1 | Correcting Some Common Libertarian MisconceptionsStephan Kinsella | PFS 2011 Stephan Kinsella...

1 | Correcting Some Common Libertarian Misconceptions Stephan Kinsella | PFS 2011

Stephan KinsellaLibertarian Papers, C4SIF.org, Mises.org

Property and Freedom Society 2011 Annual MeetingMay 27-29, 2011

Correcting Some Common Libertarian Misconceptions


Coercion, Force

► Coercion is not unlibertarian Aggression ≠ coercion Force not unlibertarian

► Kinsella, The Problem with Coercion

► False idea that PDA can assert jurisdiction only over someone who has agreed to it Committing aggression is consenting to the victim’s jurisdiction Two ways force against another is justified

► Consent (permission, invitation), e.g. a kiss► Committing aggression

A type of consent to retaliation since no one committing aggression can object to retaliation


Restitution and Punishment

► Restitution vs. retribution (punishment) General concept: responsive force

► Force in response to aggression Defense, restitution, incapacitation, deterrence, rehabilitation

► Depends on motive or purpose of the victim Restitution can still be the dominant mode of justice

► Costs of punishment: Possibility of error Standard of proof higher (beyond reasonable doubt vs. preponderance)

► Restitution may have lower cost, better results► But the standard of restitution is based on the more fundamental right to

punish Kinsella, Punishment and Proportionality: The Estoppel Approach;

Fraud, Restitution, and Retaliation: The Libertarian Approach; The Libertarian Approach to Negligence, Tort, and Strict Liability: Wergeld and Partial Wergeld


Positive obligations

► Libertarianism: negative duty to avoid aggression Trespass Invasion Border crossing Unconsented to use


Positive obligations

► Positive obligations can exist If voluntarily incurred

► By crime (owe restitution)► By tort (pushing in a lake duty to rescue)► By action (having a child parental obligations)

Kinsella, How We Come To Own Ourselves► By word?

Problems with standard theory of contract► Binding promise versus title transfers (Rothbard and Evers)► Inalienability (more on this later)

Plus, speech can be the means of aggression (“Ready, Aim, Fire!”; or “Drop the bomb on Hiroshima” or “Lynch him!”) or can be tantamount to an invitation to be punched (“fighting words” – “your momma is ugly”)

► See Kinsella, Causation and Aggression


Contracts; Fraud► Contracts are not binding promises; they are exchanges (or

unilateral transfers) of title to owned resources. Rothbard and Evers Implications for alienability and body – external object distinction

► Kinsella, A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability

► Fraud is not merely dishonesty Has to be rooted in property rights and title-transfer theory of contract Danger of equivocation Fraud is essentially theft-by-trick

► Theft of owned goods► Danger of equivocation if fraud used to mean merely “dishonesty”

Kinsella, The Problem with “Fraud”: Fraud, Threat, and Contract Breach as Types of Aggression; Fraud, Restitution, and Retaliation: The Libertarian Approach; The Limits of Armchair Theorizing: The case of Threats.


Contracts; Inalienability

► Two related fallacies: If you can sell it, you own it.

► E.g. a “sale” of labor or service implies you own it► Sloppy equivocation► Really one-way contracts, not title exchanges

If you own it, you can sell it.► Ownership is right to control; does not automatically imply a right to get rid

of the right to control Applies in the case of acquired goods (external objects), by “un-acquiring” them

(abandonment) Does not apply to one’s body; one is a homesteader; one does not homestead

himself (in the same way that we homestead objects)


Contracts; Inalienability

► Inalienability is not about impossibility of the will. Prisoners are slaves Defensive force is justified even though criminal has free will and objects

or fights back Only aggression alienates the right to object to force

► Kinsella, A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability; Inalienability and Punishment: A Reply to George Smith


Self-ownership

► Self-ownership is neither “incoherent” nor mystical In fact it is THE libertarian view Just means body-ownership

► Hoppe, State or Private-Law Society (“Every person is the private (exclusive) owner of his own physical body”)

► Kinsella, What Libertarianism Is (“each person is prima facie the owner of his own body”)

Prima facie because it can be alienated or forfeited by committing aggression Versus slavery, murder, aggression, rape

► Richard Overton, An arrow against all Tyrants, (1646) : "To every individuals in nature, is given an individual property by nature, not to be invaded or usurped by any ; for every one as he is himself, so he hath a selfe propriety, else he not be himselfe".

► John Locke, Second Treatise of government (1690) : (chap V, 27) : “Though the Earth, and all inferior Creatures be common to all Men, yet every Man has a Property in his own Person. This no Body has any Right to but himself”


Creation and the Source of Rights

► It is often maintained that there are three means of creating and coming to own goods: original appropriation (homesteading), contractual exchange, and production.

► But production is a source of wealth only Hoppe: “One can acquire and increase wealth either through

homesteading, production and contractual exchange, or by expropriating and exploiting homesteaders, producers, or contractual exchangers. There are no other ways.”► Banking, Nation States, and International Politics: A Sociological Reconstruction

of the Present Economic Order (1990), p. 60

New property rights do not arise from production of wealth► Homesteading creates new property titles; contract transfers existing property

titles; production transforms already-owned goods► Kinsella, Against Intellectual Property;

Locke on IP; Mises, Rothbard, and Rand on Creation, Production, and “Rearranging”



► Rand: “The power to rearrange the combinations of natural elements is the only creative power man possesses. It is an enormous and glorious power–and it is the only meaning of the concept “creative.” “Creation” does not (and metaphysically cannot) mean the power to bring something into existence out of nothing. “Creation” means the power to bring into existence an arrangement (or combination or integration) of natural elements that had not existed before.”

► Rothbard: “Men find themselves in a certain environment, or situation. It is this situation that the individual decides to change in some way in order to achieve his ends. But man can work only with the numerous elements that he finds in his environment, by rearranging them in order to bring about the satisfaction of his ends.”



► To ward off claims Rothbard was plagiarizing Rand: Mises: “[speaking of] the widespread misconception of the nature of production. There is a naive view of production that regards it as the bringing into being of matter that did not previously exist, as creation in the true sense of the word. From this it is easy to derive a contrast between the creative work of production and the mere transportation of goods. This way of regarding the matter is entirely inadequate. In fact, the role played by man in production always consists solely in combining his personal forces with the forces of Nature in such a way that the cooperation leads to some particular desired arrangement of material. No human act of production amounts to more than altering the position of things in space and leaving the rest to Nature.”



► Related confusions: Labor is not owned (neither are actions)

► Redundant with body and property ownership; a consequence of it No property rights in value of property but only in physical integrity

► Gives rise to idea of reputation rights► Rose garden example► Competition example

Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors; Comment to Patents and Utilitarian Thinking; Rand on IP, Owning “Values”, and “Rearrangement Rights”

Misplaced emphases on “harm” and “imposing costs”► Patrick Burke, J.C. Lester► Equivocation: we oppose aggression, which is “harm”; so we have to oppose

other types of harm that are not aggression (reputation rights) Kinsella, "Aggression" versus "Harm" in Libertarianism


Individual Rights and Property Rights

► Mistake: forgetting that all rights are property rights; other “rights” (free speech etc.) are just consequences of basic property rights in our bodies and homesteaded scarce resources not independent rights “the concept of “rights” only makes sense as property rights. For not only

are there no human rights which are not also property rights, but the former rights lose their absoluteness and clarity and become fuzzy and vulnerable when property rights are not used as the standard.” --Rothbard, "'Human Rights' As Property Rights”


Individual Rights and Property Rights “there are no human rights that are separable from property rights. The

human right of free speech is simply the property right to hire an assembly hall from the owners, or to own one oneself; the human right of a free press is the property right to buy materials and then print leaflets or books and to sell them to those who are willing to buy. There is no extra "right of free speech" or free press beyond the property rights we can enumerate in any given case.” –Rothbard, For A New Liberty: The Libertarian Manifesto

Danger: ► leads to rights inflation, ► “human rights,” ► rights that invade other rights

gun rights on employer property free speech rights in private malls IP “Creationism”

Plus, as noted earlier, speech can be the means of aggression (“Ready, Aim, Fire!”; or “Drop the bomb on Hiroshima” or “Lynch him!”)


Property Rights, Means, and Action

► The prohibition on aggression does not mean property rights are “limited.” Socialist/statist: what’s the big deal if IP stops you from using your

property as you see fit? All property rights are limited, after all; you can’t use your gun to shoot someone.

Confusion: Aggression involves the use of scarce (causally efficacious) means to

invade borders of/use others property without consent Aggression is impermissible regardless of the means employed, whether

owned, unowned, borrowed, or stolen, or using your bare hands It is actions that are limited, not property rights


Property Rights, Means, and Action

► Instead of saying "There are things you may not do with your property,” we should instead say “Some actions are impermissible." What actions? Those that (causally, with means) invade the borders of

others' property. Limitations on action are a result of property rights. To twist this into an

argument that property rights are limited is perverse.► Kinsella, IP and Aggression as Limits on Property Rights: How They Differ;

The Non-Aggression Principle as a Limit on Action, Not on Property Rights.

► Parallel to Holmes “fire in a crowded theater” mal-meme► Rothbard’s answer: rights to free speech are not independent

Just consequences of property rights Discussed before


Extra/Other material follows//


Legal and Logical Positivism

► Identifying positive law does not mean condoning it. pointing out that the income tax is legal does not mean favoring it

► Kinsella, Logical and Legal Positivism; Income tax protestors: SHOW ME THE LAW!

► Law is not “what’s in the law books”; it’s the rules the state enforces Holmes’s Bad Man Theory of law/ legal realism Natural Law, Positive Law, Tax Evasion, Rituals and Incantations

► The state is not out for justice; cannot assume you can find “the right arguments” and win

It’s criminal Doherty's It's So Simple, It's Ridiculous and

Five Reasons You Don't Owe Income Tax, Dammit! See also Huebert's comments


Common Libertarian Misconceptions & Mistakes► Limited Government is a Pipedream.

And, closely allied with this proposition: The move to democracy was not progress (and Hans-Hermann Hoppe is not a monarchist)


Common Libertarian Misconceptions & Mistakes

► The positivism of asking for the “source” of rights Even God

► The hypocrisy of demanding your argumentative partner prove why you have rights If you don’t respect his rights, he should regard you as an animal, outlaw,

criminal If you do respect his rights, why does he have to prove to you why you

do?► Affirmative action is not unlibertarian► Do campaign finance regulations violate “free speech” rights?

Can be seen as just another eligibility requirement for holding office?► --Kinsella, What's Wrong with Campaign Finance Regulations?



► Scarcity does not mean non-abundant Rivalrous; conflictable “good ideas are pretty scarce!”

► Liability of the boss does not absolve the underling, and vice-versa No “fixed pie” of liability

► “But-for” causation is neither necessary nor sufficient for liability Not necessary: two guys lighting fires or firing bullets

► Regarded as joint even if not Not sufficient: Hitler’s mom is not guilty



► A constitutional “right” often means greater state power ► It doesn’t matter whether the 2nd Amendment protects a

personal right to bear arms. 9th says you cannot take the lack of enumeration of a right to be

construed against that right 10th says Congress has no power to regulate guns unless it’s enumerated



► Advocates of “states’ rights” do not believe states have rights.► Critics of Lincoln and the Civil War are not neo-Confederates ► Anarchists need not prove anarchy can “work.”

Anarchists believe (a) aggression is unjust and wrong, and (b) the state necessarily commits aggression by its nature; so that (c) the state is necessarily unjust and criminal.

► It is not “unrealistic” or “naïve” to be a libertarian or anarchist. Is it “unrealistic” to oppose murder even though it will happen?

► The state’s existence proves anarchy is feasible Cuzan: there is no over-state to force state actors to abide by internal

state rules and hierarchy ► Do We Ever Really Get Out of Anarchy?


Common Libertarian Misconceptions & Mistakes► Loser pays is not libertarian.

If Sally sues Harry for battery and loses, and there is a loser-pays rule: this is also unjust since injury is being added to injury.

In a state-run system, neither loser-pays, nor winner-pays, nor each-side-pays-his-own-fees, is just.

The only just system is a voluntary, private justice system where customers of competing justice agencies agree voluntarily ahead of time to some rule–in this case, any of the fee-payment schemes is libertarian since it is agreed to by all sides.

Kinsella, Is “Loser Pays” Libertarian?► Educational vouchers are not libertarian.

Expands state welfare and propaganda, entrenches government education, threatens independence of private schools

► “Would you push the button” hypos usually meaningless Not well specified

► Are rights a subset of morals?


Common Libertarian Misconceptions & Mistakes► Should government be more efficient?► Aggressors are not innocent until proven guilty.

Aggressors do not have a right to due process or deserve a fair trial Prophylactic rule needed to limit the state and for epistemic reasons

(fallibility)► Contracts do not have to be written

Just evidence of agreement► The Constitution is not libertarian nor was early America



► Spam and hacking can be forms of aggression Use of others’ property without consent Kinsella, Why Spam is Trespass



► The dangers of metaphors in scientific discourse (and imprecise language, and equivocation)

► See my Appendix: On the dangers of metaphors in scientific discourse to my post Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors , also http://blog.mises.org/13064/lock-smith-marx-and-the-labor-theory-of-value/ and Peter Surda: http://blog.mises.org/15188/undermining-the-mises-institute/#comment-750410


Misconceptions: Metaphors

► “For it would be an absurd undertaking to banish from the language of economic theory every manner of speaking that is not literally correct; it would be sheer pedantry to proscribe every figure of speech, particularly since we could not say the hundredth part of what we have to say, if we refused ever to take recourse to a metaphor. One requirement is essential, that economic theory avoid the error of confusing a practical habit, indulged in for the sake of expediency, with scientific truth.” –Eugen von Böhm-Bawerk, (1881), “Whether legal rights and

relationships are economic goods.” In H. Sennholz (Ed.), Shorter classics of Böhm-Bawerk, Volume I. Spring Mills, PA: Libertarian Press, 1962, p. 135


Misconceptions: Metaphors: Examples

► Ownership of labor► Paterson or Lane’s use of “energy circuits” …. very scientistic.

Similar to the way people talk about the “momentum” of a football game or the “energy” of a crowd or a crystal

► Economy is overheated



► Prices “convey knowledge” “Only in a metaphorical sense could one say that prices reflect or contain

information on present conditions. … It is asserted that prices communicate abridged relevant information. This, however, is only a metaphorical expression. It is not prices that coordinate the actions of sellers and buyers of tin; prices are the outcome of (coordinated) action, not its coordinators. It is property, rather than knowledge, that coordinates the separate actions of different people. The terms coordination and communication rather obfuscate than adequately express this fact. This is another example of the dangers linked to the use of metaphors in scientific discourse.”► Guido Hülsmann, “Knowledge, Judgment, and the Use of Property,” p. 29



► “The term “consumers’ sovereignty” is a typical example of the abuse, in economics, of a term . . . appropriate only to the political realm and is thus an illustration of the dangers of the application of metaphors taken from other disciplines. “Sovereignty” is the quality of ultimate political power; it is the power resting on the use of violence. In a purely free society, each individual is sovereign over his own person and property, and it is therefore this self-sovereignty which obtains on the free market. No one is “sovereign” over anyone else’s actions or exchanges. Since the consumers do not have the power to coerce producers into various occupations and work, the former are not “sovereign” over the latter.” –Rothbard, MES, ch.10.1.A



► “Mises rightly criticised treating imaginary things (collectives, analogies, metaphors, etc.) as real and warns us to be very cautious when using fictitious auxiliary constructs to explain things” Benjamin Marks, Synthetic Apriori Truths and Mind Structure: A

Nominalist Perspective► “in his memoirs Mises accuses Bohm-Bawerk (in their dispute

over Cantillon effects) of being led astray by the idea of “friction” and other metaphors from the physical sciences.” --Roderick Long See Kinsella, Objectivist Law Prof Mossoff on Copyright; or, the Misuse of

Labor, Value, and Creation Metaphors



► Tom DiLorenzo (email): “A fun paper … would be to ridicule the metaphors in macroeconomics with all the talk of “injections,” “Leakages,” shocks,” etc. I would start by comparing it all to the movie Young Frankenstein, where they tried to “shock” the monster to life, just as “infusions” of money or tax dollars supposedly shock the economy out of a recession. Then when shock therapy didn’t work, Gene Wilder pulled out a giant needle and “injected” the monster, just as money is supposedly injected into the economy by the Fed. The possibilities are endless.”

► Copying “is” “theft”


Misconceptions: Equivocation

► Left-libertarian fallacy: we oppose the state’s “authority” or authoritarianism; so we libertarians have to oppose even non-aggressive types of authority and hierarchy (employer-employee, corporation, family, church, natural elites) The “thickism” fetish: confuses some reasons for, or ideas related to,

libertarianism, with libertarianism itself Results-oriented versus means or process oriented

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