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KOL206 | Tom Woods Show: Five Mistakes Libertarians Make


Kinsella on Liberty Podcast, Episode 206.

[Transcript below]

I discussed various libertarian with Tom Woods on his show today, Episode 592. From Tom’s show notes:

Stephan Kinsella joins me to discuss negative/positive rights and obligations, “loser pays,” whether creation makes you an owner, how we can consider spam aggression, and more. Fun!

Background materials for topics discussed:

Related/previous talks:

Transcript [not yet edited]

Tom Woods Show: Five Mistakes Libertarians Make

Stephan Kinsella and Tom Woods, “Tom Woods Show: Five Mistakes Libertarians Make,” StephanKinsella.com (Feb. 12, 2016)


TOM WOODS: The Tom Woods Show, episode 592.


INTRO: Prepare to set fire to the index card of allowable opinion.  Your daily dose of liberty education starts here, the Tom Woods Show.


TOM WOODS: Hey everybody.  Welcome to another episode of the show.  Talking to Stephan Kinsella today because he’s just – he’s got one of those sharp, sharp minds.  He thinks clearly.  He writes clearly.  He writes and speaks very precisely.  He helps to clarify my own thinking, and I thought we’d talk about some areas of libertarian thought or some questions where we’re liable to get off track or get confused or maybe not really know what the right libertarian answer is.  So it’s always fun to talk to Stephan who is a libertarian legal theorist.  He is the author of Against Intellectual Property and many articles that are of importance in libertarian theory.  We’ll be linking, of course, to his material and his contact information at tomwoods.com/592.


Now, let me tell you one quick thing.  I don’t know why this happens, but one episode out of 100 the recording software I use just fails completely, and you have no warning that it’s going to fail.  It’s recording perfectly fine.  You can catch the clock going, and then boom, no recording when you’re all done.  It’s Pamela, by the way, Pamela for Skype.  Now, you really need software to be 100% reliable.  You really do, so if you have an alternative to Pamela, I would grab it.  Right now, I don’t have time to figure out an alternative, so thank goodness; thank goodness Stephan was recording the episode on his end.  So whatever gremlin was trying to screw with me, we got the last laugh here because Stephan was doing the recording.


So in this episode, his audio will be better than mine because he’s recording himself basically locally and then me through Skype, so his audio will be better than mine.  That’s the reason.  And then at the end, apparently what – I – we – the connection got dropped, which there’s no reason Pamela shouldn’t have still recorded.  I mean there’s no reason.  You should record what you have, but anyway, ridiculous Pamela.  Anyway, the point is, at the very end, I’ll jump back in on my end here and wrap it up because just as I was wrapping it up the connection cut out.  So anyway, that’s way more information than you need, but I’m giving it to you anyway.  I want you to know what goes on here at the show, so off we go, talking to Stephan Kinsella whom I am very glad to welcome to the show right now.  Stephan, welcome back.


STEPHAN KINSELLA: Thanks Tom, glad to be here.


TOM WOODS: I’ve got a whole bunch of these things to talk to you about because you sent them to me.  So it helped me to come up with some ideas of things we can talk about.  There are so many things we can talk about, but I love these little bite-sized errors and fallacies that even I myself I’m sure have fallen into in a few cases.  But it helps us to get our thinking clear and straight.


So let’s see here.  Let’s start with one that’s a little theoretical but is pretty fundamental to libertarianism.  There is this idea that we believe in the idea of negative rights, and our opponents believe in positive rights.  And negative rights are things that don’t actually require us to do anything.  They require us simply to refrain from doing things.  So that is to say, I don’t strictly have a right to life.  I have a right not to be killed.


But if I really say I have a right to life, that could mean that I have a right to you putting me on a kidney dialysis machine, but I don’t actually have that right.  I don’t really have a right to property in the sense that if I don’t have any then my rights are being violated.  I have a right not to have my property taken from me, so those are negative rights.  A positive right would be I have a right to a Cadillac.  That’s the basic distinction between these things.  What am I missing in here?  What am I – how am I misstating this in your view?  Am I misstating it?


STEPHAN KINSELLA: Well, I think it’s largely correct.  The insight here that libertarians are drawing on is the idea that they recognize that rights and obligations are correlative.  If you say someone has a right, that implies an obligation on the part of someone else and vice versa.  So that’s why they’re correlative.  Every time you say someone has a right to something it implies other people have a duty or an obligation to respect that right.  And if it’s a positive right, that means the right to be provided with something.  That means other people have the right – have the obligation to provide you with it.


So whenever you announce that there’s a natural human right, a positive right to education or food, which is, by the way, in these United Nations declarations of human rights and things like that and like with the Four Freedoms, these kind of things: freedom from want, freedom from fear, these kinds of things.  When you announce that someone has a positive right, you are in effect saying that other people are your slaves because they have an obligation to provide you with these things.  And that’s the libertarian intuition in opposing that and saying the only rights are negative rights because that only imposes negative obligations on others: the right – as you say, the obligation to refrain from hurting other people.  The imprecision here is that it leaves out the possibility of positive rights and positive obligations that do exist because of your actions.  In other words, what we really should say is we’re against unchosen positive obligations.


TOM WOODS: Oh okay, all right, all right.  Give me some examples then.


STEPHAN KINSELLA: Okay.  So there’s – a couple of obvious examples.  One example that I think most libertarians would not disagree with is an obligation that arises as a result of an act of aggression.  So as a simple example, if I bump someone into a lake, I have an obligation to rescue them to try to reduce the harm I’ve done to them already.  By contrast, if I’m walking by a lake and I see someone drowning, I don’t have a positive obligation under law to rescue them, maybe a moral obligation but not a positive obligation.


But in the case where I’m responsible for the harm caused to that person, I do have a positive obligation.  So you can acquire positive obligations, and someone else could acquire a positive right by virtue of an act of aggression, so that’s one example.  And I think that’s not that controversial, but it does add a nuance to the – so you have to say unchosen, and I would say it’s chosen here by your action.  If you commit aggression, you choose to commit aggression, then you’ve acquired a positive obligation.  Another case which is a little bit more controversial among libertarians…


TOM WOODS: Is it children?


STEPHAN KINSELLA: Is children, and maybe with you and I it’s not as controversial.  I would – in my view, when you choose to procreate and bring a dependent, needy, rights-bearing child into the world, you are in effect putting that child in the position of someone you pushed into a lake.  They’re going to drown because you put them in that position.  A young baby is helpless and can’t survive on its own.  So I think that you have put that baby into a position of natural need, and you’re the natural provider as the procreator, as the parent.  So in that case I would – I think there’s an argument that could be made for positive obligations on the part of parents to their children.  But it’s chosen.  Again, it’s chosen by your actions.


TOM WOODS: Now, have you written on that?  I know people who have because – I’m asking because I want to have a really robust show notes page for this episode.


STEPHAN KINSELLA: Yes.  In my article, “How We Come to Own Ourselves” I talk about it, and then I have another blog post, which I can send you the link to, which I go into it in a little bit more detail.  And of course this goes into the abortion question too, which we probably don’t want to get into here today, but you could extend this to the whole issue of abortion.


TOM WOODS: All right, I’ve also – I’ve done an episode on that, so I’ll link to that.  This is already – I’ve already got great links, and we’ve only been talking for about five seconds.  So okay – all right, that’s good.  I – there are a couple of more – there are a couple of things here that I actually want to jump ahead to.




TOM WOODS: Because I’m surprised at them, and I – and what I love is discovering that I haven’t been hardcore enough.  I love these discoveries.  Oh darn it.  That guy is right.  So I picked out two sort of – two legal principles that everybody takes for granted.  And when we hear them repeated we just assume they’re probably old, and so therefore they’re probably compatible with libertarianism because they’re probably just old examples of respect for rights that go back to the Magna Carta or whatever, but maybe they’re not.  So for instance – well, this one I think actually goes back to some republican policy proposals of the past 30 years.


The idea of loser pays in court, especially given that there are obviously frivolous cases that are brought against people, and if you lose, it’s thought that you should have to pay the legal fees and the expenses incurred by the other person.  You’re saying that’s not libertarian.  I don’t know what your argument is.  That’s why I’m asking you.  What is it?


STEPHAN KINSELLA: Right.  I think I read some time in the past people used to say it was the American rule or something, but it’s basically the everywhere-but-America rule.  A lot of other countries apparently—and I’m not an expert on the other legal systems—but it’s more common for the prevailing party in a lawsuit to be able to collect the fees from the party who loses.  In America, it’s more usually – unless there’s an exceptional case, everyone pays their own fees.  And libertarians have argued that it should be loser pays.  In other words, if I sue you for harming me and I win, I should be able to collect damages, but you should also have to pay for my attorney’s fees because you forced me to go to court to do that.  The problem with – there’s several problems with this.  First of all, the law we have now is largely unjust.


And so what you would happen – what you would have happen in a large number of cases is you’re just magnifying the damage done to the victim of an unjust law.  For example, if someone is sued for patent infringement, now let’s just assume that we don’t like the patent system or some aspects of it.  Someone sues some innocent guy for making a product because it infringes their patent.  Now let’s say the patent holder wins because we do have a patent system in the country, and some patents are actually valid under the way the law works.  Well, then the plaintiff would be able to recover attorney’s fees.  Now, the plaintiffs usually are corporations.


They already have an overwhelming advantage when they threaten someone with some of these lawsuits—antitrust lawsuits, copyright lawsuits, patent lawsuits, other lawsuits—because if they sue a smaller person, the legal fees alone could run in the hundreds of thousands of dollars if not millions on top of statutory damages like $75,000 per infringement for copyright.  So they can be millions of dollars of damages.  So you have someone who is running around, and they get sued, and they’re facing unimaginably high damages already.  So there’s a big incentive for them to settle even if it’s unjust and even if they could win.  They just can’t afford to do that.


If you add on top of that anther penalty, which is they have the pay the attorney’s fees, it just makes the whole situation even more unbalanced.  It’s a little bit like the situation faced by defendants of the criminal system when the prosecutor charges them with dozens of years in jail for some fairly minor offense, which is not even a real offense under libertarian principles.  And they don’t even want to risk going to jury trial, so they plea bargain and they go to jail for ten years or something like that, so it’s this power that it gives plaintiffs.  And in my view, what we should have is a losing – aversion of the loser-pays rule, but it would only be the losing-plaintiff rule.  The losing plaintiff pays.  So, for example, if I sue you for patent infringement and I lose, then I, as the guy who initiated the action, basically who initiated the aggression in the courts, I should have to pay the defense costs of the person who was exonerated.


TOM WOODS: Okay.  I can – I was going to say because otherwise it does seem like I could just really annoy people all day long by filing frivolous suits against them, so it seems like there should be some version of the rule.


STEPHAN KINSELLA: I think it should be a one-way rule basically.  The person who institutes the suit should have – I would not be opposed to them having to pay the costs of the person that they’re hauling into court.  But someone who is hauled into court should not have to pay if they lose.  If they just stand up and defend themselves, they shouldn’t have to pay.


TOM WOODS: Here’s another one.  Aggressors are not innocent until proven guilty.  All right, go.


STEPHAN KINSELLA: Okay.  This is a good one.  This is fairly trivial, but this is a statement people make, not just libertarians, but everyone.  And I think it’s a result of the fact that we give some credence to the basic rule of the Bill of Rights and natural rights and natural law.  And we – but over time we start becoming positivists, legal positivists in the sense that we start thinking of these rules that are in the constitution and that are in our legal system and even that are good rules that they’re really part of natural law.  But we have to distinguish between what’s called civil rights and what are natural rights.


A lot of the rights in the constitution are there just because there’s a government, and one of them is the presumption of innocence, for example.  The presumption of innocence is simply a way to make the government bear the burden of proving that someone is guilty.  It doesn’t mean they’re not really guilty.  Now, if you get technical, guilty means someone who is adjudicated to be guilty.  But if you go by that standard, then it really means very little in libertarian terms because even if you’re adjudicated to be guilty, the court may be wrong, the jury may be wrong, and they may not be guilty.


So in our sense as libertarians, guilty means someone who actually did the crime, someone who’s really the bad guy.  The government needs to go through a process of proving that.  The state needs to have a burden of proof of proving that.  So we have an epistemic issue.  We have an issue where we have to have knowledge about who did what.  So we come up with these, what we call, prophylactic rules, things that bind the state, that slow down the state, that restrict what the state can do for the sake of individual and overall liberty.  But it doesn’t mean that in reality someone is innocent until proven guilty.


If someone murders someone, they are actually guilty.  They just haven’t been proven to be guilty by the legal system.  So when journalists or when everyday people say something like, well, did OJ do it?  I don’t know.  He’s innocent until proven guilty.  That’s just a standard the court has to follow, and it’s good that the court has to follow that standard because we’re limiting what the state can do.  We’re making the state have high burdens to overcome to put someone in jail.  But it doesn’t mean we can’t have an opinion.  It doesn’t mean we can’t say someone is guilty.


I mean as far as I know, Hitler was never convicted in court of being a mass murderer, but everyone says he’s a murderer.  I mean why isn’t Hitler innocent until proven guilty?  So he’s been proven guilty by the facts of history.  You don’t have to have a legal decision.  So I just think we should be careful trying to import into everyday understanding of life and our everyday conclusions and judgments about people the rules that – and the procedures that apply to courts.  We don’t have to be bound by those.


TOM WOODS: That’s a very good point because I – you often hear these kinds of expressions about innocent until proven guilty just in casual conversation.  When you’re talking about a guy you’ve actually observed do something and they still say, well, you know we’ve got to give him his trial.  Now wait.  I saw the guy do it.


STEPHAN KINSELLA: No, he might have – he attacked me.  I saw him.  I’m supposed to say he’s…


TOM WOODS: Yeah.  Believe me; I was there.  I’m not calling him the alleged attacker.  Come on now.




TOM WOODS: And there have even been times when the guy – I’ve heard journalists say alleged attacker.  They’re just so used to saying it like even after the guy is convicted, which still call him that.


STEPHAN KINSELLA: Honestly, I think one reason for that, Tom, is I believe that’s a fear of libel lawsuits or defamation lawsuits.


TOM WOODS: Oh yeah.


STEPHAN KINSELLA: If we did not have defamation law, there would be a lot less tip-toeing around things like that, I believe, by journalists and by others. People would just say, look.  It looks like the guy is a murderer.


TOM WOODS: Yeah.  It looks – he’s got the bloody knife in his hand.


STEPHAN KINSELLA: He’s not an alleged murderer.


TOM WOODS: I shouldn’t be laughing about brutal killings here.  All right, let’s talk about spam or hacking.  I like talking about things where you can imagine non-libertarians saying how could a libertarian possibly handle X problem.  And even libertarians themselves who will write to me and say, I want to be able to say there’s some libertarian response to the issue of spam, but yet it’s not obvious to me what it would be.  So how have you worked this out?


STEPHAN KINSELLA: In one background piece I’ve written you might want to have a note to is my piece with Pat Tinsley QJAE called “Causation and Aggression.”  So that’s sort of background theory for this.  It’s a way of looking at what we should be responsible for.  I think you and I talked earlier.  I think it was you in a previous show about the emergence of the – how there was a common law developing in airwaves, and then the FCC sort of expropriated the field and took it over in the early ‘30s or something like that.


In spam, something similar has happened.  There have been some cases like the Cubby v. CompuServe case and others which have addressed this spam issue, which I think the right way to approach it from a libertarian point of view is to simply think what is prohibited and what’s permissible under libertarian principles?


Think about a neighborhood situation.  You own a home.  You live next to neighbors.  There’s a common sidewalk or whatever the sidewalk is, but you have a private sidewalk leading up to your door.  You have a doorknocker, a doorbell on your front door.  Generally speaking, if a neighbor walks up to your door and they knock on your door they are using your property.  They’re using your land.  They’re using your door.  The question is, is that a trespass, or is it that a licensed or a permitted use?  And what we would normally say is that’s a permitted use because the standards in the area, by having your house in a certain – oriented a certain way without having a no trespassing sign up, you’re inviting certain innocuous uses like that.  But the whole thing is rooted in the idea of property and property control.


Now, if you go to a computer situation, what is happening if someone calls your house repeatedly as a telemarketer?  Or what is happening if someone knocks on your door when you’ve told them not to come to your door?  In that case, they are a trespasser because they’re using your property without your consent.  Now, in my view, hacking is basically using your computer without your consent because no one really wants their computer to be hacked.  Now, it is true that the person that’s doing this is sitting in Bangladesh or somewhere, and they’re doing it over the internet.  They’re using a mechanism.  We’re all connected to an internet, to a network.


So they are basically causing something to happen using signals and using electrical circuits, but they’re manipulating the actual internal operations of your computer, the same thing with spam.  If someone sends me a bunch of spam—and no one wants spam, and that’s commonly understood.  People don’t want spam.  They’re basically clogging up the operations of your computer.  They’re putting stuff on your hard drive.  They’re making your hard drive do stuff, especially with – when people out these malicious viruses and things like that onto your computer.  My point is it’s basically like a remote-control use of your property without your permission, and so I think that could be considered a type of trespass.


Let me give a more concrete example.  Let’s suppose you have a neighbor, and they have one of these remote-control drones in their house, and you can see into their living room through their window.  And you have a device that you’re able to control their drone in their house.  And one night for kicks you turn on your little remote control and you start flying their drone around inside their kitchen, and you break a bunch of their cups and you scare their dog and all that kind of stuff.  I would say that’s an act of trespass because you’re commandeering one of their resources without their permission.  So that kind of analysis I think can show why spam and why uninvited telemarketing calls, all these kind of things are – can be types of trespass or maybe a nuisance.


TOM WOODS: All right, I’m sorry for just jumping from one to the other but…


STEPHAN KINSELLA: That’s all right.


TOM WOODS: I’ve got so many of these great ones you sent me, and I want to get the answer.  I actually – for this one, I’ve read your answer, and I think it’s just absolutely airtight.  It’s this idea of creation as an alleged source of property rights.  Look, I created this, and therefore, I own it.




TOM WOODS: And this – a lot of – obviously we see this a lot of times when it comes to IP.




TOM WOODS: But I don’t think it’s necessarily – the concept is not necessarily tied to IP.




TOM WOODS: That creation and property rights, one doesn’t follow from the other unless by creation you have some kind of homesteading in mind.  But creation in and of itself does not give rise to property rights, so let’s hear it.


STEPHAN KINSELLA: Well, yes, and some people – what they’ll say is if you homestead a virgin piece of land in the middle of the wilderness then you’ve, in effect, created that land because it didn’t exist before in some sense because no one was observing it or valuing it.  You can play games with words like that, and you can say that every act of homesteading is an act of creation, and that’s fine.


But then there’s some equivocation involved because they switch the meaning later on.  The reason this is something to get straight, the reason it’s important to get this issue straight is because it can lead to confusion.  So let me tell you.  My view on this is the following.  When people say that creation is a source of property rights, I think they’re wrong because they’re conflating two different things.  There’s a source of wealth, and there’s a source of property rights.  Those are two different things.


It is true that, if I own a raw material and I use my labor and my intellectual abilities and my creativity and my ideas to transform it, I might transform it into something newer and better that is worth more to me or to someone I might sell it to.  So in that sense, creation is a source of wealth, but it’s not a source of property rights because, to do that, I have to already own some underlying resource, my body and some resource that I’m transforming.  And I transform this thing that I own into something that’s more valuable, and that makes it more valuable.  I increase the sum total of wealth in the world or for me, but there’s no new property right involved.  I have a piece of raw steel, and I transform it into a horseshoe.  Now it’s more valuable because I can use it for something.  But I already owned the steel that was in the horseshoe.  I’ve just rearranged its shape.


And by the way, Mises and Rothbard and even Ayn Rand have statements that say almost exactly this, that really we’re just rearranging materials in the world.  The reason I say creation is not a source of property rights is because there’s only really two or three sources of property rights.  Number one, you acquire something that was unowned.  That’s homesteading.  That’s Lockian homesteading.  You do something to mix your labor with it, to put up a border around it, to create a visible objective connection between you and the thing that other people can see.


That’s one way to acquire ownership.  And the other way is to get the thing from someone who previously owned it by contract or by some other conveyance.  There is no other way that you can imagine that my creation is a source of ownership, and let me just give a couple of examples where creation is neither necessary nor sufficient for ownership.  Okay.  It’s not necessary because, as I said, if you just – you’re the first one to stumble across an unowned resource, you didn’t really create the resource, so creation is not necessary.  You’re an owner of the resource because you were the first one to use it, not because you created it.  And it’s not sufficient because let’s imagine I have a small factory or a company, and I hire someone to take my resources, like my raw iron, and make horseshoes with those.


Now, the laborer is actually the one creating the horseshoe in a sense because he is changing the shape of the metal into a horseshoe.  But he didn’t own the raw material, and we have a contract as employer/employee where he doesn’t own the result either.  He gets paid a wage.  That’s what our contract is, so that shows that creation is also not sufficient for ownership, so basically it’s just a mistake.  People are right to think that creation is a source of wealth, but it’s not a source of property rights.


TOM WOODS: Stephan, I want to talk about the rest of these on a future episode, but for now, tell people once again how they can follow you because a lot of times people listen to you and they want more.  So how do they get more Kinsella?


STEPHAN KINSELLA: Just stephankinsella.com.


TOM WOODS: All right, that’s my conversation with Stephan.  I was trying to thank him, but Skype wouldn’t let me.  So I just want you to know I was thanking Stephan, urging people to check out stephankinsella.com and tomwoods.com/592.  Let me give you a few parting notes.  Monday will be another debate episode if you can believe that, oy, yoi, yoi.  Lew and I do intend to carry on, by the way, into the general election.  We’ll do those debates as well.


Anyway, before I let you go, three little links to remind you of, number one, Bernie Sanders did very well in New Hampshire, so you need my e-book, Bernie Sanders is Wrong, to help bolster your arguments.  How do you get that e-book?  You can either go to bernieiswrong.com, or you can text the name, Bernie, to 33444, whatever is more convenient.  But grab that thing.  It costs you nothing, and it’s a book.  Come on.  What’s going on here?  I mean you’ve got to love that.  So that’s one thing.


Second thing is I’ve often told you that I will help publicize your blog and I’ll give you a bunch of free tutorials to help get you up and running as a blogger.  And I had somebody in my supporting listeners group not too long ago say that the Woods tutorials on this are among the best materials he’s seen for beginners.  So I will give you these, and they don’t take too long to watch, but there are about two dozen of them showing you how to do all different things, basic things like posting a post or putting a picture in a post but also more advanced topics like what if there’s something you want to put at the bottom of every post like, hey, sign up for my newsletter, or if you’re new here click on these links or whatever.


You want that on every single post.  How do you do that?  It’s not obvious how you do that, but I’ll show you in just a few minutes how you do stuff like that.  So all that stuff is there.  You get those tutorials, and you get the free publicity if you get your hosting through tomwoods.com/publicity.  You’ll see the links there, how to sign up for web hosting, and if you use my link for that, then I’ll gladly give you these free goodies.  And it’s easy to do.  I even have a free video that’s right up there on tomwoods.com/publicity showing you how to be up and running in just five minutes, so no more excuses.  You want to jump into the world of blogging—no more excuses, tomwoods.com/publicity.


And finally, today I’m speaking to you on February 12, 2016, which means that the Rocket Languages 60% off sale has begun, and they’re only doing this for the first 750 courses sold or the next couple of days, whichever comes first.  So you’ve got to grab yours; 60% off is ridiculous.  You don’t have to take out a mortgage finally to have a really good language course because if you look at some of the other courses, good grief, they cost a fortune.  But this is inexpensive plus 60% off.  Check it out: tomwoods.com/rocket.  Enjoy your weekend.  We’ll be talking debate on Monday.


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