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KOL155 | “The Social Theory of Hoppe: Lecture 3: Libertarian Rights and Argumentation Ethics”

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Mises Academy: Stephan Kinsella teaches The Social Theory of HoppeKinsella on Liberty Podcast, Episode 155.

This is the third of 6 lectures of my 2011 Mises Academy course “The Social Theory of Hoppe.” I’ll release the remaining lectures here in the podcast feed in upcoming days.

The slides for this lecture are appended below; links for “suggested readings” for the course are included in the podcast post for the first lecture, episode 153.

Transcript below.

LECTURE 3: LIBERTARIAN RIGHTS AND ARGUMENTATION ETHICS

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The Social Theory of Hoppe, Lecture 3: Libertarian Rights and Argumentation Ethics

Stephan Kinsella

Mises Academy, July 25, 2011

00:00:01

STEPHAN KINSELLA: … later.  So tonight we’ll talk about argumentation ethics.  I have a lot of slides, but some of them will go very fast because they’re just background in case you want to look at them later or if we need some quotes.  But let’s go ahead and dive right into tonight’s lecture.  By the way, before we start, I’m curious.  Who here – well, let me get to the readings page first.  I don’t know if I have that up there.  Who here read more than the required or suggested reading and onto the more optional reading?  I’m just curious how many students have actually read into the argumentation ethics literature beyond the basic stuff I recommended.  Anyone?

00:00:49

00:00:54

Okay, Jacob has.  Jacob, I’m curious.  What did you read beyond the basic stuff?  Method essay.  For argumentation ethics?  Okay.  In any case – oh, just by the way, so we’ll have a short quiz for the first – covering the first three weeks, which will start – I’ll have it posted in a few days.  I’m leaving tomorrow morning, by the way, for the Mises University, so I’ll be traveling tomorrow, but I’ll try to get it up in a couple days.  I wanted to finish this class first before I finish the test so I could make sure I covered only what we talked about in class.  Oh interesting, Jacob.  Good, so you’ve read a lot.  Well, maybe you can help me with some of the difficult questions in here.

00:01:45

So the multiple-choice test will be up in a few days.  It’s optional.  Don’t feel compelled to take it if you don’t want to.  It’s not meant to make anyone feel like they’re going to fail or anything.  It’s just a refresher on the course.  It’s going to be fun, test your knowledge, and to get the certificate if you’d like.  And again, it’s based upon what I say in the lectures, the slides, and also the reading material I mark as suggested but not on the optional reading material.

00:02:11

00:02:15

Okay, so last class we talked about various property issues, how the state arises and the nature of the state, the types of socialism.  We started to talk about de-socialization.  I don’t know if we’ll have time to get to that tonight.  I do have some slides on it at the very end, but I doubt we’ll be able to get to it very much.  Anyway, the article is pretty self-explanatory in any case.  Maybe we can cover it in lecture number six on political topics or number five on economic topics.

00:02:46

By the way, let me – well, we’ll talk at the end a bit about – next class will be on epistemology and methodology.  Okay, so today we’re going to talk about libertarian rights and argumentation ethics.  By the way, I have this little mini ad for my last course because I just want to remind people, I did cover some of this in that course in a more summary fashion.  And some of that’s included in these slides.  I modified it for tonight, and there’s extra stuff here too, but for anyone who took the previous course, some of this I talked about before.  But I’m actually leaving out here a lot of the stuff I talked about in the Libertarian Legal Theory course because it’s not directly pertinent to Hoppe’s approach, but some of this will look familiar to some of you.

00:03:29

So tonight we’re going to talk basically about two main questions.  We’re we talk about what libertarianism is, at least in different conceptions.  And then we’re going to talk about the justification Hoppe provides for it.  And if we have time, we can talk about some related approaches to argumentation ethics.  The readings for tonight – the suggested readings were primarily my kind of concise overview and Hoppe’s article “From the Economics of Laissez Faire to the Ethics of Libertarianism.”  And also his “Justice of Economic Efficiency” and this his “Appendix: Four Critical Replies.”  So that was – there’s a lot more out there, but that’s a good sort of overview of what to read to get the flavor of this whole debate.

00:04:18

Now, this will be a little bit elementary for everybody, so I’m going to go over this quickly because I think we probably already know this, but just to kind of get us in the right framework and to refresh us on where we’re going.  So let’s think about what is libertarianism about.  So it’s a type of political theory compared to other types would be Marxism, forms of leftism and socialism, conservativism, and even modern liberalism or welfare statism or social democracy. It’s concerned with justice in a certain way, and if you think about the traditional classic formulation of justice by – in The Institutes of Justinian, the Roman emperor who helped codify a lot of Roman law, he had said “Justice is a constant and perpetual wish to render everyone his due.

00:05:08

And the maxims of law are these: to live honestly, to hurt no one, to give everyone his due.  Now, these are nice formulations.  They’re a little bit circular.  They sort of – they circle back on each other because – it’s like defining ought is what you should do, and should – what you should do is what you ought to do.  Some of these normative terms are kind of basic, and they feed back on each other.

00:05:31

So we talk about political theory and justice, and we say, well, justice means giving someone his due.  You say, well, what are they do?  Well, the most coherent way to think about it is that what you’re due depends on what your property rights are.  And you’ll see the significance of this in a second when we talk about aggression.

00:05:50

Now, what’s different about libertarians – oh, thanks Rick.  You read Hülsmann’s too.  Thanks.  By the way, the Hülsmann article and also the Larry Seacrest article as well as one of Hoppe’s and one of mine all arose from a seminar we did at Mises on Reinach, Adolf Reinach, who was an amazing and fascinating German thinker.  He was killed I think in World War I.  He died very young, but he was a brilliant guy, produced some great stuff before then that was on the a priori of the civil law and on the criminal law as well.

00:06:32

In any case, a lot of good stuff resulted from that seminar.  It’s on my website if anyone is interested.  And that’s where Guido’s piece came from.  They were all published in the QJAE maybe ten years ago.  In any case, we don’t own the word justice, we libertarians.  But we do have a particular conception of what it means.  And according to that conception – so basically, I think of it like this.  Our conception of justice tells us what the rights we have are, and that tells us what laws there should be.

00:07:06

So it tells you what we’re due, what others owe you, which are obligations and duties, and that corresponds to your rights.  So our idea is that the actual law enforced in a given society, whether there’s a state or not, should conform to what we conceive of as natural law.  So you can think of natural law as an ideal template of laws that should exist, so we’re always aspiring or trying to make laws that do exist conform to that to be just.  So you can think that a conception of justice informs your conception of what rights there are, and that informs your idea of what laws there should be.  So this is just sort of general orientation of framework here.

00:07:47

Slide number seven.  Now, libertarianism is sort of described in a lot of pithy sayings, examples, analogies, metaphors, aphorisms, and kind of summary or condensation statements.  So, for example, Leonard Read, the founder of FEE, in a famous libertarian book in ’54 said people should be free to do anything that’s peaceful.  That’s a pretty good summary of some of the basic normative aspects of libertarianism, but it doesn’t tell you too much.

00:08:21

Dave Boaz 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.”  That’s a pretty good – gives you the flavor of it too, but what does it mean to respect the equal rights of others?  I mean if everyone had a right to welfare, then you’re respecting their equal rights, and I mean it only gets you so far.  Ayn Rand put it a little bit colorfully in Galt’s speech: “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 the others.”  And this is a sort of a good capsule way of stating the – what we call the non-aggression principle.

00:09:05

Rick asks about Bastiat, whether I consider him a libertarian in the strict sense.  I mean I’ve read a lot of Bastiat.  I’ve read him early on.  He was influential to me.  I haven’t revisited him lately on a lot of his issues.  I don’t believe he was an anarchist, but I do believe that – well, for his time I’d say he was a strong libertarian, very radical, very clear thinking.  And the things I’ve heard him write on seem to be pretty much all compatible with libertarianism.  I don’t know if I heard him write on a lot of other libertarian or political views like drug regulations and social and moral regulations, but he seemed to be leaning strongly in the libertarian direction.  He seems to at least be a classical liberal.

00:09:45

So let’s go on, slide number eight.  So we’ve come to a better formulation, the non-aggression principle.  Some call it the non-aggression axiom.  I tend to say non-aggression principle.  Most others nowadays, from what I’ve seen, tend to say principle instead of axiom, and they sometimes call it the NAP, NAP, the NAP.  And Rothbart said: The libertarian creed—or belief—rests upon one central axiom: that no man or group of men may aggress against the person or property of anyone else.

00:10:17

Okay, and aggression is defined as the initiation of the use or threat of physical violence against the person or property of someone else, so it’s synonymous with invasion.  So you can see he’s getting a little bit more descript now.  He’s defining it in terms of the person, which is your body, or the property.  But still, we haven’t defined what the property of someone is.  So if someone is not entitled to the money they earned from doing a job, and the state takes it in the form of taxes, or if a robber robs them of it, is that aggression?

00:10:49

Well, it’s only aggression if it’s their property, so you have to first define who owns that money, who’s entitled to keep it.  So in a way, property is prior to the concept of aggression.  The concept of aggression depends upon filling in the details of what property rights there are.  Now, so there’s different types of libertarianism based upon how strictly you construe the non-aggression principle and how you apply it.  So you have classical liberalism, also sometimes called the nightwatchman state.  Maybe the American founders were somewhat of an example of that.

00:11:28

It’s somewhat libertarian, not completely libertarian.  Then you have minarchists, which I would say is a branch of libertarianism.  I think it’s confused in that it is not anarchist and still believes there’s a role for the state, but at least the strict minarchists believe in an extremely narrow and circumscribed and limited role for the state.  This would include Randians.  Well, I used to think so, but at least nowadays they express, or nowadays I see that they have always expressed some serious deviations from even what I would consider to be minarchism such as some acts of war and intellectual property, for example.

00:12:09

But they are close to being minarchists anyway.  From what I’ve seen, most minarchists are utilitarians and consequentialists except for Randians.  But I think even Randians have consequentialist and even utilitarian aspects, primarily consequentialist, and we’ll get to this in a minute.  Utilitarian in, for example, Rand’s defense of intellectual property and her opposition to anarchy was kind of utilitarian.

00:12:39

Then you have anarcho-libertarians, which are the anarcho-capitalists, which I believe are the most consistent.  That would include, of course, Hoppe.  Finally, you have one flavor of libertarian, the left libertarians.  They tend to be anarchist libertarians, but they have a slightly different emphasis on workers and exploitation and capitalism and some terminology.

00:13:04

Oh, so let’s go.  Dante asks a question about the word axioms versus principles.  Well, Ayn Rand – I mean, in math sometimes the word axiom just means an assumed starting point.  Ayn Rand used axiom more like the Misesians would use the concept of a priori to mean some kind of fundamental principle or proposition that is almost self-contradictory to deny it.  Therefore, we can know that it’s true, and it can’t even be denied.  For example, I think Rank talked about axioms, like the law of non-contradiction, the law of identity, the fact that you exist, that there’s consciousness, things like this.

00:13:45

She would call those axioms, and I think Rothbard was coming from her camp.  He might have used non-aggression axiom as a starting point type thing, or maybe he believed it was self-evident or self-contradictory.  But most people, when they say non-aggression axiom, they mean it’s a foundational principle.  So I think it’s better to call it non-aggression principle because different libertarians have different opinions about whether the principle is just assumed, or whether it is self-contradictory.  So to avoid question begging, I think it’s better to call it the non-aggression principle.

00:14:17

00:14:21

All right, I’ll go quickly through this.  This is the way some libertarians in the past have tried to categorize libertarians.  There’s the famous Nolan Chart.  I think it was originated by Dave Nolan, who was one of the original Libertarian Party founders in the U.S.  So he looked at the left right spectrum, as you can see here on slide 10. – he looked at a two a two-dimensional – excuse me – chart with one axis being personal liberty, and the other axis being economic liberty.  So he tried to show that conservatives tend to be bad on personal liberties but good on economic liberties, and liberals or leftists are vice versa, so that’s the left right spectrum.

00:15:03

Libertarians are sort of better on both, and statists and totalitarians are worse on both.  I think this is useful to see if there’s disagreement on some of the questions that you’re scored on because libertarians don’t agree on everything, of course.  But I think that – one problem with it is that I think that, in some ways, the right is worse than the left on both economic and personal liberties.

00:15:31

And on the other hand, the left is worse than the right on both issues, at least in terms of hypocrisy.  So I can see left and right as being both bad on both personal and economic liberties, but anyway, we’re just defining what libertarians are.  The reason I’m going through this definition to look at it is because we want to look at Hoppe’s justification for it so we first set it out; then we talk about how you can justify it.  First, you describe what we believe; then you describe why we believe it.

00:15:58

There’s another bell curve that Tom Knapp came up with from Center for the Study of a Stateless Society.  Anyway, you can agree or – you can disagree or disagree whether or not he’s right and where the endpoints meet.  I have another picture here on 12, a bigger one.  He chose the classical anarchists and the anarcho-capitalists almost having those, kind of looping around and having the same views.  In any case, he has in this percentage of how much force you advocate, so that’s another way of looking at it.

00:16:32

Now, let’s go back to – I mentioned some of this earlier in lecture one, what Hoppe’s view is and so is Rothbard’s when they describe what the natural situation is.  So this corresponds to basically libertarian principle, and also it corresponds to what Hoppe seeks to justify his argumentation ethics.  So you could say that the libertarian view is a normative view.  It’s a view of norms, rules of social conduct, and rules of conduct, things you should follow.

00:17:01

So that, of course, the libertarian normative view corresponds to the natural position Hoppe and Rothbard have identified.  And, if you remember, that basically corresponds to their views on ownership of bodies, the right to contract and homesteading.  I think I mentioned this before, but Hoppe talks about how we don’t usually think of our bodies as a scarce good, but you can – it is a scarce good.  And it’s the prototype of a scarce good for what need property rights for.  That is, we establish – we assign property rights in things that are scarce, including our bodies, so that we can avoid physical, violent clashes over these things and use them peacefully, cooperatively and productively in society, and then a division of labor.

00:17:48

00:17:51

Okay, so as Hoppe says here, what is the natural position regarding the property that’s implicit in the natural way speaking about bodies, like I say my body.  You say your body.  And he just states that the rules is – now this is the – you can think of this as the libertarian rule with respect to bodies.  The rule is every person has the exclusive right of ownership of his body within the boundaries of its surface.  And every person can put his body to those uses he thinks best for his immediate or long-run interests, well-being, or satisfaction, as long as he doesn’t interfere with another person’s right to control the use of his or her respective body.  Now, this is just descriptive.  We’re just stating what the view is, and what the natural view is.

00:18:35

00:18:41

Okay, my poodles will stop barking in a second.  Sorry for that.  Now, what’s the natural view about – that underlies this way of looking at it?  So what Hoppe says is that the reason we think it’s natural to say you own your body is because every person can say there’s a determinant natural link between me and my body.

00:19:08

And then he looks at it as being produced, not in a sort of metaphysical sense, like creating it out of nothing, but in that I have basically changed it according to a plan.  I’m the one who uses it.  Okay, everyone, excuse me for two minutes so I can shut my poodles up.  Excuse me for just a second.  Okay, my apologies.  All right, so I’m just – I’m describing Hoppe’s views here about why he thinks that there is – what is natural about owning your body, and that is that there’s a production aspect to it.  And this is key to Hoppe’s property theory is that the essence of establishing a property right is to establish borders around the thing, that is, to produce borderlines for things.  So by using your body, you’re demonstrating to the world that this determinant physical object is under your control, and they can avoid transgressing the borders of it if they want to.  The borders of bodies are clear.

00:20:43

00:20:45

Okay, so let’s go to slide 16.  Now, there’s a notion of contract.  We normally think of contract, at least in the Rothbardian sense, as having to do with physical objects that we own.  But the general sense of contract in this Rothbardian-Hoppian sense is just the exercise – the owner’s prerogative to exercise who gets to use the resource.  So the respect to your body, that means you have the right, as the owner of your body, to invite or agree to other people doing something with or to your body.  So you can let someone kiss you, inject drugs into your body, etc. if you choose to, and so this is sort of the prototype or the general notion of a contractual exchange.

00:21:35

And by contrast, aggression would be using someone’s body without being invited, that is, without their consent or permission.  Okay, so that’s what aggression is with respect to bodies.  So you can see now that aggression depends upon the concept of property, saying that the owner of the body is the person that controls the body.  And therefore, they have the right to invite or deny permission to others to use it.

00:22:00

Now, what about other scarce resources in the world, things other than someone’s body, basically goods in the world?  Now, this is a key point, and we’ll bring it up later tonight, but Hoppe says that unlike bodies which are never unowned, which have a natural owner always.  The natural owner is the occupant of the body, you could say, or the person who controls the body.  All other scarce resources can be unowned, so this does make a difference for concepts of alienability and how we ground these rights, which we’ll see later.

00:22:35

A lot of libertarians think that you justify the ownership of things and your body in the same way by saying that the first owner – the first user is the owner by homesteading.  But you can see here that you’re not really the owner of the body because you homestead it.  You’re the owner because you have a direct determinant link to it, and you are the first user usually but not with respect to your parents.  But you have a special connection to it, which gives you a better claim to it than other people.

00:23:02

Okay, but basically to appropriate things outside of your body, you think of yourself as a homesteader, that is, a person having a body that’s already owned, moving in the world, and using action to appropriate things that are outside of human bodies and that are currently unowned.  And we call this original appropriation, and basically this is also embordering, establishing border lines, putting up a fence, transforming the resource so that others can tell what its boundaries are, and that it’s claimed as owned.

00:23:39

00:23:42

And again, contract, with respect to external resources, would again be the owner giving permission or denying permission of others to use it.  Now, this is why Hoppe says a capitalist system is a social system based upon this natural position.  H calls this pure capitalist, but this is just semantics at this point.  Quickly, by the way, this view of contract that Hoppe uses is compatible with the Rothbard and Evers title-transfer theory of contract.  I have an article on it here linked on page 19 – slide 19 – which describes it in detail, but we don’t need to go into the details here because I want to have time to cover everything else.

00:24:22

But the basic idea is that contract is the transfer of title to owned things.  It’s not like a promise that you make that then is binding or enforceable in the law.  It’s rather the transfer of title to a particular object is recognized in the law, so you can change owners of things.  So that’s the theory of contract.  It’s similar in result to the current view contract, which is the binding-promise view, but not identical.  There are some differences, for example, with respect to alienability and the concept of breach of contract, etc.

00:24:54

But that goes a little bit too far afield, but I just want to note here that Hoppe’s view, which is similar to Rothbard’s, is, of course, compatible with the Rothbard-Evers title-transfer theory of contract.  Okay, so if we think of these notions of aggression and property with respect to political systems, so the basic Hoppian view is that we own our bodies, and we have the right to appropriate or homestead and the right to contract with respect to these things that we own.  That’s why you can call socialist systems, systems that basically institutionalize aggression against private property, and capitalism is the one that respects these things.

00:25:33

Okay, so, now let’s talk about what justifications there are for libertarianism because we’re going to get to Hoppe’s in a second.  So we have several approaches that have been offered: the natural rights, or deontological-type approach, which is the more principal-type approach, more classical-type approach.  There’s a consequentialist-type approach, like that of Mieses.  That is – and I’m going to go over these in a little bit more detail in a second.  So there’s the more rationalist and hypotheticals-type approaches, kind of like mine and some of the ones I survey in my article, “New Rationalist Directions in Libertarian Rights Theory.”

00:26:14

There is a more utilitarian defense, which is not the same as consequentialist.  Randy Burnett has a good – I think it’s the introduction to his Structure of Liberty, where he explains why he believes that consequentialism is not the same as utilitarianism.  Utilitarianism is more a subset of consequentialism, but not all consequences is utilitarian.  It’s not online unfortunately.  I think he does have an article on his website, randybarnett.com, about consequentialism, which talks about that a little bit too, and that one is online.

00:26:47

So Jeremy Bentham of the law and economics movement, the whole wealth maximization approach or kind of utilitarian.  Mises was more of a consequentialist in my view, from what I’ve read, like in his Liberalism.  He wouldn’t accept utilitarian economics behind utilitarian politics because it is of opposition to that in his subjectivist economics.  And then you have constitutional approaches like Ron Paul’s and religious approaches.  There’s an article I’ve seen called “Jesus is an Anarchist.”  And on the other hand, I’ve met, of course, Christians that claim that Jesus is on America’s side in all of our wars.  So I’m not so sure that religion is the most solid foundation for right, but it gets some people partway there.

00:27:35

Okay, on to slide 22.  So natural rights, most of you are familiar with that, the idea that by human nature or natural law, we have certain natural rights or human rights.  These are the inalienable rights spoken of in the American Declaration of Independence.  The founding fathers were somewhat of this persuasion, or somewhat libertarian I should say.  John Locke was sort of a proto libertarian in this sense.  Rothbard takes this in a more consistent direction and has sort of a neo-natural law approach in The Ethics of Liberty.

00:28:10

00:28:13

Now, one more thing before we jump into Hoppe’s approach to all this, there’s a classic problem in philosophy.  Some reject this as a problem.  Some accept it.  I think it makes sense.  I think Rothbard recognized it.  Hoppe certainly did.  It’s the is-ought problem.  I won’t read this quote here.  It’s – this is from David Hume’s formulation.  But the idea which I’ll go to slide 24 now, is, as Hoppe said, “one can readily subscribe to the almost generally accepted view that the gulf between ought and is, is logically unbridgeable.”

00:28:48

And in the quote below from Rothbard, which I’ll repeat later for another reason, but he talks about the famous is-ought dichotomy, which has plagued philosophy.  And he talks about how Hoppe’s argumentation ethics gets around this.  But the basic idea is that whenever you try to form an ought statement, which you have to do to come up with political norms, you have to smuggle a norm in somewhere.  You have to build it upon other norms because if it’s just built on facts, then you have to sort of sneak in a norm to get there because otherwise you could just say, well, people have this nature.  But to say, and therefore, they should do this, that’s where you’re introducing the should, but it can never follow.

00:29:31

Now, some Aristotelians would disagree with this.  I think they actually are hypotheticalists of a type because, for example, what they would say is, if, or since even they’ll say, and they’ll call this an assertoric hypothetical.  Roderick Long has written on this.  Since you want to flourish as a human, therefore, according to your nature, you should do this.  I think that type of reasoning is generally correct, but the sense is not that as an assumption.  It doesn’t have to be true.  I mean some mass murderer or some very evil person may say, well, I don’t want to flourish.  I want to dominate and kill people, and I don’t care if I flourish.

00:30:20

So I think you’d have to appeal to some kind of adopted ethic.  You have to show how the ethic or the normative value gets put into the argument to build on it.  And this is what Hoppe does, in my view, in his argumentation ethics.  And by the way, whether you agree with his argumentation ethics or not in this class is not really the point.  I’m not really so much trying to defend it here, although the I’ll be glad to.  I’m just trying to elaborate and explain what his view is.

00:30:49

00:30:53

By the way, I agree Hume had some problems with his epistemology, but I do think his is-ought problem makes sense.  Now, Ayn Rand tried to dismiss the is-ought problem, sort of a neo-Aristotelian.  If you look at the bold part here, the fact that a living entity is determines what it ought to do, so much for the issue of the relation between it is and ought.  Well, I don’t think her quick dismissal succeeded.  It was just too easy.  It’s not that easy.  And even Ayn Rand wrote that it is only an ultimate goal, an end in itself that makes the existence of values possible.

00:31:35

It is an – at the end of her quote here – it’s only the concept of life that makes the concept of value possible.  She admits in other places too – I mean she doesn’t go so explicitly, but it’s clear from what she wrote that her ethics was hypothetical, hypothetical meaning that it was an if-then type thing.  She said that the choice to live cannot be subject to moral judgment because, if you choose to live, then certain moral consequences flow from that choice.

00:32:06

So you could never say whether – you can never criticize someone’s choice not to live, and one of her followers, Harry Binswanger, has an article, again, not online because he’s a pro-IP objectivist, I guess.  I’ve got it cited here on page 26, “Life-Based Teleology at the Foundation of Ethics.”  Mises was a consequentialist in this sense.  He would say if you want peace and prosperity and so on, then you need to have individual liberty – let me make sure someone’s not pinging me for the class.

00:32:45

Anyway, then you need individual liberty and free market as a means to accomplish it.  That was his view as an economist is that we know economics is value free.  All we can tell you is that the scientific and economic way to achieve things efficiently or economically is to use the appropriate means.  And if you want to achieve peace and prosperity, then economics and some other reasoning can tell you that you need free markets and individual liberty.  And, of course, because he was a decent person and believed in peace and prosperity, then he was a libertarian or a classical liberal.

00:33:21

And this is a quote from the Randy Barnett stuff on distinguishing consequentialism from utilitarianism where he says libertarian rights are appropriate given the widely shared goals of enabling people to survive and pursue happiness, peace, and prosperity.  So you see, he takes these goals as for granted.  Okay, any case, let’s go on.  I’m just trying to explain what Hoppe was trying to deal with.  Now, Hoppe criticized the standard natural rights approach, not only because it didn’t overcome the is-ought gap, but because the concept of human nature is far too diffuse and varied to provide a determinate set of contents of natural law.  In other words, just by pointing to what human nature is—we’re the rational animal—doesn’t get you very far.  It doesn’t give you much content to what norms you’re going to get from that.

00:34:17

00:34:24

I’ve already mentioned this consequentialism here on page – slide 28.  Now, utilitarians I mentioned earlier, they would – you could think of that as a subset of consequentialism.  They would choose a rule that maximizes overall happiness or utility.  Richard Epstein, David Friedman have similar views to this.  The law and economics movement does, the idea that we should maximize wealth, have this kind of presupposition.  Now, Austrians would, and Rothbard and Mises would say there are many problems with this approach, mainly economic, if not – and also moral.

00:35:06

But the economic problems would be, number one, values are not cardinal.  They’re ordinal.  They’re not interpersonally comparable.  They cannot be added and summed up, and they’re subjective and relational.  They’re not intrinsic substances or quantity.  And further, even if you could add them up, it’s not clear why it’s moral to rob A and give his wealth to B if B gains more from it than A loses.  I mean you’re still robbing from A.  So utilitarianism is very problematic as a justification.

00:35:41

So I mentioned before Hoppe had a sort of a neo-Kantian and rationalist upbringing in Europe, influenced by Jurgen Habermas and also another German philosopher named Karl-Otto Apel, which is discussed in some of the readings.  But he also been heavily influenced in a more realistic and more liberal and libertarian sense direction and then more so by Rothbard and Mises’ writings.  So what he did was he took the discourse ethics argument of his – of Habermas and Apel, and he reworked it into a libertarian direction using insights of Austrian economics.

00:36:30

So by doing this, he can break out of a natural law approach, so instead of focusing on human nature per se, that is, natural law, nature, as the justification and grounding for political norms and political ethics, he used a praxeological approach being an Austrian.  So he said, “It is not the wider concept of human nature but the narrower one of propositional exchanges in argumentation, which must serve as a starting point in deriving an ethic.”  Now, why do we say this?  Let’s revisit the Habermas-Apel discourse ethics.  Well, their argument was, is that there are certain norms that are presupposed in the activity of arguing.

00:37:21

And also combine that with the recognition that any norm or ethic that you ever hope to justify has to be justified in an argument as a context.  Argument doesn’t mean you’re fighting with people, but it means some kind of discourse or propositional exchange, some kind of intelligent discussion where you’re both trying to use reason to figure out the truth of the matter, what norms or ethics are justified.  Recognizing that every norm that is ever debated or set out as being true has to be justified in argumentation, leads to what Habermas and Apel call the a priori of communication and argumentation.

00:38:05

Now, this point is very general.  All we’re doing is saying that, if there are any norms or assumptions, any kind of presuppositions that necessarily accompany the activity of argumentation itself, then that is relevant to what norms you could possibly justify within the context of argumentation.  I mean as a very simple example, you could never justify the proposition that arguing is impossible because, by arguing, you would demonstrate that it is possible.

00:38:39

Now, that’s not a normative thing, but that’s an example.  Now, it is true that Habermas and Apel, being good European philosophers, or soft socialists or social democrats of the European stripe, and so they had this kind of fuzzy argument that, well, kind of like democracy, a discussion – democracy is sort of like a discussion and the presuppositions that everyone needs resources to survive to be part of it.  And to get the resources, they have to have certain basic needs provided for by the state.  I mean, it’s not really an airtight argument, but they were trying to use their argument to argue for mainstream political conclusions, but to show that it had a solid foundation.  Hoppe took what he thought made sense in that, but he rejected, of course, their application of it.

00:39:32

Now another insight of this approach by Habermas and Apel and also Hoppe is the idea that anytime you have a normative discussion – okay, well, Kevin C asked what if you’re indifferent to arguments?  We may want to hold some questions to the end, but I’ll break apart right now.  I haven’t had too many questions.  So it’s not – but I think Rick is right.  By saying it, you prove you’re not.  I mean if someone – this is my sort of spin on it from thinking from thinking about it for a lot of years.

00:40:13

If someone refuses to engage in rational discourse, they refuse to try to justify anything, then they basically are outside the realm of human reason.  So then we have to regard them as a technical problem.  In other words, if people have a dispute about how to use a given resource, and they come together as civilized people in a genuine, peaceful, rational discourse aimed at trying to find who has the right to use this resource, then they can try to do that.

00:40:48

But if one person refuses and he just attempts to – then either if he goes away and lets you use the resource, or he attempts to use force to control it, and at that point in time, if you believe and can demonstrate to people that are interested in rational argumentation that you do have a better claim than him, then from your point of view, he’s simply a criminal or a technical obstacle.  He’s really not much different than an elephant or a tiger or some force of nature that you have to treat as a technical obstacle and try to use force to defend yourself or use the organized system of the community to institutionally respect your rights.  So basically, this is a discourse that is among a certain circle of people.

00:41:31

In any case, it’s important to understand also that one requirement of – this is one norm or one requirement of argumentation, that is universalizability, sort of the Kantian idea of the golden rule.  Basically it’s the idea that if you are in an argument where you’re civilized and peaceful, trying to come up with a rational justification for what you’re proposing to be true, or the rule that you’re proposing can be adopted, then you’re giving reasons for it.

00:42:02

But to give a reason means to try to point people to some objective, or as the Kantians would say, intersubjectively ascertainable, some objective reason why the norm is grounded in the nature of things, why it’s true.  It can’t just be an assertion.  It’s got to have a reason behind it.  But the idea of giving reasons means the reason has to be something that’s universalizably acceptable by every potential participant in the argumentation.  It can’t be particularizable, that is, just making up an arbitrary reason that says, well, I get to do it because I’m me.  Let me go on to slide 33.

00:42:45

00:42:51

And by the way, before we go on to particularizable, look at the middle part here.  No one could deny in an argument that universalizable norms are justified because, by participating in an argument, you are already engaging in the activity of providing reasons for what you assert to be true.  And, as Hoppe observes that particularistic rules of the type I can hit you, but you’re not allowed to hit me, are at the very base of all practice forms of socialism.  This is why, in essence, socialism is irrational and unjustifiable because it violates universalizability.

00:43:26

And the key thing to recognize here is that, if you make a particularizable argument or to claim in an argument, it’s really the same thing as not making an argument at all because, if I just say I get to hit you because I’m stronger or better than you, that’s really the same as giving up on trying to justify by the force of reason and resorting to real force.  So it’s contrary to the entire nature of argumentative justification.  Okay, so we can assume that any argument someone can make has to be tested by universalizability, has to be universalizable, can’t be particularly visible.

00:44:05

But as Hoppe observes, this only is a formal criteria.  It’s like a filter, but it doesn’t filter out every norm.  It filters out some socialist norms but not all socialist norms, and remember, we’re using socialist and Hoppe’s sense of some institutional rule that aggresses against private property rights.  So as an example, you could formulate a rule, anyone who drinks alcohol will be punished.  And that rule is universalizable because it’s generally applied to everyone.  It’s not particularizable, but it would still fail other tests of argumentation.

00:44:40

So that’s why Hoppe then turns to – he says, well, other than universalizability, what other things are presupposed by the very nature of argumentation?  And remember, argumentation is the activity of trying to justify, with propositional exchange and reason, norms that you propose to be adopted or accepted as justified.  And it turns out, according to Apel and Habermas and Hoppe, that some of the things presupposed in argument – I mean you could say there are facts presupposed in argument, the fact that there are at least two people in the world who exist, metaphysical facts like that.

00:45:19

Even the law of contradiction could be maybe argued to be part of the logic of argumentation, but those are not normative.  There are some norms adopted, presupposed as true by argumentation, and as Hoppe says, to recognize these norms, you have to call three interrelated facts to attention.

00:45:41

Oh, Rick La Greide just asked something similar to what I just mentioned that at a basic level, you have to presuppose the laws of logic and deductive principle as well as universals.  Yes, I believe that’s true.  I think that’s true too, but we want to find what norms are presupposed because then we can hold up any proposed norm to see if it’s incompatible with these norms.  I mean, as a simple example, suppose you were to argue no one should ever argue.  I mean it doesn’t make any sense.

00:46:09

You’re arguing that no one should argue, so you’re practically contradicting yourself.  So you can see already there are some norms you could propose that are incompatible with what you’re presupposing is true and justified just by virtue of engaging argumentation.  So as Hoppe says, here are the three interrelated facts.  First, argumentation is not only cognitive but a practical affair.  That is, we have physical, real bodies that are in the world and living and sitting next to each other or somehow interacting with each other to discuss and communicate.

00:46:39

Second, argumentation is a form of human action, and that means it implies the use of scarce resources including your body.  And third, argumentation is a conflict-free way of interacting.  What does he mean by that?  I mean if you’re trying to persuade me to adopt your proposition as true, there’s not an implicit threat that if I don’t agree with you, you’re going to hit me over the head because, if you are, you’re coercing me and it’s not a genuine argument.

00:47:11

The nature argument is that the participants recognize that each one is trying to persuade the other by the force of reason alone and that he can deviate from that.  Or if you cannot reach agreement, then you’re free to disagree.  You’re free to agree to disagree.  That is a norm in itself.  That is a respect of each other’s domain over their body, for example.  Okay, so this is the essence of the Hoppian – the initial insight he had, and you can see why he results – he achieves different results than Habermas and Apel do because of his awareness of the Austrian view of praxeology, the nature of human action.  That is informing a lot of his insights here.

00:47:56

Okay, slide 36.  I’ve already kind of gone over some of these things, but basically, the Hoppian argument is that, in argumentation, you have to be able to agree to disagree.  So you have to agree to each other sides’ control over his own body so that you’re not coercing him, for example.  By refusing – by endorsing the rule, I shouldn’t coerce you.  I’m respecting that you have the right to control your body, so this is where self-ownership pops out.  Okay, so this is the primary political norm that comes out of argumentation or the first one is that people have the right to control their bodies.  Otherwise, they wouldn’t be able to make – engage in genuine argumentation.

00:48:38

00:48:41

Okay, now what it really means is each person’s body needs to be owned, but who’s going to be the owner?   And again, we have to come up with some reason to say who owns which body.  Now, obviously, the natural case for body ownership, which Hoppe has already given, is the obvious candidate.  You cannot just say I own you because I’m stronger, or I own you because I said it first.  That would be particularizable.  It wouldn’t be a rule grounded in the nature of things.  It’s not a reason.

00:49:13

However, if you point to the direct control people have over their bodies, that gives them a special link to their body.  That is something grounded in the nature of things, something every participant in argument could recognize because they’re all actors in this sense.  Excuse me.  I’m on slide 38 now.  So this is why Hoppe writes, and I’ll get to a quote in a second, but remember, he said that unlike bodies, which are never unowned but always have a natural owner, all other scarce resources can be unowned.  So you see the distinction here.  What this means is homesteading cannot be the source of ownership of bodies because it’s not like you’re just some disembodied spirit out there wandering the cosmos.

00:50:08

Now you may believe this religiously.  It doesn’t change the political fact.  You’re not a homesteader before you have a body.  You are an agent or a person that has a body.  So you can’t even homestead something until you have a body first.  So homesteading can’t be the source of ownership of your body.  Instead, the key is having some kind of objective link that is better than anyone else’s claim to the scarce resource of your body.  And let me just mention quickly here, there’s an interesting aspect of this.  Some of this I’m extrapolating from Hoppe, by the way.

00:50:44

I don’t think it’s incompatible with it, but he never said a lot of this directly.  But if you had to acquire a body by homesteading or by contract, which are really the only two ways to obtain other scarce resources, you could never own yourself because, if you became an owner of your body, at some point, your mother would be the owner first.  So you would be stealing from her because you didn’t homestead it because she was the homesteader in a sense, and you didn’t have it by contract.

00:51:19

Now, by the way, there is an argument you can make, and I have made it in this article I have linked here, that you could make a contract argument.  You could argue that the parent has certain natural positive obligations to the child by virtue of the nature of the parental-child relationship and has an obligation to free the child.  So you could view the parent as an owner, like a slaveowner, of the child initially, but at a certain point, the parent has a duty to manumit or free the child.  That’s not Hoppe’s argument.  I think you maybe could make that.  But my point is that’s not his argument.

00:51:54

00:51:59

Also, it doesn’t mean slavery is always impossible or always unjustifiable because, for example, if someone commits aggression, in this case you could argumentatively justify using force against them because there’s a reason for it in this case.  It’s not just a particularizable, arbitrary assertion.  I get to hit you because I’m better than you, or I get to hit you because I’m stronger than you.  No.  Your argument is I get the hit you because you hit me first, and now you have no right to complain, or something like that.  You consented to it by committing the aggression.

00:52:34

But the point is, some people criticize argumentation ethics by saying, well, it’s possible for a master to argue with his slave.  It’s possible, but it’s not possible for the master to justify his claim to own the slave, or it’s not possible for him to justify his forced use against the slave unless he can point to some act of aggression the slave committed.  But unless he can do that, he couldn’t point to a reason, so his claim would be unjustified, and it would be contrary to the peaceful nature of the discourse itself.

00:53:04

00:53:10

Now, that is how we get to body ownership.  When we come to external resources, we go back to Hoppe’s recognition that argumentation is a practical affair.  We don’t live on love alone, as Hoppe says, and love and air alone.  We have to be able to act to even survive and to get to the argumentation or to participate, but all action employs scarce means in the world.  So to be able to participate in this conflict-free interaction of argumentation, you have to use means.  Those means have to be used, and either they’re conflicted over, or they’re used peacefully.  So you can see that the participants’ argumentation are endorsing the rule that people should be able to use resources peacefully in order to participate in argumentation.

00:53:56

Okay, so that means they’re already agreeing that we need to come up with some property assignment scheme.  And again, we come back to what should the rule be, not should there be a rule.  No one can argue there should be a rule, and no one can argue it shouldn’t be based upon some objective link.  Otherwise, they’re saying it should be arbitrary, and everyone can just say I own that resource, and then we’d have fighting over it because it wouldn’t be one person because any number of people could verbally assert, I own that resource because I claim it first or whatever.

00:54:28

So none of these rules would serve the purpose of argumentation, which is to come up with a rule to allow conflict for use of resources.  No one in argumentation could deny that the rules have to be universalizable.  No one can deny that the rules have to comply and be consistent with the peaceful, cooperative, civilized aspect of the argumentation in the first place.  No one can say – no one could deny that they’ve already accepted ownership of bodies, so they’ve already accepted the implicit idea that the best link to this thing is the one that should decide the question of who gets to use that thing.

00:55:07

So when you establish all these sorts of, what I call what I call grundnorms or ground norms, basic norms, all you need is a little bit of political knowledge and economic knowledge.  And libertarianism just pops out as the only norm, the only sophisticated, high-level, political, or ethical norm that can survive all these other norms.  Everything else is inconsistent with it.  Socialism, in all its forms, is just incompatible with the peaceful, pro-objective link, pro-universalizable, pro-body ownership norms that are at the ground of all argumentative justification.

00:55:49

00:55:52

Okay, so if we remember that the body is a prototype of a scarce good and that we have to find a link for that, now for bod, the link is direct control.  But for external goods, these are things that were one point unowned.  This is a key fact.  Because they’re unowned, and because argumentative participants have to endorse the value of people being able to productively use the resources in the world—that’s what it means to act—then they cannot object to someone at some point practically homesteading or appropriating these goods out of the wilderness.

00:56:29

Someone’s got to use it first for it to ever be used, and because of that fact, we can see that the first user is always going to have a better claim or more objective link to the resource than anyone else.  If he didn’t, then there wouldn’t be ownership in the first place, and remember, the participants in argument are always seeking for ownership rules because that is what it means to avoid conflict and to allow resources to be used peacefully.  Okay, so they are trying to overcome conflict, so they are trying to come up with an ownership rule.

00:57:04

And if they’re coming up with an ownership rule, that means at some point in the world, there’s an owner of a resource.  And that means that owner has a better claim than who?  Than interlopers, outsiders, which are late-comers with respect you.  That means they come later.  So what that means is, implicit in the very idea of ownership, which participants in an argument are undeniably searching for, is this prior later distinction, as Hoppe calls it.  That means the fact that there is – it matters whether you came earlier or whether you came later.

00:57:35

It matters who comes first.  In other words, it’s implicit in the idea of ownership that the person owning the resource now has a better claim than someone else later.  Now, if you think about the Misesian Regression Theorum of Money, for example, he traces the value of money on day – today back in time until we reach a point where the money was a commodity, that is, money had only a commodity value, and no money value and was used only for commodity purposes.

00:58:06

He sort of breaks the infinite regress that way.  Well, a similar type of analysis can be used in this respect.  If you recognize we want ownership, if you recognize that the owner has a better claim than a late-comer, then that means – and if you recognize that things that are owned were previously unowned and had to be plucked out of the commons at some point by an actor who would then be the first owner, if you realize that there was no previous claim that their owner, who possibly had a better claim than the first owner, then you basically have no conclusion left but to say that the very first owner always has the better claim to property.  That is the libertarian rule.

00:58:51

Now, there are some exceptions to this.  He wouldn’t have a better claim than someone he contractually gave it to.  By contractually giving your property to the second person, now the second person has a better claim.  He has a better claim with respect to the world because, with respect to the world, he has an earlier use than them.  With respect to the first guy, he’s got a better claim because he can point to the agreement, the act of contractual change.  So that’s not a particularizable reason.  That’s a reason grounded in the nature of things, in the contractual power of the original owner to use his will to alienate title, etc.

00:59:27

It also – another exception, again, would be if you’re a criminal.  If you commit an act of crime or a tort and you damage someone, then that person might be able to claim your property as some kind of compensation.  But again, his reason wouldn’t be particularizable.  It wouldn’t be arbitrary.  It would be based upon the nature of things.  It would be based upon the nature of aggression, the non-aggression principle that’s already come out of this, and the fact of the crime or the tort.

00:59:53

00:59:56

I know I’m going fast here, but there’s a lot here and we’re almost done, so we’re making good time, and I can answer questions at the end.  So let’s go a little bit farther here.  I’ve already talked about this stuff here on page 42.  Now, what’s interesting, and it’s shouldn’t be surprising, remember, Hoppe had the strong influence from Kantianism, or at least a realistic form of Kantianism and rationalism and Habermas and Apel in Europe, but was strongly and most powerfully influenced by Mises and Rothbard.

01:00:30

And Rothbard, remember, had a sort of neo-Aristotelian approach.  Rothbard’s approach also was somewhat similar to Ayn Rand’s.  And remember, Rand would deny any Kantian influence.  Rand would deny that her ethics is hypothetical, although I’ve shown that it sort of is, that hers is like Hoppe’s.  It’s an if-then thing.  I call Hoppe’s approach if-then because that’s the context of the argumentation.  If you participate in argumentation, you demonstrate that you’re a civilized person, let’s say.  If you adopt these norms that are part of argumentation, then you can’t deny the implications of these norms, the higher-level political or ethical implications of these norms.

01:01:10

And again, that’s similar to Rand’s approach.  If you want to live as a man, then you must follow certain rules that are compatible with man’s nature.  So it’s no surprise that Rothbard’s approach would be seen by Hoppe as having some similarities to his.  Now, and I’ll kind of read parts of this here.  What Hoppe wrote was: This defense of private property—that is, his argumentation ethics— is essentially also Rothbard’s.  In spite of his formal allegiance to the natural rights tradition, in Rothbard’s most crucial argument in defense of private property, he chooses the same starting point or argumentation but also gives a justification by means of a priori reasoning almost identical to the one just developed.

01:01:55

And so he quotes Rothbard here, this is from The Ethics of Liberty.  Here’s what Rothbard said.  Now any person participating in any sort of discussion, including one on values, is by virtue of so participating, alive and affirming life.  You can see the Randian influence here because she talked about choosing to live.  If you were really opposed to life, he would have no business continuing to be alive.  Hence, the supposed opponent of life is affirming it in the process of discussion.  This is the part that’s like Hoppe’s discussion.  Hence, the preservation in furtherance of one’s own life takes on the status of an incontestable axiom.

01:02:31

Now he’s using axiom like Rand did, and I mentioned earlier that’s similar to the a priori type of proposition of Kant – of Misesianism, so you can see the similarity that Hoppe saw here.  And another common point comment I’ll make here – what I’ll do is in about five minutes I’ll try to take a break, and then we can have questions after that.

01:02:55

Hoppe also said, look, I’ve criticized natural rights, and I’m not saying that you couldn’t view my approach as a natural law or natural rights approach in the sense because he’s appealing to the nature of man.  What he’s appealing to is nature as an arguer, as a rational, justifying being, not just his nature as a rational man, his nature as a justifying person, people who engage in discussion and discourse to justify.  So he’s talking about that aspect of our nature to ground and root what he views as natural rights.

01:03:31

01:03:35

Now, so given what I’ve just said about Rothbard and Hoppe’s view that Rothbard’s ethics was sort of a proto version of what he did, Rothbard – it’s not surprising that Rothbard jumped wholeheartedly onto the argumentation ethics bandwagon and this Liberty symposium where Hoppe sort of came out.  Rothbard wrote, in a dazzling breakthrough for political philosophy in general and libertarianism in particular, he’s managed to transcend the famous is-ought or fact/value dichotomy that has plagued philosophy since the days of the scholastics and that had brought modern libertarianism into a tiresome deadlock.

01:04:16

Not only that, Hoppe has managed to establish the case for anarcho-capitalists’ Lockian rights in an unprecedentedly hardcore manner, one that makes my own natural law, natural rights position seem almost wimpy in comparison.  Now, I think he’s being a bit too self-deprecating here, but I think it’s important.  It’s interesting at least to note how impressed Rothbard was by this approach.

01:04:41

I can give a quick sort of anecdotal story here about my own evolution on these lines.  In 1988, I was in my first year of law school.  And I was already strongly libertarian and vowed to be anarchist or probably already was.  But I remember vividly in 1988, that is when the symposium in Liberty Magazine came out that – when Hoppe sort of burst onto the scene.  He had sort of been talking about this at some seminars from ‘86 or ‘87 on, getting excitement, but he really came out maybe ‘88 with the first – can you hear me?  Are there problems with the video or the audio?  Any problems?  Can anyone hear me?  Oh okay.

01:05:38

01:05:42

Anyway, I read that Liberty symposium, and it just struck me.  It’s just finally the most brilliant approach.  I mean I’ve been fascinated with it ever since.  Now, also in 1988, it was my first year of law school.  I had a contracts class, and in contracts class, there is a doctrine of estoppel.  And I remember vividly the professor telling us that the sort of legal reasoning behind the doctrine of estoppel.  And the idea was that if you make a promise to someone or you make a representation, you lead them to believe you’re going to do something, and they rely on that.  And then later, you say, oh, no, I didn’t mean that, or I didn’t really mean to have a promise to obligate myself, then you would be estopped or stopped or prevented from saying something inconsistent with what you had said before.

01:06:36

Now, I thought the reasoning for estoppel in contracts was a little bit confused and weak for various reasons, for example, the idea of detrimental reliance, which what that goes along with is a little bit circular.  That’s the idea that if you rely upon – if you reasonably rely on someone else’s promise to your detriment, then then it’s going to be an enforceable.  Well, but you see that’s circular because it’s only reasonable to rely on it if it’s enforceable.  If the law said those kinds of promises weren’t enforceable, it would be unreasonable to rely on it.

01:07:11

But in the context of the libertarian non-aggression principle, and probably because I had just read or maybe was just about to read—I really don’t remember—Hoppe’s article, and then I soon devoured his TSC in ‘89 or so.  In any case, it struck me as the perfect way to envision the non-aggression principle itself because there’s a perfect symmetry about the non-aggression principle, right?  There’s the idea that we only believe force is justified in response to force.  Now, of course, this is in the context of a theory of property rights.

01:07:46

As I said, the idea of force or aggression is a dependent concept.  But still, in the basic sense of forcing its bodies, they collapse into each other.  Aggression means hitting someone’s body without their consent.  So you’re sort of restating the property view as well when you say non-aggression in the context of interpersonal bodily violence.  It just seemed obvious to me.  This is brilliant.  It seemed to me like a eureka moment, like, oh, well, of course, the libertarian non-aggression principle is justified because what we say is you can justify retaliating against someone for committing aggression, but you can’t justify committing aggression.

01:08:29

And the reason is because the aggressor would be estopped from complaining about me implementing the rule it’s okay to hit people without their consent because he just did that to me.  But on the other hand, if he hadn’t done that to me, he wouldn’t be estopped or prevented, but all that means is there’s an inconsistency between objecting to being retaliated against and arguing that – and having committed the aggression.  So you cannot justify your early act of aggression, so this is really compatible with and similar to the argumentative idea of the argumentation ethics idea of having to have consistency in your arguments and having to have universalizable reasons instead of socialistic or particularizable reasons.

01:09:19

I had some other detail here.  I was going to end here if I had to, so this is why I have my notes for the next class, which will be on epistemology and methodology.  And I have here the readings, which I suggest and which – and some additional optional readings as well.  I’ve got several slides after this, which you guys are free to pour over and look at the links after the class.  I assumed I would not have time to finish all this now, but I think I’ve got the basics of it down.  So it’s 7:10 p.m. central time.  Why don’t we take a six-minute break and come back at 16 past the hour, and we’ll do some Q&A if anyone has any?

01:10:00

01:10:04

It’s both cognitive and practical.  I think that’s actually true.  Hoppe actually has some comments somewhere sprinkled in all these writings where he says that an argumentation or discourse even counts discourse with yourself.  I think what he means there is your hypothetically reasoning out something, trying to imagine ways to justify.  I don’t know how far you can take that, but he has made comments about that, Lucas.

01:10:28

Oh, Jacob says, why does argumentation imply universalization?  Could you elaborate on that?  That’s a good question.  That’s one of the things that has fascinated me for a long time.  I think it’s simply because you’re giving reason.  In other words, you just have to distinguish between giving reasons and not giving reasons, in other words, just saying something arbitrary and irrelevant or actually using force to dominate the other person.  If you’re giving reasons, then that means something.  It means you’re trying to come up with something that can appeal to all the participants.

01:11:01

Now, there are some comments in Hoppe, which are, I think, drawn from the Kantian tradition where he talks about universalizability, and by the way, there’s whole books written on universalizability.  It’s a very sticky, complicated thing if you look into it too deeply, but I think the essence of it that Hoppe means is the sort of brick in his wall of building this edifice.  It’s pretty simple and obvious.  It’s basically the idea of giving a reason.  Giving a reason means giving something that you can – excuse me – is objectively grounded in the nature of things.  And objectively grounded means everyone you’re addressing can see that.  It’s an arbitrary thing.

01:11:43

And the whole reason is if you think about this, the purpose of argumentation to justify norms is to avoid conflict.  The only way you can avoid conflict is if you come up with a unique reason or a unique assignment of an owner for a good.  That’s why Hoppe talks about the problem with having mere verbal assertion be the ground for owning things.  So if just having verbal decree would suffice to give you the ownership of something, like I own that land over there because I say so, well, anyone could say that.

01:12:15

A million people could say it at once, and so it wouldn’t solve the purpose of this kind of argumentation.  It wouldn’t solve the purpose of conflict resolution or dispute, or avoidance, sorry, because there’s nothing unique about that rule.  You need to find an objective link that everyone can see and that can be seen as objectively better in some sense by all fair-minded participants in the argumentation.

01:12:45

01:12:52

Lucas says, doesn’t it go back to Aristotelian logic?  You have to concede certain universals when you engage in arguing basic logic.  I agree completely.  So, for example, that’s why I always say when I’m sort of summarizing it in a more casual way that the idea is that, if you agree with the basic goals of argumentation, which is to allow people to survive, to allow people to have peaceful discussion, to allow people to act in the world, to allow people to employ means, to allow these means to be used peacefully, which means conflict-free, which means you need to assign an owner, if you agree in assigning, coming up with reasons for things, if you agree in this kind of discourse, this kind of propositional exchange, then, of course, you have to agree with the basic laws of logic.

01:13:36

You have to agree with the law of contradiction because that’s where the idea of consistency would come from.  If you say, yes, I agree with you that you have the better claim to that resource.  I agree that by participating in discourse, conflict is a good thing – conflict avoidance is a good thing, I agree that your claim is better.  I agree your arguments are better.  I agree that the logical implication of that is that all socialist norms are unjustifiable, and yet I’m still in favor of socialism.  I mean it’s just not consistent.  It’s self-contradictory.  So of course, the basic laws of logic are presupposed, along with the universalizability in any propositional exchange.  That’s what the use of reason is.

01:14:23

01:14:28

Dante: I think maybe Rand’s – I think that maybe Rand’s explanation that some humans are kind of savages who contradict themselves, but if they’re civilized enough, they’ll have to respect these rules.  Yeah, that’s how I view it.  I view it as we haven’t grown up as a species yet, but to the extent people want to engage in this kind of civilized exchange and discourse, they cannot help but conclude that any non-libertarian ethic is unjustified.  The entire point of Hoppe’s sort of thought experiment here is to show that you could never justify aggression.  It’s that simple because – and the reason is justifying has got to be done as part of argumentation, that argumentation is a non-aggressive activity.

01:15:18

So you can’t justify aggression.  He just – he’s not saying you can’t be a socialist.  He’s not saying you can’t be contradictory.  He’s not saying you couldn’t be a criminal.  He’s simply saying it could never be justified.  Literally it could not be justified because justification is argumentative.  In other words, most people don’t recognize that subtle point, and that’s why they say things like might makes right.

01:15:41

What they’re saying there is that force is justification.  They’re saying it doesn’t need an argument.  Well, of course, they’re confusing the concept of justification there.  If I teach you over the head or if I kill you, it doesn’t justify my having done it.  It doesn’t prove that it was justified or right.  It just means I got away with it.  Jacob asks, while the argumentation ethic provides an argument against physical aggression, does it provide any argument against fraud?  Okay, so the way I look at that is the argumentation ethic basically establishes the fundamental idea of assigning property rights in accordance with these objective links.

01:16:25

So in the case of the body it’s self-ownership.  In the case of other things, it’s the Lockian idea of homesteading or original appropriation.  And as sort of a corollary is the idea that someone who uses force to violate that is demonstrating that they’re not part of the civilized order.  They’re not respecting these norms, and they provide a reason or an exception to treat them differently than other people who haven’t agreed to be respectful of other people’s property rights.  So they can be treated as technical problems or outcasts or outlaws or enemies basically.  So it’s just a straightforward implication of that, that fraud, if you view fraud as a species of theft, not just dishonesty, but fraud basically is when two parties are engaging in an exchange, and one of the parties is giving say, his money to the seller conditioned upon certain conditions.

01:17:27

As the owner of the money, he has the right to place conditions on that.  He has the right to say the title to my money passes to you only if and when you give me those apples.  And the word apples has a meaning, and the seller knows what it means because of a certain determinant meaning.

01:17:44

So that’s a condition of the transfer.  So if the seller pawns off rotten apples or poisoned apples to the guy, then the cellar knows he’s not satisfying the condition.  So the title to the money never transfers, and yet the seller is taking possession of that money and maybe spending it.  So basically, he’s in knowing possession of someone else’s property.  The property title never transferred to him because the condition was never satisfied because of the deception.  So fraud is simply a way of causing there to be an unsuccessful transfer of title, which leads to an active conversion or theft really by the seller.  So I view fraud as just a case of theft by trick or a case of uninformed consent, and so that’s just a natural consequence of the interplay of these property assignment rules that come out of argumentation ethics itself.

01:18:38

Rick La Greide asks, doesn’t the negation of the underlying foundations of argumentation undermine the laws of logic and what it means to be human?  People cannot avoid them even if they say they don’t believe them.  I think that’s a fair statement.  I do agree with that.   I do.

01:19:00

Dante says, in a practical sense, the 300-pound man can rape a young girl anytime he wants, and the girl needs guns.  Well, the word “can” has a special meaning here.  Yeah, he can.  It’s possible to violate rights.  It’s possible to not care about justifying your actions, and it’s possible to commit an action that could not be justified argumentatively like that.  So argumentation ethics only establishes what rights we have.  But establishing what rights we have just shows a normative truth.

01:19:35

It doesn’t – rights are not self-enforcing in any system.  People can violate rights.  Injustice is possible.  Crime is possible.  So of course – now, as a practical matter, I do believe that understanding and promulgating and persuading people of right and wrong and of rights can have strategic or practical value.  In some cases, you can persuade people to leave you alone and respect your rights, and I think actually that’s what happens in society.

01:20:06

Most people privately respect other’s rights.  They’re not consistent about it because they vote contrary to that, but they do it basically.  So I think, as a practical matter, this type of argument – it’s a framework.  This type of normative and rights framework is used to persuade the members of a certain community of what types of laws are justified.  And then we set up procedures based upon those, and then the community of people feels justified in, say, punishing or killing or hunting down or ostracizing people that are on the outside.

01:20:52

Now, as a practical matter, society will only survive if that community of people is large enough, relative to the criminals in our midst to survive.  It’s possible that that would be 1%, and we’d all die or we’d live in some kind of chaotic, barbaric state.  But if you look around the world today, as a practical matter, I don’t think we do.  I think we have society, and it’s only because and to the extent most people respect rights, and then they come together and support each other when they need to, to fight against the outlaws.

01:21:24

01:21:35

Any other questions?  Unless there’s anymore, why don’t we call it a night?  I don’t know who hear is at the Mises or university.  Oh, there’s one more here.  Okay, this is just a comment by Dante.  Yeah, I agree with that comment, Dante, about guns and states with power.  Hoppe has a comment about how states that are economically more liberal internally tend to be more aggressive externally, and the reason is because they have more wealth produced by the free market internally.  Of course, America is the classic example, and that gives the state, which parasites off of the economy, more weapons than other states, so it’s able to dominate them, so it’s sort of a paradoxical thing.

01:22:40

01:22:45

Rick says – well, Tito says, the USSR didn’t aggress abroad by that reasoning.  Well, Rothbard actually argued that they were less imperialistic, and I think Hans Hoppe would agree that the USSR is less able to be imperialistic because they had less resources to do it because their economy was in tatters.  Jacob – okay, let me take one more – another question here.  Rick asked about property rights being a necessary condition to argumentation and what you said is being reliant upon on property rights.  Is this a major point?  Sorry, maybe you can restate it.  I’ve kind of lost what – I don’t know what the major point is.

01:23:32

But let me ask Jacob about – let me talk about Jacob’s question about – Jacob Hill asked does the inability to sever the direct link with one’s body make it incapable for a person to willfully sell themselves into slavery?  Okay, I think this is one of those areas of libertarianism that has been dealt with only in sort of scattered ways, not extremely systematically.  I don’t know what Hoppe has written about this.  I think he’s roughly in agreement with what I’m about to say.

01:24:04

Rothbard said that because – see, Rothbard’s argument for inalienability was that it’s impossible to sever your will from your body.  Now, I don’t think that’s the best argument for it because you – there are ways you can be a slave even though you still have your will.  For example, you commit a crime.  I mean it’s justified.  It’s hard to argue that it’s justified in some cases.

01:24:37

It’s hard to argue that it’s not justified at least in some cases for the victim of an aggressor or his agent to imprison or use force against – basically to enslave the aggressor, to jail him, to kill him, to hunt him down, to at least incapacitate him until the authorities arrive.  So you’re treating this person like a slave, even though he has a will even though he objects.  The question is, is it justified?  I mean how do we own animals?  We own animals even though they have wills of a sort because we have the right to dominate them, to use physical force to have our way.

01:25:18

Now, you can only own resources in accordance with their nature.  I can own an inanimate object in a certain way.  I can own a river in another way.  I can own the airways in another way.  I can own land in a different way than I own a sword.  And likewise, I think you can own other humans in a different way.  You can’t control their bodies directly because they have direct control, but you could physically use force against them to coerce them into doing – to abiding by your commands.

01:25:45

You could put a fence up around them, or you could shackle them and basically have a will, makes it impossible to enslave him or justify it.  So the better argument in my view is, if you look at the distinction, which I’ve tried to draw and which is implicit in an Hoppe’s framework, which I elaborated tonight, that the body was never unowned.  And it was not acquired by homesteading, but alienable objects were.  The right to own something only means the right to control it.

01:26:16

That doesn’t – that just means you have the right to say yes or no if someone else wants to use it in a certain way.  It doesn’t necessarily mean you have the right to sell it or abandon it.  We’re used to thinking that the alienability is an aspect or an incident of ownership because you can do it for owned things, that is, external resources.  But it’s not a feature of ownership per se.  Ownership per se only means the right to control.  The reason that the right to control translates into the right to alienate in the case of acquired things is because you acquire them.

01:26:53

If you acquire it as an owner, that means there was a moment in time when you took possession of this thing and made it clear to the world that you intended to own it as an owner.  You put up borders.  You maintained possession of it.  You defend it against attackers, etc.  But as soon as that ceases, as soon as you cease to want to be an owner, you unacquire it or abandon it, let’s say.

01:27:19

So that gives you the ability to take these things into your patrimony, we might say, or your estate or your ownership, and to undo it.  It’s just an external object.  You can acquire it.  You can unacquire it.  So ownership translates into the right to sell or to give away or to abandon in the case of acquired things.  But you never did acquire your body, so there’s really no way to undo it.  There’s no way to undo the fact that you have the direct link that gives you the better link to your body – you have the direct control that gives you a better way to control your body than other people.

01:27:53

There’s no way to undo that fact.  In my estoppel terminology, what you could say is, if you promise to be someone’s slave, you’re just mouthing words.  And if the purported master tries to use force against you later to stop you from running away if you change your mind, he is committing aggression because you didn’t commit and you didn’t – because you never committed aggression against him, so his use of force is not retaliation.  It’s not in response to my use of force.  See, I never committed aggression.  I just said something.  So there’s no justification for him to stop it.  In other words, there’s nothing in libertarianism that says you can’t change your mind.

01:28:35

If a guy says I’m going to box you tomorrow, and tomorrow comes and he steps into the ring, he’s consenting to being hit.  But if he refuses to step into the ring, he can’t be thrown into the ring and forced to box.  He’s not a criminal.  He hasn’t committed a crime that justifies him being treated like that.  So that’s my approach to inalienability is that the only way to alienate your rights is to commit an act of aggression.

01:28:59

01:29:05

I’ve written on this in two or three articles on my website.  Just search for the word inalienability on my publications page.  Rick says I’d like to hear Walter Block’s contribution to the slavery discussion.  Do you know what he thinks?  Yeah, I’m pretty sure what Walter thinks.  So Walter says, well, ownership means you can sell something, and you agree we’re self-owners, right?   So you can sell yourself.  I mean that’s it.  That’s his argument.  So I think where he’s being tripped up is he is assuming that ownership includes the right to sell, ownership by its nature, but it doesn’t.  Ownership means the right to control.  The right to control doesn’t mean the right to sell necessarily.

01:29:52

It only means that you have the better claim to control than someone else.  In fact, if you think about the right to control per se, it means you don’t have a right to sell.  It means that your rights – you always have the right to say who controls this resource with respect to others because you are the owner.  But as I said, in the case of an acquired good, you can abandon it, and that gives you the right to get rid of that ability to have the better claim because you’ve now abandoned your ownership of it by selling it or whatever.  But there’s just no way to do it with something you didn’t acquire with your body.

01:30:24

01:30:34

He thinks is plausible.  I’m not sure – Walter thinks you can sell yourself into slavery.  He thinks you should be able to.  And in fact, Walter is a strong advocate of Murray Rothbard’s views, and Rothbard had a few, I think, a little bit confused and contradictory comments in his contract theory, which are tripping Walter up.  Now, if Walter were here, he’d disagree with me.  We can have a nice argument about it.  But what Rothbard says is, his contract theory is great.  But he has a comment that if you promise to pay someone or if you have a debt contract, and you owe someone money, like let’s say $1100.  You borrow $1000, and then a year later you’re supposed to repay $1100, $1000 with interest.

01:31:23

And then you are unable to repay the creditor on the due date, then you’re committing what Rothbard calls implicit theft, implicit theft, which I don’t know what that is.  And then he says, theoretically, debtors’ prison would be justified, except he thinks it’s disproportionate.  He thinks it’s too extreme.  But theoretically, you’re committing an act of theft, so you could be jailed.  Now, I think that is wrong because there is no theft if something doesn’t exist.  The $1100 doesn’t exist.  The borrower doesn’t possess it.  He doesn’t own it.  How can you steal something that doesn’t exist?

01:32:04

So Rothbard will sometimes change his emphasis, and does Walter Block in that kind of case, and he’ll say, well, no, but you stole the original $1000 because that was given conditionally.  Well, no, it wasn’t.  The $1000 was given outright, had to be for the borrower to be able to spend it.  The $1000 was given unconditionally.  It was given in exchange for a future promise to a future thing.

01:32:32

If you can reclassify that act of transfer of the $1000 a year later as being theft, well, that means you’re going back in time and changing the nature of what happened year ago.  Well, that violates what Hoppe points out as an important aspect of property is every moment in time, any normative system needs to be able to tell you what you’re permitted to do with what resource right now.  Who is the owner of this resource?  So if the borrower is the owner of the $1000 the date he borrows it, which he has to be to be able to lend it – to be able to spend it for the project he’s borrowing it for, then you can’t change that later.  You can’t set some time where you go back in time, so neither one of these things can be stolen.

01:33:17

The $1000 was not stolen.  The $1100 doesn’t exist.  So there’s no possible act of theft, but because Rothbard said there was, Walter uses that, I believe, to say that a promise to sell something and failure to live up to it could be a type of theft, and he even means your body.  So Block has this criticism of Hoppe, says Tito Warren.  Which one is that?  The only one I’m aware of that is significant is on immigration, which we probably will talk about if we have time during the political issues, lecture number six.  But I think he is for immigration.  Defense of national borders, I don’t know about that one.  I’m not aware of any difference between them on that.  I think they’re both anarchists and believe in private defense in that regard.

01:34:12

01:34:15

Dante asks a question about argumentation ethics and brute force.  If we want a world with more freedom, we need to balance the distribution of guns.  But always the savage with more guns will do whatever he wants.  That’s always been the story.  Well, of course, that’s – this is the problem of the state I believe.  The state is inherently an aggressive institution and doesn’t respect individual rights.  To the extent you have a private society order, capitalism as Hoppe defines it, you have to have widespread societal respect for property rights in the first place.  And so I think you would have people arising to be criminals, and they would be outlaws and hopefully be able to be subdued.

01:35:05

Jacob asked, is there any recourse for the lender against a non-paying borrower?  Well, sure, of course.  I mean I don’t think he can be sent to debtors’ prison.  But in the simple contract that I gave, I didn’t specify further conditions.  But of course, knowing this reality, knowing that it’s possible that the borrower could be penniless on the due date, then the – you could imagine a set of subsidiary, or what we call ancillary title exchanges that accompany and support and relate to the original exchange, which is the creditor says, in exchange for me giving you $1000 now, you hereby give me, in one year $1100 if you own it.  See that if-you-own-it is always there because the future is uncertain.  That’s an inherent condition of the deal.

01:35:56

And the creditor knows this, of course.  So he would say, and if you don’t have the money on the due date, then you owe me – then whenever you come into the ownership of subsequent funds at a future date, that becomes my property with interest accrued at a certain rate, etc.  So of course, or you could have a deal that, if you have a job, then one-third of your salary becomes mine as soon as you’re paid it by your employer.  That’s a way of garnishing wages to pay the debt off.  But yeah, you’d have to make these agreements, or they would probably be implicit, but they’d probably be made explicitly if they had to be as part of the original debt contract.  But it would be a series of title transfers, conditional, future-oriented, title transfers.

01:36:42

01:36:57

Oh, Andre says – he meant defense of national borders from immigrants.  Well, we will talk about the immigration issue in lecture six.  But what Hoppe has pointed out with respect to immigration, in my view, is that, in a statist world, there are costs to people because of the state’s role, costs from immigration that would not exist otherwise.  And I think he’s right about that.  He calls it a forced integration and other effects.  But he explicitly says that he does not favor the federal government, say, in the US enforcing this.  And he favors devolving it down to states and then the cities and the towns and ultimately down to the individual, which is the anarchist view.

01:37:48

01:37:52

Lucas says – well Hermang Tanna has got to go.  Thank you very much, Hermang.  I won’t go much longer so people that have to leave early don’t miss much.  It’s 25 past the end, so let’s go a couple minutes more at the most.  Lucas says, isn’t it impossible to have rights and be considered property?  Selling oneself into slavery would be an invalid contract because there’s no legitimate property involved in the transaction.

01:38:17

Well, I mean that is another argument I’ve heard.  Another argument I’ve heard is that, if you become someone’s slave, you would have to obey in order to commit aggression, and that’s illegitimate.  I don’t think those are the best arguments against voluntary slavery contracts.  I do think your body is property, and if you could sell that somehow, then that would be a valid contract.  I just think the problem is what I said before, that to be a slave means the master has the right to use force.  But the right to use force is only legitimate if it’s response to aggression.  It’s not legitimate if it’s not in response to aggression, and the slave, by saying I promise to be your slave, hasn’t committed any aggression.

01:39:01

I’m not so sure if that’s the best argument, although it’s on the side of the right answer, but that’s not my approach.  What we might want to do is ask Hoppe a question for the Q&A and just get him to elaborate on or confirm his specific view of inalienability because I believe he has the same view as I do on this, but I don’t remember him writing on it.  So I may add that to the list of questions that I’ve been developing.

01:39:30

01:39:34

So why don’t we call it a night?  Oh, sorry, one more.  It’s okay.  I’m sorry having rights and being owned – well, that’s true.  But I think if you become a slave and you have no rights or reduced rights, I mean imagine a criminal who’s in jail.  He does not have the right to escape.  He does not have the right to use force to object to being punished or whatever by the victim or the victim’s agents or representatives.

01:40:01

So to the extent you’re owned by someone else, you don’t have rights.  I mean if you own a goat, the goat doesn’t have rights.  If you own a human, for some reason the human doesn’t have rights, so it’s not impossible.  This is sort of a variant of the Rothbard idea that it’s impossible to alienate your will.  I don’t think it’s relevant that it’s impossible to alienate your will.  I don’t think it’s impossible to have less rights.  If and to the extent you are someone else’s property, you’d have less rights.  The right is the right to control that body, that scarce resource.  So the question is, who owns it?  Is someone else the owner, or are you the owner?  And it’s logically possible for someone else to be the owner, as we see in the case of criminals.  The question is, is it justified?  And I think it’s just not justified by making a promise or a statement.

01:40:48

Lucas: in a free market for criminal defense, there would still be no coercion.  It would all be contractual.  Well, that’s a different argument.  Oh, contractual punishment.  Well, we’ll talk about that in one of the lectures too about Hoppe’s view about the anarchist world.  But there’s a lot of debate among libertarians about whether physical punishment, even if it’s theoretically justified, would be resorted to on a systematic, institutionalized basis in a free society.  I tend to believe that a restitution and ostracism system would be what would emerge for various reasons.  It’s cheaper.  It works better for everyone, etc.  Danny, you’re right.  Block does make the argument about the child.  I’ve heard that before.  I just don’t think it’s a good argument.

01:41:44

Block argues that if you could sell yourself into slavery to save your child, you get the money and then you renege, then you stole it.  See, you’ve stolen the money that you got earlier.  He’s making the same argument I pointed out earlier.  He’s using that Rothbard debtors’ prison argument.  He’s using this idea that you could do something in the future that changes the character of an earlier transaction because, if you’re given a million dollars, you spend it on your kid.  You save him, and then you refuse to be a slave.  You don’t have the million dollars, so you can’t steal the million dollars in the future because you don’t own it.

01:42:21

And what Walter’s only resort is to say, well, you steal it retroactively.  Well, how is that?  How can you change in the future by your actions what the characteristic of an active transaction was in the past?  I don’t think you can do it.  So I do disagree with Walter on that issue.  We’ve had fun debating it, but he’s great, and he has some good points.  So let’s call it a night.  I appreciate it.  Thank you.  You’ve been a great group tonight, and it was fun.

01:42:54

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