Kinsella on Liberty Podcast, Episode 146.
Today I had a discussion with Williamson Evers, about his pathbreaking 1977 article Toward a Reformulation of the Law of Contracts, which was the first article ever published in the Journal of Libertarian Studies (Evers’s other JLS articles).
This article was relied on heavily by Rothbard, in ch. 19 of The Ethics of Liberty, “Property Rights and the Theory of Contracts.” I discuss this piece in detail in my 2003 JLS article A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability, and I also discuss it in my post Justice and Property Rights: Rothbard on Scarcity, Property, Contracts….
A fascinating interview. We discussed the genesis of this important theory and related matters. I appreciate greatly Dr. Evers taking time to discuss this matter with me.
- KOL225 | Reflections on the Theory of Contract (PFS 2017)
- KOL197 | Tom Woods Show: The Central Rothbard Contribution I Overlooked, and Why It Matters: The Rothbard-Evers Title-Transfer Theory of Contract
- KOL 029 | First Degree Liberty Interview: Argumentation Ethics and the Title-Transfer Theory of Contract
- KOL338 | Human Action Podcast Ep. 308 with Jeff Deist: Rothbard on Punishment, Property, and Contract
Interview of Williamson Evers on the Title-Transfer Theory of Contract
Stephan Kinsella and Williamson Evers
August 5, 2014
STEPHAN KINSELLA: Okay, this is Stephan Kinsella. I’m here with Mr. Williamson Evers who I’ve never met in person, and he has graciously agreed to discuss with me a topic that I’ve been interested in, in a number of years, the title-transfer theory of contract. And Mr. Evers, how are you doing?
WILLIAMSON EVERS: I’m fine, thank you. So I’m Bill Evers, Williamson M. Evers. I’m a Stanford PhD in political science, and I currently am a research fellow at the Hoover Institution at Stanford. I was a friend of Murray Rothbard for many years and discussed political theory and philosophy of law questions with him including questions about the law of contracts. So I think that’s what we’re going to discuss today.
STEPHAN KINSELLA: Absolutely, and I’ll just observe that I’ve been a fan of the Journal of Libertarian Studies, of course, since its inception, and I noticed that I think your article was the very first article every published in the JLS.
WILLIAMSON EVERS: That’s right. It was the lead article in Volume 1 No. 1.
STEPHAN KINSELLA: Yes, and you’ve had several others.
WILLIAMSON EVERS: Yes, and I was also the managing editor for awhile.
STEPHAN KINSELLA: And I think your article came out in 1977, and I’m a lawyer, and so I’ve written on this topic. And I’ve been interested in it since I’ve been studying Rothbard and libertarian theory. And this theory has been fascinating to me for a long time. My impression, and I’d like to get your impression, is that it’s been – it’s got a lot of potential. It could have more development, and it’s underappreciated, and I think it’s revolutionary to be honest in legal and libertarian theory.
Just in tracing the genesis of the idea, it appears to me that around 1974 – I think your article came out in ’77 – around ’74, Rothbard had some sketchy thoughts on this in one of his earlier articles. So my guess has been for awhile that you and Rothbard were discussing this, and you wrote it up into a longer piece, and then Rothbard drew on that in his Ethics if Liberty chapter, which relies heavily upon your 1977 article. Is that basically what happened? Do I have that right?
WILLIAMSON EVERS: I think that’s basically right. So this was a long time ago. So you and I are talking in 2014.
STEPHAN KINSELLA: Correct.
WILLIAMSON EVERS: I specialize in kindergarten through high school education policy these days, and I’m not writing in this area anymore.
STEPHAN KINSELLA: I understand.
WILLIAMSON EVERS: I’m not saying I would never write in it anymore, but I haven’t for many years. I wrote, in addition to this article, for the reformulation of the law of contracts. I also wrote on social contract theory and political thought, and so that’s a related area. But anyway, I wanted to – your question really is about the genesis of this, and Murray Rothbard and I used to talk on the telephone late at night. He was kind of a night person, and we would talk quite long times, maybe even hours sometimes.
And so the early days when I knew him, he didn’t really like to travel very much, but he loved to talk on the telephone and have people in his apartment, he and Joey’s apartment in New York City. But anyway, we used to talk about things, and I was a graduate student in political science at Stanford. And I had to write papers on various topics, and so I tried to utilize the obligation to write serious papers to also explore things that I thought were underdeveloped in political philosophy of classical liberalism.
And so I did, and I – this is really not something I’m completely certain of, but I believe that I discussed it with Murray Rothbard that certain insights that I found in a very fragmentary way, a very scattered way in different writings of his. And that he encouraged me to develop these further, and so Stanford has a great law school, a great library. And I just dug in, and sort of the first thing I realized was that utilitarian ideas about expectations had had a huge impact on the way the law of contracts was discussed.
Like a lot of things, and this is something that you – is reflected in your own writing, there are different ways that sort of – and different ways of approaching a topic that kind of end up with a similar result. So just because this focus on expectations was there didn’t mean that the law of contract was completely wrong-headed or hopelessly wrong or something like that. But it meant that it wasn’t thought about in a way that was compatible with a natural-rights, private-property-oriented classical liberalism.
So I looked around, and I found various authors who – I read things on all the different sides of this, and I found out what are the issues, what are the controversies, what are the controversies that are interesting to libertarianism. And I tried to find out how had previous people thought about and how to press those thoughts on further and try to systematically go through the issues. And that’s what I did in this article, and Professor Rothbard thought it was a pretty important article, so I used it as a lead piece in the new journal.
STEPHAN KINSELLA: And I agree with that, and when I came across it and Rothbard’s restatement of it in Ethics of Liberty, it sort of blew my mind as a lawyer. As you saw from my piece, I’m from the civil law tradition in Louisiana, and there they distinguish contractual or conventional obligations as either to do or to give. So that’s the conventional way of – the typical way of looking at it, and from what I realized from looking at your and Rothbard’s work is that pretty much every conventional legal system and contractual system can be boiled down to really an obligation to give, which is really not an obligation to give.
It’s just a transfer of ownership of property. So to me, this whole approach rests upon an essential insight that all rights are property rights and that all property rights are rights in scarce resources. And the right of ownership is the right to control it, and one of the aspects of that is the right to convey the title to someone else. And that’s really what contracts are. I mean is that the basic approach that you would agree with?
WILLIAMSON EVERS: Yes, but I do think we have to be careful about include the right to convey because I think that the natural rights tradition in classical liberalism says that you can’t sell yourself.
STEPHAN KINSELLA: Correct.
WILLIAMSON EVERS: You can’t sell yourself into slavery. Now, you could – let’s say you found a guru or a religious figure, or you joined a monastery whether it was absolute rule by the head of the monastery. You could dedicate yourself in a sense. You could make yourself servile, but you couldn’t – they couldn’t hold you to it.
STEPHAN KINSELLA: Exactly.
WILLIAMSON EVERS: They couldn’t enforce a contract. They couldn’t hold you captive as a slave legitimately in terms of natural rights libertarian philosophy. So – and the whole superstructure of libertarian philosophy of law is built on dealing with the situation of free human beings in a society with scarce resources, as you said. And so you are then – that superstructure, the rest of it, the conveying the alienable property, you can’t sort of take that superstructure and use it to destroy the foundation, which is the free person operating in the material reality of the world. So I just – it’s like you’re out on the limb, which is the superstructure. You can’t really destroy the trunk or the roots and say, oh, well, that was a legitimate move.
STEPHAN KINSELLA: Right, and which is why my…
WILLIAMSON EVERS: I hope your listeners haven’t gotten lost in the metaphor, but all I’m saying is…
STEPHAN KINSELLA: No, my listeners love this kind of stuff, so that’s fine. My feeble attempt to build on your work and Rothbard’s was, in my article, one reason I thought I had to deal with the whole inalienability issue was because of exactly what you’re talking about. I don’t know if you agree with all of that approach, but it seems to me that we have to treat property rights in one’s body, which is euphemistically or metaphorically called self-ownership sometimes. We have to treat that differently than the acquisition of property rights in scarce resources that are previously unowned.
WILLIAMSON EVERS: I agree with that. I agree with that. So I did have some differences with your paper, but I thought it was a serious paper. And I’m not so sectarian as to condemn you to outer darkness or something over the differences because I think it’s a very interesting article that you wrote. I have some thoughts on different aspects of it, which I’d be glad to make the focus of the rest of our discussion. But I just want to mention to listeners to this that, again, this is not the area in which I’m doing research and writing today, but I can recall what I think and thought about it.
So as I went through it, I thought, first of all, you’re kind of recapitulating what Professor Rothbard and I – Murray Rothbard and I had to say, but you’re also partly talking about your foundational views of what justifies libertarian philosophy. And you’re, I guess, attracted to the argumentation ideas of Hans Hoppe. Am I correct in that?
STEPHAN KINSELLA: It is, but I don’t think these ideas rely upon that.
WILLIAMSON EVERS: Right. I don’t think they do either, and so I wouldn’t want to state that. I myself – I am more of a Aristotelian Thomist in the way that Professor Rothbard liked to modify that and the way that Doug Rasmussen and Den Uyl set this forward. I think that is pretty good. Similarly, Henry Veatch is another man that I think highly of. But I don’t oppose the argumentation idea, which has a kind of a more Kantian cast to it.
It was, I think, developed very well by James – Father Sadowsky, James Sadowsky, and Professor Rothbard also liked it. And I view that as not in conflict with an Aristotelian-Thomas specification of property rights and of human liberty, individual liberty. And so we’re not antagonistic, but I just thought I would say that I think they’re compatible, but I think – I find one is more of a thin justification, and the other is more of a thick one, and I’m just more comfortable with it. That’s the thick one, but I…
STEPHAN KINSELLA: Which one? Oh, the thick one
WILLIAMSON EVERS: But I also think in arguing with other people it’s good to have at your disposal a thin one because it’s easier to talk to people. It’s just kind of a – what political philosophers call an imminent critique because you’re saying to somebody, well, if you think that you can do this, how can you even say that you think people should do this if you don’t own yourself in order to open your mouth?
STEPHAN KINSELLA: Exactly.
WILLIAMSON EVERS: Kind of thing. And so that’s sort of – in caricatured form, the essence of the argumentation argument. And I think at a minimum it ought to make people pause. So I think it’s good, but I just think I want to kind of go deeper. Now, I think you make a good point that Professor Rothbard and I seem very stand-offish about the word or term promises. And we’re very – you use the phrase that we’re fixated on it.
STEPHAN KINSELLA: That was probably too harsh.
WILLIAMSON EVERS: We’re kind of writing in reaction.
STEPHAN KINSELLA: I understand.
WILLIAMSON EVERS: To legal theorists that made a lot out of mere promises.
STEPHAN KINSELLA: Exactly.
WILLIAMSON EVERS: But I think you’re quite right in saying that if the substantive effect and intent of a promise is to convey title, then it’s quite a good contract, and it would be so under libertarian thinking.
STEPHAN KINSELLA: Right.
WILLIAMSON EVERS: So I – and that is your point, and I agree with it, but I mean I also think, and you’re kind of in our conversation here acknowledging that you’re understanding that we were reacting…
STEPHAN KINSELLA: Of course.
WILLIAMSON EVERS: Against this kind of cavalier, breezy use of promises.
STEPHAN KINSELLA: Of course.
WILLIAMSON EVERS: With quite a substantive effect in the people that we were arguing against.
STEPHAN KINSELLA: Of course, and I’m happy to let you talk about any of this, but my point was not to get you to comment on my paper. My paper is just an indication of my interest in this topic, and I’m really interested in a few things about – I don’t know if you’ve paid attention to or if you recall some of these – the little minutia…
WILLIAMSON EVERS: I don’t know where we…
STEPHAN KINSELLA: I’m sorry. I’m sorry about that. I don’t know what happened, but we got cut off, but I’ll fix it.
WILLIAMSON EVERS: Okay, so what was I saying when we stopped here?
STEPHAN KINSELLA: Well, I was – I’m trying to remember. I’m sorry. I was distracted myself. But what I was saying was I just wanted to ask you a couple of things that have stood out to me in this debate. First, I wanted to get your impression…
WILLIAMSON EVERS: Well, did you hear me saying that – let’s see now. We talked about the promises thing, right?
STEPHAN KINSELLA: Yes.
WILLIAMSON EVERS: Okay, so then I wanted to go, and before I did it, I wanted to say that I appreciate – once again, I appreciate you writing the article. I think it’s a serious article, and just because we have differences doesn’t mean I’m condemning you.
STEPHAN KINSELLA: Well, I don’t…
WILLIAMSON EVERS: Personally. But anyway, the first thing I wanted to discuss was this issue about the existence of something that might be owed in the future.
STEPHAN KINSELLA: Exactly, and I actually did want to turn to that. I wanted to kind of get your impression on that.
WILLIAMSON EVERS: So I wanted you to kind of state your view, and then I would react to it.
STEPHAN KINSELLA: And that’s fine, and let me be clear. I wanted to get your views. I really wasn’t trying to seek your commentary on my article. I’m happy to – if you want to use that as a framework, and that’s fine. But I was trying to talk to you about what you’ve written, and I wanted to get your insight about the process and what your thoughts are on the development of this theory and how much is left to be developed. And believe me, I’m not a critic. I’m a huge fan of your work. I think there’s something to be developed, so I wasn’t trying to be critical in my article. There’s a few things I was trying to…
WILLIAMSON EVERS: Well, I think Randy Barnett, although he’s – this has not been the major focus of his writings, he has made additional contributions on it.
STEPHAN KINSELLA: I agree completely.
WILLIAMSON EVERS: And I think that that’s another person who has written on this, but in the sense you’re right that there hasn’t been a lot written on it. I wonder – there’s also a professor at Stanford named Marcus Cole, who’s an expert on bankruptcy. And I have not explored that much of his writings on this, and I don’t know how much he draws on this. He’s certainly familiar with Randy Barnett. I don’t know if he knows about my writings on this I think, but anyway.
STEPHAN KINSELLA: I’d be happy to look into it.
WILLIAMSON EVERS: He might – I mean obviously bankruptcy is strongly related to contract. And it’s related to this issue that we’re talking about now, which is whether someone who is called upon to perform or transfer something in the future, whether – if that thing is not in existence, what is the status of the contract. So I mean my view is that if you commit it to something that’s a legitimate contract, even if you don’t have it, let’s say you’re supposed to have a certain amount of money to give to somebody in the future, and you don’t have it.
That doesn’t – it’s still a valid contract, and if you’re not – if you don’t have it or you’re withholding it or hiding it somewhere or something, that’s – or you give it to your best friend at the last minute, it’s still a valid contract, and you owe the person a money. So then part of the question that arises is, well, if it’s a kind of theft, why couldn’t you be put in debtor’s prison or…
STEPHAN KINSELLA: Exactly, exactly.
WILLIAMSON EVERS: Why shouldn’t you be? And I think that’s a very valid question to raise. But I think, and I know from your writing that you’re not on the side of this, but I still think, and I’m – again, I’m open to argument on all this except for the fact that I’m not writing on it anymore. So – but anyway, I think there are gradations. Just as in robbery, there’s robbery of your house when you’re not there, and there’s robbery when you’re there. There’s – in the streets there’s robbery with a gun on you, and there’s robbery where they just snatch and grab.
So I think just as there’s that, there’s different kinds of thefts, and there’s lesser and greater theft. And that would be disproportional to the amount of intention that’s involved and so forth. This all affects the gravity of what has been done to you. I’m talking about you, the victim, who didn’t get paid back. So that’s part of why I don’t favor debtor’s prison, and I think no one can speak for Murray Rothbard anymore, but I think that similar ideas figured in his thinking.
Again, I just think particularly with specific unique items, the idea is very troubling because let’s say you have the Mona Lisa, and you sold it to me, but the delivery is supposed to be in the future. So at the last minute I give it to somebody else. That’s crazy. You have to be still liable to turn over the thing that you owe. So I’m not – I mean I’m kind of flippantly giving this example, and it’s a much more subtle topic. But anyway, that’s my view.
Now, there’s another issue that you don’t really get into very much but I think is a complicated one for this theory. And it is an area that deserves additional research program on anybody who writes on this in the future, and that is the slavery equivalent, onerous-damages issue. So the examples, I agree to sing. I’m an opera singer, and I agree to sing in the San Francisco Opera, and then when the time comes, I don’t show up. I’m off drunk somewhere or something, whatever. So – or I just decide I don’t want to do it.
So can somebody compel a specific performance? Well, you and I both agree no, they can’t. But now what about a performance bond of some sort? So I put forth some – in the contract made with me to come and do the singing. I say, well, if I don’t show up, I owe $5000 or $7000, some number that’s maybe even more than what I was going to be paid, but it would be enough to make me want to show up there.
Now, the question is what if it were $1 trillion? Okay, or something huge? Now, you might say, well, of course I, the opera singer, don’t have the 1 trillion, so that’s – maybe you take care of it. But if someone doesn’t agree with you, is there another problem here? And the question might be is it the equivalent to slavery? Is the burden so – like I will chop off your leg or I will – I’m not killing you, and I’m not – whatever, but something that is so onerous that it makes it equivalent to slavery. And I don’t – because I’m not writing in this I don’t have a quick answer. But I do think that this is an area that deserves further research, further writing, sensible writing.
STEPHAN KINSELLA: Well, I have…
WILLIAMSON EVERS: I think it’s a realistic issue.
STEPHAN KINSELLA: Well, the way I’ve interpreted your theory and Rothbard’s in my Misesian/Rothbardian/Hoppian way is that it’s all about transfer of title. And theoretically you could engage in a future title transfer, which – say, to a debtor, which basically transfers every piece of property that you ever acquire forever, even a piece of food going into your mouth. And if you did that, it would be equivalent or tantamount to a type of slavery. And so maybe some argument like that could be used to justify some type of bankruptcy type of provision, which I think is getting at the same insight that you’re talking about here.
WILLIAMSON EVERS: But I don’t – so I am uncomfortable with this idea that you could convey everything including every morsel of food and drink of water.
STEPHAN KINSELLA: Correct.
WILLIAMSON EVERS: For the future. But anyway, that point that we’re both getting at is that this is an area that deserves further exploration, and so I am uncomfortable with the whole idea of bankruptcy. And this is why maybe Marcus Cole has something to contribute or other future people that maybe aren’t born yet. Who knows?
So generally the idea of bankruptcy is you say I can’t pay, and I want to start over. And the law makes various provisions, and it might make a homestead exemption and whatever, whatever. I am not really comfortable with that. I think you still owe the money, and you can’t just get out of it, and I’m really troubled. There are people, even people that might claim they’re libertarians, who want to – I sound like I’m getting into a big heresy hunt here. But during the last financial crisis with all the homes going into foreclosure and things like that, there were people going around advocating that people who were having trouble paying their mortgages just walk away. Walk away. You’ll be better off.
STEPHAN KINSELLA: That’s the title of Doug French’s book I think, right?
WILLIAMSON EVERS: You’re so-called…
STEPHAN KINSELLA: I think that’s the title of his book, Walk Away.
WILLIAMSON EVERS: Yeah. Anyway, the point is they were telling people even though you’ve made this contract, you’ve made this money, now you’re under water, as the phrase goes. Just walk away. And the system has already built into it an expectation that a certain number of people will walk away, so do it. I don’t agree with that. I think that’s wrong…
STEPHAN KINSELLA: Let me…
WILLIAMSON EVERS: Anyway, so that’s an area that I think needs – and again, I’m not writing in this area, but I – it troubles me and seems to be against libertarian values. But I’m open to argument as I am with everything.
STEPHAN KINSELLA: Well, it seems to me that the terms of the contract matter, and the terms of the contract that would be in force in a free society matters because the terms of the contracts in today’s law may be influenced by the political climate and the laws that exist. So it’s hard to have a pristine approach to this, but let me – if you don’t mind, let me get your opinion.
WILLIAMSON EVERS: So one of the other things that you try to address some of that is you pose different – you could have additional provisions to provide for the case in which the person doesn’t have the money. And in a way you’re kind of – as I said at the beginning of this interview, you’re trying to get back to the point that you don’t really want people to get off scot-free without doing what they owe. And so you are trying to kind of recover this to some extent.
STEPHAN KINSELLA: I’m trying to get…
WILLIAMSON EVERS: I wanted to also…
STEPHAN KINSELLA: Go ahead. Go ahead. Sorry, go ahead.
WILLIAMSON EVERS: I also wanted to compliment you. I thought you had done a good statement of the abandonment issue. So this is a potentially tricky issue because – okay, I’ve got to turn this off. I have to turn you off and talk to you later. Okay.
STEPHAN KINSELLA: Take your time. You were talking about the abandonment issue.
WILLIAMSON EVERS: And this is related to a lot of what we’ve been talking about, so if you can acquire property and do it through systematically making it part of your projects and the phrase that you often used is homestead it, you also have to be able – so you’re marking it. You’re setting out boundaries. You’re systematically mixing labor with it and so forth.
You also have to be able to abandon it, so this is complicated because you have to make an objective, recognizable, overt thing showing your intent. It’s a little bit tricky, and this is another area where further writing needs to be done on this. So let’s take the Love Canal case. Okay, this is sort of not as bad as was shown in Reason magazine many years ago. The government was all mixed up in it, but we’ll just call it some pollution thing. So you’ve created this pollution thing, and then you walk away.
Now, maybe nobody occupies it, but let’s say it bubbles over, or it’s emitting harmful rays, or it’s somehow has a some kind of geyser effect, and it’s spraying out into the atmosphere and falling on other people. Can you just abandon it and say this is not my property anymore? I don’t think so. It’s just like I shoot a bullet. Well, in a way I’ve abandoned the bullet, but the bullet keeps going and it hits somewhere.
STEPHAN KINSELLA: Or you plant a landmine or something like that that explodes ten years later, and it kills someone. Exactly. There’s a causal responsibility.
WILLIAMSON EVERS: Okay. But anyway there’s room for more writing and thinking about this.
STEPHAN KINSELLA: I agree completely.
WILLIAMSON EVERS: Then I think you get in – interestingly into the issue of inalienability and punishment. And so to explain this a little further, so let’s say we’re in agreement that there’s – that people are inalienable. They can’t sell themselves, but their material goods may be intellectual goods. This is another whole topic that I don’t want to get into. But anyway there are material goods that are alienable and that people are transferring titles to and so forth.
But now let’s say you commit a crime. Okay, in punishing you, a restitution effort might take what you have, or it might compel you to do something to restore to the other person, or it might imprison you, especially if it’s a retributive-punishment approach. And libertarians are divided among – classical liberals are divided among different punishment theories, but certainly the most common are restoration or – and retribution I think and balance the scales of justice.
STEPHAN KINSELLA: Rectification, rectifying the situation.
WILLIAMSON EVERS: Right, rectifying in various ways. So this might impinge on the idea that you are inalienable and that people can’t compel specific performance from you.
STEPHAN KINSELLA: I agree.
WILLIAMSON EVERS: So I think this issue, which you raise, is one that needs further discussion. And so I think that’s an area that…
STEPHAN KINSELLA: Well, let me – if you don’t mind, let me ask you…
WILLIAMSON EVERS: So I’m kind of through my thoughts on the whole thing, and I do need call back the person that was calling me there.
STEPHAN KINSELLA: Let me thank you for taking your time to speak with me, and I really appreciate what you’ve done. And I don’t know if you’re interested, but I’d be happy to speak with you just personally in the future if you’re interested. I really appreciate what you’ve done in the past, and I think it’s a great endeavor. And so I will thank you for your time. And I will let you go, and I will send you a copy of everything, and we can talk about it before anything goes public.
WILLIAMSON EVERS: Okay, well, I authorize you to post this in whatever form you want to.
STEPHAN KINSELLA: Thank you, Mr. Evers. I appreciate it. Nice talking to you in person.
WILLIAMSON EVERS: Thank you. I enjoyed it also. Bye-bye.