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Kinsella on Liberty Podcast: Episode 018.
This is lecture 1 (of 6) of my 2011 Mises Academy course “Libertarian Legal Theory: Property, Conflict, and Society.” The remaining lectures follow in subsequent podcast episodes.
Video, Transcript and Slides below.
For the Mid-Term Test and Final Exam given during the course, see “Libertarian Legal Theory: Property, Conflict, and Society”: Mid-Term Test and Final Exam (Mises Academy 2011).
[Update: Lecture 5b, Q&A (KOL022b), has just been added]
This lecture’s topic is “Libertarian Basics: Rights and Law,” and discusses:
- Legal Theory and Austrian Economics
- Scarcity and Property Rights
- Rights as property rights
- The Nature of rights
- the Is-Ought Problem
- Argumentation Ethics and Estoppel
- Essence of Libertarianism
- Lockean proviso
- Labor ownership and mixing
For slides for all six lectures, plus extensive hyperlinked suggested reading material, see this Libertarian Standard post. For a listing of the syllabus and topics covered in each lecture, see this Mises Academy Course Page (archived).
For more information, see my Mises Daily article “Introduction to Libertarian Legal Theory,” and Danny Sanchez’s post Study Libertarian Legal Theory Online with Stephan Kinsella.)
The videos of all six lectures are also available on this playlist.
Libertarian Legal Theory, Lecture 1: Libertarian Basics: Rights and Law
Mises Academy, Jan. 31, 2011
STEPHAN KINSELLA: Good morning to people that it’s morning for. Good evening to people in Europe. And good evening and afternoon to people in America. So the course is called Libertarian Legal Theory: Property, Conflict, and Society. Now, tonight I will spend a little bit more in the preliminaries than I will in the other courses. So we might spend 15 or so minutes on some things that won’t waste as much time in next class and the subsequent classes.
So it’s called Libertarian Legal Theory. It’s not really what lawyers would think of as legal theory. It’s more how to apply libertarian insights to what the law should be, so that’s why it’s legal theory. Now, having some legal background and knowledge can help, but you certainly don’t have to be a lawyer to understand this stuff, and in fact, being a lawyer can sometimes be a hindrance because lawyers are steeped in the statist and the positivist legal system. This – hold on just a second. Danny left. Let me make sure he’s okay.
Okay, so – okay, Danny is still there. Okay, I see. So let me just give a little background about this course. We picked the title “Property, Conflict, and Society” because that is what I think libertarianism all boils down to. Now, the material in this course, to be honest, we have six lectures. I think there’s enough material here for at least seven or eight or nine or maybe ten lectures. So I’m going to squeeze as much in as I can. If we have to leave some out, I have some things I can cut out and give you readings for, for later. There’s a lot of material. It should be a lot of fun and very interesting.
And these classes last for about 90 minutes. What I did last class, the IP class I did, I spoke for about 50-60 minutes, and we took questions and answers for about 30 minutes for the rest of the class. What I’m going to do this time, if I need to, I will speak for the entire 90 minutes if I need to, to get all the material in. And then I can stay later for more Q&A if people want me to, and I’m also going to do office hours on Wednesdays at 7 p.m. London time. And I may do another office hours like every other week at a later or earlier time during the day, which is better for Americans, but the 7 p.m. London time is designed to be better for non-western-hemisphere-time-zone people.
Okay. I’m going to slide three now. I’m just going to give a brief overview. This course is not about me, but I do want you to know who your professor is in case some of you are not very familiar with me or don’t know me personally, which most of you apparently don’t, although apparently one of my friends, Jeff Barr—he’s a lawyer in Las Vegas—is signed up. I don’t know if he’s signed in right now.
But I am an attorney in Houston. I’m 45 years old, been practicing about 18-20 years, and I am from Louisiana, which is the sole civil law state in America. The rest of the states are common law. And I’ve been a libertarian ever since college and even earlier. June, what’s your question? You can repeat it here. I’ll try to address it if it’s relevant. I was just trying to give my background about my – the approach I have to these issues that we’re going to be talking about.
And as you can see from the pictures, it started with Ayn Rand. I went to law school, and then I joined a law firm. So that’s sort of my background. I’m a practicing lawyer now, but I also am heavily involved with the Mises Institute and Libertarian Legal Theory. I edit a journal, a scholarly libertarian journal, and I blog on some websites, and I write, etc. So that’s sort of my role. I teach, and I like to lecture and write.
My approach to libertarianism is heavily anchored in Austrian and anarchist libertarian theory. The Austrianism from all three of the people you see there, which is Mises on the upper right – yes, Lauren, I did enable the whiteboard. And Danny Sanchez assured me that the students wouldn’t interfere, so let’s see if I can hold you guys to that. I’m going to select the laser pointer so I can see how that works. See, here we have Mises here, so there’s Mises. Mises is a great influence of mine. So is Rothbard, and so is Hans-Hermann Hoppe. So I’m going to draw on their thoughts a lot in this course, as you guys will see.
So actually, this is out of date. I actually prepared this, this morning, but we have about 87 or 90 students right now from 17 countries, which is very nice. I love having an international audience. Oh, you couldn’t see the pointer? I’m going to try right now. I’m pointing right now on the Papinian picture on the lower right. Can anyone see this? It’s a red laser pointer. If it doesn’t work, I’ll just disable the whiteboard for the next time. Okay, good.
That might be useful sometimes. I didn’t use that last time, but I thought I would try it this time. Some of you might have seen the little mini ad – well, it’s not up right now. I’ve got the laser pointer right over Papinian right now, a little red laser dot, okay? Some of you might have seen the ad for this course, and there’s a little shadowy picture of a Romanesque-looking frieze in the background or relief, and that is this guy here named Papinian.
And you can go on Wikipedia to find information, but this guy, Papinian, is one of my legal and even libertarian heroes. He had a famous incident in his life. This guy was one of the most famous—probably the most famous—of all Roman legal experts or jurists back in the Roman Empire. And others were Ulpian and others, and he influenced, of course, the – Justinian’s code and the foundation of all Western law because Roman law influenced common law, which we’ll learn about later, and the civil law as well.
Anyway, Papinian – there’s a story about Papinian. He was like a consultant, the chief legal consultant to the state. And there was an emperor who was – there were two co-sons of the current emperor, Caracalla and Geta, and my history is weak, so I may be wrong on the details. But basically Caracalla murdered his brother and co-emperor, Geta, and he asked Papinian to compose a justification for this, and Papinian refused to do so.
He said I can’t do it. It’s easier to commit murder than to justify it. And I think there’s some profound truths in that statement. Plus there’s some profound courage and heroism in what he did because he was actually killed – actually put to death with an axe in a gruesome death for refusing to cooperate, so he – a little bit like Socrates. So Papinian was chosen as the sort of symbol for this course, and we’ll discuss some of this later when we discuss Roman law and the origins of legislation and common law.
I’m going to page six now. So as a brief overview of the course, what we’re going to do – okay, good. Well, I’m not going to rely overmuch on the laser pointer. If it doesn’t work for too many people, I just won’t rely on it at all. Okay, well, I’m waving it around right now next to the Mises Academy sign. You can see Papinian’s little face smiling out at us here.
Okay. So this is a brief overview of what the course will cover. We have much more detailed information on the course page, but today and the next class, we’re going to talk about basics, libertarian rights and law. And then we’ll talk about a lot of applications, advanced applications, contract, fraud, etc. We’re going to talk about causation, the theory of causation, which is crucial to understanding these matters.
We’re going to have a whole lecture on IP, which I covered in six classes in my last lecture. I’m going to try to distill that down, and then lots of little applications: corporations, the Constitution, common mistakes libertarians make, etc. But the purpose of today’s course, and if you know a lot of this already, don’t get too concerned because believe me; we’re going to have a lot of material to follow this. But I’m going to provide a sort of overall framework. I’m circling the bottom part now – an overall framework and a conceptual vocabulary that can provide a basis for a more detailed analysis and discussion of a lot of advanced applications and topics.
And just as sort of a housekeeping matter, anyone here is free to email me personally any time. My email address is right there. It’s better to try to use the course forum, so anything I answer can be seen by everyone. And again, let’s try not to use the whiteboard here. And my office hours right now are planned to be at 7 p.m. London time. I think that’s 1 p.m. central time, 2 p.m. New York time on Wednesdays. And what I may do is every other week have a second one at an earlier or later time that’s better for people that that time doesn’t work for. So I will let you guys know shortly about that.
So with these preliminaries out of the way, let’s go ahead and launch into the course. Oh, let me mention a few more things too. I plan to give two exams. They will be completely multiple choice. They’ll be weighted so that the final will have more weight than the midterm. Don’t feel compelled to take the exam, but if you want to take it, there’s no pressure because you can’t really fail this course. If you take the exam, both exams, you will get a certificate of completion, and actually, we’ve made a deal with Center for the Stateless Society, which I’m a member of their advisory panel.
And if you take this course and take the exam, it will fulfill one of their course requirements for their Stateless University course. So you can take a look at that, and these lectures will be up later, and there’s hyperlinks in all of these notes, which you can link to. Otherwise, you’ll get a certificate of participation. Now, the course – I’m sorry – the test, the exams will be based on the lectures, what I’m saying during these lectures, the—what I call—suggested reading material, and the reason I call it suggested instead of required is because this is a voluntary course. And this is for your own education, and it’s up to you what you want to read.
I suggest some things to get more out of a lecture or for more background, and then I have optional readings for further things you want to pursue. But the test will cover suggested reading material, the lectures, and whatever is in these slides, which have some links that may not be on the course page or in the suggested reading. And as I have here, you will not be tested based upon the optional reading material or on common sense, which is a joke. I’m kind of joking. You should have common sense being a libertarian. I’m going to take that for granted. It’s called judicial notice in the legal system. I’ll take judicial notice that you guys all have common sense.
I’m going to slide nine. Here, by the way, is an example of the certificate that was given out for the last course, so this is what you get when you take the exam, certificate of completion. So in this course, I’m going to go back and forth a few times. I’m going to try to weave different layers in here. And remember, we’re trying to establish what we’re trying to come out of this first lecture with, which is a baseline of a starting point of concepts and terminology that we can build on for the remaining lectures.
So I just want to make one thing clear when we start. This course is not about me, and it’s not an attempt to push my personal libertarian view on everyone. Now, of course, it’s going to be tinged with that and influenced by that, but I’m going to try to describe libertarianism as it exists and what it is. And I’ll give you my opinions on some matters, but I’m going to try to make it clear to you guys where there’s controversy, where there’s debate, where other people have different opinions, etc. so you can make your own minds up or pursue your own lines of inquiry further on.
Let’s take a look at that certificate before. It’s actually pretty nice. That’s right, Barry. It’s completely opposed to a formal university education. I think this Mises Academy is working out fantastic, and Danny Sanchez is doing a wonderful job helping out here. And I hope Bob Murphy doesn’t kick me off in the middle of my lecture to retaliate. Well, I think you can. Of course, we’re not accredited yet, but I think you can – I expect people are already listing to these things on their CVs and their resumes.
So let’s stop and talk in general. What is libertarianism about? So the first thing to say is it’s a type of political theory. Yeah, Colin, C4SS has a stateless u. It’s not quite as organized or as developed as this one yet, but they are developing courses, and they fit mine in to their curriculum, which is a quite amazing thing that we’re doing here because we’re not really competing with each other for money or students. We’re trying to spread ideas. Sure, Barry. I agree with you completely.
Anyway, so libertarianism is a type of political theory. This is what it is. There’s other types of course: Marxism, leftism, socialism, conservativism, theocracy, liberalism, things like this. So this is what we are. We’re a type of political theory. Funny line about Koch there, Gary. Interesting note: My wife worked for Koch Industries for a year as a fuel – as a trader about 10-15 years ago.
In any case, what we are concerned and what all theories to some degree are concerned with – excuse me just second. So what we’re concerned with is justice. Now, there’s a – what we will find as I go through all this is that, although I’m presenting a lot of these ideas, which are classical ideas, I’m presenting them generally. They have a sort of libertarian leaning or push. Now, that’s not my fault. That’s the way it is, and this is why I think libertarianism is correct.
But in any case, there is a famous maxim of what justice is. This was formulated – actually, I’m not sure who formulated it, but it’s in the Institutes of Justinian. Justinian was the famous emperor of Rome who helped codify the great body of Roman law that developed over about a 1000-year reich or period. And this is one of the crowning achievements of the civilized world is the preservation of Roman law that Justinian did in his Institutes and his digest of law. And the statement is this: Justice is the constant and perpetual wish to render everyone his due.
Now, then they elaborate the maxims of the law are these: to live honestly, to hurt no one, and to give everyone his due.
So this is what we think of in general. I’m glad the laser showed up. Actually, my company makes lasers, so they will be happy. What you’re due is what you’re entitled to receive, and that’s what the law is expected to provide you. They protect your rights. They give you what you’re due. But this is a general statement obviously. So the question is what are you due? Now, this is really a higher-level idea that’s dependent upon a lower-level concept of property rights.
You could say that whatever your property rights are determines what you’re due. If you have a right to it, then you’re due it, a property right to it, then you’re due it. Okay, so what distinguishes libertarianism from other philosophies, other political philosophies is not that we’re about justice, but it’s that our particular conception of what justice is, which means our particular conception of exactly what property rights and what rights are.
Okay, so it works like this. You seek justice. This informs – this particular concept of justice informs your notion of what rights there are. And your idea of what rights there are informs your idea of what laws there should be. So it works in that order. You can see at the bottom of the page down here I have that mentioned here. So that’s why this course is about legal theory because we’re talking about what laws should exist in a society, in a just society.
So the idea is that what actual law is, that’s what we call positive law. That’s the law that is actually enforced by a given system in a society whether it’s a private system or a state system. Whatever laws are actually enforced we can call them positive laws or actual laws. Now, they don’t always conform with our ideas of justice. Some laws are unjust. We might criticize a law as being a bad law. By doing that, we have to assume that there’s a standard outside the law by which we judge the law itself, so this is the natural law or the justice idea.
So what we could say is that the libertarian believes that actual law or positive law should conform to natural law, that is, the law that would be consistent with the rights that we have, the natural rights or the property rights that we have. So that’s why we ask about what justice is. That’s why we ask about what rights are.
Yes, I think jurisprudence, Steven, is the sort of systematic study of the nature of law and sometimes of rights and wrongs and things like this. And as you’ll find as we go through this course, lawyers have a lot to contribute to this because they have an innate and a deep sense, or at least the good ones do, of how the law and the legal system works. So they have a lot of sophisticated and sort of deep and nuanced understandings of practical ways laws can address problems. But they are often without any moorings. They’re often economically illiterate, and they’re often without any appreciation of natural or justice ideas.
On the other hand, a lot of libertarians are the opposite. They have an innate sense of justice. They have some economic literacy or a lot, but they are not familiar with a lot of practical legal solutions that have arisen over the years. And so you have this lack of overlap. Now, if I had to take a side, I would tend to side with the libertarians, even though they’re more – not amateur or naïve but less sort of developed and sophisticated on legal theory. I would take a Rothbard any day over a positive lawyer who’s good but who is a statist.
Someone – Amanda is asking about how do we determine what a natural law is. That’s a little bit premature. I’m going to get to that later in this topic, so let’s just hold off. But I just want to say right now, in this course, I’m not going to argue strongly and at length for a particular conception of why the libertarian theory of justice is correct. I’m going to sort of show the different theories that different libertarians have. I will tell you what mine is, and we’ll get to that shortly. But I don’t think it’s critical. I actually think that we can have a big tent, and so long as you agree with certain fundamental principles, and you’re committed to honesty and fairness and justice and consistency and you have some economic literacy, then the libertarian principle will just pop out unless you’re a misanthrope, in which case you’re on the other side.
I’m going to switch to slide 11 now. So let’s talk about what is the concrete sort of formulation of what we are as libertarians. It’s a political theory. We believe in justice. We have a certain conception of property rights, but what is it? Well, let’s think about what are the kind of classical ways people describe what it means to be a libertarian. And I’m going to start sort of about the 1950s with some of these quotes because this is when we can mark the beginning of libertarianism as we’ll get to in a second on the history issue.
But Leonard Read, who was a famous libertarian – he founded the Foundation of Economic Education. He had a lot of books, one of them disavowing the word libertarian and then others using it. But he had a book called Anything That’s Peaceful, 1954. And he said: People should be free to do anything that’s peaceful. That’s pretty general, but I think that can sum up in a general way what libertarianism is about.
David Boaz in a really good book called Libertarianism: A Primer—this is a Cato book—he said: Libertarianism is the view that each person has the right to live his life in any way he chooses so long as he respects the equal rights of others. So this is sort of a classical libertarian formulation. Danny, I’m not sure. That could be from Spencer. That could be from Spencer, Herbert Spencer. There’s also – some of you may be familiar with Walter Block. He’s a friend of mine. He’s a very prolific author, one of the most prolific authors I’m aware of. And the joke is that anyone – to be a libertarian means you’ve co-authored an article with Walter Block, so just a joke, and non-American libertarians have a sense of humor, so I can get away with that one here.
All right, now, if we want to get a little bit more concrete – oops, sorry – slide 11 here. If we want to get a little bit more concrete about how to define what it means to be a libertarian, a commonly used idea is the non-aggression axiom or principle. It’s sometimes called axiom, more often nowadays a principle. Now, this was formulated without being called that by Ayn Rand in 1957 in Atlas Shrugged by her character, Galt in Galt’s speech when he wrote: So long as men desire to live together, no man may initiate—do you hear me? No man may start the use of physical force against others. So that is sort of a nice summary version of the non-aggression principle. Now, well, I will say that I’ve read Atlas about three times. And the first time I read Galt’s speech, but the second two times I didn’t read it, but the rest of the book I enjoyed more.
Okay, now, Rothbard has a more – a better sort of, more fleshed out conception of the non-aggression principle. I’m going to quote this. I’ll try not to do too much quoting. “The libertarian creed rests upon one central axiom: that no man or group of men may aggress upon the person or property of anyone else. This may be called the non-aggression axiom. Aggression is defined as the initiation of the use or threat of physical violence against the person or property of anyone else. It’s synonymous with invasion.”
Now, we’ll get to sort of some particulars of this later, but you can see the beginnings of this definition of libertarianism as having to do with the idea that everything is permissible in life, in society, by law, that is, except for the physical use of force against other people’s property or bodies. Now, as I mentioned Rothbard – it’s sometimes called an axiom. Now, if you would look up these terms in Wikipedia and the philosophy dictionaries, okay, well, Mr. Civil Liberties, I’m going into that right now. I think these terms are a little bit confusing potentially. And in math and in logic, an axiom is like an assumed starting point. You’re welcome. It’s also used to refer to a self-evident or universal truth, like A and B implies that A is true, or it could be an assumed starting point, like an arbitrary assumed starting point like Euclidean geometry versus others.
Now, Ayn Rand, who I believe strongly influenced Murray Rothbard, used the idea of axiom – excuse me a second. I’m going to close the door. Excuse me. Okay, so Rand used axiom to mean something that was so self-evidently true that you actually had to presuppose it in order to deny it. So in other words, it was a truth that was so basic that you had to commit self-contradiction to deny it.
Now, although Ayn Rand vehemently criticized Kantianism, which she viewed as an alternative philosophical system to her more Aristotelian vie, in a way the Randian idea of axioms is similar to the idea by Mises and Kant of concepts that are, what they call, a priori, that are undeniably true. So because of these confusions, I think we should not say axiom because people mean many things by axioms.
Well, June, I really don’t have time to go into this a lot. I think there’s a lot of reasons why Rand disliked Kant, but I actually agree. Kant was a great liberal thinker, and if you sort of equate the terminologies between Misesian, Randian – I’m sorry – Misesian and Kantian systems and Randian, there’s a lot of similarities to their methodologies and their approaches to both liberalism and epistemology. In any case, my opinion is the better term to use is the non-aggression principle, and that’s what I’ll use throughout this course, NAP, non-aggression principle. And that seems to be the more widely used term nowadays. Axiom is sort of going out of favor, which is, I think, a good thing.
Now, let’s talk a little bit about the nature of rights and law. I’m going to circle back to some of these other issues in a minute, but we need to weave these things in together a little bit to build on some of these concepts. I’ve already mentioned the link between rights and law is you can think of a right as a legally enforceable claim to some thing, object, or action, something you can enforce, you have the right to enforce, something that’s legitimately enforceable. So the law you can think of as sort of the systematic enforcement of or embodiment of rights, so they’re related to each other. Justice – your conception of justice determines your conception of rights, which determines your conception of law.
Now, some people are more empirical minded, and they go the other way around. They just have an intuitive sense or a practical or pragmatic sense of what a law should be. But then you can think about these laws, and you can think what rights are sort of presupposed by this law, or what conception of justice or right and wrong is presupposed by this idea of rights. So they all go together in that way, but the fundamental thing is that laws are meant to enforce a conception of rights, and rights are enforceable things. Okay, they’re not merely morals or oughts and shoulds and morals, which I’ll get to in just a second.
Now, another important thing to realize is that in any system, rights and duties or correlatives. What that means is they’re the flipside of each other. Every time you have a right, it implies a certain obligation or duty, and conversely, if you have a legally enforceable obligation or duty, it implies that there’s a right. So if someone claims that there is an obligation to help your neighbor out if they’re starving and it’s a legally enforceable obligation, well, that means equivalently that your neighbor has a legally enforceable right against you or a claim against you that you do it.
And conversely, if someone has a right to education, free education, that means society at large or someone has the obligation to provide them with that education. This is why granting positive rights willy nilly, which is done in a widespread way in today’s society, is not free. You can’t just say, well, we have rights to property, and we have rights to our bodies, but we also have rights to healthcare and education and a job because what that means is everyone else in society is partially enslaved or obligated and forced by the government to provide these rights. So nothing comes for free. Is the video okay? Can everyone see me okay? Video and audio okay?
Okay. So let’s look at the definition of what rights are by a couple of key thinkers. One is Ayn Rand. She says: “Individual rights are the means of subordinating society to moral law. The right to property is a right to action like all others. It is not a right to an object but the right to the action and the consequences of producing or earning that object. It’s the right to gain, keep, or use and dispose of material values.” Now, I’m going to discuss later what I think are some problems with Rand’s formulation.
Quick setting change on the video. Hold on a second, guys. Okay, I’ve just modified the video so it’s less choppy. It may be a little bit less quality, resolution, but it shouldn’t be as choppy. Give me just a second.
Okay, so the other problem with Rand’s definition is it has a sort of non-Austrian confuse conception of value. You see here she’s talking about values as if they’re things or objects or at least something that exists in some objective way like inside an object or something like that. I think that’s a little bit of a problem. It leads her into error with regard to intellectual property and other things as we’ll see later. One of the best definitions of rights I believe is by Father Sadowsky. He was a – I think a Jesuit priest. Murray Rothbard really revered this guy. He says: “When we say that one has the right to do certain things, we mean this and only this, that it would be immoral for another person, alone or in combination, to stop him from doing this by the use of physical force or the threat thereof. We do not mean that any use a man makes of his property within the limits set forth is necessarily a moral use.”
Now, what he’s emphasizing here is something that may be obvious to a lot of you and to most libertarians, but which is apparently not obvious to most non-libertarians, especially conservatives who have trouble distinguishing morals from rights. So, for example, I remember I asked my grandma one time if she thought drugs should be illegal. And she said yes. I don’t think people should do drugs. So they conflate these things, and as we’ll discuss later, I think part of the reason for that is the American – not just the American but just the sensibility of the modern man has been corrupted by the increasing dominance of the state legal apparatus over all matters.
In other words, the state has come to control so many aspects of our life, and legislation has become the chief means of making law instead of judge-made law that we slowly come to accept the notion that law is whatever the legislator decrees. And we’ve come to see special interest groups fighting for control of the state to get one law passed or repealed for their own interests or the interests of their constituents. So people start thinking of, if you want something done in society, try to get a law passed to get it done.
So this sort of blurs the distinction between morals and rights. Libertarians tend to have a much sharper distinction from that. They recognize that just because something is immoral like animal cruelty or being disrespectful to your grandmother, lots of things are immoral. And most people would not argue that they’re immoral, but libertarians are clear that it’s only prohibitable by the force of law if it is not just immoral but if it actually violates someone’s rights. It has to go to another level.
Now, this leads to another debate in libertarianism, which I will just touch on here. It is commonly said – some of you may have heard this said before by libertarians that correctly recognize that there’s a distinction between morals and law or morals and rights. We recognize that just become something is immoral does not mean that you can outlaw it. Okay, we think it has to rise to a higher threshold or a higher level, but this leads some libertarians to say that rights are a subset of morals.
So, in other words, they picture this is morals, and there’s a little part of it that’s the subset, which is rights. Okay, so they say, well, by that thinking, everything that’s a rights violation is necessarily immoral, but not everything that’s immoral is necessarily a rights violation. Now, that’s a topic that – I mean I would say it’s debated in libertarianism, but it’s not always debated because people don’t really appreciate that this is not uncontroversial. I’m sorry – that it’s not controversial. I think it’s actually controversial because at least from the domain of a libertarian thinker, we’re talking about what the rights should be, what should be legally enforceable.
I’m not sure. This is my personal opinion. I’m not convinced that it has been established that everything that’s a rights violation is necessarily immoral. The reason I say that is because you can imagine some situations where – in your life where you’re faced with a choice. You might choose consciously and explicitly to violate a right for something that you value higher. Now, to my mind, all that means is you still couldn’t deny that it’s a rights violation. You couldn’t deny the right of the victim to use force to defend his right or whatever.
But in some cases, I’m not sure. I think that’s the more the domain of ethics of ethical philosophy, and I don’t know if I’m enough of an expert on that to say that. I’m not sure if duress would because a lot of times these duress cases might be an example where it’s actually not a rights violation either, but it could be in some cases.
But my point is I view morals and rights as intersecting sets. Morals intersect rights because clearly most rights violations or many rights violations are immoral, and they’re rights violations. But whether every rights violation is immoral I don’t know, but what is the libertarian view is that not everything that’s immoral is a rights violation. So that is the key thing that is different about libertarianism than other political theories.
Okay. I’m going to go to slide 15. Now, let me go briefly into some of the background of what I’m going to cover in this course. Let me ask here. Yeah, I know I could have drawn it, Danny, but I’m already behind on my schedule. Let me ask here on the chatroom. How many people here have read more than one or two of the non-basic works of Austrian economics? I’m trying to ask how many people are familiar with Austrian economics to some non-trivial degree. So just say yes if you’re somewhat familiar with Austrian economics and no if you’re not very familiar with Austrian economics.
Okay, this is good. Looks like most people are, which is great. I’ve come to the view over the years that, to have a really well-developed libertarian view, you really need to be not only economically literate, but you need to be steeped in at least the basics of Austrian economics. First, let me just give a little bit of a talk on why I think sound economics in general, not just Austrian, but sound economics, and I say this because, for example, one of the key books that influenced me 25 or so years ago was Milton Friedman’s Capitalism and Freedom, which he’s not an Austrian and he’s got a lot of flaws in my view in some of his economic work and even some of his libertarian work.
But that basic stuff is just great because it just takes common sense economics, sort of on the Hazlitt level of Economics in One Lesson level, and it’s just great. So I think sound economics, at least in a basic sense—supply and demand, that kind of stuff—Bastiat level, Hazlitt level, even Milton Friedman level is critical to being good at political and legal reasoning. For example, I mentioned earlier Rand sort of had the idea – now, Rand actually admired Mises, so I’m a little surprised she got this one so confusing. But she said that rights are about creating and owning values as if they’re existing things.
But the Austrian economic view is that of subjective value means there is no such thing as intrinsic values. Values don’t exist in things as substances. And the other thing is Rand sort of had inconsistencies in her thoughts. Yes, Karl, you’re right, and I think Rand was a little bit confused on this, but she was smart enough to recommend Mises, so I give her credit for that. Anyway, Rand in another writing said that the power to rearrange things in the world is the only creative power we really have. She even admitted that creation really doesn’t mean we can metaphysically bring something new into existence. All we can do is arrange things in different ways.
So this sort of goes against her idea that we have property rights in values that we create because what we do is we rearrange things that we own to make them more valuable to us, but valuableness is a relationship between the person and the thing. Okay, so in my view, if she would have had a better anchor in Austrian economics, it would have probably blunted or prevented her confusion in this regard, which led to her endorsement of intellectual property and defamation or reputation rights, which we’ll talk about in lecture five in further detail.
And, of course, poor economic theory informs a very – a large degree of contemporary legal reasoning such as antitrust law, tort law, most legislation, and the entire utilitarian field of what’s called law and economics. It’s all just based upon this terrible economics, which is not even compatible with, say, Milton Friedman-style economics. The entire law and economics discipline is utilitarian. It’s based upon the idea that we should make – we should decide what laws are going to govern society based upon what maximizes wealth.
Okay. Now, you can take a look at this article I’ve hyperlinked here. It’s by Hoppe. It’s a really good article, and there’s a section in it called “Chicago Diversions” where he criticizes one of the key law and economics types called Ronald Coase. And Hoppe points out that if you use this sort of law and economics, wealth maximization, Coasian idea to decide who owns what, then basically property rights are never certain, and they’re meaningless because courts could always take a first look at the case and reassign property rights to maximize things based upon their sort of – their own scales. It’s insane. I mean I was in law school in the ‘90s, and we were just steeped in this stuff. This is how tort law is based upon. It’s based upon this mentality that we should design the laws in society to maximize wealth.
Now, of course, if you’re an Austrian, you know that you can’t maximize wealth in the sense they mean because it’s not a quantity. Wealth is not a quantity. It’s subjective. It’s not interpersonally comparable. That means you can’t compare it from one person to the other. By the way, if I’m going too fast or too slow or too basic or too advanced, especially if I’m going too fast or passing people by, feel free to post a question here now or later and slow me down and tell me I need to elaborate more because I’m assuming certain – I’m assuming people are keeping up and that you have certain background information.
Okay, so I’m just trying to go through examples of why I think economics, and in particular, Austrianism is important for sound legal and libertarian theorizing. And I’ll just summarize here quickly, and I go into this in my Against Intellectual Property paper. Here are some of the key problems with utilitarianism. Number one, ethical, and I start with this because this is my primary focus. It always has been as a libertarian. For example, and I learned this from Rand and even Alan Greenspan writing in Ayn Rand’s Capitalism: The Unknown Ideal book.
The reason I’m against antitrust law is because people have a right to collude and set prices if they want to because, as long as they’re not aggressing, that is, initiating force against other people, they have a right to. All these other arguments to me are – the economic arguments, the practical arguments, they’re secondary. Sure, I agree that antitrust collusion is problematic and it’s difficult to – cartels are hard to enforce. Predatory price cutting is hard to make succeed. Monopolies are hard to maintain. Sure. I agree with all that. But my primary opposition to antitrust law is that it’s immoral, and it violates the rights of people that own property.
I frankly don’t care if two large companies collude and set prices. In my point of view, they have the right to. This is the libertarian view. So this is why is start here with the ethical point of view. So I’m starting with what I think is the ethical problem with utilitarianism. The ethical problem is that they assume that you can redistribute wealth in society to enhance overall utility of people. But by that reasoning, you could – for example, you could justify a policy, which we pretty much have with aggressive taxation. You could justify a policy of taking, let’s say, half of the wealth of the richest 1% of society and redistributing it to the poorest 10%.
Okay, it’s hard to argue on just common-sense terms that that is not some kind of intuitive gain for these poor people that is not felt as much by the rich. If you’re the richest 1%, you’re billionaires. You lose half your income. You’re still a billionaire, yet these poor people are made immeasurably better off because now their circumstances are different. But the point is it’s still stealing. It just doesn’t follow that just because this happens it justifies stealing money from Bill Gates or whoever the rich people are.1 And the reason is we have to avoid being snookered into this mainstream conception, this technocratic conception, bureaucratic, legislative, central-planning mentality, welfare-state mentality idea of the purpose of law and the state. We can’t think that the purpose is to come in and tinker and adjust things to maximize something.
The purpose of law is justice, to give everyone his due. And that means protecting their property rights, whatever they are. So you may have a different conception of property rights than me, but let’s talk about what property rights are, and then let’s talking about enforcing those with the law. So in other words, this whole idea of utilitarianism is based upon the idea that the law ought to be tweaking things and being managed by the government to just maximize factors that we like.
Second of all, there’s methodological problems with utilitarianism. That is the Austrian perspective. To have utilitarianism, you have to say, well, we pass a policy. It does harm some people, sure. And then we add up the harm to those people harmed, and then we add up the benefit to the people benefitted, and we do a net subtraction. And if there’s a net positive, then we do the policy because it’s the – and this is actually the idea, by the way, behind another utilitarian, Richard Epstein, who is a quasi-libertarian who argues in his brilliant but flawed book called Takings. It’s a book about eminent domain. It’s brilliant. But he argues that certain government policies can increase the size of the pie.
And so then, even if someone is harmed a little bit by their slice being smaller, they have a smaller slice of a larger pie, something like that. The problem is all this assumes that values are cardinal. That is, they’re numbers. June, I think what you’re talking about is consequentialism, which is a little bit different than utilitarianism, which I’m going to turn to in just a second, okay? There’s nothing wrong with being focused on the consequences, but utilitarianism talks about adding and subtracting units of value. And the problem there is you can’t do it from person to person. You can’t even do it from time to time for one person.
And you can’t do it at all because it’s not a number. It’s ordinal, not cardinal. You guys may have heard this who know Austrian economics. But the Austrian idea of value is that values are only ordinal, that is, orders: first, second, third, fourth. You express your first or highest preference by acting to achieve it, which, by the way, shows that Rand’s methodology was similar to the Austrian because her concept of value is something that you act to gain or keep, act. So she had this notion of demonstrative preference built into her ideas. She might have got that from Mises because Mises had that built into his Austrian economics.
But anyway, that’s another problem with utilitarianism. And one more: empirical. Even if we forget the ethical problems, even if we forget the methodological problems, still who’s the burden of proof on? At the very least – yes, Patrick. David Friedman is also I think utilitarian, which I discuss later, although I’m not sure Milton was. He was more of a consequentialist, but I’m not sure he was utilitarian. Anyway, it doesn’t matter. We’re talking about what libertarianism means and where we should go with it. I’m not too concerned about pedigree and history, although I’m mentioning it here because it’s interesting and helps flesh these things out.
But the final thing is empirical, and we will discuss this in more detail in the IP lecture number five. Yes, Danny. I know you’re right. I agree with you. Mises called himself utilitarian. I think he was more of a consequentialist in that respect. So – but the point is, those who are utilitarians and say that – intellectual property is a great example of this. They will say that – does everyone have video and sound right now? Matt had a problem just now with the video and sound. Okay. All right, good.
So people will say, well, if we have patent law, for example, and copyright law, we get more innovation and creativity out of it, and even though there’s a cost to society, we’re better off. So the implicit assumption is there that there is a net gain in terms of, I don’t know, dollars or inventions or something tangible, something measurable, something real, some quantity or some phenomena. But they just say this, and they never prove it. In this regard, it’s sort of like the social contract theory, which you hear a lot of leftists argue for.
They’ll say that, hypothetically, there’s a contract, which we would all agree to, and therefore, the state is justified, but we never agreed to it. There’s never any contract that we really ever agreed to, so it’s the same thing here with respect to this. The evidence is not in their favor. They never try to gather it. All the sort of neutral scientists out there that try to gather it pretty much come up with studies that go against the advocates of intellectual property. And to me, this shows a secondary problem, which I call the sincerity or the hypocrisy problem. That is this. If your goal is really utilitarianism, then, number one, you think you would try to do a study or find a study, or if a study came out against you, you might reevaluate your position.
But what we find is that when evidence is produced, that the original wealth-maximization, utilitarian goal of some of these policies has been shown to be wrong, then the advocates of the policies almost never change their tune. In fact, they just turn around and – they just change their line of argument, and they find a new argument for the policy or the law. That’s why all these state agencies like the Tennessee Valley Authority or the Rural Electrification Administration in America, which are 100 years old by now and which have long since served their original goal still exist.
And good examples of this is Charles Murray’s book, Losing Ground, which showed – I think it was in the 80s. It was a devastating attack on the effectiveness of the American welfare state, which was just ignored and pilloried by leftists in favor of the welfare state. And Thomas Sowell I think has an interesting theory about this. He’s a quasi-Austrian. He’s got a book with a great subtitle, The Vision of the Anointed: Self-Congratulation as a Basis for Social Policy. And I think he’s right. I think that is the motivation for a lot of these people. They want to self-congratulate themselves instead of actually caring about the alleged beneficiaries of the policies they – and the programs they claim to favor. So I think there’s a sincerity and a hypocrisy problem born out here.
Let me go on to slide 19. Now, I’ve talked about how it’s important to have good economics for legal reasoning, but I think the converse is true as well. You need to have a bit of sophistication about legal theories and some coherence in your theories to have good economic reasoning too. And the reason is economic theorizing presupposes many types of property rights and legal institutions and practices and regimes. For example, economists talk about contracts. They assume that there’s such a thing as contracting and that they’re legally binding. But why are they binding?
And we’ll discuss this in another lecture later on. They talk about sale of service or labor, and there are some confusions there that can be cleared up by a clear, libertarian-based understanding of legal theory, which we’ll talk about in lecture three. They talk about loans, but why are loans enforceable? And of course, there’s intellectual property and related things like goodwill and know-how, which are assumed by many economists.
Money, of course, is a huge role in economics, and that has legal ramifications and presumptions and implications. For example, there are many laws that say money is legal tender. What does legal tender even mean? Does it make any sense? Is it justified by libertarian theory? Do economists even understand this? Not from what I’ve seen. There’s a very bizarre doctrine, which some lawyers will have heard of called negotiability. That’s the ability to write a check or a promissory note and have it be enforced even though there’s effects in the chain of title between the original person who creates it and the final recipient, which, to my mind, is not unproblematic at all. It’s potentially problematic by libertarian principles, and yet, things like this are assumed by economists.
Also fraud—fraud is just thrown around all the time, and I think it also plays into the libertarian fractional reserve debate. Now, don’t worry about these details right now, but my point is these are just examples of why sound libertarian and legal theorizing is also important to having a good grasp of economics. So they reinforce and they depend upon each other, but they’re not the same thing.
Okay, now, we’re going to step back and we’re going to go back to libertarianism. Let’s talk about the origin and nature of libertarianism, and by libertarianism, I mean its modern conception in the sense that most of us here would say that we’re parts of. By the way, let me just make a psych. I see some of the comments here in the chat and the spine. Talk as much as you want. I will stop on occasion if I see a question that is timely for what I’m talking about. I can’t do that every time, especially if it’s only a tangential topic. So if I don’t answer your question and you want it answered or talked about or discussed and I don’t do it during the class, feel free to bring it up at the Q&A session at the end or in the office hours later.
Okay, so I’m going to talk about the origin and nature of libertarianism now. So this is what Rothbard says in For a New Liberty, which I highly recommend if you guys haven’t read it, for whoever hasn’t read it. The libertarian creed emerged from the classical liberal movements of the 17th and 18th centuries in the western world, specifically from the English revolution in the 17th century. So we sort of think of the libertarianism as coming out of the enlightenment, 17th/18th centuries in England. It ushered in the Industrial Revolution. It was a revolution against the old order, the ancient regime. It involved imposing more limits on state power like separation of church and state and separation of church and press. I’m sorry – separation of the state and press.
Now, some of the earlier theoreticians of this libertarian classical liberalism were the English levelers during the English Revolution and John Locke, the philosopher in the late 17th century. Now, Locke set forth the natural rights of each individual to his person and property, and his view was the purpose of government was to strictly limit it to defending these rights. So you can see germs of the libertarian – radical modern libertarian idea there.
Now, this led to the American founding, and the founders were inspired by Locke and the other English philosophers, and then our Declaration of Independence in 1776. Now, Rothbard and others have a view of America as being sort of almost a proto libertarian experiment. Of course, this is exaggerated or expressed in Rand a lot. But I want you to keep in mind, and we’ll cover this later if I have time, in the introduction to Rothbard’s Ethics of Liberty, Hoppe, who was his greatest student, sounded a note of caution to the sort of – not gullible but to the perhaps a bit too un-critical praise of America and the Constitution and democracy itself as sort of earlier progenitors of libertarianism and progress itself.
So as Hoppe wrote: Although aware of the economic and ethical deficiencies of democracy, which is what the American Revolution ushered in, both Mises and Rothbard have a soft spot for democracy intended to view the transition from monarchy to democracy as progress. Now, Hoppe is an anarchist, and to my mind, he’s the greatest libertarian theoretician in the world. And he’s often accused of being a monarchist, but he’s not. Hoppe just argues convincingly to my mind that there are several systematic aspects of democracy that make it inferior in many, if not most, ways to monarchy.
So in other words, the move from monarchy to democracy was not unalloyed progress. It might have been progress in some ways, but it wasn’t unalloyed progress. It’s taken nowadays as progress but not good enough progress by libertarian radicals, but Hoppe would say it was actually retrogression in some ways, and I agree. Of course it was retrogression in many ways as Hoppe points out, and also this worship and this reverence for America and the Constitution as a proto libertarian paradise is just completely overblown. The Constitution and the American Revolution arguably centralized and expanded state power under the cover of the Constitution and democracy.
Patti: Well, are we not supposed to be a republic? Well, I think we were a democracy from the beginning. I mean there was the right to vote built into the Constitution. It was restricted to white landholders, sure, but it was a democracy. It was a limited democracy, but of course it was a democracy from the beginning. I mean I think we had a democracy even under the Articles, but the Articles were probably superior to the Constitution in almost every way.
So let’s talk a little bit more about the origins of modern libertarianism. By the way, it’s 9. We’ve been going for one hour now. I think what I would like to do unless anyone objects. We’re on slide 22 of 50. I wanted to get to about 40 today, and I think we can do that in the remaining 30 minutes if I keep talking. So what I would like to do is lecture until 9:30, and I’d be happy to stay a little bit later and take questions, but not for too long because some people have to leave at 9:30 because it’s getting really early or late for them.
So what I would like to do is lecture until 9:30, take questions for 10 or 15 minutes, and then we can have further questions on Wednesday in the Q&A session, or you can email them to me, and I can address them in the forum. But I’d like to cover a lot of this material. Aparicio, I totally understand, and you’re a trooper for getting up this early. So probably I’m not the only one who needs a bathroom break right now. Why don’t we take a five-minute break? It’s 9:07 my time, so at 12 past the hour let’s come back and try to finish up as quickly as I can without skipping over too much. So I’ll be back shortly at 12 past the hour.
Hey, I’m back. I’m going to wait another minute for people to get back here, but if anyone has any kind of off-topic questions or comments I’d be happy to address anything here. Also, any feedback on the course is appreciated like if you think there’s too much, too little reading material, just let me know. It was a good deal for this course. It wasn’t a lot of volume. It was just a lot of smallish pieces or sections. Okay, well, it’s past the time I said. So someone asked – I may have missed some questions, and I’m sorry if I did. Feel free to repeat them later or send them to Danny or put it in the forum, and we can talk about them later.
I just talked to Danny, by the way, and if I need to go past 9:30 my time, which is 17 minutes from now, on the lecture, I will, maybe up to 15 minutes more because people can catch this on the recording later, but I want to cover as much as I can. The rape example was just the typical example given that, imagine some guy who just got out of jail, and he’s really desperate for sex, and he finds some prostitute who gets paid for sex.
And he can’t afford to pay her, so he rapes her. I mean, arguably, he doesn’t do a lot of damage to her because it’s just her job, so he’s stealing her – he’s robbing her of $20 of service. But he gets immense gratification out of it. Now, it’s hard to see why that kind of action is not permissible under utilitarianism, and you can think of tons of horrible examples. So that was part of the utilitarian – the ethical case against utilitarianism, right, right. And so libertarians were against this on principle because it violates her rights, and it’s wrong.
Okay, so let’s go back to the origins of libertarianism. By the way, a lot of this may seem basic, and I hope it’s not too basic, but it is important to establish a framework at least for what I’m communicating to you even if you don’t agree. We don’t need to finish all 53. I have some extra slides in here that go into next class actually. I had planned to stop early, like around 40, and it’s okay if we stop a little early, so don’t worry about it, and hopefully we’ll go faster.
So origins of libertarianism. So America was founded per the libertarian movement according to some people. We had the Civil War. We had centralized government because of Abraham Lincoln. America intervenes in World War II. This turns into a war of all against all instead of a regular European civil war, which would normally have been settled by some kind of agreement or truce.
And by the way, Hoppe elaborates on this in his introduction to his democracy book. Governments caused the Great Depression. This all leads to World War II partly because of the Treaty of Versailles in World War I caused by American’s intervention, Roosevelt, the Holocaust, the Cold War and so on. Now, come the modern age. In the ‘50s, people with what we call classical liberal beliefs, the sort of Jeffersonians, the somewhat limited-government types, started using the word libertarian to describes themselves.
There is an article in 1955 in The Freeman, which was the journal of the Foundation for Economic Education, one of the earliest and most important and still existing free-market institutions here in the US founded by Leonard Read, who I mentioned earlier. And this article “Who Is A Libertarian?” This was sort of one of the earliest marks I found which systematized and advocated the use of this word, libertarian, to describe these more radical type of classical liberals. So you can see, starting in the ‘50s, ‘60s is when libertarianism in the modern form started arising, so we really have a pretty modern and a young movement. I mean it’s 2011. It’s, what, 60 years old really.
Sure, it goes back longer in certain ways, but the modern libertarian movement really took flower just in the last half a century. The Libertarian Party was founded in 1971 in the US. Now, Ayn Rand’s philosophy of objectivism, the sort of political wing of it, what she calls capitalism, is basically libertarian. I mean she spearheaded this in The Fountainhead in 1943 and most fully in Atlas Shrugged in ’57, so again, the ‘50s is when this started happening.
Now, if you recall, in my view, how important economics, especially Austrian economics, is to sound libertarian theorizing, I would say we can date libertarianism from the publication of Rothbard’s For A New Liberty in 1973. So it’s, what, 40-something years old because this was the first systematic integration of radical—which means anarchist—and modern libertarian principles, not just conservative and traditionalist with an Austrian sensibility. That’s why I would say this is when we really came to flower, and that’s why Rothbard is really the father of libertarianism.
Now, what types of libertarianism are there? You all know this. I’m not going to belabor this. I mean you could say classical liberals, sometimes called the night watchman state. They advocate the night watchman state. But we’re all founded, we’re all centered, around the non-aggression principle and property rights of some type. So some people say the American founders did it. They were proto libertarian, but I would say the two main types of libertarian are minarchist and anarchist.
Now – and I have a note here. I mean every time I write the word minarchist, the spellchecker wants to change it to monarchist, so it’s obviously not that well-known of a word. Now, I’d say Ayn Rand, objectivist, Randians are minarchist, and most utilitarians and consequentialists that I know of, at least most utilitarians, tend to be minarchists. I mean Mises was an example. Yeah, I think Konkin did coin the term. I think you’re right. Aparicio, I just can’t go into the origin of the term right here. There’s a lot of stuff on that, but maybe later we can talk about it.
Now, sometimes we’re called – anarchist libertarians are called anarcho-capitalists to distinguish us from syndicalists and socialists and non-libertarian anarchists. But I tend to prefer the term anarcho-libertarian over anarcho-capitalist because of problems with the word capitalist, which are debated hotly in libertarian circles, which leads us to the left libertarians, most of which tend to be pretty good, solid anarchist libertarians. C4SS.org, which I’m a member of, Roderick Long, a friend of mine who is an Austrian, somewhat left libertarian, Sheldon Richman who’s great who’s affiliated with FEE and the editor of The Freeman, and the mutualists and Kevin Carson.
Now, my personal view is I’m not sure exactly how libertarian the mutualists are because they have strange views on homesteading and on the Marxian labor theory of value, which I think pulled them a little bit away from us. But they tend to be pretty anti-state, and that makes them strong allies in my view at least. Thank you, Jock. I’d love to see that.
Okay, now most of you might have heard of this, the Nolan Chart. This is, I think, fashioned by Dave Nolan, one of the founders of the Libertarian Party if I’m not mistaken. So basically it tried to take the traditional left-right spectrum and turn it on its head, and so as you can see from this chart, the left is here, and if you go across, here’s the right. But libertarians don’t really fit on this. So he divided it into two axes: personal freedoms and economic freedoms.
So he has a series of questions, and you can debate which questions are the most representative of our libertarian views, but the point is if you believe in a lot of personal freedom and a lot of economic freedom, you’re a libertarian. You’re up here. You’re sort of orthogonal or at the right angle to the left-right spectrum, and a statist or utilitarian believes in very little of both.
Now, my personal view is this is a little bit of an exaggeration to say that the left believes in a lot of personal freedom and the right believes in a lot of economic freedom. I actually think they’re both around here in the statist corner. Liberals don’t believe in very much personal freedom. They believe in abortion, big deal. That’s about it. Are they’re in favor of drug legalization? No. And conservatives say they’re in favor of economic freedom, but they support wars that require taxes, and they support putting people in jail for various non-violent crimes, so they’re both totalitarians in a way.
June, we’re going to talk about gay marriage later. I do have some thoughts on that. There was an interesting chart on the C4SS site by Tom Knapp, another friend of mine. So he views it as a bell curve view. I’m going to change the page right now, a bigger version. I don’t know if you guys can see this. It’s as big as I could get it here, but basically, as you can see, the vertical axis is the percentage of force advocated, and then the left-right is the left-right spectrum. So he shows that, if you look at the right and left sides like people like – now, I don’t completely agree with them, but basically showing that the left liberals like left libertarians like Bakunin and these guys and Carson, and the right—Ron Paul and Rothbard and Murphy. They all sort of come together because they believe in a smaller amount of force.
So I’ve actually told him I thought he should take this chart and wrap it around a cylinder so that these endpoints meet. And I might make adjustments personally on some of these names and some of the positions, but it’s a pretty good chart. Like I think Krugman and Locke are way too close together on the left side, and I’m not even sure Locke should be on the left side. But anyway, it’s an interesting way to look at it. The problem with this whole approach is that the left-right spectrum is broken, and I think the left libertarians are wrong in saying that we should be left because we’re neither right nor left, as Rothbard argues. Libertarians reject the entire left-right spectrum, and I view leftists and rightists as both just different types of socialists or statists.
Okay, I’m going to go here. Now, we talked about types of libertarianism. Let’s talk about the justifications for it. I’ll go back real quickly. That chart, by the way – I have a link there. If you click on Tom Knapp’s name in the slides, it will take you to the C4SS post, which has this chart. It is nice. I agree it’s nice. Now, there are several approaches to libertarianism. I’m going to try to briefly go over them here, and I think I might get behind. I’m not going to spend too much time, and I might skip over them because, number one, I have a lot of articles you can read for more background on this. And number two, it’s not really critical to the course as I’ll discuss around slide 40 or whenever we get there.
But we have different approaches to libertarianism. We all come from different angles. I agree, Matt. I agree. Some of their particular datapoints are problematic. June, I agree with you too about the Constitution, but that chart was really not about that, but you might have been referring to another comment. Anyway, back on justifications for libertarianism. We have natural rights or natural law or deontological types.
We have some people that are libertarian because they’re religious. We have consequentialists. We have constitutionalists like Ron Paul. We have utilitarians, and then we have something that’s sort of maybe a hybrid, rationalist, and hypotheticalist I’m calling them, which is more like me and Hans-Hermann Hoppe, for example, and Rothbard in his later years, somewhat of a hybrid.
So natural rights – they basically say that by our human nature there are certain things that we have a right to. We don’t need to go much further than that. That’s the basic idea. This is Ayn Rand, John Locke, etc. Even Murray Rothbard in the Ethics of Liberty has sort of a neo-natural law approach. Now, I don’t like to use the word human rights, and you’ll notice that libertarians don’t like to use the term human rights, and the reason is that’s a term that’s used more by the left, especially with these United Nations type, internationalists, one world government socialist types because human rights has a socialistic tinge.
If you just look at the United Nations, just go to Wikipedia. Search for the UN declarations on human rights. You’ll see there all kinds of welfare rights in there: the right to a job, the right to dignity, the right to XYZ. So they’re sort of human rights sort of as a signal that you have a leftist conception of rights, which has welfare rights built into it. Okay, I’m going to – so that’s natural rights.
I agree, Cheryl. It does have some good parts to it, but it adds on these modern positivist socialist accretions is the problem. Now, one problem that a lot of libertarians have pointed out – I’m not going to read this quote. You can read it later. This is a famous quote by David Hume. So one of the problems with the natural law or natural rights argument for rights is that there’s an unbridgeable gap between describing what things are. That’s facts or the “is,” and what we should do or what rights are or what values are, that is, what we ought to do.
So the idea is that if you just have a statement of facts—this is this way; this is this way—it’s hard to come up with a normative statement or a moral statement because you have to make a leap between these “is” statements. And then all of a sudden, you’re saying what things should do, and if you say why, you say, well, because it is this way. It’s like there seems to be a gap between is an ought. This is the famous is-ought gap. So a lot of people think that’s a significant problem with natural law or natural rights theorizing.
And, for example, Hoppe, in his treatise said, look, we can agree that it’s – most people believe that the gulf between ought and is, is largely unbridgeable. Well, it’s a little bit like begging the question, Mark, but I think it’s more like the Misesian, Austrian idea of dualism. Mises views the realm of knowledge and of behavior or things in the world in two different realms, he calls it: the teleological or purpose-oriented, that is, what people do, and the causal realm. That is, the realm of physics basically, and physical things.
And I think he realizes we have to conceive of these phenomena in different ways and understand them according to different types of laws. The scientific method, empiricism, experiments, quantified variables apply to causality. Purpose, human action, choice, ends and means apply to describing teleology or human action. So I would say it’s a methodological or maybe even epistemological issue. It’s recognizing there are two different realms you’re trying to describe here. So I think that’s the key here. Ought and is are really two different realms. When you talking about what is, you’re talking about the factual universe. When you’re talking about ought, you’re talking about norms or values or what people should do, and it’s hard to just go from one to the other in a deductive way.
Okay. I’m going to skip this quote by Rothbard here, but Rothbard even himself later on, in admiring what Hoppe did in his argumentation ethics, which I’ll discuss in a second, admitted that the is/ought dichotomy or the fact/value dichotomy has been a big problem for philosophy for a long time. So that’s one problem with the natural rights approach.
Now, Ayn Rand tried to defend it. I’m just going to go to this bold part. She said: The fact that a living entity is determines what it ought to do. So much for the issue of the relation between “is” and “ought.” So she just would find these problems and just dismiss them. She did the same thing with IP and with anarchy. She just dismisses them, but I think it’s not so easy.
Okay. I’m going to skip this part here. We don’t have time to go into his right now. So in a way, in the Kantian framework, you could view the natural rights approach as being categorical. Categoricals say what you categorically should do. So that’s sort of how the natural rights approach appears. Now, the Aristotelians who favor this natural rights approach wouldn’t agree with that because they’re opposed to Kantianism. But Rand often argued in hypothetical ways. She would say if you want to live, then you should do the following things to have a good life. So that’s a hypothetical argument, which is more like the Kantian or the rationalist approaches I’m going to discuss in a minute.
I’m going to skip this. This is just a criticism by Hoppe of some of the problems with natural rights and natural law. I’m going to slide 34 now. Now, a lot of libertarians, and I think probably most in a way, are at least partially consequentialist, which does not mean utilitarian necessarily. Basically, the idea is that if we have certain goals or things that we, as individuals or as individuals in a society, if we value them, like peace and prosperity for example, then we should favor certain means to achieve them.
Now, this is how I conceive of Mises, and Randy Barnett has some explicit stuff in this regard. If you look back on slide 32 here you’ll see this quote by Barnett, Randy Barnett: Libertarian rights are appropriate given the widely shared goal of enabling people to survive and pursue happiness, peace, and prosperity while living in society with others. So that’s sort of a consequentialist approach, which I have no problem with, and it’s kind of my approach. And I think that was Milton Friedman’s approach in a way and Mises’ too I think.
Now, I just want to briefly mention here what I think is one of the terrible arguments for libertarianism, which is Milton Friedman’s. There’s a Liberty Magazine interview where he said that basically the reason he believes in libertarian rights is because of his ignorance or his humility because he can’t be sure that he’s right and someone else is wrong. So in other words, he doesn’t want to coerce someone because he can’t be sure that he’s right in his desire to coerce them. He can’t be sure that if he thinks someone’s sinning, that they’re sinning.
Now, the problem with that, of course, is the presumption is if you did know someone was sinning, which means doing something immoral, then you would be justified in using force to stop them. I don’t think Friedman would have done that. I think he was confused on the foundations of his own good intuitive thoughts. But that’s just an example of where Milton Friedman himself failed to keep distinct the idea between morals and rights. So he’s sort of saying if you knew it was immoral, you could use force to stop them. Well, the libertarian doesn’t believe that. We’re not wishy washy like Friedman.
I mean most of us would say we can know that some things are wrong, but we still shouldn’t stop them, not because we’re ignorant, not because we’re possibly wrong, but because it doesn’t – the wrong thing that’s being done doesn’t violate rights, and we can only stop something that violates rights. So that’s an interesting aside on Friedman and sort of how this pragmatic approach can lead you astray.
Now, I’ve already mentioned utilitarianism. Choose a rule that maximizes overall happiness. Now, I will say that if you’re common sensical about it, that does tend to make you more libertarian because the world is not inconsistent, I believe. But I’m going to go on here. I’ve already criticized some aspects of utilitarianism.
See, we’re on slide 37, guys. We’re not – we’re only at 9:34. We have ten minutes, and we can easily do five more slides. Now, I would like to briefly mention here something that a lot of libertarians disagree with, and it’s controversial, and I want to be clear that this is, in a way, my pet theory, something I’ve been fascinated with for a long time. And it influences a lot of my approach, which will be peppered throughout this entire course. You don’t have to believe in this or accept this, but I do want to lay it out here because I think it’s a major approach to libertarian rights.
So that is Hans Hoppe’s argumentation ethics and my related approach of estoppel. Now, Hoppe laid his out in – he started doing it in ‘86/’87 and more fully I think in ’88 in his Theory of Socialism and Capitalism, which is probably one of the single-best economic libertarian books I’ve ever read. It’s just amazing. It’s packed with insight. I heavily recommend his Theory of Socialism and Capitalism. He lays out his argument in chapter seven, and I was influenced by that and wrote something kind of similar in ’91. And I describe my theory and his and some related theories in the second article I have here, my “New Rationalist Directions” article, which is a JLS article.
Let me turn the page and see if I have some notes on this here. No, actually I don’t. I’m going to go back for a second. Hoppe’s approach basically is this, and I’m not going to go into it in detail because it really – you’ll see in a second, I don’t think it matters why we’re all libertarians. I want to define what libertarianism means, show the different approaches to get there, and then we’re going to take these base principles, and we’re going to branch them out and apply them to a lot of really interesting, cool areas.
Hoppe’s basic argument was that natural rights has a problem. You can’t go from “is” to “ought.” Plus human nature is too vague and diffuse to really get concrete goals out of it. What he said was that people are all – any time – he said that any norm that you want to discuss what the right norm should be, the right rule should be, has to be brought up in argumentation. In other words, it necessarily has to be discussed by people in a civilized discourse. That discourse or argument is a type of action, so it’s always an action, but it’s a special type of action. It’s a subset of action. An argument has certain characteristics or traits that define it, that are necessarily presupposed.
That means that everyone who’s part of argumentation necessarily presupposes certain base norms or values. Like they presuppose each other’s property right in their own bodies so that you’re not threatening to coerce them or hit them over the head to make them accept your argument. You’re trying to persuade them by the force of reason, for example. So there’s a sort of civilized comportment or attitude each person expresses as part of what it means to argue.
If you don’t have that, you’re not arguing. So because every norm that could be discussed is discussed in the context of argument, whatever these norms are that undergird argumentation as an activity could never be contradicted by one of the norms you’re advocating. So basically, he uses this to argue that, listen, we’re all presupposing certain kind of libertarian norms: the right to use our bodies to argue with each other, the right to have homesteaded enough property to survive just to get here and argue with each other. So what he’s trying to show really, in my view, is that whenever we come together in a civilized way, we already have chosen to value certain civilized norms.
Now, I call these grundnorms, which is a German term from the legal philosopher, Hans Kelsen, which means basic norms. And I believe these basic norms like the desire for peace, for cooperation, just for civilization in general, the predisposition to settle disputes peacefully, to seek a mediator maybe, all these things underlie the entire civilized endeavor, the entire endeavor of society. And now you see the reason for the title of this course. It’s about property and conflict and society.
Okay, and I think Hoppe is just pointing out the fact that everyone who would dispute the libertarian norm is already in the process of being a disputant. They’re part of an argument, and they’re already showing that they value the basic civilized norms that we libertarians are happy to admit that we [indiscernible_01:36:11]. So all we’re trying to do is say, listen. If you’re being consistent, if you’re being honest, if you have a little bit of economics literacy, look. You’re already valuing the idea of peace. You’re already valuing the idea that I own my body, and you own yours. We’re having a conversation.
So you’re trying to show them just by pointing that you’re already valuing things, and the only system of more advanced idea of rights and norms that’s compatible with this is the libertarian idea. And there’s more advanced arguments that go into that, but that’s what this approach is. And I have a sort of related one called estoppel, which again is not extremely relevant here.
Now, I have another idea here, which I’m going to have to skip over here, and it’s not that important. But the idea is that – let me briefly mention it. The Misesian idea of economics is that all human action—all human action—is the attempt to overcome felt uneasiness. So you perceive a state of affairs now or in the future that you think makes you uneasy. You want to change it. That’s why you act: to change things. You intervene in the state of the world to bring about a state of affairs in the future which is different than what would otherwise obtain. So you’re always trying to do something to deal with your felt uneasiness.
Well, I think there’s an analogous way you can have a sort of quasi-praxeological analysis to ethical action, which is why Hans Hoppe believed that his argumentation ethics was an ethical extension of praxeology, although Mises probably wouldn’t have agreed with that. So – but if you just think about praxeology and rights, I believe that humans have a certain nature because of our social nature, because of evolution, whatever reason.
We’re not all murderous psychopaths. A large number of people have empathy for each other, and they value each other’s wellbeing to some degree. There’s lots of reasons for this, some economic. Some are psychological. Some are biological. Some are evolutionary. But the point is we tend to have empathy for others. That makes us identify with others, and that makes us search for justifications for our action when we seek to have violence with others because violence is no doubt useful sometimes. But [indiscernible_01:38:49] discourse that Hoppe talks about.
Empathy – human nature leads to empathy, leads to certain values, leads to the search for justification, and our rational nature forces us at that point to combine our knowledge, consistency, honesty, love of logic, and economic literacy. And out of this, in my view, results the libertarian principles. I’m sorry. Am I here? Is everyone here? Can everyone hear me? Okay, I will go back. I’m not sure where you lost me. We’re getting a little late now. I don’t mind staying later. I’m hoping I’m not causing a problem for the students here. We haven’t had many dropouts yet.
I was kind of on a roll there, but what I was saying was, in my view, here’s how it works. And by the way, I don’t think – well, we’re on slide 38. I think three or four more slides, and I think we can stop. Okay, so let me just reiterate what I said. In my view, and what I was going to say is I don’t think you have to agree with me on this. I’m just telling you how I approach my perspective of what it means to be a libertarian.
But if you disagree with this, that’s fine. I think what happens is people have a certain nature because of our evolution, our biology, economics, psychology, etc. We have empathy for each other. We have a social nature. We have certain values that arise from this empathy. This gives rise to the desire to justify interpersonal violence because we want to commit interpersonal violence sometimes. And most of us seek to justify it. Outlaws don’t. Psychopaths don’t. Criminals don’t, by and large. But the bulk of society does. This is where this comes from. This is why people enter into this discourse or argumentation ring that Hoppe envisions.
Okay, and I just think that given our human rationality and a sufficient degree of valuing honesty, consistency, and argumentation, rationality, just a general idea of fairness, and some economic literacy, this will lead you to libertarian principles. I mean there’s no way around it. Everything that we oppose as libertarians violates some of these things. And by the way, this is another reason why I think economics is important because, as I say, it’s important to having a fully fleshed-out view.
Argumentation ethics—I’ve already summarized it. There’s more information here. I’m going to skip over this now because we’re really behind. Patrick, I think that – people are starting to leave now, so here’s what I’m going to do. I’ve already gone over argumentation ethics. By the way, this slide here, 41 – yeah, we’re covering a lot more advanced topics next time, June. This is just an example of how Rothbard agreed with Hoppe’s argumentation ethics. And then I have some stuff on my estoppel approach, which I’m going to skip here because it’s not that relevant.
I’ll tell you what. There’s only about four or five more slides to get to where I wanted to stop, and I can cover them in about five minutes. But since it’s getting late here, I’m going to stop here, and what I will do is I will pick it up here next time. Trina, you’ll have to ask Danny Sanchez, but I think they can make it available very quickly on the site. It’s just a file, so it should be available very quickly. So I’m going to stop here. I’d be happy to take some questions, although I don’t think we should go for too long because I will take further questions at the Q&A session on Wednesday at 7 p.m. London time. So I’m here, so I’m happy to take further questions.
Thank you, Karl. Well, June, I think of property as being a relationship between a person and a scarce resource. So it’s the right to use or control. It’s the legal right, the legally enforced or recognized right to use or control a scarce resource. So I would think of your right to life – life is more of a metaphorical idea or more of a – bound up with your personhood. I think to say you have a right to your life or you own your life is problematic in that it’s overly metaphorical and imprecise. And I would think that – like Rothbard argues in the Ethics of Liberty in his chapter on rights – human rights as property rights that a lot of things that we value are more consequences of basic property rights rather than actual independent property rights.
For example, there’s no right to free speech. There’s no right to freedom of press. There’s a right to own property that you can print things with. There’s a right to own property you can speak from or on. Likewise, there’s no right to life. There’s just a right to control your body and things that you homestead. Let me go up again. I missed – sorry. Okay, I’m looking for the question after June’s, and the chat is passing me up here. Okay, June, you said what should you say. I think I’ve answered – I’ve given you my answer for that.
Jonathan Nebol – is it inconsistent to think that individuals ought to help others but also to claim that the obligation ought not to be legally enforced through violence? No, I think that’s perfectly consistent. I think, first of all, none of us are just libertarians. Most of us live in society, and we have interests other than this and values other than this. And if you distinguish between legally enforceable obligations and moral obligations, there’s no problem whatsoever saying that you ought to do X, Y, and Z but also say that you shouldn’t be forced to do X, Y, and Z.
And, in fact, I would say a lot of things you ought to do would be rendered meaningless if you could be forced to do it like giving to charity. I mean you’re not really being a charitable person if you’re forced to give to charity. So we’re robbed of the opportunity to be charitable by being forced to give to charity.
Patrick – would you consider state officials who seek to legislate force against others to be of the same lack of conscience as outlaws and criminals? Well, I mean my view is that – I mean that’s a complicated question. I think it depends upon the criminal. It depends upon the state official. I think as a general matter I’d say yeah, although I do think that most outlaws and criminals are aware that they’re criminals. They know that they’re doing the wrong thing. They just don’t care.
I do think a lot of state officials have been brainwashed and accepted the same propaganda as most people that vote in favor of the state. And they think they’re part of a useful agency, so I think they have – some of them have a little bit more of an excuse, but maybe at the higher levels they have less of an excuse, and they do even worse damage than the criminals, than the private criminals do.
Jonathan – how do you delineate between legal obligations and those moral obligations between defining them as so? Well, I would say this. A legal obligation is an obligation that could be enforced, which means force is used. So libertarians have a view of reciprocity or this reflexive idea that if the obligation has to have force used against it, that means that this force is not justified if it’s initiatory. In other words, it all goes back to the non-aggression principle. We believe that you can use force only in response to force.
This is how I – libertarians differ on what ways you can respond to force. Some think you can punish, which is called retribution. Some think you can use restitution, restitutive force. There’s other types too: rehabilitative force or defensive force, force during the commission of the crime. To my mind, these are all under one umbrella term. That’s responsive force. So the libertarian view is that force is legitimate if it is in response to initiated force.
Okay, so that’s the question. And so if this obligation you want to argue for would require force to be used against the obligee – sorry, the obligor (the obligee is the person he owes it to), then the question is simply has the obligor committed initiated force? If he did, then sure, you can enforce the obligation against him because the force is in response to it. It’s legitimate. If he hasn’t, then the force you want to urge is initiated force itself, which is aggression. So that’s how you distinguish. Basically, you ask if you want to say an obligation is enforceable, is the force required to enforce it initiated or in response to initiated force? That’s how you do it.
Why is the Austrian school not mainstream? Well, I think it’s because it’s fairly new, and I think it’s also because it has been less useful to – and there’s a lot of articles written on this by Salerno and others about how the economics profession is co-opted by the state. These guys are sucked into the state’s orbit by being professors at state-sponsored universities and all this kind of stuff, given research grants. And so the state basically supports and props up the economics that will support what it’s doing, which is what Coasianism and utilitarianism and Chicago-ism and Keynesianism and even Marxism, all these schools of thought support the state because they’re malleable. They’re – and they support massive public works and these kinds of things, so the state just supports the things that support the states, so I think that’s the main reason.
You guys have been troopers hanging in here. I know we stayed long, but I appreciate it. Okay, guys, it looks like we’re winding down, so why don’t we stop? Because everyone is starting to unsubscribe now. I enjoyed it. Thank you very much. I will see some of you on Wednesday at 7 p.m. London time, and the rest of you, or some of you, next Monday at this time. Thanks very much. I enjoyed it.
- See Ronald M. Dworkin, “Is Wealth a Value?,” J. Legal Stud., Vol. 9, no. 2 (March 1980; online at https://booksc dot org/book/66503868/e33a3b), p. 197: “Consider this hypothetical example. Derek has a book Amartya wants. Derek would sell the book to Amartya for $2 and Amartya would pay $3 for it. T (the tyrant in charge) takes the book from Derek and gives it to Amartya with less waste in money or its equivalent than would be consumed in transaction costs if the two were to haggle over the distribution of the $1 surplus value. The forced transfer from Derek to Amartya produces a gain in social wealth even though Derek has lost something he values with no compensation. Let us call the situation before the forced transfer takes place “Society 1” and the situation after it takes place “Society 2.” Is Society 2 in any respect superior to Society 1? I do not mean whether the gain in wealth is overridden by the cost in justice, or in equal treatment, or in anything else, but whether the gain in wealth is, considered in itself, any gain at all. I should say, and I think most people would agree, that Society 2 is not better in any respect.” [↩]