JOURNAL OF LIBERTARIAN STUDIES VOL. 18, NO. 2 (SPRING 2004)
THIS ISSUE FEATURES AN exchange of views among Walter Block, N. Stephan Kinsella, and Frank van Dun. At issue is nothing less than the foundation of libertarian jurisprudence.
The Spring 2001 JLS (vol. 15, no. 2) was a symposium on libertarian legal theory, and included Block’s “Toward a Libertarian Theory of Blackmail” and Kinsella’s "Against Intellectual Property." Van Dun disagreed with their analysis, and in the Summer 2003 issue (vol. 17, no. 3), he replied with “Against Libertarian Legalism.” Van Dun was critical of Block’s and Kinsella’s use of the non-aggression axiom as the foundation for their jurisprudential positions, and sketched out a brief synopsis of his own views on the natural law tradition.
In the current issue, all three were given a chance to sort out their positions more fully. In “Reply to ‘Against Libertarian Legalism’” Walter Block defends his use of the non-aggression axiom as the foundation of the entire corpus of his work in legal theory and application. He offers a series of examples in defense of his position.
In “Natural Law and the Jurisprudence of Freedom,” Van Dun replies to Block’s article, drawing instead on a tradition indicating that those acts which are “unlawful” (or against natural law) and generate harm lead to liability. In an appendix, Van Dun provides a chart featuring side-by-side comparisons of his own views and those of Block and Kinsella.
Kinsella also responds in “Reply to Van Dun: Non-Aggression and Title Transfer.” He points out that Van Dun implicitly accepts the non-aggression axiom, but rather than ending there, has a broader understanding of what is unlawful. However, Kinsella argues, for Van Dun to punish anyone based on this broader understanding requires him to initiate force against someone who has not already initiated force. In short, any punishment under this broader scheme necessarily violates the non-aggression axiom itself.
Block gets the last word in his “Reply to Frank van Dun’s ‘Natural Law and the Jurisprudence of Freedom.’” In this short comment, Block tries to clear up a few final misconceptions, nonetheless leaving the disputants with differing positions. Clearly, leading libertarian thinkers can, and do, hold more than one view on this important foundational issue.
Also in this issue is an article by Josef Sima entitled “Praxeology as Law & Economics.” He makes the case that while the modern Law & Economics movement is based, in part, on work done at the University of Chicago, an older movement had long considered the nexus between economics and the law. In particular, he points out that Austrian-School economists, starting with Menger (himself both a lawyer and an economist), and including Hayek, Mises, Rothbard, and nearly all current Austrian-School economists, have long been interested in the relationship between human action and the surrounding institutional settings (e.g., the law) in which that action has taken place. What’s more, Sima points out, the Austrians don’t end their analysis with the law, but expand it to include a broader understanding of social processes. In short, law and economics is a mere sub-set in the broader study of praxeology.
Summary written by Scott Kjar.
Comments (16)
A very interesting series of articles. I tend to agree with Block and Kinsella. There are some interesting differences between Kinsella and Block on the issue of causation.
Published: October 11, 2004 1:48 PM
I agree with Kinsella. The government should not be an enforcer of copyrights or patents. It is the duty of firms that produce IP to protect it themselves by making it non-duplicable or packaging it with other services.
For instance, there is talk right now about shifting away from the retail outlet computer game business model, in which you go into a software store to purchase a computer game. Instead, they are setting it up so you download the games directly from a server, thereby making each download uniquely assigned to a particular hard drive, and not easily duplicated or transferred to another computer. This is a perfectly legitimate way for the software game industry to protect its IP. The rest of the software industry could use this system as well.
The other way to profit from software without using government force is to give away the software client for free, and then sell web services for that software.
Published: October 12, 2004 3:33 AM
Van Dun I think gets it right. In the Decalogue, one early statement of natural law, there is "Thou shall not bear false witness against thy neighbor".
That encompasses most of the things at issue. We can talk about ownership, but if my forged deed (and deed certifications, etc) is more accepted than your real deed, the whole system breaks down.
Malice exists. If I poison your burgers and your customers get sick (and you cannot find me) you will be out of business. If I say your burgers are poisoned and have killed people I accomplish the same thing. The latter is a fraud.
The line from the movie Excalibur I rember most is when Arthur asks Merlin what is the most important virtue of a Knight. After dissembling he grows deadly serious and says "Truth - that's it, because when you lie, you murder some part of the world".
While asserting that all this libertarian philosophy is "true", I find it utterly ironic that people are arguing that the truth or falsehood of something doesn't matter in some cases. Or that people magically recognize truth like some apparation.
Personally, I do not hear angels singing when people speak facts and discordant voices when people speak lies. Truth is often difficult and precious.
Published: October 12, 2004 10:57 AM
I'm still reading but one dichotomy I think both sides assume but is not really valid is that speech is not an act.
If I push someone over a cliff, I am guilty, but if my words push them over a cliff (whether via deception for "jump or I'll kill your wife") it is the same thing. Physical actions - intentional whether malicious or not - or negligent can cause harm. Yet words - expressions - have the same thing.
Words are one expression, but there is also mime, or even if some courts are to be believed, burning flags. Are those things "speech" or not? What if I claim pushing people off cliffs is merely my way of expressing myself wordlessly?
There is some very wierd anti-theology of the body I keep hearing in libertarian circles. We may murder human beings if they happen to be in-utero (or apparently in vitro), aggression does not exist there. But now within my mouth, somehow my tongue is exempt from any accusation of aggression.
OK, lets say I have a speech activated computer connected to a plate that will electrocute a passer-by when I say "sesame". Oh, I have the freedom to say "sesame", and whatever else occurs (equally intentional and malicious as to me pressing a switch or applying electrodes directly) is now merely a totally non-aggressive consequence via indirection.
Now we have the Divine Right of Voice Recognition Software. I just have to have it act and all my crimes cease to be that.
Published: October 12, 2004 12:08 PM
Another red herring is "mental harm".
I would make an exception if it was harassment. If you keep stalking me and invading my range of hearing to impose your speech to annoy me, it is not your freedom - If your freedom to move your fist ends at my nose, your freedom to wag your tongue ends at my ear - especially if I am trying to remove my ear from your vicinity. Or how about talking loudly on a cell phone at a concert?
Falsehoods cause actual loss of business. After X maliciously said the false statement, my business dropped 30% for 3 weeks ought to be just as actionable as X broke my machine and my business dropped 30%. This is not mental harm.
Or if I'm going unconscious and just before I tell you I am allergic to a medicine, and you maliciously tell the paramedics who arrive that I am not, it is not within your freedom of speech.
Again, speech is an act, and can cause actual physical and property harm just as any other act.
People are free to hold whatever ideas and express them within their own spaces, and within reason in common areas. That is what "freedom of speech" is about. It is to reason together and explore new ideas. It is not about inflaming the emotions and incitement.
Published: October 12, 2004 12:26 PM
Libel and slander are not natural crimes.
There is a difference between person X saying something that causes your sales to drop, and person X breaking a machine and causing your sales to drop. You had property rights to the machine, but you do not have property rights on potential sales.
There is a distinct problem in criminalizing deceit: how can you discern intention to decieve?
What if someone believes he is being wholly truthful but is, in fact, wrong? There is no way to tell whether someone is a criminal or imperfectly informed in this case.
The only time someone is committing fraud through deceit is if a contractual arrangement between the liar and the other party is based on a lie.
If the liar is a third party - say, an anti-Meat protester publishing in his newsletter a fake study saying that beef causes prostate cancer, which causes your deli consumers to reduce their sandwhich purchasing - then you have no recourse.
To posit a false right to potential sales would violate the natural right to free speech.
Published: October 12, 2004 1:55 PM
"To posit a false right to potential sales would violate the natural right to free speech."
Not to mention the tyrannical regime needed to enforce these false rights. You'd basically have to hunt down the people who you think "should have bought your product"—people whom you've never even met—and have the government punish them on your behalf. Something the RIAA and MPAA try regularly in the US.
When the expression of certain ideas and the copying of data is considered "illegal", nothing short of a system that monitors all communication and data transfer between all citizens for compliance can keep such law enforced.
Much, much better to let the free market sort these things out. Culture and art have thrived for 6000 years without government-enforced patents and copyrights.
Published: October 12, 2004 2:54 PM
Stalking, per se, is not a crime. Someone is not initiating aggression against you by following you around. Provided the property owner permits them to stand where they do, they have every right to follow you. Of course, various property owners could make it a property rule not to engage in such behaviour; and of course on your own property, you can kick anyone off for any reason.
In some cases, lying can be the initiation of aggression. Bearing false witness constitutes a violation of contract. However, absent some contract (and hence property rights) it is not criminal, albeit possibly immoral.
Finally, simply because something is a commandment does not mean it should be criminalized, punishable by coercive force.
Published: October 12, 2004 3:14 PM
Help me out here, if I walk by a bully beating up a kid, let's say for impact he chops off his legs then according to Kinsella etc I am not justified in removing the bully as that would be an act of aggression against the body of the bully? My conscience is supposed to be appeased because the invalid can sue the bully afterwards to adequately compensate the invalid? I am not sure how to phrase this in an academic way but this is a strange notion of justice. If I was the invalid I would not necessarily expect help but would way prefer to have my legs than any amount of money or punishment inflicted on the bully. If we take this situation to the state level I can see why libertarian would squirm, as it is much harder if not impossible to know what the 'right' thing to do is. Let us say US, UK and Russia all subscribed to Kinsella's non aggression axiom in WW2. Hitler would have had a leisurely and unimpeded conquest of Europe on which to build a military machine that would have gone on to do God only knows what next. I am not sure where I am going with this but if I can dream up pretty obvious examples that leave a lot to be desired from the non aggression axiom as the sole guide for judging men's actions then it needs more work. I think the notion of aggressing against another should be a lot broader along those hinted at by TZ. It is easy to stop at physical harm as it is so readily verifiable but just because other forms of harm are hard/impossible to objectively judge means we should ignore them?
Published: October 12, 2004 8:26 PM
Jonathan,
Huh? what are you talking about? In that situation, you can beat up the bully and pull him off of his victim. The non-aggression axiom only says that it is criminal to initiate aggression -- not to defend yourself against the initiation of aggression or to defend others against such, or to achieve restitution and retribution.
Published: October 12, 2004 9:30 PM
I assumed that I would be initiating violence against the bully? technically I would be as I am not defending myself? Taking it to the state level isn't this one of your problems with countries like the U.S. when they intervened in World War 2 or is your problem there your interpretation that they didn't do it to defend others but some selfish state interest?
Published: October 12, 2004 9:45 PM
Jonathan,
It criminal to defend yourself or others from the initiation of aggression. However, it is criminal to initiate aggression against a third party, C, while attempting to prevent A from initiating aggression against B. The reason wars are wrong is because we necessarily initiate aggression against non-aggressors.
Published: October 12, 2004 11:34 PM
David, you might want to re-read what you wrote. It makes no sense.
Published: October 13, 2004 1:44 AM
The Hitler example is a rather weak one, because there were two other contemporaneous Hitlers (Stalin and Mao) that were not acted against by the West in any similar fashion, and their own empires crumbled under their own weight without the bloodshed of millions of soldiers from third-party nations.
Would the world have been better off if the US went to war on the Russian, Polish, Ukranian, Uzbek, Chechen, Romanian, Bulgarian, Mongolian, Chinese, etc. etc. citizens' behalf against the governments of the USSR and PRC?
The power of the Soviet Union, after all, was a direct effect of our intervention on England's behalf against Germany on the Western Front. Fifty years of communistic oppression settled over half of Europe, millions killed in Soviet concentration camps and Mao's cultural revolution anyway - in fact, there is little difference between a Reich Europe and the Iron Curtain Eurasia except for the fact that Uncle Joe seemed the preferable option to Roosevelt.
I don't know what would have happened if the US did not intervene, but I doubt a thousand-year Reich could have lasted longer than USSR did or killed more people than were in Europe because of WW2 or in the decades following.
Hitler, Stalin, and Mao, incidentally, all gained power in the face of US intervention in the first place, either becoming enemies due to our meddling or support for the other party (Mao), or providing conditions ripe for an extremist takeover (post-WW1 Germany), or prolonging a war that could have been ended years earlier, draining the resources of Europe to such an extent that half of it fell immediately to Stalin, defenseless.
A third party C intervening in a conflict between aggressor A and victim B would be liable to a suit from either A or B, unless B had a pre-existing security contract with C to act in his defense (which may be little more than a "Help me!" from B).
Even though C may have violated someone's rights by intervening in the conflict, justified retribution after the fact would be tempered by circumstance.
If I acted aggressively to prevent a friend's suicide, for example, he could sue me for violating his rights (or act in defense by fighting me off violently). And he would be technically correct to. If he brought suit against me for preventing his suicide, however, what sort of compensation would an arbitrator be willing to set in this case?
The same goes for a third party intervening in, for example, a mugging. The first aggressor may bring suit against the good samaratan C, but the case against C would be very weak and little, if any, damages would be granted to aggressor A considering the circumstances of the case. In fact, the case against C would prove B's case against A.
We're free to act rightly or wrongly. Acts undertaken with a good conscience can still violate someone's rights and would have retributory consequences. However, whatever arbitration is used to settle these disputes would tend, I imagine, towards leniency where appropriate.
Published: October 13, 2004 5:39 AM
A accidentally brushes up against the paint on B's car. This is an aggression by A against B. Since A initiated aggression, B shoves A against A's car in retaliation. A now has been aggressed by B so he takes out a gun and shoots him.
As you can see, the non-initiation of aggression is rather weak if one does not also specify the limits on the acceptable response to an aggression. We could prevent this by requiring A to ask for equal compensation from B before retaliating and that should B disagree on damages, that the alledged aggression would have to go to a private arbitrator, etc. The only case where I think this system breaks down is for emergency responses. In this case, one simply acts to mitigate damages (such as preventing terrorists from hijacking a plane) and let the courts sort it out later. You can see the details on my Blog. In reality, most of us forgive thousands of small aggressions every day because that it the most convenient course of action.
Published: October 13, 2004 10:56 AM
This non aggression axiom is an interesting intellectual exercise but it seems to stretch credulity to believe that it is THE rule to use in all situations. As Dun says 'There is no need for libertarians to reinvent law and truncate it in the process' whilst also noting that 'non-aggression is a condition of conviviality', i.e. not THE ONLY one. Simply using those rules and then in tricky cases (no need to mention any more here is there?) relying on some arbitrary resolution process and mitigation depending on circumstances is highly unsatisfactory. Drawing the lines at non aggression as being physical is also a little arbitrary and open to debate. Apart from lawyers, I am not sure apart from Block et al. (who would presumably enjoy copious legal arrangements in perpetuity) who would choose to employ such a system.
Published: October 13, 2004 7:54 PM