","[L2] LEGAL \r\n[L3] FOUNDATIONS\r\n[L4] FREE SOCIETY\r\n[L5] of a","[L6] ",{"_548":638,"_639":648,"_641":649,"_643":644,"_645":650,"_646":647,"_104":-5},"[L7] ","[L8] LEGAL\r\n[L9] FOUNDATIONS\r\n[L10] of a\r\n[L11] FREE SOCIETY\r\n[L12] T h eory Chapters Only","[L13] ","[L14] LEGAL\r\n[L15] FOUNDATIONS\r\n[L16] of a\r\n[L17] FREE SOCIETY\r\n[L18] Theory Chapters Only\r\n[L19] STEPHAN KINSELLA","[L20] ",{"_548":638,"_639":640,"_641":642,"_643":644,"_645":644,"_646":647,"_104":-5},"[L21] ","[L22] Papinian Press • Houston, Texas\r\n[L23] Copyright © 1994–2023 Stephan Kinsella \r\n[L24] Third printing, with corrections, March 2025\r\n[L25] Published under a Creative Commons Zero (CC0) 1.0 License \r\n[L26] No Rights Reserved\r\n[L27] http://creativecommons.org/publicdomain/zero/1.0/\r\n[L28] To the extent possible under law, the author has waived all copyright and related or \r\n[L29] neighboring rights to this work.\r\n[L30] Cover Design & Interior Formatting by Susi Clark of Creative Blueprint Design\r\n[L31] Main text font is Adobe Caslon; headers are LeMonde\r\n[L32] ISBN Paperback 979-8-9890306-1-3\r\n[L33] ISBN Hardcover 979-8-9890306-0-6\r\n[L34] ISBN Ebook 979-8-9890306-2-0","[L35] ","[L36] To Ethan, and his generation, in hopes that they \r\n[L37] and their descendants live in a freer world.","[L38] ","[L39] Sir, I have found you an argument; but I am not obliged to find \r\n[L40] you an understanding.\r\n[L41] —Samuel Johnson\r\n[L42] even if the libertarian ethic and argumentative reasoning must be \r\n[L43] regarded as ultimately justified, this still does not preclude that people \r\n[L44] will act on the basis of unjustified beliefs either because they don’t know, \r\n[L45] they don’t care, or they prefer not to know. I fail to see why this should be \r\n[L46] surprising or make the proof somehow defective. More than this cannot \r\n[L47] be done by propositional argument.\r\n[L48] —Hans-Hermann Hoppe","[L49] ","[L50] Contents\r\n[L51] Foreword xi\r\n[L52] Preface xxi\r\n[L53] Acknowledgments xxix\r\n[L54] PART I: LIBERTARIANISM\r\n[L55] 1. How I Became a Libertarian 3\r\n[L56] 2. What Libertarianism Is 11\r\n[L57] 3. What It Means To Be an Anarcho-Capitalist 39\r\n[L58] PART II: RIGHTS\r\n[L59] 4. How We Come to Own Ourselves 45\r\n[L60] 5. A Libertarian Theory of Punishment and Rights 65\r\n[L61] 6. Dialogical Arguments for Libertarian Rights 113\r\n[L62] 7. Defending Argumentation Ethics 137\r\n[L63] PART III: LIBERTARIAN LEGAL THEORY\r\n[L64] 8. Causation and Aggression 167\r\n[L65] 9. A Libertarian Theory of Contract: Title Transfer,\r\n[L66] Binding Promises, and Inalienability 203\r\n[L67] 10. Inalienability and Punishment:\r\n[L68] A Reply to George Smith 241\r\n[L69] 11. Selling Does Not Imply Ownership, and Vice-Versa:\r\n[L70] A Dissection 263\r\n[L71] 12. Reply to Van Dun: Non-Aggression and Title Transfer 283\r\n[L72] 13. Legislation and the Discovery of Law in a Free Society 293","[L73] ","[L74] PART IV: INTELLECTUAL PROPERTY\r\n[L75] 14. Law and Intellectual Property in a Stateless Society 355\r\n[L76] 15. Against Intellectual Property After Twenty Years: \r\n[L77] Looking Back and Looking Forward 399\r\n[L78] 16. Introduction to Origitent 437\r\n[L79] 17. Conversation with Schulman about Logorights and \r\n[L80] Media-Carried Property 449\r\n[L81] 18. Goods, Scarce and Nonscarce 481\r\n[L82] PART V: REVIEWS\r\n[L83] 19. Knowledge, Calculation, Conflict, and Law 503\r\n[L84] 20. Review of Anthony de Jasay, Against Politics: \r\n[L85] On Government, Anarchy, and Order 537\r\n[L86] 21. Taking the Ninth Amendment Seriously 551\r\n[L87] 22. The Undeniable Morality of Capitalism 585\r\n[L88] PART VI: INTERVIEWS & SPEECHES\r\n[L89] 23. On Libertarian Legal Theory, Self-Ownership, \r\n[L90] and Drug Laws 619\r\n[L91] 24. On the Logic of Libertarianism and Why Intellectual \r\n[L92] Property Doesn’t Exist 645\r\n[L93] 25. Libertarianism After Fifty Years: What Have We Learned? 675\r\n[L94] Bibliography 693\r\n[L95] Index 737\r\n[L96] About the Author 771","[L97] ","[L98] xi\r\n[L99] Foreword\r\n[L100] The question as to what is justice and what constitutes a just society is \r\n[L101] as old as philosophy itself. Indeed, it arises in everyday life even long \r\n[L102] before any systematic philosophizing is to begin.\r\n[L103] All throughout intellectual history, one prominent answer to this \r\n[L104] question has been to say that it is “might” that makes “right.” Or more \r\n[L105] specifically: that what is right or wrong, just or unjust, is unilaterally \r\n[L106] decreed by a State qua territorial monopolist of violence. The self-contradictory nature of this “decisionist” position, i.e. of “legal positivism,” \r\n[L107] comes to light once we ask its proponents for a reason or evidence as to \r\n[L108] why we should believe the proposition that “might makes right” to be \r\n[L109] true and correct. By virtue of providing any such reason or evidence, \r\n[L110] however, and thus seeking—ultimately—unanimous agreement regarding the validity of the proposition in question, any such proponent \r\n[L111] implicitly acknowledges the presence of other reasonable and sensible \r\n[L112] persons and, importantly, that the question of right or wrong, true or \r\n[L113] not-true, then, is not a matter of “might” or “fiat,” but a question to be \r\n[L114] decided on the basis of common reason and experience instead. Yet \r\n[L115] reason and experience demonstrate, contrary to the proponent’s initial \r\n[L116] claim, that “might does not make right.” That “might is might” and \r\n[L117] “right is right,” but “no might can ever make a right.”\r\n[L118] Aside from the decisionism championed by legal positivists, the \r\n[L119] most prominent answer in modern times to the question under consideration, then, has come from so-called social-contracts theorists. ","[L120] ","[L121] Foreword | xii\r\n[L122] According to them, what is just or not is determined by the terms of \r\n[L123] a contract concluded and agreed upon by all members of a society. — \r\n[L124] Yet this solution opens more questions than it answers and ends in a \r\n[L125] tangle of confusion. For one, no such contract has ever been concluded \r\n[L126] anywhere. Yet in the absence of any such contract, would people still \r\n[L127] be able to distinguish between right and wrong? Obviously, one would \r\n[L128] think so, because otherwise they would not even be able to rightfully \r\n[L129] conclude a—indeed any—valid contract. Put differently: there first \r\n[L130] must be a contractor—a person—and then there must be something \r\n[L131] rightfully owned and to be contracted by this person—private or personal property—before there can ever be a valid contractual agreement. \r\n[L132] Thus, personhood and private property logically—or more precisely: \r\n[L133] praxeologically—precede contracts and contractual agreements; and \r\n[L134] hence, trying to construct a theory of justice on the foundation of \r\n[L135] contracts is a fundamental praxeological error.\r\n[L136] Moreover, with personhood and private property as the praxeological foundation of contracts, then, any universal, all-encompassing and \r\n[L137] -including social contract as imagined by social-contract theorists is \r\n[L138] impossible. Rather: on this basis, all contracts are contracts between \r\n[L139] identifiable and enumerable persons and concerning identifiable and \r\n[L140] enumerable things or matters. No contract can bind anyone other than \r\n[L141] the actual contractors, and no contract can concern things or matters \r\n[L142] other than those specified in the contract. Accordingly: Real persons \r\n[L143] with their various real, separate and exclusive properties simply cannot—praxeologically cannot—conclude a contract as fancied by social \r\n[L144] contract theorists.\r\n[L145] For such a contract to be conceivable, a “new person” must be \r\n[L146] invented. A fictitious person, that can do what no real person can! This \r\n[L147] “new person,” invented for the purpose by social contract theorists, then, \r\n[L148] is invariably some wildly unrealistic, severely “dis-embodied” entity, i.e., a person without any bodily needs or appetites; “pure” reason, if \r\n[L149] you will, freed from all constraints of time and place. — The theorists \r\n[L150] then ask what arrangement of the world such persons would agree on \r\n[L151] as just. And they then spin out an answer as to what they believe this \r\n[L152] agreement between such entities to be, and why. — Any such answer, \r\n[L153] however, whatever it may be, is always arbitrary, because the only thing \r\n[L154] that can possibly be known about fictitious people and an agreement ","[L155] ","[L156] Foreword | xiii\r\n[L157] among them is whatever has already been invested in such beings from \r\n[L158] the very outset, per assumption. Indeed, as John Rawls, the most celebrated modern social contract theorist, has admitted with captivating \r\n[L159] frankness, he had simply “define(d) the original position [of fictitious \r\n[L160] people placed behind a ‘veil of ignorance,’ HHH] so that we get the desired solution.”1\r\n[L161] While the results that Rawls gets from his assumptions \r\n[L162] concerning the original position agree largely with the political views of \r\n[L163] the social democratic left, other social contract theorists, with different \r\n[L164] assumptions about the original meeting-of-the-minds, such as James \r\n[L165] M. Buchanan and his fictitious constructs of “conceptual contracts” and \r\n[L166] “quasi-unanimity,” for instance, have proposed answers more closely \r\n[L167] associated with the political right. Still other theorists have presented \r\n[L168] yet other results. Demonstrating, then, that the intellectual endeavors \r\n[L169] of social contract theorists, however ambitious and sophisticated they \r\n[L170] may appear, are ultimately no more than idle mental exercises: deriving \r\n[L171] wildly unrealistic conclusions from wildly unrealistic assumptions, i.e., \r\n[L172] examples of “garbage-in-and-garbage-out.”\r\n[L173] But there is another, more sinister aspect to the idea of a social \r\n[L174] contract that comes to light once anyone of the various contractual \r\n[L175] agreements as fancied by social contract theorists is actually put to the \r\n[L176] test, implemented and enforced. Because implementing and enforcing \r\n[L177] the terms of a contract that no real person had or could have agreed \r\n[L178] on means, in effect, that all real contracts between real people are superseded and replaced by the terms of some alleged agreement among \r\n[L179] fictitious people as the ultimate judge in matters of right and wrong. \r\n[L180] The word “contract,” then, with its positive connotations, is used by \r\n[L181] social contract theorists to advance a program that is actually destructive of all contracts. They declare non-contracts and non-agreements \r\n[L182] to be contracts and agreements and contracts and agreements to be \r\n[L183] non-contracts and non-agreements. — Thus, ultimately, social contract theory turns out barely less arbitrary than the decisionism of legal \r\n[L184] positivists. For its proponents, the question of right or wrong may not \r\n[L185] be considered a matter of mere decree as for some strict positivists. \r\n[L186] Instead, for them, it is the intuitions and fancies of some philosophers \r\n[L187] 1 John Rawls, A Theory of Justice, revised ed. (Cambridge, Mass.: Harvard University \r\n[L188] Press, 1999), p. 122.","[L189] ","[L190] Foreword | xiv\r\n[L191] that are supposed to do the job. But this is hardly less arbitrary, one \r\n[L192] would think! And, of course, since no real person had or could have \r\n[L193] agreed to any so-called social contract, its enforcement then always \r\n[L194] requires an agency not itself founded on agreement and contract but \r\n[L195] on disagreement, violence and coercion instead: a State. And just like \r\n[L196] legal positivists, then, social contract theorists invariably turn out to be \r\n[L197] statists, too, assigning and entrusting the role of the ultimate arbiter \r\n[L198] of right and wrong to the State qua territorial monopolist of violence.\r\n[L199] Another popular answer to the question under consideration is \r\n[L200] that of utilitarianism. Utilitarians essentially contend that the very \r\n[L201] rules that maximize or promise to maximize total social utility or bring \r\n[L202] about the greatest happiness to the greatest number of people are and \r\n[L203] should be considered just. Apart from other difficulties connected with \r\n[L204] its consequentialism, however, this answer can be quickly dismissed as \r\n[L205] fatally flawed for the simple reason that there exist no units of utility \r\n[L206] or happiness, and hence, that any interpersonal comparison of utility \r\n[L207] or happiness and any aggregation of individual utility or happiness to \r\n[L208] “social utility” or “social happiness” must be considered impossible (or, \r\n[L209] if still invoked, as entirely arbitrary).\r\n[L210] With the answers of legal positivists, social contract theorists and \r\n[L211] utilitarians all rejected as fundamentally flawed, however popular they \r\n[L212] may be, the only remaining answer, then, comes from the old, premodern intellectual tradition of natural law and natural rights. It is also \r\n[L213] in this nowadays rather unfashionable intellectual tradition, broadly \r\n[L214] conceived, that Stephan Kinsella’s here presented work must be placed.\r\n[L215] Natural law and rights theorists contend that the principles of just \r\n[L216] human conduct can be discovered from the study of human nature. \r\n[L217] On the one hand, such study reveals that humans are endowed with \r\n[L218] reason, as manifested by the indisputable fact that they can speak and \r\n[L219] communicate with one another, from person to person, in a common \r\n[L220] language. On the other hand, this study shows that humans are also \r\n[L221] actors (and in combination then: reasonable actors). Speaking and communicating itself are purposeful activities directed at a goal. Yet even \r\n[L222] if and when we are not speaking or communicating but do things \r\n[L223] silently, we are still acting and cannot but act as long as we are not \r\n[L224] asleep, comatose or dead. ","[L225] ","[L226] Foreword | xv\r\n[L227] Further, this study also reveals the “deep structure” of human action, \r\n[L228] i.e. what all actions of all humans have in common. Every individual \r\n[L229] actor (and only individuals act!), whatever he does, pursues a goal or \r\n[L230] end the attainment of which he considers more satisfying than the satisfaction to be expected from acting differently. Every actor is thereby \r\n[L231] placed in a given environment, at a specific point in time and space, \r\n[L232] with specific external surroundings of men and materials, and equipped \r\n[L233] with his own nature-given bodily makeup and mental endowment; and \r\n[L234] every action, then, whatever it may be, invariably aims to alter an actor’s \r\n[L235] specific present situation to his personal advantage and greater satisfaction. In any case, to reach his goals, whatever they may be, an actor \r\n[L236] invariably must employ means. At a minimum, he must employ his own \r\n[L237] physical body and brain (plus the body’s standing room) as means for \r\n[L238] the attainment of some expected bodily or psychic gain, and he must \r\n[L239] thereby use up some time that he also could have used differently. \r\n[L240] Generally, however, a person’s actions involve more than the purposeful use of one’s physical body and mind. It involves also various \r\n[L241] elements of the external world that, unlike a person’s own body, can \r\n[L242] only be indirectly controlled by means of one’s directly controlled body. \r\n[L243] Such elements of the external world that can be indirectly controlled \r\n[L244] and manipulated by a person and that are recognized or believed by \r\n[L245] an actor to be suitable for the attainment of his ends are called means. \r\n[L246] Those elements of the external world beyond or believed to be beyond \r\n[L247] human control on the other hand are referred to as external conditions \r\n[L248] under which a person’s actions are to take place. The choice of means \r\n[L249] employed by a person for the attainment of his ends is always a matter \r\n[L250] of ideas, i.e. of reason and reasoning. An actor always chooses such an \r\n[L251] allocation and arrangement of means that he believes to bring about \r\n[L252] some desired result. The choice of means is validated by their result. \r\n[L253] A person’s actions then are always guided by some ideas about cause \r\n[L254] and effect: performing A, B and C will lead to X, Y and Z. But man \r\n[L255] is not infallible and a person’s ideas concerning cause and effect or the \r\n[L256] interconnectedness and regularity of events may be false, and a person’s \r\n[L257] action based on these ideas then will lead to failure rather than the \r\n[L258] anticipated success, inducing the person to learn, i.e. to revisit and possibly revise his original ideas.","[L259] ","[L260] Foreword | xvi\r\n[L261] Given this insight into the general human condition, it becomes \r\n[L262] immediately clear what a human ethic or a theory of justice worth its \r\n[L263] salt must accomplish. It must give an answer to the question of what \r\n[L264] am I and what is every other person permitted (or not permitted) to \r\n[L265] do, right now and right here, wherever a person may find himself and \r\n[L266] whatever his external surroundings of men and materials may be. More \r\n[L267] specifically, what is a person permitted (or not permitted) to do in an \r\n[L268] interaction with another person? And: what external entities is a person \r\n[L269] permitted (or not permitted) to bring under his control to be used as \r\n[L270] means toward his personal ends?\r\n[L271] Because no person can ever stop acting, from his beginnings as \r\n[L272] a person until his very end (except when asleep, comatose or dead), these \r\n[L273] questions arise again and again, without end, for everyone, wherever and \r\n[L274] whenever he may find himself and must act. Obviously, then, an answer \r\n[L275] to pressing questions such as these cannot wait for the establishment \r\n[L276] of the institution of a State, the conclusion of a contract (which would \r\n[L277] actually have to presuppose a valid answer to these very questions in order \r\n[L278] to make it a valid contract) or the arrival of some future consequences.\r\n[L279] Instead, the answer must be discoverable and recognizable from the \r\n[L280] very outset, from the first, immediate insight into the nature of man as \r\n[L281] a reasonable actor. And indeed, this is so once the purpose, the ultimate \r\n[L282] end, of all reason and reasoning is recognized and acknowledged. As \r\n[L283] already noted, human reason is manifested in the indisputable fact that \r\n[L284] one person can communicate with another person in a common language \r\n[L285] (and different languages are inter-translatable). The purpose of speaking \r\n[L286] and communicating with one another, then, even if and when expressing \r\n[L287] one’s disagreement with another person’s say-so in meaningful words, \r\n[L288] is to guide or coordinate the actions of different persons by words or \r\n[L289] meaningful symbols alone. This endeavor may succeed and words help \r\n[L290] guide or coordinate the actions of different persons to mutual satisfaction. Or the endeavor may fail. But in any case, the goal of speaking and \r\n[L291] communicating is always and invariably the same: to maintain peace \r\n[L292] and seek peaceful cooperation or coexistence—and in reverse: to avoid \r\n[L293] conflict, i.e., physical clashes or conflagrations of people that are destined \r\n[L294] to result whenever and wherever two or more people pursue their own \r\n[L295] different goals with the help of one and the same person’s body or one ","[L296] ","[L297] Foreword | xvii\r\n[L298] and the same indirectly controlled or controllable external means of \r\n[L299] action at the same time.\r\n[L300] The objective for a human ethic or a theory of justice, then, is the \r\n[L301] discovery of such rules of human conduct that make it possible for a—\r\n[L302] indeed, any—bodily person to act—indeed, to live his entire active \r\n[L303] life—in a world made up of different people, a “given” external, material \r\n[L304] environment, and various scarce—rivalrous, contestable or conflictable—material objects useable as means toward a person’s ends, without \r\n[L305] ever running into physical clashes with anybody else.\r\n[L306] Essentially, these rules have been known and recognized since eternity. They consist of three principal components. First, personhood and \r\n[L307] self-ownership: Each person owns—exclusively controls—his physical \r\n[L308] body that only he and no one else can control directly (any control over \r\n[L309] another person’s body, by contrast, is invariably an in-direct control, presupposing the prior direct control of one’s own body). Otherwise, if \r\n[L310] body-ownership were assigned to some indirect body-controller, conflict \r\n[L311] would become unavoidable as the direct body-controller cannot give up \r\n[L312] the direct control over his body as long as he is alive. Accordingly, any \r\n[L313] physical interference with another person’s body must be consensual, \r\n[L314] invited and agreed to by such a person, and any non-consensual interference with his body constitutes an unjust and prohibited invasion.\r\n[L315] Second, private property and original appropriation: Logically, what \r\n[L316] is required to avoid all conflict regarding external material objects used \r\n[L317] or usable as means of action, i.e. as goods, is clear: every good must \r\n[L318] always and at all times be owned privately, i.e. controlled exclusively \r\n[L319] by some specified person. The purposes of different actors then may \r\n[L320] be as different as can be, and yet no conflict will arise so long as their \r\n[L321] respective actions involve exclusively the use of their own private property. And how can external objects become private property in the first \r\n[L322] place without leading to conflict? To avoid conflict from the very start, \r\n[L323] it is necessary that private property be founded through acts of original appropriation, because only through actions, taking place in time \r\n[L324] and space, can an objective—intersubjectively ascertainable—link be \r\n[L325] established between a particular person and a particular object. And \r\n[L326] only the first appropriator of a previously unappropriated thing can \r\n[L327] acquire this thing as his property without conflict. For, by definition, as \r\n[L328] the first appropriator he cannot have run into conflict with anyone else ","[L329] ","[L330] Foreword | xviii\r\n[L331] in appropriating the good in question, as everyone else appeared on \r\n[L332] the scene only later. Otherwise, if exclusive control is assigned instead \r\n[L333] to some late-comers, conflict is not avoided but contrary to the very \r\n[L334] purpose of reason made unavoidable and permanent.\r\n[L335] Third, exchange and contract: Other than per original appropriation, \r\n[L336] property can only be acquired by means of a voluntary—mutually \r\n[L337] agreed upon—exchange of property from some previous owner to some \r\n[L338] later owner. This transfer of property from a prior to a later owner can \r\n[L339] either take the form of a direct or “spot” exchange, which may be bi- or \r\n[L340] multi-lateral as when someone’s apples are exchanged for another’s \r\n[L341] oranges, or it may be unilateral as when a person makes a gift to someone else or when someone pays another person with his property now, \r\n[L342] on the spot, in the expectation of some future services on the part of the \r\n[L343] recipient. Or else the transfer of property can take the form of contracts concerning not just present but in particular also prospective, \r\n[L344] future-dated transfers of property titles. These contractual transfers of \r\n[L345] property titles can be unconditional or conditional transfers, and they \r\n[L346] too can involve bi- or multi-lateral as well as unilateral property transfers. \r\n[L347] Any acquisition of property other than through original appropriation \r\n[L348] or voluntary or contractual exchange and transfer from a previous to \r\n[L349] a later owner is unjust and prohibited by reason. (Of course, in addition \r\n[L350] to these normal property acquisition rules, property can also be transferred from an aggressor to his victim as rectification for a previous \r\n[L351] trespass committed.)\r\n[L352] Drawing on the long, but in today’s world largely forgotten or neglected, \r\n[L353] intellectual tradition of natural law and natural rights theory with its \r\n[L354] three just briefly sketched principal components, then, the most elaborate, systematic, rigorous and lucid presentation of a theory of justice up \r\n[L355] until then had been developed in the course of the second half of the 20th \r\n[L356] century by economist-philosopher Murray N. Rothbard, culminating \r\n[L357] in his Ethics of Liberty, originally published in 1982. Unfortunately, but \r\n[L358] not entirely surprisingly, however, his work was typically either completely ignored or else dismissed out of hand by the gatekeepers and \r\n[L359] high priests of academia. The anarchist conclusions ultimately arrived at ","[L360] ","[L361] Foreword | xix\r\n[L362] by Rothbard in his works appeared simply outlandish in an ideological \r\n[L363] environment molded overwhelmingly by tax-funded intellectuals and \r\n[L364] steeped to the hip in statism or étatisme. Among academic big shots, \r\n[L365] only Harvard philosopher Robert Nozick in his Anarchy, State and Utopia acknowledged his intellectual debt to Rothbard and seriously tried \r\n[L366] to refute his anarchist conclusions—but miserably failed.\r\n[L367] While Rothbard’s work largely fell on deaf ears within academia, \r\n[L368] then, it exerted considerable influence outside of it, in the public at \r\n[L369] large. Indeed, through his work Rothbard became the founder of the \r\n[L370] modern libertarian movement, attracting a sizable popular following \r\n[L371] far exceeding that of any mainstream academic in numbers. As for \r\n[L372] the further development of a natural-law and -rights based theory of \r\n[L373] justice, however, this very success turned out to be a rather mixed \r\n[L374] blessing. On the one hand, the movement inspired by Rothbard likely \r\n[L375] helped dampen and slow down the popularity and growth of statism, \r\n[L376] but it manifestly failed in halting or even reversing the long-run historical trend toward ever increasing state power. On the other hand \r\n[L377] (and that may well be one of the reasons for this failure), the larger \r\n[L378] the movement grew in numbers, the greater also the confusion and the \r\n[L379] number of intellectual errors spread and committed by its followers. \r\n[L380] The pure theory of justice as presented by Rothbard was increasingly \r\n[L381] watered down, misunderstood, misinterpreted or downright falsified, \r\n[L382] whether for short-run tactical gains, out of ignorance or plain cowardice. \r\n[L383] As well, all too often sight was lost of the fundamentally important \r\n[L384] distinction between the core, the foundational principles of a theory \r\n[L385] on the one hand and its application to various peripheral—often farfetched or merely fictional—practical problems on the other; and far \r\n[L386] too much effort and time, then, has been spent on debating peripheral \r\n[L387] issues the solution of which may well be arguable, but which is of minor \r\n[L388] importance in the larger scheme of things and helps distract public \r\n[L389] attention and concentration away from those questions and issues that \r\n[L390] truly matter and count.\r\n[L391] In this situation, then, more than 40 years after the first publication \r\n[L392] of Rothbard’s Ethics of Liberty and characterized by much practical disappointment and increasing theoretical confusion, the publication of \r\n[L393] Stephan Kinsella’s present work must be considered a most welcome \r\n[L394] sign of renewed hope and new, refreshing intellectual inspiration. ","[L395] ","[L396] Foreword | xx\r\n[L397] Indeed, with this work, that has been in the making for more than two \r\n[L398] decades, Kinsella has produced no less than an intellectual landmark, \r\n[L399] establishing himself as the leading legal theorist and the foremost \r\n[L400] libertarian thinker of his generation. While following in Rothbard’s \r\n[L401] footsteps, Kinsella’s work does not merely rehash what has been said or \r\n[L402] written before. Rather, having absorbed as well all of the relevant literature that has appeared during the last few decades since Rothbard’s \r\n[L403] passing, Kinsella in the following offers some fresh perspectives and an \r\n[L404] innovative approach to the age-old quest for justice, and he adds several \r\n[L405] highly significant refinements and improvements and some centrally \r\n[L406] important new insights to the theories of personhood, property and \r\n[L407] contract, most famously some radical criticism and rejection of the idea \r\n[L408] of “intellectual property” and “intellectual property rights.” \r\n[L409] Henceforth, then, all essential studies in the philosophy of law and \r\n[L410] the field of legal theory will have to take full account of the theories and \r\n[L411] criticisms expounded by Kinsella.\r\n[L412] Hans-Hermann Hoppe\r\n[L413] Istanbul, May 2023","[L414] ","[L415] xxi\r\n[L416] Preface\r\n[L417] The issue of what property rights we have, or should have, what laws \r\n[L418] are just and proper, has long confronted mankind, and continues to \r\n[L419] be the subject of debate today. This book seeks to address these issues, \r\n[L420] with an approach that keeps in mind the nature and reality of human \r\n[L421] life—that we are purposeful human actors living in a world of scarcity \r\n[L422] and facing the possibility of interpersonal conflict—and the purpose \r\n[L423] of law and property norms: to enable us to live together, in society, \r\n[L424] peacefully and cooperatively. The goal is to vindicate the private law as \r\n[L425] developed in the decentralized systems of the Roman and common law, \r\n[L426] with an emphasis on consistency, principle, and the inviolable rights of \r\n[L427] the individual. In short, to argue for a private law system informed by \r\n[L428] libertarian principles.\r\n[L429] Thus, in these pages, I try to explain what libertarianism is, why \r\n[L430] individual self-ownership and property rights are justified, how the \r\n[L431] law ought to deal with criminals and tortfeasors, how property rights \r\n[L432] should be understood so that errors such as intellectual property (IP), \r\n[L433] taxes, and the drug war can be exposed, and, finally why a consistent \r\n[L434] libertarianism implies that a stateless society, sometimes called anarchy, \r\n[L435] offers the best hope for a free and just social order. I explore the nature \r\n[L436] of law and legislation, and subject various aspects of positive law, as \r\n[L437] well as other theories of law, including that of others libertarians, to \r\n[L438] criticism and appraisal.","[L439] ","[L440] Preface | xxii\r\n[L441] These arguments are premised on the thesis that just law is anchored \r\n[L442] in core principles of self-ownership plus ownership of external scarce \r\n[L443] resources as governed by principles of original appropriation, contractual title transfer, and rectification. The developed legal system of an \r\n[L444] advanced, free society is the detailed working out of the implications \r\n[L445] and applications of these basic principles to various practical and recurring situations in human interactions. This book looks from numerous \r\n[L446] angles at why these principles are important and how adhering to them \r\n[L447] consistently can help us achieve a freer society and adjudge the legitimacy of concrete laws and legal systems.\r\n[L448] As to how this book came about: I’ve been intensely interested \r\n[L449] in—some might say obsessed with—libertarian ideas for over forty \r\n[L450] years, since high school. It has become a life passion and an avocation \r\n[L451] of sorts. A calling, though not a career.1\r\n[L452] After starting, as so many libertarians of my generation have, with the ideas of Ayn Rand,2\r\n[L453] I soon \r\n[L454] discovered the work of Austrian economists and anarcho-libertarians, \r\n[L455] such as Ludwig von Mises, Murray Rothbard, and Hans-Hermann \r\n[L456] Hoppe, whose ideas are my greatest influence. \r\n[L457] I started publishing on matters of libertarian theory in 1992, fresh \r\n[L458] out of law school.3\r\n[L459] I tried to use my knowledge of the law—both the \r\n[L460] English common law and the Roman law, as embodied in the civil law \r\n[L461] of most European countries and my own home state, Louisiana—and \r\n[L462] Austrian economics and libertarian principles, to advance libertarian \r\n[L463] theory where I thought I could contribute. I first wrote on rights and \r\n[L464] punishment theory in the early 1990s (see chapters 5 and 22), and then \r\n[L465] on related areas like legislation (chapter 13), contract and inalienability \r\n[L466] theory (chapters 9 and 10), and so on. In 2001, I published “Against \r\n[L467] Intellectual Property,”4\r\n[L468] which was controversial and influential, so I’ve \r\n[L469] become known by many libertarians primarily for my IP arguments. \r\n[L470] As the essays in the current volume illustrate, however, IP is not my \r\n[L471] 1 See comments from Gary North about calling vs. career, mentioned in chapter 24.\r\n[L472] 2 Jerome Tuccille, It Usually Begins with Ayn Rand (Stein and Day, 1971). See also \r\n[L473] chapters 1 and 25 3 Stephan Kinsella, “Estoppel: A New Justification for Individual Rights,” Reason Papers\r\n[L474] No. 17 (Fall 1992): 61–74. See chapter 5. 4 Kinsella, “Against Intellectual Property,” first published in the Journal of Libertarian \r\n[L475] Studies 15, no. 2 (Spring 2001): 1–53; later republished as a monograph by the Mises \r\n[L476] Institute in 2008 and in an edition by Laissez-Faire books in 2012 (AIP).","[L477] ","[L478] Preface | xxiii\r\n[L479] sole area of interest. My interest in and passion for libertarian ideas has \r\n[L480] always been driven by my love of philosophy, truth, justice, logic, consistency, and economics. This book includes several chapters on IP but \r\n[L481] also covers other aspects of libertarian legal theory, such as rights theory \r\n[L482] and others noted above.\r\n[L483] By 2010 or so, most of the theory-laden articles that became the \r\n[L484] chapters in this book had been published, so around that time I thought \r\n[L485] of collecting some of these articles in a single book, since they covered a \r\n[L486] large and complementary number of interrelated topics, such as rights \r\n[L487] and punishment theory, contract theory, causation and responsibility, \r\n[L488] intellectual property, anarchy, legislation, and so on. But I kept putting \r\n[L489] the project off. I felt I was missing some material that should be in such \r\n[L490] a book, such as a general overview of libertarianism itself, and an update \r\n[L491] of the intellectual property material I had initially published in 2001. \r\n[L492] I eventually wrote these articles (now chapters 2, 14, and 15), so I felt it \r\n[L493] was time to finally assemble and complete this book.\r\n[L494] The twenty-five chapters are based on articles published over an \r\n[L495] almost thirty-year period, from 1994 to 2022, with one chapter (15) \r\n[L496] being formally published for the first time here (2023). I decided to \r\n[L497] omit some articles I had published before, as they are a bit too focused \r\n[L498] on American-specific issues like the US Constitution, federalism, and \r\n[L499] so on, and also for space reasons.5\r\n[L500] I also did not include any purely legal \r\n[L501] publications—those related to my vocation, not my avocation—such \r\n[L502] as those found at my legal website www.KinsellaLaw.com. I included \r\n[L503] only writing having to do with libertarian issues.\r\n[L504] Most of these articles were published in scholarly journals or in \r\n[L505] online publications. A few chapters are more conversational in tone, as \r\n[L506] they were based on interviews or transcripts of speeches (e.g. chapters \r\n[L507] 5 For example I considered including, but ultimately decided against, articles such as: \r\n[L508] Patrick Tinsley, Stephan Kinsella & Walter Block, “In Defense of Evidence and Against \r\n[L509] the Exclusionary Rule: A Libertarian Approach,” Southern U. L. Rev. 32 no. 1 (2004): 63–80; \r\n[L510] Kinsella, “A Libertarian Defense of Kelo and Limited Federal Power,” LewRockwell.com \r\n[L511] ( June 27, 2005); idem, “Supreme Confusion, Or, A Libertarian Defense of Affirmative \r\n[L512] Action,” LewRockwell.com (July 4, 2003); Walter Block, Stephan Kinsella & Hans-Hermann \r\n[L513] Hoppe, “The Second Paradox of Blackmail,” Bus. Ethics Q. 10, no. 3 ( July 2000): 593–622; \r\n[L514] Walter Block, Roy Whitehead & N. Stephan Kinsella, “The Duty to Defend Advertising \r\n[L515] Injuries Caused by Junk Faxes: An Analysis of Privacy, Spam, Detection and Blackmail,” \r\n[L516] Whittier L. Rev. 27, no. 4 (2006): 925–49.","[L517] ","[L518] Preface | xxiv\r\n[L519] 17 and 23–25). Even with these, I have added extensive references and \r\n[L520] cross-references where appropriate.\r\n[L521] I divided the book into six sections. Part I—Libertarianism covers \r\n[L522] my own introduction to libertarianism, an overview of libertarianism, \r\n[L523] and my take on anarchism. Part II—Rights concerns arguments for \r\n[L524] self-ownership, property rights, and punishment theory. Part III—\r\n[L525] Libertarian Legal Theory has chapters building on the theory in previous chapters to apply to various laws and libertarian issues, like \r\n[L526] causation and responsibility (chapter 8), contract and inalienability \r\n[L527] theory (chapters 9–11), and a long chapter on the pitfalls of legislation \r\n[L528] as a way of making law (chapter 13) (I probably should have turned \r\n[L529] this one into a PhD dissertation…).\r\n[L530] Part IV—Intellectual Property contains a chapter presenting the \r\n[L531] basic case against IP (chapter 14), basically a streamlined and somewhat updated version of AIP, followed by chapter 15, which summarizes \r\n[L532] other IP arguments and issues that I wrote and spoke on after AIP. \r\n[L533] I also include some of my discussion with, and commentary on the \r\n[L534] views of, my pro-IP libertarian friend, the late J. Neil Schulman, and \r\n[L535] a piece on the nature of scarce and nonscarce goods, which is relevant \r\n[L536] to the IP issue. \r\n[L537] Part V—Reviews contains four book reviews or review essays providing libertarian commentary on various books on law or political \r\n[L538] philosophy. Finally, Part VI—Interviews & Speeches is less formal \r\n[L539] and contains two interviews and a speech assessing the last five or six \r\n[L540] decades of the libertarian movement.\r\n[L541] For those who want to skip the more extraneous material and focus \r\n[L542] on the core libertarian theory chapters, I recommend chapters 2–12, \r\n[L543] 14–15, and 18.\r\n[L544] I have revised all the material in the book, which was required \r\n[L545] since many of the original articles used different citation formats and \r\n[L546] also because some of my thinking and terminology has changed over \r\n[L547] the years. Several chapters are significantly revised or expanded, which \r\n[L548] in a few cases led to very long footnotes, since it would have been too \r\n[L549] disruptive to rewrite the article to integrate the extra commentary into \r\n[L550] the text; in some cases I moved very long footnotes to an appendix. \r\n[L551] Although the chapters were all written separately and at different \r\n[L552] times over three decades, many of them build on (or anticipated) others. ","[L553] ","[L554] Preface | xxv\r\n[L555] For example, in chapter 10, originally published 1998–99, I outlined \r\n[L556] a sketch of a view of contracts, inalienability, and so on (note 48), and \r\n[L557] wrote “Elaboration of these ideas will have to await a subsequent article.” I did so in 2003, in the article which became chapter 9. Thus, \r\n[L558] I was able to piece together several articles in a fairly systematic form \r\n[L559] since they either built on or anticipated each other and were written \r\n[L560] to be consistent with each other and all flowing from the same core \r\n[L561] principles and reasoning.\r\n[L562] I have added extensive cross-references pointing to related discussion in other chapters. There is a bit of redundancy in some of \r\n[L563] the chapters since they were published independently. However, it is \r\n[L564] my view that the repetition that does exist in some articles can help \r\n[L565] reinforce a given argument or idea or show it from a different angle. \r\n[L566] In one case I now disagree with something I originally wrote; \r\n[L567] I retained the original text and added an explanatory note (chapter \r\n[L568] 13, Part III.C). And in chapter 9 (Part III.C), I note that, regarding \r\n[L569] my earlier criticism of Rothbard’s argument for inalienability: “I now \r\n[L570] think it is possible that his approach is more compatible with my own \r\n[L571] than I originally realized.” But otherwise, I today still stand by most of \r\n[L572] the original content of those articles, in terms of substance. However, \r\n[L573] as noted several places in the text, I often now use terminology somewhat differently, e.g., the term state instead of government; rivalrous or \r\n[L574] “conflictable” instead of scarce; using the word property to refer to the \r\n[L575] relation between humans with respect to owned resources, instead of \r\n[L576] referring to the owned resource itself, and so on. I have in some cases \r\n[L577] updated the text to my current, preferred usage, but not always since \r\n[L578] it would have been too drastic and tedious.\r\n[L579] I have also included a table of contents for some of the chapters \r\n[L580] where I thought it would be useful. And as noted above, in several \r\n[L581] chapters I moved very long footnotes to an appendix.\r\n[L582] I have tried to conform references to a more or less uniform citation style of my own preference (a modified version of Chicago style), \r\n[L583] although my main goal was to simply provide sufficient information for \r\n[L584] the reader to locate the cited work, not to conform to some arbitrary \r\n[L585] format (and also not to obsess over consistency). In this, I am influenced \r\n[L586] by the citation policy of the second incarnation of the legal journal \r\n[L587] The Greenbag: “Citations should be accurate, complete, and unobtrusive. ","[L588] ","[L589] Preface | xxvi\r\n[L590] Familiar sources need no citation. Authors may use whatever citation \r\n[L591] form they prefer; we will make changes only to keep footnotes from \r\n[L592] looking like goulash.”6\r\n[L593] I have also included hyperlinks for online versions of cited material \r\n[L594] where possible. If we lived in a copyright-free world, everything would \r\n[L595] be online and readers could easily find any cited work with a search. \r\n[L596] Alas. For my own work that I reference, since it is mostly available \r\n[L597] on my own website, I provide an initial hyperlink in the title but do \r\n[L598] not type out the URL in the text. Almost all of my work referenced \r\n[L599] in the text can be found at www.StephanKinsella.com/publications, \r\n[L600] www.StephanKinsella.com/lffs, or www.c4sif.org. I have liberally used \r\n[L601] permalinks via www.perma.cc in cases where I suspected future possible linkrot or where the original URL is overlong.\r\n[L602] I debated various titles for this work. Titles like Freedom and the \r\n[L603] Law and Liberty and Law were already taken.7\r\n[L604] I considered at one time \r\n[L605] calling this work The Ethics of Action, as an amalgamation and nod to \r\n[L606] similar titles by other authors8\r\n[L607] and to evoke a recurring theme in my \r\n[L608] writing: an exploration of the ethics that guide action and of ethics \r\n[L609] implied by certain classes of action (see the argumentation ethics and \r\n[L610] estoppel theory of rights I advance in chapters 5 and 6). But in the \r\n[L611] end, this seemed too inscrutable and only applicable to a small part of \r\n[L612] this book’s content, so for years I planned on using the title Law in a \r\n[L613] Libertarian World: Legal Foundations of a Free Society. In the end, some \r\n[L614] trusted colleagues urged me to drop the main title and use the subtitle \r\n[L615] instead. I have. \r\n[L616] The length of the book turned out to be larger than expected, but \r\n[L617] I have chosen to publish this book as one volume instead of breaking \r\n[L618] 6 See Kinsella, “Cool Footnote Policy,” StephanKinsella.com ( June 14, 2002). 7 Bruno Leoni, Freedom and the Law (Indianapolis: Liberty Fund, expanded 3d. ed. 1991 \r\n[L619] [1961]; https://oll.libertyfund.org/title/kemp-freedom-and-the-law-lf-ed); Giovanni \r\n[L620] Sartori, Liberty and Law (Menlo Park, Ca.: Institute for Humane Studies, 1976). 8 Such as: Murray N. Rothbard, The Ethics of Liberty (New York: New York University \r\n[L621] Press, 1998); idem, The Logic of Action (Edward Elgar, 1997); Michael Polanyi, The Logic of \r\n[L622] Liberty (Chicago: University of Chicago Press, 1980); G.B. Madison, The Logic of Liberty\r\n[L623] (New York: Greenwood Press, 1986); and others such as James M. Buchanan, The Limits \r\n[L624] of Liberty: Between Anarchy and Leviathan, vol. 7 in The Collected Works of James M. Buchanan (Indianapolis: Liberty Fund, 2000 [1975]). Interestingly, Jan Narveson’s excellent The \r\n[L625] Libertarian Idea (Philadelphia: Temple University Press, 1988) is part of the “Ethics and \r\n[L626] Action” series edited by Tom Regan. I mention this in chapter 8, at n.11.","[L627] ","[L628] Preface | xxvii\r\n[L629] it into two. I think this will be easier for the reader, given the extensive \r\n[L630] cross-references between chapters, and should make for a lower cost. \r\n[L631] My goal was never sales. It was only to help advance libertarian theory \r\n[L632] by making these thoughts accessible to whoever might be interested \r\n[L633] now or in the future. Thus, in addition to print (both hard and softcover) \r\n[L634] and ebook versions for sale on major platforms, I am of course posting \r\n[L635] a free digital version online at www.StephanKinsella.com/l\n[L636] The file is too long and its contents have been truncated.\n[L637] 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The complete content for these files IS accessible via querying.\n\nIf the user asks a question related to these files, and the provided snippets do not clearly answer it, you **MUST** use the `file_search` tool to search the full document contents before responding.\n\n## How to invoke the file_search tool\nIf the user's query isn't sufficiently answered by the provided snippets, parsed text, or images, you should invoke `file_search.msearch`.\nTo search the full content of the available files, you **must** send one message with recipient `to=file_search.msearch` in the analysis channel. Your message should be structured exactly as follows:\n```\n{\n 'queries': ['Example query 1', 'Example query 2'] // List of up to five queries to search for.\n}\n```\n\nCarefully balance the number of `file_search` calls and the quality of your response with the latency incurred by `file_search` calls.\n\nImportant guidelines for query formatting:\n- Your message must be a valid JSON object. Do not include any extraneous text, backticks, markdown formatting, or comments beyond what is shown.\n- The `queries` field must be a list of strings.\n- One of the queries **MUST** exactly match the user's original question, but stripped of any extraneous details, and with ambiguous references clearly resolved using context from the conversation. It **MUST** be a complete sentence.\n- Even if you suspect the user meant something else, one query **MUST** still be their original question.\n\n## How to handle results from file_search\nThe file search tool will respond with the relevant search results from the full files. After you receive these results:\n- Carefully evaluate each result to determine its relevance and quality.\n- Use the high-quality and relevant results to inform your answer to the user's question.\n- When possible, reuse information from prior file_search results and avoid repeating identical queries.\n\n## Tool usage instructions and ordering\nWhen the user asks a question, carefully consider whether the provided snippets sufficiently answer the query, whether you need to invoke `file_search.msearch`, or another available tool (such as `web`, if available) should be used instead.\n\nTool-ordering Guidelines:\n1. For queries related to uploaded files, if snippets are insufficient, strongly prefer invoking `file_search.msearch` over other tools.\n - Avoid using `web.run`, `python` analysis, or any other tools until you have either:\n - Confirmed with high confidence the answer is not in the files, or\n - Have high confidence `file_search_tool` queries are not sufficient to answer the query.\n2. Avoid usage of `web_search/web.run` for queries related to uploaded files\n - Carefully consider whether the user's query is better answered by web search results rather than available snippets or results from `file_search_tool`.\n - Unless the user's query is clearly unrelated to the uploaded files, prefer using `file_search.msearch`. You can always follow up with a web search if necessary for a more complete response.\n3. Avoid using `python` unless necessary or requested by user.\n - If the user's query is answerable from the parsed text and images from the uploaded files, or from `file_search_tool`, do not invoke `python`.\n\nAlways keep this instruction in mind for the rest of the conversation, as the user may reference these files or ask related questions later on.",{},{"_552":651,"_145":652,"_104":987},1772920344.2833452,{"_548":45,"_549":985},{"_564":58,"_568":569,"_570":571,"_572":573,"_120":121,"_574":58,"_575":58,"_122":123,"_124":125,"_126":127,"_128":129,"_131":984},"97a44bf1-e92d-4885-9766-9c1d7ace146e",[986],"\nRemember you have access to rendered images of pages from the files, in addition to their parsed text content. Some files may include images, while others may not.\nThese may contain embedded text in images, infographics, complex tables, diagrams, and other visual elements not fully captured in the parsed text.\nYou can directly view these images to read text within images, interpret infographics, understand diagrams and complex tables. When applicable, combine insights from both parsed text and images to provide comprehensive and enriched answers.\n\nWhen responding to the user, actively incorporate information from embedded text, images, tables, diagrams, and other visuals in the files when applicable.\nExplicitly reference them by mentioning their location (e.g., page number) and summarizing their content. For example:\n- \"According to the *chart on page 5*, sales have increased by 20% over ...\"\n- \"The *diagram on page 3* illustrates the workflow, highlighting ...\"\n",{},{"_552":651,"_145":652,"_104":1074},1772920344.2830446,{"_548":581,"_549":994},{"_562":992,"_564":58,"_565":31,"_154":31,"_568":569,"_570":571,"_572":573,"_120":121,"_574":58,"_575":58,"_122":123,"_124":125,"_126":127,"_128":129,"_131":993},"context_stuff","acac167c-07f9-40f8-be70-0107c41703c6",[995,996,997,998,999,1000,1001,1002,1003,1004,1005,1006,1007,1008,1009,1010,1011,1012,1013,1014,1015,1016,1017,1018,1019,1020,1021,1022,1023,1024,1025,1026,1027,1028,1029,1030,1031,1032,1033,1034,1035,1036,1037,1038,1039,1040,1041,1042,1043,1044,1045,1046,1047,1048,1049,1050,1051,1052,1053,1054,1055,1056,1057,1058,1059,1060,1061,1062,1063,1064,1065,1066,1067,1068,1069,1070,1071,1072,1073],"Make sure to include fileciteturn0file0 in your response to cite this file, or to surface it as a link.","","LEGAL \r\nFOUNDATIONS\r\nFREE SOCIETY\r\nof a","",{"_548":638,"_639":648,"_641":649,"_643":644,"_645":650,"_646":647,"_104":-5},"","LEGAL\r\nFOUNDATIONS\r\nof a\r\nFREE SOCIETY\r\nT h eory Chapters Only","","LEGAL\r\nFOUNDATIONS\r\nof a\r\nFREE SOCIETY\r\nTheory Chapters Only\r\nSTEPHAN KINSELLA","",{"_548":638,"_639":640,"_641":642,"_643":644,"_645":644,"_646":647,"_104":-5},"","Papinian Press • Houston, Texas\r\nCopyright © 1994–2023 Stephan Kinsella \r\nThird printing, with corrections, March 2025\r\nPublished under a Creative Commons Zero (CC0) 1.0 License \r\nNo Rights Reserved\r\nhttp://creativecommons.org/publicdomain/zero/1.0/\r\nTo the extent possible under law, the author has waived all copyright and related or \r\nneighboring rights to this work.\r\nCover Design & Interior Formatting by Susi Clark of Creative Blueprint Design\r\nMain text font is Adobe Caslon; headers are LeMonde\r\nISBN Paperback 979-8-9890306-1-3\r\nISBN Hardcover 979-8-9890306-0-6\r\nISBN Ebook 979-8-9890306-2-0","","To Ethan, and his generation, in hopes that they \r\nand their descendants live in a freer world.","","Sir, I have found you an argument; but I am not obliged to find \r\nyou an understanding.\r\n—Samuel Johnson\r\neven if the libertarian ethic and argumentative reasoning must be \r\nregarded as ultimately justified, this still does not preclude that people \r\nwill act on the basis of unjustified beliefs either because they don’t know, \r\nthey don’t care, or they prefer not to know. I fail to see why this should be \r\nsurprising or make the proof somehow defective. More than this cannot \r\nbe done by propositional argument.\r\n—Hans-Hermann Hoppe","","Contents\r\nForeword xi\r\nPreface xxi\r\nAcknowledgments xxix\r\nPART I: LIBERTARIANISM\r\n1. How I Became a Libertarian 3\r\n2. What Libertarianism Is 11\r\n3. What It Means To Be an Anarcho-Capitalist 39\r\nPART II: RIGHTS\r\n4. How We Come to Own Ourselves 45\r\n5. A Libertarian Theory of Punishment and Rights 65\r\n6. Dialogical Arguments for Libertarian Rights 113\r\n7. Defending Argumentation Ethics 137\r\nPART III: LIBERTARIAN LEGAL THEORY\r\n8. Causation and Aggression 167\r\n9. A Libertarian Theory of Contract: Title Transfer,\r\nBinding Promises, and Inalienability 203\r\n10. Inalienability and Punishment:\r\nA Reply to George Smith 241\r\n11. Selling Does Not Imply Ownership, and Vice-Versa:\r\nA Dissection 263\r\n12. Reply to Van Dun: Non-Aggression and Title Transfer 283\r\n13. Legislation and the Discovery of Law in a Free Society 293","","PART IV: INTELLECTUAL PROPERTY\r\n14. Law and Intellectual Property in a Stateless Society 355\r\n15. Against Intellectual Property After Twenty Years: \r\nLooking Back and Looking Forward 399\r\n16. Introduction to Origitent 437\r\n17. Conversation with Schulman about Logorights and \r\nMedia-Carried Property 449\r\n18. Goods, Scarce and Nonscarce 481\r\nPART V: REVIEWS\r\n19. Knowledge, Calculation, Conflict, and Law 503\r\n20. Review of Anthony de Jasay, Against Politics: \r\nOn Government, Anarchy, and Order 537\r\n21. Taking the Ninth Amendment Seriously 551\r\n22. The Undeniable Morality of Capitalism 585\r\nPART VI: INTERVIEWS & SPEECHES\r\n23. On Libertarian Legal Theory, Self-Ownership, \r\nand Drug Laws 619\r\n24. On the Logic of Libertarianism and Why Intellectual \r\nProperty Doesn’t Exist 645\r\n25. Libertarianism After Fifty Years: What Have We Learned? 675\r\nBibliography 693\r\nIndex 737\r\nAbout the Author 771","","xi\r\nForeword\r\nThe question as to what is justice and what constitutes a just society is \r\nas old as philosophy itself. Indeed, it arises in everyday life even long \r\nbefore any systematic philosophizing is to begin.\r\nAll throughout intellectual history, one prominent answer to this \r\nquestion has been to say that it is “might” that makes “right.” Or more \r\nspecifically: that what is right or wrong, just or unjust, is unilaterally \r\ndecreed by a State qua territorial monopolist of violence. The self-contradictory nature of this “decisionist” position, i.e. of “legal positivism,” \r\ncomes to light once we ask its proponents for a reason or evidence as to \r\nwhy we should believe the proposition that “might makes right” to be \r\ntrue and correct. By virtue of providing any such reason or evidence, \r\nhowever, and thus seeking—ultimately—unanimous agreement regarding the validity of the proposition in question, any such proponent \r\nimplicitly acknowledges the presence of other reasonable and sensible \r\npersons and, importantly, that the question of right or wrong, true or \r\nnot-true, then, is not a matter of “might” or “fiat,” but a question to be \r\ndecided on the basis of common reason and experience instead. Yet \r\nreason and experience demonstrate, contrary to the proponent’s initial \r\nclaim, that “might does not make right.” That “might is might” and \r\n“right is right,” but “no might can ever make a right.”\r\nAside from the decisionism championed by legal positivists, the \r\nmost prominent answer in modern times to the question under consideration, then, has come from so-called social-contracts theorists. ","","Foreword | xii\r\nAccording to them, what is just or not is determined by the terms of \r\na contract concluded and agreed upon by all members of a society. — \r\nYet this solution opens more questions than it answers and ends in a \r\ntangle of confusion. For one, no such contract has ever been concluded \r\nanywhere. Yet in the absence of any such contract, would people still \r\nbe able to distinguish between right and wrong? Obviously, one would \r\nthink so, because otherwise they would not even be able to rightfully \r\nconclude a—indeed any—valid contract. Put differently: there first \r\nmust be a contractor—a person—and then there must be something \r\nrightfully owned and to be contracted by this person—private or personal property—before there can ever be a valid contractual agreement. \r\nThus, personhood and private property logically—or more precisely: \r\npraxeologically—precede contracts and contractual agreements; and \r\nhence, trying to construct a theory of justice on the foundation of \r\ncontracts is a fundamental praxeological error.\r\nMoreover, with personhood and private property as the praxeological foundation of contracts, then, any universal, all-encompassing and \r\n-including social contract as imagined by social-contract theorists is \r\nimpossible. Rather: on this basis, all contracts are contracts between \r\nidentifiable and enumerable persons and concerning identifiable and \r\nenumerable things or matters. No contract can bind anyone other than \r\nthe actual contractors, and no contract can concern things or matters \r\nother than those specified in the contract. Accordingly: Real persons \r\nwith their various real, separate and exclusive properties simply cannot—praxeologically cannot—conclude a contract as fancied by social \r\ncontract theorists.\r\nFor such a contract to be conceivable, a “new person” must be \r\ninvented. A fictitious person, that can do what no real person can! This \r\n“new person,” invented for the purpose by social contract theorists, then, \r\nis invariably some wildly unrealistic, severely “dis-embodied” entity, i.e., a person without any bodily needs or appetites; “pure” reason, if \r\nyou will, freed from all constraints of time and place. — The theorists \r\nthen ask what arrangement of the world such persons would agree on \r\nas just. And they then spin out an answer as to what they believe this \r\nagreement between such entities to be, and why. — Any such answer, \r\nhowever, whatever it may be, is always arbitrary, because the only thing \r\nthat can possibly be known about fictitious people and an agreement ","","Foreword | xiii\r\namong them is whatever has already been invested in such beings from \r\nthe very outset, per assumption. Indeed, as John Rawls, the most celebrated modern social contract theorist, has admitted with captivating \r\nfrankness, he had simply “define(d) the original position [of fictitious \r\npeople placed behind a ‘veil of ignorance,’ HHH] so that we get the desired solution.”1\r\n While the results that Rawls gets from his assumptions \r\nconcerning the original position agree largely with the political views of \r\nthe social democratic left, other social contract theorists, with different \r\nassumptions about the original meeting-of-the-minds, such as James \r\nM. Buchanan and his fictitious constructs of “conceptual contracts” and \r\n“quasi-unanimity,” for instance, have proposed answers more closely \r\nassociated with the political right. Still other theorists have presented \r\nyet other results. Demonstrating, then, that the intellectual endeavors \r\nof social contract theorists, however ambitious and sophisticated they \r\nmay appear, are ultimately no more than idle mental exercises: deriving \r\nwildly unrealistic conclusions from wildly unrealistic assumptions, i.e., \r\nexamples of “garbage-in-and-garbage-out.”\r\nBut there is another, more sinister aspect to the idea of a social \r\ncontract that comes to light once anyone of the various contractual \r\nagreements as fancied by social contract theorists is actually put to the \r\ntest, implemented and enforced. Because implementing and enforcing \r\nthe terms of a contract that no real person had or could have agreed \r\non means, in effect, that all real contracts between real people are superseded and replaced by the terms of some alleged agreement among \r\nfictitious people as the ultimate judge in matters of right and wrong. \r\nThe word “contract,” then, with its positive connotations, is used by \r\nsocial contract theorists to advance a program that is actually destructive of all contracts. They declare non-contracts and non-agreements \r\nto be contracts and agreements and contracts and agreements to be \r\nnon-contracts and non-agreements. — Thus, ultimately, social contract theory turns out barely less arbitrary than the decisionism of legal \r\npositivists. For its proponents, the question of right or wrong may not \r\nbe considered a matter of mere decree as for some strict positivists. \r\nInstead, for them, it is the intuitions and fancies of some philosophers \r\n1 John Rawls, A Theory of Justice, revised ed. (Cambridge, Mass.: Harvard University \r\nPress, 1999), p. 122.","","Foreword | xiv\r\nthat are supposed to do the job. But this is hardly less arbitrary, one \r\nwould think! And, of course, since no real person had or could have \r\nagreed to any so-called social contract, its enforcement then always \r\nrequires an agency not itself founded on agreement and contract but \r\non disagreement, violence and coercion instead: a State. And just like \r\nlegal positivists, then, social contract theorists invariably turn out to be \r\nstatists, too, assigning and entrusting the role of the ultimate arbiter \r\nof right and wrong to the State qua territorial monopolist of violence.\r\nAnother popular answer to the question under consideration is \r\nthat of utilitarianism. Utilitarians essentially contend that the very \r\nrules that maximize or promise to maximize total social utility or bring \r\nabout the greatest happiness to the greatest number of people are and \r\nshould be considered just. Apart from other difficulties connected with \r\nits consequentialism, however, this answer can be quickly dismissed as \r\nfatally flawed for the simple reason that there exist no units of utility \r\nor happiness, and hence, that any interpersonal comparison of utility \r\nor happiness and any aggregation of individual utility or happiness to \r\n“social utility” or “social happiness” must be considered impossible (or, \r\nif still invoked, as entirely arbitrary).\r\nWith the answers of legal positivists, social contract theorists and \r\nutilitarians all rejected as fundamentally flawed, however popular they \r\nmay be, the only remaining answer, then, comes from the old, premodern intellectual tradition of natural law and natural rights. It is also \r\nin this nowadays rather unfashionable intellectual tradition, broadly \r\nconceived, that Stephan Kinsella’s here presented work must be placed.\r\nNatural law and rights theorists contend that the principles of just \r\nhuman conduct can be discovered from the study of human nature. \r\nOn the one hand, such study reveals that humans are endowed with \r\nreason, as manifested by the indisputable fact that they can speak and \r\ncommunicate with one another, from person to person, in a common \r\nlanguage. On the other hand, this study shows that humans are also \r\nactors (and in combination then: reasonable actors). Speaking and communicating itself are purposeful activities directed at a goal. Yet even \r\nif and when we are not speaking or communicating but do things \r\nsilently, we are still acting and cannot but act as long as we are not \r\nasleep, comatose or dead. ","","Foreword | xv\r\nFurther, this study also reveals the “deep structure” of human action, \r\ni.e. what all actions of all humans have in common. Every individual \r\nactor (and only individuals act!), whatever he does, pursues a goal or \r\nend the attainment of which he considers more satisfying than the satisfaction to be expected from acting differently. Every actor is thereby \r\nplaced in a given environment, at a specific point in time and space, \r\nwith specific external surroundings of men and materials, and equipped \r\nwith his own nature-given bodily makeup and mental endowment; and \r\nevery action, then, whatever it may be, invariably aims to alter an actor’s \r\nspecific present situation to his personal advantage and greater satisfaction. In any case, to reach his goals, whatever they may be, an actor \r\ninvariably must employ means. At a minimum, he must employ his own \r\nphysical body and brain (plus the body’s standing room) as means for \r\nthe attainment of some expected bodily or psychic gain, and he must \r\nthereby use up some time that he also could have used differently. \r\nGenerally, however, a person’s actions involve more than the purposeful use of one’s physical body and mind. It involves also various \r\nelements of the external world that, unlike a person’s own body, can \r\nonly be indirectly controlled by means of one’s directly controlled body. \r\nSuch elements of the external world that can be indirectly controlled \r\nand manipulated by a person and that are recognized or believed by \r\nan actor to be suitable for the attainment of his ends are called means. \r\nThose elements of the external world beyond or believed to be beyond \r\nhuman control on the other hand are referred to as external conditions \r\nunder which a person’s actions are to take place. The choice of means \r\nemployed by a person for the attainment of his ends is always a matter \r\nof ideas, i.e. of reason and reasoning. An actor always chooses such an \r\nallocation and arrangement of means that he believes to bring about \r\nsome desired result. The choice of means is validated by their result. \r\nA person’s actions then are always guided by some ideas about cause \r\nand effect: performing A, B and C will lead to X, Y and Z. But man \r\nis not infallible and a person’s ideas concerning cause and effect or the \r\ninterconnectedness and regularity of events may be false, and a person’s \r\naction based on these ideas then will lead to failure rather than the \r\nanticipated success, inducing the person to learn, i.e. to revisit and possibly revise his original ideas.","","Foreword | xvi\r\nGiven this insight into the general human condition, it becomes \r\nimmediately clear what a human ethic or a theory of justice worth its \r\nsalt must accomplish. It must give an answer to the question of what \r\nam I and what is every other person permitted (or not permitted) to \r\ndo, right now and right here, wherever a person may find himself and \r\nwhatever his external surroundings of men and materials may be. More \r\nspecifically, what is a person permitted (or not permitted) to do in an \r\ninteraction with another person? And: what external entities is a person \r\npermitted (or not permitted) to bring under his control to be used as \r\nmeans toward his personal ends?\r\nBecause no person can ever stop acting, from his beginnings as \r\na person until his very end (except when asleep, comatose or dead), these \r\nquestions arise again and again, without end, for everyone, wherever and \r\nwhenever he may find himself and must act. Obviously, then, an answer \r\nto pressing questions such as these cannot wait for the establishment \r\nof the institution of a State, the conclusion of a contract (which would \r\nactually have to presuppose a valid answer to these very questions in order \r\nto make it a valid contract) or the arrival of some future consequences.\r\nInstead, the answer must be discoverable and recognizable from the \r\nvery outset, from the first, immediate insight into the nature of man as \r\na reasonable actor. And indeed, this is so once the purpose, the ultimate \r\nend, of all reason and reasoning is recognized and acknowledged. As \r\nalready noted, human reason is manifested in the indisputable fact that \r\none person can communicate with another person in a common language \r\n(and different languages are inter-translatable). The purpose of speaking \r\nand communicating with one another, then, even if and when expressing \r\none’s disagreement with another person’s say-so in meaningful words, \r\nis to guide or coordinate the actions of different persons by words or \r\nmeaningful symbols alone. This endeavor may succeed and words help \r\nguide or coordinate the actions of different persons to mutual satisfaction. Or the endeavor may fail. But in any case, the goal of speaking and \r\ncommunicating is always and invariably the same: to maintain peace \r\nand seek peaceful cooperation or coexistence—and in reverse: to avoid \r\nconflict, i.e., physical clashes or conflagrations of people that are destined \r\nto result whenever and wherever two or more people pursue their own \r\ndifferent goals with the help of one and the same person’s body or one ","","Foreword | xvii\r\nand the same indirectly controlled or controllable external means of \r\naction at the same time.\r\nThe objective for a human ethic or a theory of justice, then, is the \r\ndiscovery of such rules of human conduct that make it possible for a—\r\nindeed, any—bodily person to act—indeed, to live his entire active \r\nlife—in a world made up of different people, a “given” external, material \r\nenvironment, and various scarce—rivalrous, contestable or conflictable—material objects useable as means toward a person’s ends, without \r\never running into physical clashes with anybody else.\r\nEssentially, these rules have been known and recognized since eternity. They consist of three principal components. First, personhood and \r\nself-ownership: Each person owns—exclusively controls—his physical \r\nbody that only he and no one else can control directly (any control over \r\nanother person’s body, by contrast, is invariably an in-direct control, presupposing the prior direct control of one’s own body). Otherwise, if \r\nbody-ownership were assigned to some indirect body-controller, conflict \r\nwould become unavoidable as the direct body-controller cannot give up \r\nthe direct control over his body as long as he is alive. Accordingly, any \r\nphysical interference with another person’s body must be consensual, \r\ninvited and agreed to by such a person, and any non-consensual interference with his body constitutes an unjust and prohibited invasion.\r\nSecond, private property and original appropriation: Logically, what \r\nis required to avoid all conflict regarding external material objects used \r\nor usable as means of action, i.e. as goods, is clear: every good must \r\nalways and at all times be owned privately, i.e. controlled exclusively \r\nby some specified person. The purposes of different actors then may \r\nbe as different as can be, and yet no conflict will arise so long as their \r\nrespective actions involve exclusively the use of their own private property. And how can external objects become private property in the first \r\nplace without leading to conflict? To avoid conflict from the very start, \r\nit is necessary that private property be founded through acts of original appropriation, because only through actions, taking place in time \r\nand space, can an objective—intersubjectively ascertainable—link be \r\nestablished between a particular person and a particular object. And \r\nonly the first appropriator of a previously unappropriated thing can \r\nacquire this thing as his property without conflict. For, by definition, as \r\nthe first appropriator he cannot have run into conflict with anyone else ","","Foreword | xviii\r\nin appropriating the good in question, as everyone else appeared on \r\nthe scene only later. Otherwise, if exclusive control is assigned instead \r\nto some late-comers, conflict is not avoided but contrary to the very \r\npurpose of reason made unavoidable and permanent.\r\nThird, exchange and contract: Other than per original appropriation, \r\nproperty can only be acquired by means of a voluntary—mutually \r\nagreed upon—exchange of property from some previous owner to some \r\nlater owner. This transfer of property from a prior to a later owner can \r\neither take the form of a direct or “spot” exchange, which may be bi- or \r\nmulti-lateral as when someone’s apples are exchanged for another’s \r\noranges, or it may be unilateral as when a person makes a gift to someone else or when someone pays another person with his property now, \r\non the spot, in the expectation of some future services on the part of the \r\nrecipient. Or else the transfer of property can take the form of contracts concerning not just present but in particular also prospective, \r\nfuture-dated transfers of property titles. These contractual transfers of \r\nproperty titles can be unconditional or conditional transfers, and they \r\ntoo can involve bi- or multi-lateral as well as unilateral property transfers. \r\nAny acquisition of property other than through original appropriation \r\nor voluntary or contractual exchange and transfer from a previous to \r\na later owner is unjust and prohibited by reason. (Of course, in addition \r\nto these normal property acquisition rules, property can also be transferred from an aggressor to his victim as rectification for a previous \r\ntrespass committed.)\r\nDrawing on the long, but in today’s world largely forgotten or neglected, \r\nintellectual tradition of natural law and natural rights theory with its \r\nthree just briefly sketched principal components, then, the most elaborate, systematic, rigorous and lucid presentation of a theory of justice up \r\nuntil then had been developed in the course of the second half of the 20th \r\ncentury by economist-philosopher Murray N. Rothbard, culminating \r\nin his Ethics of Liberty, originally published in 1982. Unfortunately, but \r\nnot entirely surprisingly, however, his work was typically either completely ignored or else dismissed out of hand by the gatekeepers and \r\nhigh priests of academia. The anarchist conclusions ultimately arrived at ","","Foreword | xix\r\nby Rothbard in his works appeared simply outlandish in an ideological \r\nenvironment molded overwhelmingly by tax-funded intellectuals and \r\nsteeped to the hip in statism or étatisme. Among academic big shots, \r\nonly Harvard philosopher Robert Nozick in his Anarchy, State and Utopia acknowledged his intellectual debt to Rothbard and seriously tried \r\nto refute his anarchist conclusions—but miserably failed.\r\nWhile Rothbard’s work largely fell on deaf ears within academia, \r\nthen, it exerted considerable influence outside of it, in the public at \r\nlarge. Indeed, through his work Rothbard became the founder of the \r\nmodern libertarian movement, attracting a sizable popular following \r\nfar exceeding that of any mainstream academic in numbers. As for \r\nthe further development of a natural-law and -rights based theory of \r\njustice, however, this very success turned out to be a rather mixed \r\nblessing. On the one hand, the movement inspired by Rothbard likely \r\nhelped dampen and slow down the popularity and growth of statism, \r\nbut it manifestly failed in halting or even reversing the long-run historical trend toward ever increasing state power. On the other hand \r\n(and that may well be one of the reasons for this failure), the larger \r\nthe movement grew in numbers, the greater also the confusion and the \r\nnumber of intellectual errors spread and committed by its followers. \r\nThe pure theory of justice as presented by Rothbard was increasingly \r\nwatered down, misunderstood, misinterpreted or downright falsified, \r\nwhether for short-run tactical gains, out of ignorance or plain cowardice. \r\nAs well, all too often sight was lost of the fundamentally important \r\ndistinction between the core, the foundational principles of a theory \r\non the one hand and its application to various peripheral—often farfetched or merely fictional—practical problems on the other; and far \r\ntoo much effort and time, then, has been spent on debating peripheral \r\nissues the solution of which may well be arguable, but which is of minor \r\nimportance in the larger scheme of things and helps distract public \r\nattention and concentration away from those questions and issues that \r\ntruly matter and count.\r\nIn this situation, then, more than 40 years after the first publication \r\nof Rothbard’s Ethics of Liberty and characterized by much practical disappointment and increasing theoretical confusion, the publication of \r\nStephan Kinsella’s present work must be considered a most welcome \r\nsign of renewed hope and new, refreshing intellectual inspiration. ","","Foreword | xx\r\nIndeed, with this work, that has been in the making for more than two \r\ndecades, Kinsella has produced no less than an intellectual landmark, \r\nestablishing himself as the leading legal theorist and the foremost \r\nlibertarian thinker of his generation. While following in Rothbard’s \r\nfootsteps, Kinsella’s work does not merely rehash what has been said or \r\nwritten before. Rather, having absorbed as well all of the relevant literature that has appeared during the last few decades since Rothbard’s \r\npassing, Kinsella in the following offers some fresh perspectives and an \r\ninnovative approach to the age-old quest for justice, and he adds several \r\nhighly significant refinements and improvements and some centrally \r\nimportant new insights to the theories of personhood, property and \r\ncontract, most famously some radical criticism and rejection of the idea \r\nof “intellectual property” and “intellectual property rights.” \r\nHenceforth, then, all essential studies in the philosophy of law and \r\nthe field of legal theory will have to take full account of the theories and \r\ncriticisms expounded by Kinsella.\r\nHans-Hermann Hoppe\r\nIstanbul, May 2023","","xxi\r\nPreface\r\nThe issue of what property rights we have, or should have, what laws \r\nare just and proper, has long confronted mankind, and continues to \r\nbe the subject of debate today. This book seeks to address these issues, \r\nwith an approach that keeps in mind the nature and reality of human \r\nlife—that we are purposeful human actors living in a world of scarcity \r\nand facing the possibility of interpersonal conflict—and the purpose \r\nof law and property norms: to enable us to live together, in society, \r\npeacefully and cooperatively. The goal is to vindicate the private law as \r\ndeveloped in the decentralized systems of the Roman and common law, \r\nwith an emphasis on consistency, principle, and the inviolable rights of \r\nthe individual. In short, to argue for a private law system informed by \r\nlibertarian principles.\r\nThus, in these pages, I try to explain what libertarianism is, why \r\nindividual self-ownership and property rights are justified, how the \r\nlaw ought to deal with criminals and tortfeasors, how property rights \r\nshould be understood so that errors such as intellectual property (IP), \r\ntaxes, and the drug war can be exposed, and, finally why a consistent \r\nlibertarianism implies that a stateless society, sometimes called anarchy, \r\noffers the best hope for a free and just social order. I explore the nature \r\nof law and legislation, and subject various aspects of positive law, as \r\nwell as other theories of law, including that of others libertarians, to \r\ncriticism and appraisal.","","Preface | xxii\r\nThese arguments are premised on the thesis that just law is anchored \r\nin core principles of self-ownership plus ownership of external scarce \r\nresources as governed by principles of original appropriation, contractual title transfer, and rectification. The developed legal system of an \r\nadvanced, free society is the detailed working out of the implications \r\nand applications of these basic principles to various practical and recurring situations in human interactions. This book looks from numerous \r\nangles at why these principles are important and how adhering to them \r\nconsistently can help us achieve a freer society and adjudge the legitimacy of concrete laws and legal systems.\r\nAs to how this book came about: I’ve been intensely interested \r\nin—some might say obsessed with—libertarian ideas for over forty \r\nyears, since high school. It has become a life passion and an avocation \r\nof sorts. A calling, though not a career.1\r\n After starting, as so many libertarians of my generation have, with the ideas of Ayn Rand,2\r\n I soon \r\ndiscovered the work of Austrian economists and anarcho-libertarians, \r\nsuch as Ludwig von Mises, Murray Rothbard, and Hans-Hermann \r\nHoppe, whose ideas are my greatest influence. \r\nI started publishing on matters of libertarian theory in 1992, fresh \r\nout of law school.3\r\n I tried to use my knowledge of the law—both the \r\nEnglish common law and the Roman law, as embodied in the civil law \r\nof most European countries and my own home state, Louisiana—and \r\nAustrian economics and libertarian principles, to advance libertarian \r\ntheory where I thought I could contribute. I first wrote on rights and \r\npunishment theory in the early 1990s (see chapters 5 and 22), and then \r\non related areas like legislation (chapter 13), contract and inalienability \r\ntheory (chapters 9 and 10), and so on. In 2001, I published “Against \r\nIntellectual Property,”4\r\n which was controversial and influential, so I’ve \r\nbecome known by many libertarians primarily for my IP arguments. \r\nAs the essays in the current volume illustrate, however, IP is not my \r\n1 See comments from Gary North about calling vs. career, mentioned in chapter 24.\r\n2 Jerome Tuccille, It Usually Begins with Ayn Rand (Stein and Day, 1971). See also \r\nchapters 1 and 25 3 Stephan Kinsella, “Estoppel: A New Justification for Individual Rights,” Reason Papers\r\nNo. 17 (Fall 1992): 61–74. See chapter 5. 4 Kinsella, “Against Intellectual Property,” first published in the Journal of Libertarian \r\nStudies 15, no. 2 (Spring 2001): 1–53; later republished as a monograph by the Mises \r\nInstitute in 2008 and in an edition by Laissez-Faire books in 2012 (AIP).","","Preface | xxiii\r\nsole area of interest. My interest in and passion for libertarian ideas has \r\nalways been driven by my love of philosophy, truth, justice, logic, consistency, and economics. This book includes several chapters on IP but \r\nalso covers other aspects of libertarian legal theory, such as rights theory \r\nand others noted above.\r\n By 2010 or so, most of the theory-laden articles that became the \r\nchapters in this book had been published, so around that time I thought \r\nof collecting some of these articles in a single book, since they covered a \r\nlarge and complementary number of interrelated topics, such as rights \r\nand punishment theory, contract theory, causation and responsibility, \r\nintellectual property, anarchy, legislation, and so on. But I kept putting \r\nthe project off. I felt I was missing some material that should be in such \r\na book, such as a general overview of libertarianism itself, and an update \r\nof the intellectual property material I had initially published in 2001. \r\nI eventually wrote these articles (now chapters 2, 14, and 15), so I felt it \r\nwas time to finally assemble and complete this book.\r\nThe twenty-five chapters are based on articles published over an \r\nalmost thirty-year period, from 1994 to 2022, with one chapter (15) \r\nbeing formally published for the first time here (2023). I decided to \r\nomit some articles I had published before, as they are a bit too focused \r\non American-specific issues like the US Constitution, federalism, and \r\nso on, and also for space reasons.5\r\n I also did not include any purely legal \r\npublications—those related to my vocation, not my avocation—such \r\nas those found at my legal website www.KinsellaLaw.com. I included \r\nonly writing having to do with libertarian issues.\r\nMost of these articles were published in scholarly journals or in \r\nonline publications. A few chapters are more conversational in tone, as \r\nthey were based on interviews or transcripts of speeches (e.g. chapters \r\n5 For example I considered including, but ultimately decided against, articles such as: \r\nPatrick Tinsley, Stephan Kinsella & Walter Block, “In Defense of Evidence and Against \r\nthe Exclusionary Rule: A Libertarian Approach,” Southern U. L. Rev. 32 no. 1 (2004): 63–80; \r\nKinsella, “A Libertarian Defense of Kelo and Limited Federal Power,” LewRockwell.com \r\n( June 27, 2005); idem, “Supreme Confusion, Or, A Libertarian Defense of Affirmative \r\nAction,” LewRockwell.com (July 4, 2003); Walter Block, Stephan Kinsella & Hans-Hermann \r\nHoppe, “The Second Paradox of Blackmail,” Bus. Ethics Q. 10, no. 3 ( July 2000): 593–622; \r\nWalter Block, Roy Whitehead & N. Stephan Kinsella, “The Duty to Defend Advertising \r\nInjuries Caused by Junk Faxes: An Analysis of Privacy, Spam, Detection and Blackmail,” \r\nWhittier L. Rev. 27, no. 4 (2006): 925–49.","","Preface | xxiv\r\n17 and 23–25). Even with these, I have added extensive references and \r\ncross-references where appropriate.\r\nI divided the book into six sections. Part I—Libertarianism covers \r\nmy own introduction to libertarianism, an overview of libertarianism, \r\nand my take on anarchism. Part II—Rights concerns arguments for \r\nself-ownership, property rights, and punishment theory. Part III—\r\nLibertarian Legal Theory has chapters building on the theory in previous chapters to apply to various laws and libertarian issues, like \r\ncausation and responsibility (chapter 8), contract and inalienability \r\ntheory (chapters 9–11), and a long chapter on the pitfalls of legislation \r\nas a way of making law (chapter 13) (I probably should have turned \r\nthis one into a PhD dissertation…).\r\nPart IV—Intellectual Property contains a chapter presenting the \r\nbasic case against IP (chapter 14), basically a streamlined and somewhat updated version of AIP, followed by chapter 15, which summarizes \r\nother IP arguments and issues that I wrote and spoke on after AIP. \r\nI also include some of my discussion with, and commentary on the \r\nviews of, my pro-IP libertarian friend, the late J. Neil Schulman, and \r\na piece on the nature of scarce and nonscarce goods, which is relevant \r\nto the IP issue. \r\nPart V—Reviews contains four book reviews or review essays providing libertarian commentary on various books on law or political \r\nphilosophy. Finally, Part VI—Interviews & Speeches is less formal \r\nand contains two interviews and a speech assessing the last five or six \r\ndecades of the libertarian movement.\r\nFor those who want to skip the more extraneous material and focus \r\non the core libertarian theory chapters, I recommend chapters 2–12, \r\n14–15, and 18.\r\nI have revised all the material in the book, which was required \r\nsince many of the original articles used different citation formats and \r\nalso because some of my thinking and terminology has changed over \r\nthe years. Several chapters are significantly revised or expanded, which \r\nin a few cases led to very long footnotes, since it would have been too \r\ndisruptive to rewrite the article to integrate the extra commentary into \r\nthe text; in some cases I moved very long footnotes to an appendix. \r\nAlthough the chapters were all written separately and at different \r\ntimes over three decades, many of them build on (or anticipated) others. ","","Preface | xxv\r\nFor example, in chapter 10, originally published 1998–99, I outlined \r\na sketch of a view of contracts, inalienability, and so on (note 48), and \r\nwrote “Elaboration of these ideas will have to await a subsequent article.” I did so in 2003, in the article which became chapter 9. Thus, \r\nI was able to piece together several articles in a fairly systematic form \r\nsince they either built on or anticipated each other and were written \r\nto be consistent with each other and all flowing from the same core \r\nprinciples and reasoning.\r\nI have added extensive cross-references pointing to related discussion in other chapters. There is a bit of redundancy in some of \r\nthe chapters since they were published independently. However, it is \r\nmy view that the repetition that does exist in some articles can help \r\nreinforce a given argument or idea or show it from a different angle. \r\nIn one case I now disagree with something I originally wrote; \r\nI retained the original text and added an explanatory note (chapter \r\n13, Part III.C). And in chapter 9 (Part III.C), I note that, regarding \r\nmy earlier criticism of Rothbard’s argument for inalienability: “I now \r\nthink it is possible that his approach is more compatible with my own \r\nthan I originally realized.” But otherwise, I today still stand by most of \r\nthe original content of those articles, in terms of substance. However, \r\nas noted several places in the text, I often now use terminology somewhat differently, e.g., the term state instead of government; rivalrous or \r\n“conflictable” instead of scarce; using the word property to refer to the \r\nrelation between humans with respect to owned resources, instead of \r\nreferring to the owned resource itself, and so on. I have in some cases \r\nupdated the text to my current, preferred usage, but not always since \r\nit would have been too drastic and tedious.\r\nI have also included a table of contents for some of the chapters \r\nwhere I thought it would be useful. And as noted above, in several \r\nchapters I moved very long footnotes to an appendix.\r\nI have tried to conform references to a more or less uniform citation style of my own preference (a modified version of Chicago style), \r\nalthough my main goal was to simply provide sufficient information for \r\nthe reader to locate the cited work, not to conform to some arbitrary \r\nformat (and also not to obsess over consistency). In this, I am influenced \r\nby the citation policy of the second incarnation of the legal journal \r\nThe Greenbag: “Citations should be accurate, complete, and unobtrusive. ","","Preface | xxvi\r\nFamiliar sources need no citation. Authors may use whatever citation \r\nform they prefer; we will make changes only to keep footnotes from \r\nlooking like goulash.”6\r\nI have also included hyperlinks for online versions of cited material \r\nwhere possible. If we lived in a copyright-free world, everything would \r\nbe online and readers could easily find any cited work with a search. \r\nAlas. For my own work that I reference, since it is mostly available \r\non my own website, I provide an initial hyperlink in the title but do \r\nnot type out the URL in the text. Almost all of my work referenced \r\nin the text can be found at www.StephanKinsella.com/publications, \r\nwww.StephanKinsella.com/lffs, or www.c4sif.org. I have liberally used \r\npermalinks via www.perma.cc in cases where I suspected future possible linkrot or where the original URL is overlong.\r\nI debated various titles for this work. Titles like Freedom and the \r\nLaw and Liberty and Law were already taken.7\r\n I considered at one time \r\ncalling this work The Ethics of Action, as an amalgamation and nod to \r\nsimilar titles by other authors8\r\n and to evoke a recurring theme in my \r\nwriting: an exploration of the ethics that guide action and of ethics \r\nimplied by certain classes of action (see the argumentation ethics and \r\nestoppel theory of rights I advance in chapters 5 and 6). But in the \r\nend, this seemed too inscrutable and only applicable to a small part of \r\nthis book’s content, so for years I planned on using the title Law in a \r\nLibertarian World: Legal Foundations of a Free Society. In the end, some \r\ntrusted colleagues urged me to drop the main title and use the subtitle \r\ninstead. I have. \r\nThe length of the book turned out to be larger than expected, but \r\nI have chosen to publish this book as one volume instead of breaking \r\n6 See Kinsella, “Cool Footnote Policy,” StephanKinsella.com ( June 14, 2002). 7 Bruno Leoni, Freedom and the Law (Indianapolis: Liberty Fund, expanded 3d. ed. 1991 \r\n[1961]; https://oll.libertyfund.org/title/kemp-freedom-and-the-law-lf-ed); Giovanni \r\nSartori, Liberty and Law (Menlo Park, Ca.: Institute for Humane Studies, 1976). 8 Such as: Murray N. Rothbard, The Ethics of Liberty (New York: New York University \r\nPress, 1998); idem, The Logic of Action (Edward Elgar, 1997); Michael Polanyi, The Logic of \r\nLiberty (Chicago: University of Chicago Press, 1980); G.B. Madison, The Logic of Liberty\r\n(New York: Greenwood Press, 1986); and others such as James M. Buchanan, The Limits \r\nof Liberty: Between Anarchy and Leviathan, vol. 7 in The Collected Works of James M. Buchanan (Indianapolis: Liberty Fund, 2000 [1975]). Interestingly, Jan Narveson’s excellent The \r\nLibertarian Idea (Philadelphia: Temple University Press, 1988) is part of the “Ethics and \r\nAction” series edited by Tom Regan. I mention this in chapter 8, at n.11.","","Preface | xxvii\r\nit into two. I think this will be easier for the reader, given the extensive \r\ncross-references between chapters, and should make for a lower cost. \r\nMy goal was never sales. It was only to help advance libertarian theory \r\nby making these thoughts accessible to whoever might be interested \r\nnow or in the future. Thus, in addition to print (both hard and softcover) \r\nand ebook versions for sale on major platforms, I am of course posting \r\na free digital version online at www.StephanKinsella.com/lffs, and \r\nwith a Creative Commons Zero license. Anyone is free to republish \r\nthis work, or translate it, or make audio versions, without asking my \r\npermission.\r\nI have published in the past with various publishing houses, such \r\nas the Mises Institute, Oceana Publications, Oxford University Press, \r\nand so on, but for this book I have decided to self publish, under my \r\nown imprint, Papinian Press (www.PapinianPress.com), for a variety of \r\nreasons. First, my own procrastination has delayed this project for over \r\na decade, so I was reluctant to add yet another year to this project by \r\nengaging a normal publisher. Second, I saw no benefit to using a mainstream publisher. I do not need their delays or “helpful suggestions,” \r\nwhich would no doubt urge me to water down my arguments or make \r\nthem more mainstream. No, thank you. And I have no career or academic ambitions to burnish by using a prestigious press. Also, I wanted \r\nfreedom to release this book totally open source, free of any copyright \r\nrestrictions, and to post free online versions, which most publishers \r\nwould balk at. I’m frankly tired of the dinosaur legacy publishing \r\nindustry. Finally, I may use the Papinian Press imprint for future book \r\nprojects, so am glad to use this book to kick it off.\r\nThe imprint, by the way, is named after the third-century Roman \r\njurist Papinian (Aemilius Papinianus), who also adorned the advertisement for my 2011 Mises Academy course on libertarian legal theory.9\r\nThe reason I admire Papinian, in addition to his being a great jurist: \r\nPapinian is said to have been put to death for refusing to compose a \r\njustification of Caracalla’s murder of his brother and co-Emperor, Geta, \r\n9 See www.PapinianPress.com and Kinsella, “KOL018 | “Libertarian Legal Theory: \r\nProperty, Conflict, and Society: Lecture 1: Libertarian Basics: Rights and Law” (Mises \r\nAcademy, 2011),” Kinsella on Liberty Podcast (Feb. 20, 2013).","","Preface | xxviii\r\ndeclaring, so the story goes, that “it is easier to commit murder than to \r\njustify it.”10\r\nPapinian bravely chose death in the name of justice; and his formulation \r\n“it is easier to commit murder than to justify it” brilliantly encapsulates the \r\ndistinction between committing an action and normatively justifying the \r\naction. It emphasizes the importance of justifying interpersonal violence, and the difference between description and prescription, between \r\nfact and value, between is and ought—insights which play a crucial role \r\nin my own defenses of rights (see chapters 5–7).\r\nAlthough this book is written in English, many of the articles from \r\nwhich it derives have been translated into other languages, and some \r\nhave audio versions available. They are online at www.StephanKinsella.\r\ncom/translations and www.StephanKinsella.com/media. \r\nI refer readers to www.StephanKinsella.com/lffs for errata, links to \r\nmy own publications referenced in the book, and for supplementary \r\nmaterial. \r\nIt is my hope that readers and future scholars will benefit from the \r\narguments offered in these pages. \r\nStephan Kinsella\r\nHouston, June 2023\r\n10 Barry Nicholas, An Introduction to Roman Law, rev. ed. (Oxford University Press, \r\n1962), p. 30 n.2; see also chapter 5, n.1.","","xxix\r\nAcknowledgments\r\nAs noted in the Preface, I’ve been intensely involved in libertarianism \r\nfor over forty years and, for almost thirty years, with the Mises Institute. \r\nI’ve been fortunate to have learned from thinkers from the past such \r\nas Rothbard, Mises, Ayn Rand, Milton Friedman, Frederic Bastiat, \r\nand many others,1\r\n but also from countless friends, mentors, colleagues, \r\nco-authors, acquaintances, interlocutors, discussants, and so on over the \r\nlast forty years. It would be impossible to try to thank them all by name. \r\nNonetheless I would like to try to express my appreciation for some \r\nspecial people and groups that have meant so much to me. I apologize \r\nin advance for those I have inadvertently omitted.\r\nFirst and foremost, to my wife of thirty years, Cindy, and to all my \r\nclose friends and family, for tolerating my libertarian obsessions and \r\nlibertarian macho flashes for decades, and for listening to me argue, \r\nexplain, and explore ideas.2\r\n To my son Ethan, to whom this book is \r\ndedicated, for inspiring me and enriching my life, and for also loving \r\nliberty and goodness. And to my trainer and friend, Stephanie Rakoczy, \r\nfor letting me vent about all matters libertarian for many years now in \r\nbetween squats and pushups. I am grateful to my birth mother, Gail \r\nDoiron McGehee, for blessing me with my adoptive parents; to my \r\n1 Many of them included in the works listed in Stephan Kinsella, “The Greatest Libertarian Books,” StephanKinsella.com (Aug. 7, 2006). 2 See Michael Cloud, “The Late, Great Libertarian Macho Flash,” benbachrach.com (1978; \r\npreserved at https://perma.cc/KY9P-V7K7). See also Jeff Wood, “The Triumphant Return of \r\nLibertarian Macho Flash,” medium.com (March 8, 2017; https://perma.cc/KE6W-WQK4).","","Acknowledgments | xxx\r\nmom for taking me to the library as much as I wanted; to my dad for \r\ndriving me to school so far away in another parish for so many years; \r\nand to Mrs. Reinhardt, a librarian at Catholic High School in Baton \r\nRouge, for recommending that I read The Fountainhead.\r\nThis book would not be possible without the understanding of \r\nproperty rights I’ve arrived at, and this in turn would not be possible \r\nwithout the work of Hans-Hermann Hoppe, whom I have also been \r\nfortunate to call a close friend. His support, friendship, guidance, and \r\nexample of personal and intellectual integrity over the years mean more \r\nto me than I can properly express. My life would not be the same, nor \r\nthis book possible, without him.\r\nI’ve had a host of libertarian friends and friend groups that I’ve \r\nlearned and benefitted from, or had support from, over the years, including my longtime friend Jack Criss, Jr.; the “Las Vegas crew”—\r\nformer students of Rothbard and Hoppe, and now my good friends: \r\nDoug French (and Deanna Forbush), Jeff Barr, Lee Iglody, Jim Yohe, \r\nJoe Becker; others such as Juan Fernando Carpio; Greg and Joy Morin; \r\nKonrad Graf, Michael Conaghan, Jacob Huebert, Gene Healy, Gary \r\nChartier, Gerard Casey, Richard Storey, Tom Woods, Michael Malice, \r\nBob Murphy, Roderick Long, Jan Narveson, Frank van Dun, Robert \r\nBradley, Jr.; Gil Guillory, Paul Edwards, Jacob Lovell, Rob Wicks, Greg \r\nRome, Brian Martinez, Dick Clark, Isaac Bergman, Daniel Coleman, \r\nTimo Virkkala, and many others in my “Libertarian Forum” crowd \r\n(you know who you are); James Cox and Daniel Rothschild; many \r\nfriends and scholars from the Property and Freedom Society and from \r\ncountless Mises Institute events and conferences since 1995, including Lew Rockwell, David Gordon, Tom DiLorenzo, Peter Klein, Jeff \r\nHerbener, Joe Salerno, Sean Gabb, and others; correspondents from \r\nyears ago such as Johan Ridenfeldt and Chris Whitten; co-authors \r\nand friends such as Patrick Tinsley, Jeff Tucker, and Walter Block, the \r\nfirst two of whom co-authored chapters with me in this volume. Thanks \r\nalso to Nelson Loftin, for nudging me over several years to complete \r\nthis book.\r\nMy dear friend Guido Hülsmann, whom I met on a bus from \r\nthe Atlanta airport to the Mises Institute in Auburn in 1995 when \r\nwe were both going there to meet Hans-Hermann Hoppe, has been \r\nan important friend and influence, both personally and intellectually. ","","Acknowledgments | xxxi\r\nMy friend Wendy McElroy has also been an inspiration and sounding \r\nboard and helped me see the light on IP. \r\nThe notes for various chapters in this book also thank various \r\ncommentators.\r\nI would also like to thank Randy Barnett, and several LSU law \r\nprofessors, such as Saúl Litvinoff, Glenn Morris, William Hawkland, \r\nAlain Levasseur, Robert Pascal, and John Devlin, for inspiration, \r\nsupport, and guidance in my earlier years in law school and in the \r\nbeginning years of my legal practice and scholarly and educational \r\nendeavors (Litvinoff and Pascal were not my professors but they became friends and correspondents after law school). I learned a great \r\ndeal at the LSE about international law and legal scholarship from \r\nprofessor and now Baroness Rosalyn Higgins, later President of the \r\nInternational Court of Justice; she inspired and informed much of my \r\nsubsequent legal publications on international law.\r\nI am also grateful to my intellectual adversaries, who have forced \r\nme to hone, refine, and clarify my arguments to counter and explain the \r\nerrors in theirs.\r\nP.J. Doland, a fellow libertarian and web-designer with www.\r\nDancingMammoth.com, has graciously hosted and helped me run my \r\nown websites and others I manage over the years, all in the service of \r\nliberty, which were invaluable in collecting, publishing, and assembling \r\nmaterial used in the preparation of this book. Since I haltingly started \r\nthis book project about fifteen years ago, I’ve had the assistance of \r\nseveral people, including Lisa Eldridge and Rosemary Denshaw (transcriptions); Justina Clark, Harry David, Lauren Barlow, and Carly \r\nCatt (copyediting); Susi Clark, of www.creativeblueprintdesign.com, \r\nfor cover design, typesetting and publishing assistance; and Susan \r\nBruck (proofreading, indexing, and bibliography).\r\nThe image on the back cover of the book is based on a painting by \r\nmy childhood friend John Wax, of www.JohnWaxArt.com, which itself \r\nwas based on photographs of a statue by H.C. Andersen.3\r\n To get permission and arrange a private photographer at the Andersen Musuem \r\nin Rome, I was fortunate to have the help of my Italian libertarian \r\n3 See Kinsella, “The Story of a Libertarian Book Cover,” StephanKinsella.com (March 4, \r\n2011).","","Acknowledgments | xxxii\r\nfriend and scholar, Roberta Modugno, and my Italian-speaking Canadian libertarian attorney friend Daniel Roncari. \r\nTo all these, and many others not mentioned, I am grateful.","","PART I\r\nLIBERTARIANISM","","11\r\nWhat Libertarianism Is\r\n2\r\nPROPERTY, RIGHTS, AND LIBERTY\r\nLibertarians tend to agree on a wide array of policies and principles. \r\nNonetheless it is not easy to find consensus on what libertarianism’s defining characteristic is, or on what distinguishes it from other political \r\ntheories and systems.\r\nVarious formulations abound. It is said that libertarianism is about: \r\nindividual rights; property rights;1\r\n the free market; capitalism; justice; \r\n1 Although the term “private property rights” is widely used, property rights are in a \r\nsense necessarily public, since the borders or boundaries of property must be publicly visible\r\nso that non-owners can avoid trespass. For more on this aspect of property borders, see \r\nHans-Hermann Hoppe, A Theory of Socialism and Capitalism: Economics, Politics, and Ethics\r\n(Auburn, Ala.: Mises Institute, 2010; www.hanshoppe.com/tsc), pp. 167–68; “A Libertarian \r\nTheory of Contract: Title Transfer, Binding Promises, and Inalienability” (ch. 9), at n.38; \r\n“Law and Intellectual Property in a Stateless Society” (ch. 14), Part II.C, note 7 and accompanying text, text at notes 24–25, and Part III.B; Stephan Kinsella, Against Intellectual \r\nProperty (Auburn, Ala.: Mises Institute, 2008), pp. 30–31, 49; “Selling Does Not Imply \r\nOwnership, and Vice-Versa: A Dissection” (ch. 11), text at n.24. See also idem, “How To \r\nOriginally published in Property, Freedom, and Society: Essays in Honor \r\nof Hans-Hermann Hoppe (Guido Hülsmann & Stephan Kinsella, eds., \r\nMises Institute, 2009). The original author’s note thanked “fellow Hoppe \r\naficionados Juan Fernando Carpio, Paul Edwards, Gil Guillory, \r\nManuel Lora, and Patrick Tinsley for helpful comments.”","","12 | PART 1: Libertarianism\r\nthe nonaggression principle. Not all these will do, however. Capitalism \r\nand the free market describe the catallactic conditions that arise or are \r\npermitted in a libertarian society, but do not encompass other aspects \r\nof libertarianism. And individual rights, justice, and aggression collapse \r\ninto property rights. As Murray Rothbard explained, individual rights \r\nare property rights.2\r\n And justice is just giving someone his due—which, \r\nagain, depends on what his rights are.3\r\nThe nonaggression principle is also dependent on property rights, \r\nsince what aggression is depends on what our (property) rights are. If \r\nyou hit me, it is aggression because I have a property right in my body. \r\nIf I take from you the apple you possess, this is trespass, aggression, \r\nonly because you own the apple. One cannot identify an act of aggression without implicitly assigning a corresponding property right to \r\nthe victim.4\r\nThink About Property (2019),” StephanKinsella.com (April 25, 2021); and Randy E. Barnett, \r\n“A Consent Theory of Contract,” Colum. L. Rev. 86 (1986; www.randybarnett.com/pre2000): 269–321, at 291, 303. 2 Murray N. Rothbard, “‘Human Rights’ as Property Rights,” in The Ethics of Liberty (New \r\nYork: New York University Press, 1998; https://mises.org/library/human-rights-propertyrights); idem, For a New Liberty, 2d ed. (Auburn, Ala.: Mises Institute, 2006; https://mises.\r\norg/library/new-liberty-libertarian-manifesto), p. 42 et pass. See also “Against Intellectual \r\nProperty After Twenty Years: Looking Back and Looking Forward” (ch. 15), Part IV.B. 3 “Justice is the constant and perpetual wish to render every one his due.… The maxims \r\nof law are these: to live honestly, to hurt no one, to give every one his due.” J.A.C. Thomas, \r\ned., The Institutes of Justinian: Text, Translation, and Commentary, J.A.C. Thomas, trans. \r\n(Amsterdam: North-Holland Publishing Company, 1975). 4 The standard libertarian litany is that the nonaggression principle (the NAP; sometimes \r\nalso called the nonaggression axiom by libertarians, in an idiosyncratic usage of the term \r\n“axiom,” no doubt inspired by Ayn Rand’s idiosyncratic use of the term axiom) prohibits the \r\ninitiation of force against the person or property of someone else—or threats thereof, or fraud. \r\nSome libertarians or libertarian critics argue that trespass to owned resources, fraud, and \r\nthreats do not quite fit into the NAP because these things are not actually “aggression,” as \r\nthe term is properly understood. (See, e.g., the criticisms of libertarianism for being unable \r\nto explain why fraud may be prohibited, by James Child and Benjamin Ferguson, as discussed \r\nin “A Libertarian Theory of Contract” (ch. 9), Part III.E. The NAP in a literal sense prohibits \r\nhitting or using someone’s body (“aggression”) without their permission, which implies selfor body-ownership. Thus, the NAP implies self-ownership, and vice-versa. They are merely \r\ndifferent ways of expressing the same view: owning one’s body implies that aggression \r\nagainst it is impermissible; the prohibition against aggression implies self/body-ownership. \r\n(See also “On Libertarian Legal Theory, Self-Ownership and Drug Laws” (ch. 23).)\r\nThe rationale for body-ownership, however, is extended by libertarians to develop similar \r\nproperty rights in external resources; and also to prohibit threats and fraud. (See ibid.) \r\nThus, in my view, the term “nonaggression principle” is an acceptable shorthand for basic ","","What Libertarianism Is | 13\r\nSo, as descriptive terms for our political philosophy, capitalism \r\nand the free market are too narrow, and justice, individual rights, and \r\naggression all boil down to, or are defined in terms of, property rights. \r\nWhat of property rights, then? Is this what differentiates libertarianism from other political philosophies—that we favor property \r\nrights, and all others do not? Surely such a claim is untenable. After all, \r\na property right is simply the exclusive right to control a scarce resource—\r\nwhat I often refer to now as conflictable resources.5\r\n Property rights \r\nspecify which persons own—have the right to control—various scarce \r\nresources in a given region or jurisdiction. Yet everyone and every \r\npolitical theory advances some theory of property. None of the various \r\nforms of socialism deny property rights; each socialism will specify an \r\nowner for every scarce resource.6\r\n If the state nationalizes an industry, it \r\nis asserting ownership of these means of production. If the state taxes \r\nyou, it is implicitly asserting ownership of the funds taken. If my land \r\nis transferred to a private developer by eminent domain statutes, the \r\ndeveloper is now the owner. If the law allows a recipient of racial discrimination to sue his employer for a sum of money—he is the (new) \r\nlibertarian property rights principles—self-ownership plus ownership of external resources \r\nbased on original appropriation, and fraud and threats—as long as it is kept in mind that in \r\nliteral terms it refers to body-ownership and that the other property rights are extensions \r\nof and based on this primary property right. See also Kinsella, “Aggression and Property Rights Plank in the Libertarian Party Platform,” StephanKinsella.com (May 30, 2022); \r\nidem, “KOL259 | “How To Think About Property”, New Hampshire Liberty Forum 2019,” \r\nKinsella on Liberty Podcast (Feb. 9, 2019); “On Libertarian Legal Theory, Self-Ownership \r\nand Drug Laws” (ch. 23); “Libertarianism After Fifty Years: What Have We Learned?” (ch. \r\n25); Kinsella, “KOL229 | Ernie Hancock Show: IP Debate with Alan Korwin,” Kinsella \r\non Liberty Podcast (Nov. 16, 2017); idem, “KOL161 | Argumentation Ethics, Estoppel, and \r\nLibertarian Rights: Adam Smith Forum, Moscow (2014),” Kinsella on Liberty Podcast (Nov. \r\n7, 2014). 5 In revising this chapter, this footnote grew to unmanageable length. I have placed the \r\nrelevant commentary in Appendix I, below. 6 For a systematic analysis of various forms of socialism, from Socialism Russian-Style, \r\nSocialism Social-Democratic Style, the Socialism of Conservatism, the Socialism of Social \r\nEngineering, see Hoppe, A Theory of Socialism and Capitalism, chaps. 3–6. Recognizing the \r\ncommon elements of various forms of socialism and their distinction from libertarianism \r\n(capitalism), Hoppe incisively defines socialism as “an institutionalized interference with \r\nor aggression against private property and private property claims.” Ibid., p. 2. See also the \r\nquote from Hoppe in note 14, below.","","14 | PART 1: Libertarianism\r\nowner of the money.7\r\n If the state conscripts someone, or imprisons \r\nthem as the penalty for refusing to serve in the military, or for failure \r\nto pay taxes, or for using illegal narcotics, then the state is claiming \r\nlegal ownership of the person’s body.\r\nProtection of and respect for property rights is thus not unique to \r\nlibertarianism. Every legal system defines and enforces some property \r\nrights system. What is distinctive about libertarianism is its particular \r\nproperty assignment rules—its view as to who is the owner of each contestable, conflictable resource, and how to determine this. \r\nLIBERTARIAN PROPERTY RIGHTS\r\nA system of property rights assigns a particular owner to every scarce \r\n(conflictable) resource.8\r\n These resources obviously include natural \r\nresources such as land, fruits of trees, and so on. Objects found in nature are not the only scarce resources, however. Each human actor has, \r\ncontrols, and is identified and associated with a unique human body, \r\nwhich is also a scarce resource.9\r\n Both human bodies and non-human \r\n7 Even the private thief, by taking your watch, is implicitly acting on the maxim that he\r\nhas the right to control it—that he is its owner. He does not deny property rights—he simply \r\ndiffers from the libertarian as to who the owner is. In fact, as Adam Smith observed: “If \r\nthere is any society among robbers and murderers, they must at least, according to the trite \r\nobservation, abstain from robbing and murdering one another.” Adam Smith, The Theory of \r\nMoral Sentiments (Indianapolis: Liberty Fund, [1759] 1982), II.II.3. 8 As Hoppe points out in the Foreword, regarding the principle of “private property and \r\noriginal appropriation: Logically, what is required to avoid all conflict regarding external \r\nmaterial objects used or usable as means of action, i.e. as goods, is clear: every good must \r\nalways and at all times be owned privately, i.e. controlled exclusively by some specified \r\nperson.”\r\nNote also that it is only scarce (conflictable) things that can be owned, that is, be the \r\nsubject of property rights. For example, as noted in the section “IP Rights as Negative \r\nEasements” in “Against Intellectual Property After Twenty Years” (ch. 15), information or \r\nknowledge (recipes, in general), as a non-scarce, non-conflictable thing, cannot be owned; \r\nany law purporting to assign property rights in such things is just a disguised reassignment \r\nof property rights in existing conflictable resources (money, factories, printing presses, etc). 9 As Hoppe observes, even in a paradise with a superabundance of goods: \r\nevery person’s physical body would still be a scarce resource and thus the need for \r\nthe establishment of property rules, i.e., rules regarding people’s bodies, would exist. One is not used to thinking of one’s own body in terms of a scarce good, but in \r\nimagining the most ideal situation one could ever hope for, the Garden of Eden, it ","","What Libertarianism Is | 15\r\nscarce resources are desired for use as means by actors in the pursuit of \r\nvarious goals.10\r\nAccordingly, any political or legal system must assign ownership \r\nrights in human bodies as well as in external things.\r\nThe libertarian view is that individual rights—property rights—are \r\nassigned according to a few simple principles: self-ownership, in the case \r\nof human bodies; and, in the case of previously-unowned external \r\nthings (conflictable resources), in accordance with principles of original\r\nappropriation, contractual title transfer, and rectification.\r\n11 Let us discuss \r\nbecomes possible to realize that one’s body is indeed the prototype of a scarce good \r\nfor the use of which property rights, i.e., rights of exclusive ownership, somehow \r\nhave to be established, in order to avoid clashes.\r\nHoppe, A Theory of Socialism and Capitalism, pp. 8–9. See also Hans-Hermann Hoppe, \r\n“Of Common, Public, and Private Property and the Rationale for Total Privatization,” \r\nin The Great Fiction: Property, Economy, Society, and the Politics of Decline (Second Expanded \r\nEdition, Mises Institute, 2021; www.hanshoppe.com/tgf); Hans-Hermann Hoppe, “On \r\nThe Ethics of Argumentation,” Property and Freedom Podcast (episode 163; 2016; www.\r\nPropertyAndFreedom.org); and “Causation and Aggression” (ch. 8) (discussing the use of \r\nother humans’ bodies as means).\r\nN.b.: correlating (not: equating) an actor’s “self ” or person with his corporeal body is not \r\nmystical or incoherent, as some (even soi-disant libertarian!) critics confusingly maintain, \r\nany more than it is mystical to conceptually distinguish the mind from the brain. See “How \r\nWe Come to Own Ourselves” (ch. 4), at n.1 et pass. 10 See “Causation and Aggression” (ch. 8). 11 As Narveson writes:\r\nRobert Nozick has most usefully divided the space for principles on the subject of \r\nproperty into three classes: (1) initial acquisition, that is, the acquisition of property \r\nrights in external things from a previous condition in which they were unowned \r\nby anyone in particular; (2) transfer, that is, the passing of property (that is to say, \r\nproperty rights) from one rightholder to another; and (3) rectification, which is the \r\nbusiness of restoring just distributions of property when they have been upset by \r\nadmittedly unjust practices such as theft and fraud.\r\nJan Narveson, The Libertarian Idea, reissue ed. (Broadview Press, 2001), p. 69. See also \r\nRobert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), ch. 7, section I; \r\nRoderick T. Long, “Why Libertarians Believe There is Only One Right,” C4SS.org (April \r\n7, 2014; https://c4ss.org/content/25648) (“Libertarian property rights are, famously, governed by principles of justice in initial appropriation (mixing one’s labour with previously \r\nunowned resources), justice in transfer (mutual consent), and justice in rectification (say, \r\nrestitution plus damages)”); and Gary Chartier, Anarchy and Legal Order: Law and Politics \r\nfor a Stateless Society (Cambridge University Press, 2013), at 64–65, et seq., elaborating on \r\nthe “baseline possessory rules” corresponding to original appropriation and contractual \r\ntitle transfer. Regarding transfers made for purposes of rectification, see ibid., chap. 5, \r\n“Rectifying Injury,” esp. §II.C.2, and “A Libertarian Theory of Punishment and Rights” \r\n(ch. 5), at Parts IV.B and IV.G.","","16 | PART 1: Libertarianism\r\nthese in turn in the following sections. Note that in this chapter I aim \r\nmostly to describe libertarian principles, not necessarily\nThe file is too long and its contents have been truncated.\n",{},"image","dd",{"_1087":1088,"_1089":1090},"disablePrefetch","shouldPrefetchAccount","shouldPrefetchUser","shouldPrefetchSystemHints","promoteCss","disableSSR","stripModulepreloadImports","statsigGateEvaluationsPromise",["P",1086],"traceId","260948329929102867","traceTime",1777692304741]

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Public Property Analysis