the case of a voluntary, say, slavery contract. The problem with it, as I’ve mentioned, is that body ownership is different from ownership of external resources.
Another fallacy I’ve noted is the sort of sloppy, imprecise way a lot of libertarians use the word fraud. It’s used quite often as a synonym for dishonesty, but of course dishonesty is not a crime. So fraud is one of these vague, general words that can lead to intentional or unintentional equivocation where the libertarian will agree that fraud in the technical sense is a type of rights violation, although they’re not really clear exactly how to define it. And then later on, you’ll talk about a trademark case or something, and someone trying to justify modern trademark law will say, well, the reason Chanel can go after the knockoff Chanel bag is because the lady walking around with the fake Chanel bag is committing fraud. She’s just a fraud. People see and they think she’s rich, or they think she has a real Chanel bag, but she doesn’t. She’s defrauding everyone.
Well, okay. She may be lying in that sense, but is that a type of rights violation? Is that the type of fraud we mean when we say libertarians are against aggression and fraud? I think what we have to do is we have to view fraud in the context of the title transfer theory of property. I’m sorry—the title transfer theory of contract, and we have to view it as basically what the common law calls theft by trick. That is the only type of fraud that is actually a rights violation, and so you can think of it this way.
I want to trade my basket of apples for your chicken, so we’re going to make a contract, and this contract is a bilateral contract. It’s a double exchange. It’s a two-way exchange. Some contracts can be unilateral by the way. If I give my nephew a $1000 gift, that’s a contract. It’s a one-way transfer of property. It’s gratuitous. It’s not onerous, but it’s still a contract because it’s a transfer of title of property. Some contracts are one-way, and I’ll get to this in a minute. This has implications for another fallacy regarding service contracts.
But in a typical exchange, two-way exchange, apples traded for a chicken, there are explicit or implicit representations made by each party. A contract results from communication and language or intentionality. Both parties are – I’m saying I’m giving you my apples conditioned upon your giving me your chicken. Well, this has meaning. The chicken seller is saying I’m hereby giving you title to this chicken. I’m getting rid of it. I’m abandoning it in your favor conditioned upon your giving me X where X has a meaning. It means a basket of real apples, not a basket of plastic apples or a basket of rotten apples or a basket of poisoned apples.
So if the seller of the apples has poisoned apples or wormy apples and he’s aware of this, then when he hands the apples over and takes the chicken, he knows that he’s actually not fulfilling the condition that the chicken seller is putting on the sale of the chicken. So he knows he’s getting that chicken without informed consent or without the genuine consent of the seller, so basically it’s theft by trick, so this is why fraud is a crime. It’s basically a way of committing a type of theft. So by his dishonesty in representing the nature of the apples that serve as a condition to transfer the title to the chicken, he is basically stealing the chicken. But only in this type of case is fraud a libertarian crime.
And so when people throw around, oh, that’s fraud; that’s fraud; that’s fraud, you have to stop and ask is it a case of the chicken and the apples? Is the Chanel bag – is the woman using the misrepresentation about the genuineness of her purse as a means to obtain someone else’s property without their genuine consent? No, she’s not, so it’s not any type of fraud that can be prohibited. These are two fallacies that I think are kind of nice to look at together related to the inalienability issue I talked to already.
So quite often this comes up in the intellectual property context when people are trying to justify intellectual property, and quite often the argument will involve saying that – trying to say that, well, you own your labor, and therefore, you own things you mix your labor with including an idea that’s valuable. So the idea has value. You created it. You owned your labor. Your labor is sort of embodied in this valuable idea, so you own it. This is their argument, and to support – which I think is nonsense. You don’t own your labor.
But they will try to justify this and say, well, what about a service contract when you work for someone, an employment contract or a service? You’re selling your services. How can you? So they’ll say if you can sell something you must own it. I mean how can you sell it if you don’t own it? So they’ll use this to sort of sneak in the idea that, well, you must own your labor.
Now, this is another confusion based upon a lack of understanding of the title transfer theory of contract. Really a sale contract is not – this is the danger of metaphors. So we use this metaphor to say we’re selling our labor, and then we start thinking it’s a convenient way to describe what’s going on, but it’s not really a sale of labor. A labor contract is a unilateral title transfer. There’s only one thing being transferred. That’s the money.
Now, it’s not gratuitous. It’s not gratuitous in the case of a gift. It’s conditional. So what’s going on in an employment contract, for example, is the employer says I own money. I hereby transfer $1000 to you if you perform certain actions. Now, this condition could be anything. This condition could be I hereby transfer $1000 to you if it rains tomorrow. Now, does this mean that he owns the rain? No. It’s just the fact that he owns the property gives him the ability to condition and to decide what conditions will trigger the alienation of that property.
And the fact that the employee owns his body gives him the ability to not work unless he’s induced by a conditional one-way transfer of title to money. So there are no sales of services. There are no sales of labor. And the converse of this is also interesting. People will say – this is, say, Walter Block’s view. This is his argument for body alienability. He says, well, you agree that we’re self-owners. That means you own your body. But if you own something, you can sell it. So this is just this sort of taken-for-granted idea, and as I mentioned earlier, I think this is confusing.
I think that ownership does not fundamentally mean the right to alienate title. Ownership means the right to use something or the right to control something. It’s not by itself the right to get rid of the right to own. As I mentioned, it only – a consequence of having the right to control an acquired good is that you can unacquire it. That’s why you can get rid of title to that, but it doesn’t apply to your body. So I think it’s actually not true that if you own something you can sell it.
Okay, I mentioned this already about alienability, and these links here are articles and blog posts I’ve written, which I discuss a lot of this in a lot of detail, and as I mentioned it’s on my site. And I’d be happy to answer questions by email too after this if anyone wants to if we don’t get to discuss it in the Q&A period.
Okay, here’s another one. Some libertarians strangely will object when you say that one libertarian view—in fact, I believe the fundamental view—is that we believe in self-ownership. They either are religious people thinking that you’re taking an atheist view, or they’re atheists thinking you’re inserting a religious view. For example, I made this – just the offhand comment in an article that we have self-ownership.
And Leland Yeager in Liberty, who’s an atheist, and I’m not a big religious person either, so he thought I was assuming that there’s – I have a soul and the soul is the owner of this body, and there’s some kind of distinction. I think this is just nonsense. It’s a very common-sense view. You don’t need to be religious or atheist to believe that there is a person and there’s a body. They’re distinct. Just like the mind and the brain are distinct conceptual entities, the mind is not the brain. I believe that you need to have a brain to have a mind, but the mind is not the brain just like my memories are not my brain. I don’t think there are mind surgeons. There are brain surgeons, and I don’t think I change my brain. I change my mind. I mean these are different conceptual entities.
So self-ownership simply means that my body is a scarce resource, and I get to decide who uses it rather than someone else. I mean if you reject self-ownership, then you’re either in favor of slavery or some kind of chaotic world of some kind of category of war. So body ownership is the fundamental libertarian view whether you’re religious or whether you’re not. And this is – I mean this is not new to me or this is an old view, and I – it’s shocking to me that it’s controversial at all.
I’ve just got a couple of quotes here. This is Richard Overton, 1646: To every individual in nature is given an individual property right—property by nature—not to be invaded or usurped by any: for everyone as he is himself, so hath a self-propriety, else he not be himself. And Locke said: Though the Earth and all inferior creatures be common to all men, yet every man has a property in his own person. This nobody has any right to but himself. I mean this is not controversial in my view.
Let me go this final one here. Then we can open up for questions. This is a fallacy that is made quite often, and it’s used to justify intellectual property, and as I mentioned earlier, the argument is that if you create something of value, you mix your labor with it, then you own it. And therefore, patents and copyrights, ideas or property right in those is justified. So the confusion here is this. Libertarians recognize that production is a valuable activity to engage in, and it’s a source of wealth. But they will sometimes say that there are three ways of coming to own things: homesteading or original appropriation, contractual exchange, or production. But this is actually not true. Production is not a source of property rights.
It is a source of wealth, but we have to keep these things distinct. We have to keep in mind the difference between acquiring title to property and producing wealth. What does it mean to produce wealth? To produce wealth simply means to transform scarce resources into a more valuable configuration. Now, value is, of course, objective. Who is it more valuable to? More valuable to you or to a potential customer? Value is not in the thing. The value is not a thing that you create, which is another mistake that Randians make.
They’ll say man creates values. I don’t know what that means. I’ve never stepped on a value. I’ve never seen a value. Things are valuable. I value things. You demonstrate value by – you demonstrate your preferences in that you value something by your actions. So if I – and the only way to produce is to already own the resource that you’re transforming. Of course, you can’t transform something that’s unowned. It makes no sense.
If I beat some metal into a sword, the metal had to be owned by me. It was owned by me during the act of transformation. The reason I own the transformed, more valuable product is because I owned the raw materials that I transformed it into. And the reason I own the wealth is because I own this material that is more wealthy to me or more valuable to me.
Hoppe notes this explicitly: One can acquire and increase wealth either through homesteading, production, and contractual exchange or by expropriating people. There’s no other way to acquire wealth. But that doesn’t mean that production is a way of creating property rights because you can’t produce without owned goods in the first place. So you could think of it this way. Homesteading creates new property titles because the thing that was formerly unowned now is owned. Contract transfers existing property titles, and production transforms already owned goods. They’re already owned, so production cannot create property rights.
Ayn Rand recognized this, and she should have recognized that her theory of intellectual property was completely inconsistent with this. She wrote herself: The power to rearrange the combinations of natural elements is the only creative power man possesses. It is an enormous and glorious power, and it is the only meaning of the concept creative. Creation does not mean the power to bring something into existence out of nothing. It means the power to bring into existence an arrangement of natural elements that had not existed before. She’s actually right. This is why intellectual property is illegitimate.
Rothbard saw this too. Rothbard wrote: Men find themselves in a certain environment or situation we decide to change in some way to achieve our ends. Man can work only with the numerous elements that he finds in his environment by rearranging them in order to bring about the satisfaction of his ends.
And I’ll close on one more slide. Rothbard is often accused of plagiarizing Ayn Rand, and of course even if he did, that shouldn’t be a crime because intellectual property is illegitimate. So he’s often accused of, when he’s was in Rand’s circle learning things from her and then using it later in his theory and not giving her credit, so I’ll just quote Mises here on this to show that this isn’t Rand’s idea either. He was talking about the widespread misconception about the nature of production: There is a naïve view of production that regards it as the bringing into being of matter that did not previously exist as creation in the true sense of the word. So then he says the role played by man in production always consists solely in combining his personal sources with the forces of nature in such a way that the cooperation leads to some particular desired arrangement of material. No human act of production amounts to more than altering the position of things in space and leaving the rest to nature. And with that, I’ll conclude, and I think we have time for Q&A.
STEPHAN KINSELLA: Yes.
M: Stephan, it was brilliant. There are so many things I disagree with that I don’t know where to start. But maybe I’ll pick up two or three and see if [indiscernible_00:39:11] One, when you say that a young boy or anyone says your father is ugly, then the other person is entitled to hit you or punch you or something like that. I don’t think this is quite correct [indiscernible_00:39:32] is right too is to retaliate at the same level rather than the verbal level, but not change the level by hitting him back or hitting him back or hitting him, not back because he hadn’t hit him. So that’s one thing.
The other thing, the distinction that you make by incitement to violence, like if you say lynching, and it’s very different from the order that an officer gives to a subordinate – drop the bomb. The subordinate has to obey, so the officer is clearly co-liable, but on the other hand, if I tell you lynch him, it is your decision to lynch him because I [indiscernible_possibly lord slightly over you_00:40:26]. So when I say simply a – simply words, so there, that is a distinction.
And the third thing is freedom of speech on someone’s property, I don’t think of that being on someone’s property limits your freedom of speech. Or when it does, it’s that the owner of the property may ask you to leave, and not come back, or the owner of the property may say in my house nobody says anything about politics, about religion, or something like that. By entering the house, you’re a free person, but if there was no a private agreement, I [indiscernible_00:41:09] on someone’s property and forcing self-censorship unless customs or [indiscernible_00:41:17] things like that would agree. So only [indiscernible_00:41:21]
STEPHAN KINSELLA: Okay, so on the – I mean I’m not saying that, as some kind of rigorous rule that if you insult someone they have the right to punch you. What I’m saying is in some contexts, the meaning of what the guy is doing is an invitation to a fight, in some cases maybe not. And in the case I gave, he was actually punched, so that’s an indication that this is what these guys are intending.
In most cases I would agree that it would be aggression to punch someone for an insult. But in some cases, I think you’re really asking for it, and you know what you’re getting, and I think it can rise to the level of an invitation more than just asking for it. And I was just trying to give an example that in some cases speech can – that was just an example of how positive obligations can arise by actions or even by words in some cases. So I mean it’s just an example, and if you quibble with the example, I’m not too concerned because – so that’s fine.
Now, I think you’re question begging a little bit when you use the word authority with regard to the – and you said has to. Now this is a little bit of a smuggling in some norms here, when you said that the commander ordering someone to do something. You said he has to obey, and then you said – you implied that there’s authority, and there’s not authority in the other place. Well, when you say there’s authority and he has to, I don’t know what that means other than to justify your attributing liability to the higher-up – the indirect actor in this case. The example – what was the example you disagreed with there?
M: Freedom of speech in someone’s property.
STEPHAN KINSELLA: No, no, the – in…
M: Well, on one slide I think there is a clear line [indiscernible_00:43:09]… if an officer gives an order, which is – I agree with that. Your subordinate could say, well, I’m going to go to jail or I’m going to face fines [indiscernible_00:43:19]
STEPHAN KINSELLA: Well, okay, so…
M: … disobeying an order.
STEPHAN KINSELLA: So my view there, I mean we may just disagree because I don’t think that there’s always coercion, and I think that you don’t have to have coercion to say that there’s authority. I think that some social structures, people cooperate with each other, and they use people as means to get things done. And there doesn’t have to be coercion there to say that – I mean in the military I don’t know if there’s always a direct threat of jail if someone disobeys an order if they just say I don’t want to do that. Or are you saying that if I give you a gun and then say would you please go shoot that man for me and you go do it for me that I’m off the hook because you didn’t have to?
See, I disagree with this idea that there’s an intervening act of will on your part, which rights the chain of causation and all this kind of stuff. If you believe in that, there’s no such thing as cooperative action or joint crime at all, but I think joint crime can happen. I think the guy that plans the mob heist, when he sits back in his lair while his henchmen go out there and rob the bank, I think he’s just as guilty as they are, even if he’s not forcing them at all, even if they have free will, even if they have the right to walk away, even if he doesn’t have a contract with them.
So I would disagree. I think that – and again, my point is not the particulars here. My point is that you can’t have a bright-line rule saying the only time you’re liable for someone else’s actions is if there’s a contract or if there’s coercion. I just think it’s a more general thing than that. Now, how you apply it to particular cases we can discuss.
And in fact, I think the view that contract is relevant to determining whether or not there’s causal connection between the indirect actor and the crime is based on the misconception of the nature of contract. Contract is not a binding promise. Contract is just the exchange of title II goods, but by the Austrian view of value, money is nothing special. Property is nothing special. It’s just what we value. I mean the woman promising sexual services to her lover to kill her husband is giving him something that he values. Why does it have to be a contract with property exchanged? So to focus, to fixate on these bright-line rules like it’s got to be a contract flies in the face of the Austrian view of subjective nature of value. And I’m sorry. I’ve forgotten your third.
M: Freedom of speech on someone’s property.
STEPHAN KINSELLA: Oh, well, I agree with you that in general it’s not prohibited, but I think it’s – my point is just that you don’t have an independent right to free speech that would give you the right to go on someone’s property and use it in ways that they object to, stated clearly in a contract ahead of time or something like that. But the point is that free speech is not an independent right. Free speech flows from your right to control your body, whatever that means. So any other questions?
M: Thank you for the presentation [indiscernible_00:46:22] into this general concept [indiscernible_00:46:25] in order to treat something as property, you have to have certain conditions like the thing has to share some control in general [indiscernible_00:46:37]. The idea of doing something with scarce [indiscernible_00:46:44]. But [indiscernible_00:46:55] Rothbardian theory of this clear distinction regarding transfer and [indiscernible_00:47:07] just to give one example [indiscernible_00:47:09] sell your service as a title it’s like the same as saying [indiscernible_00:47:19] your contract will be [indiscernible_00:47:23]. But in the case of [indiscernible_00:47:30] usually do not control [indiscernible_00:47:33] while in the case of service you usually control what you are able or you not able to do.
And [indiscernible_00:47:38] if you would have some means to control the rain or some [indiscernible_00:47:43] it would be again, the service contract or labor contract if you [indiscernible_00:47:49] like cleaning a window. But you would just – or selling [indiscernible_00:47:55] two hours of your – tomorrow’s day [indiscernible_00:48:00] so when you think about it, this is somewhat artificial. This is a distinction because, at the end of the day, your service is controllable and scarce because [indiscernible_00:48:17] or they will contract again. It’s scarce because we do not have plenty of hours to hour life [indiscernible_00:48:26] to decide [indiscernible_00:48:29] this also [indiscernible_00:48:34]
STEPHAN KINSELLA: Okay, so – well, I mean I agree completely with Hoppe’s view of property acquisition and homesteading, and I think it’s compatible with Rothbard and Mises, just the idea – and I think you’re right that ownable resources have to be excludable and controllable. And then they’re acquired, and that’s how they’re owned. You either emborder them or transform them. You put up a fence around it or you possess it, and you thereby demonstrate to others that you own this thing, and they can see the boundaries of their owned things so they can avoid trespassing on it. I don’t see how that’s incompatible with anything I said.
The point about the service contract, you’re right. The two cases are not the same. You do have the right to control your body if you’re a laborer or you’re performing a service. That’s why you’re able to extract money from someone for it, but you don’t see – so the thing you control is your body. You own your body. That gives you the right to perform a service. I would agree that the amount of service you can perform is scarce in that sense. The amount of time we have on the Earth is scarce, but they’re not technically scarce resources. Your body is a scarce resource. You act with your body. You perform actions. You don’t own your actions.
I think it’s just a confusing metaphor to say we own our actions. If you sell your labor to someone, you have to – there’s only one thing that’s being transferred. That is the money. The labor is not transferred. It’s an action that’s performed. I mean after it’s done, does the employer have your labor in his pocket or something? I mean where is the labor? So I don’t – I think there are unilateral transfers of title, and there are bilateral transfers of title. They’re different types of contracts.
M: [indiscernible_00:50:17] transfer to [indiscernible_00:50:23] so I’m sure you considered as title inheritances in your property title. In the case where there’s not [indiscernible_00:50:32] homesteaded, which was, in fact, [indiscernible_00:50:38] how this tie to retribution be homesteaded, just by killing the murderer or by being the first claim? This right to retribution [indiscernible_00:50:53] am I protecting the murderer from unintentional [indiscernible_00:50:59]
STEPHAN KINSELLA: Well, I think – I agree in general that that claim – it’s a little bit of a metaphor to say it’s a homesteadable right. But I think it’s true because the aggressor still has no right to complain if this retaliation is carried out upon him if the victim wanted that to happen. So I think you first looked through the guy’s will. I mean the will would specify. Even if you don’t have any heirs, you might have a legatee in the will. You would leave it to some agency or maybe a charitable agency that makes money by extracting restitution with a threat of punishment against these guys. So first you look to the will, and presumably it would have heirs in the will.
If there’s no will, then you look to the default laws of intestacy, and there’s very few people that don’t have someone down the chain of priorities that inherits their property, their estate, family and then distant family. And then maybe if there’s no family at all, if you don’t know any person at all, I mean there’s something called escheat in the law where it goes to the state, or if there wouldn’t be a state in private society. So I think in that case, in that final little residual case, I think it would be homesteadable by anyone. So I guess the first guy that kills him would be the one who has homesteaded that right.
M: Professor Kinsella.
STEPHAN KINSELLA: Yes.
M: [indiscernible_00:52:20] somebody has not given you your land back, it’s not fraud. It’s not theft [indiscernible_00:52:27]
STEPHAN KINSELLA: I have this in here, but I didn’t have time to get to it. So Rothbard – and Walter Block has a similar view too. Rothbard in the title transfer of contract article or chapter in Ethics of Liberty, has an – so he’s correct largely except he has this example of a dead contract. So bank loans A $1000 on day one to be repaid with interest in a year, say $1100. Now, technically that’s another confusing metaphor. It’s not repaid. You can view this as a bilateral contract. It’s a bilateral two-transfer contract.
On day one, $1000 is transferred. It’s unconditional. Well, the only condition is that the other guy makes a future title transfer of $1100, so there are two separate title transfers. And we have to keep in mind the $1100 – I’m sorry – the initial $1000 that is loaned, well, it’s intended to be used by the borrower. He needs to spend it. That’s why he’s borrowing the money. So to spend it, to give it to someone else, he has to have title to it. So the title is 100% in this guy’s hands right now. That can never be changed. That is a fact.
A year from now, the title transfer that was set up a year ago of $1100 happens, so if the borrower has $1100, that $1100 now is owned by the bank even if it’s not turned over yet. So at that point in time, the borrower is in possession of property owned by the bank, and if he refuses to turn it over, then he’s committing a type of theft or conversion. Now, if he is penniless and is unable to pay, Rothbard says that technically the guy is committing implicit theft.
Now, I don’t know what implicit theft is, and therefore, technically debtor’s prison would be justified, although Rothbard says it’s disproportionate. So he tries to sort of get out of his predicament by saying that it’s technically a type of theft. Because – the confusion here is Rothbard I think here is failing to keep his own title transfer theory straight because if you say it’s implicit theft, there’s only two possible candidates for what has been stolen: the $1100 that’s owed now or the $1000 that was given earlier.
Now, if the guy is penniless and doesn’t own anything, there’s no $1100 to be stolen. I mean it makes no sense to say you’re stealing something that’s nonexistent. So Rothbard has to be talking about the initial $1000, and in fact, he is. But that violates the idea that we have to know at any moment in time who owns something. You can’t wait a year to find out who owns something. You can’t retroactively go back in time like a tachyon wave or something and say that, well, the $1000 that was loaned to the guy so he could go spend it on supplies for his business venture really – it turns out really a year later we find out really he didn’t own it because the condition wasn’t satisfied.
It’s not true. The condition was satisfied. The condition at the time of the loan was that the borrower make a future title transfer right now, and he did that. But everyone knows the nature of human action is that the future is always uncertain. It is an implicit, inherent, unavoidable part of any future-oriented title transfer contract that the future thing to be transferred might not exist because the future is uncertain. So it’s built into the contract, the nature of the contract, that this future title transfer may not be able to happen. The borrower might die. The Earth might explode. Money may cease to exist. He may be bankrupt, etc. So failure to repay a loan is – in my opinion is not theft if you’re bankrupt.
M: [Paul Gottfried] I hate to open up this can of worms [indiscernible_00:56:27] I’m not quite sure what it is that you mean when you say that your body [indiscernible_00:56:34] is owned by you. Now this is not historically true. It’s not even logically true. It does operate as a deontological statement, especially with you associate it with everyone who’s [indiscernible_00:56:52] intention [indiscernible_00:56:58] and reality. It also operates as a [indiscernible_00:57:03] That is to say a woman says I own my body, which means she has the right to an abortion, but I do not have a right to oppose her or even to express an opposing view because I don’t own my body. I’m a male and [indiscernible_00:57:17] fetal rights in the woman.
Now, I can understand why people who take this position are amongst those who say you belong to the state. But to me it is not something which is true. We do not, in fact, own our bodies. We belong to social context. We are part of existing society, and we are part of historical arrangements, and in fact most individuals do not think that they own their bodies. I suppose this is [indiscernible_00:57:46] travel throughout the entire world [indiscernible_00:57:51] and has found very few places in which people who [indiscernible_00:57:56] social contract [indiscernible_00:57:58]
Therefore, I do have problems with a philosophy [indiscernible_00:58:05] that’s based upon what seems to me to be an untrue assumption about [indiscernible_00:58:10] possession or [indiscernible_00:58:13] possess our bodies. And [indiscernible_00:58:17] that I can see this with an intellectual framework [indiscernible_00:58:24] right to an abortion or something like that. I can also see it’s something that some people would like to see is true. It’s like the fact that I say that God exists does not mean that he, in fact, exists. It means I say that God exists. If I say that all people own their own bodies, it’s something I am saying. It does not necessarily make it true.
STEPHAN KINSELLA: Well, I’m a libertarian, and so I’m not really trying to argue here for the libertarian view of self-ownership. I’m trying to express that that is the fundamental libertarian view. If you disagree with it, I don’t think you’re libertarian. Now, I think there’s a distinction between fact and value, between is and ought, and I think I’m not making the crude pro-choice argument: I own my body; stay away from it.
In fact, in that case, I think ownership of your body doesn’t determine your position on abortion. I mean you could believe the fetus has rights too. In fact, I think – but I mean – so as your first point, I’m not – I mean I think we can clearly distinguish between norms and facts. Now, it is a fact that humans have direct control over their bodies. This is our nature, of course. I think that that fact, as Hoppe argues, justifies the normative conclusion that you should have the legal right to control your body. So to own your body doesn’t mean you’re not a slave. It means you shouldn’t be a slave. So I distinguish between fact and norm. I have no problem whatsoever making that distinction.
So because some people are born in chains, I think the fact that they have direct control over their body means they have the better claim to control their body, means that slavery is unjustified. It doesn’t mean we’re not in social context, and if you say that we don’t own our bodies because we’re in a social context, the only other choice is someone else owns your body because your body is a scarce resource. Someone’s got to decide who gets to use it. It’s either you or someone else, so it’s either slavery or self-ownership. And I believe self-ownership, as a normative principle, is the fundamental libertarian view and completely justified and…
M: [Hoppe] If I may make a comment I find Gottfried’s argument somewhat strange. It’s just a plain matter of fact that everybody does own his own body in the sense that everybody has control over his body in a way that nobody else has control over his body. If I say I want to lift my arm up, I can lift up my arm. You cannot do this with my arm, and I cannot do it with your arm. So in this sense, this is the most self-evident statement of something that exists in nature that is possible.
And anyone who would deny this would contract himself by simply opening his mouth and saying things, because I cannot make you say this. Only you can make that say this and self-ownership of our bodies does not mean anything more than this, and this is the most self-evident statement that exists. There’s almost nothing that is more self-evident than this.
M: There’s one more question.
M: Can you reconcile the non-aggression principle with the idea of preemptive force? In other words, if I think Iraq has weapons of mass destruction in which they will use against me, do I have the right to bomb the hell out of them so they won’t?
STEPHAN KINSELLA: Well, I’d put it in an individual context because, of course, states are illegitimate and war is always illegitimate. I deal with this in my “Punishment” article. It’s a long article from ’95 I think in the JLS, which talks about individual rights, and just as I try to explain why fraud is a species of aggression, whereas most libertarians just assume it. They just say that. They have this litany. They’ll say, well, we’re against theft and fraud, but they don’t really have a clear definition of what fraud is or why fraud is a type of aggression. And, as I explained, I think that if you view it in the context of contractual exchange, that explains how and why fraud can be a type of aggression. And by the same context, they always say threats. They’ll say aggression, fraud, and threats, like these are separate things.
Now, really they’re species of aggression. In my view, a threat is what you’re talking about. So preemptive force would basically be using force against someone who is a standing threat to you or some kind of threat to you. And the reason that threat is a type of aggression is because you have the right to respond to it. In other words, if someone is threatening to use force against you, they are putting you – in the civil law this is called – it’s actually called assault.
People think assault is battery. Battery – assault and battery are two different things. Battery means physically hitting someone. Assault means attempting to aggress or batter or putting someone in fear of receiving a battery. So in my mind, that’s what a threat is. A threat is assault as defined in the civil law as making someone reasonably afraid of about to be battered or aggressed against or attempting to do it. And by the logic of – so reciprocity of my kind of estoppel argument in Hoppe’s argumentation ethics, whatever the aggressor is doing or whatever the threatener is doing to you, he can’t object if you do the same to him. So if he is putting you in danger of receiving battery, you can put him in danger of receiving a battery, which means to retaliate.
M: Can I batter him?
STEPHAN KINSELLA: I think you can, yes. And because you can, that is why it’s not aggression, and that’s why what his action is—that you’re responding to—is a type of aggression. So that’s my view on that.
M: Thank you.
STEPHAN KINSELLA: Thank you.
From my blog: