Kinsella On Liberty

Kinsella on Liberty Podcast, Episode 200. I was interviewed yesterday by Steve Rose of The Anarchist Standard about a libertarian/anarchist strategy and a variety of other matters. From his description: "Stephan and I discussed his path to anarchism, the changing labels for the liberty movement, artificial intelligence, religion, world government, and prospects for the future of liberty."

Kinsella on Liberty Podcast, Episode 199. I discussed legislation and law  with Tom Woods on his show today, Episode 557: Ep. 557 The State’s Corruption of Private Law, or We Don’t Need No Legislature 17th December 2015 Ever since we learned in school how a bill becomes a law, we’ve absorbed the idea that it’s normal for law to be imposed from the top down. But it’s possible, and indeed the historical norm, for law to emerge in a completely different, more libertarian-friendly way. Join me for a great conversation with Stephan Kinsella! Transcript below. Youtube version: More description from Tom's shownotes: Related Links “Legislation and the Discovery of Law in a Free Society” (PDF) by Stephan Kinsella Liberty and Law (PDF), by Giovanni Sartori “The State’s Corruption of Private Law,” by Stephan Kinsella “Another Problem with Legislation: James Carter and the Field Codes,” by Stephan Kinsella Related Books Law, Legislation, and Liberty, vol. 1: Rules and Order, by F.A. Hayek Freedom and the Law, by Bruno Leoni Books by the Guest Against Intellectual Property International Investment, Political Risk, and Dispute Resolution: A Practitioner’s Guide Protecting Foreign Investment Under International Law: Legal Aspects of Political Risk For some more related posts/resources: “Legislation and Law in a Free Society,” Mises Daily (Feb. 25, 2010) “Legislation and the Discovery of Law in a Free Society,” Journal of Libertarian Studies 11 (Summer 1995) Another Problem with Legislation: James Carter v. the Field Codes Kinsella & Rome, Louisiana Civil Law Dictionary (Quid Pro Books, 2011) Regret: The Glory of State Law KOL001 | “The (State’s) Corruption of (Private) Law” (PFS 2012) Hayek, Law, Legislation and Liberty, vol. 1 John Hasnas, The Myth of the Rule of Law (2) David Kelley & Roger Donway, Laissez Parler: Freedom in the Electronic Media (linked here) Bruno Leoni, Freedom and the Law Giovanni Sartori, Liberty and Law (pdf) Shael Herman, The Louisiana Civil Code: A European Legacy for the United States Alan Watson, Roman Law and Comparative Law Idem, The Importance of “Nutshells”, AJCL, 1994 Why Airwaves (Electromagnetic Spectra) Are (Arguably) Property Transcript The State's Corruption of Private Law, or We Don't Need No Legislature Stephan Kinsella, interviewed by Tom Woods The Tom Woods Show, Dec. 17, 2015 Transcript 00:00:00 TOM WOODS: The Tom Woods Show, episode 557. 00:00:03 INTRO: Prepare to set fire to the index card of allowable opinion.  Your daily dose of liberty education starts here, the Tom Woods Show. 00:00:13 TOM WOODS: Hey everybody.  Welcome to another episode of the show.  Stephan Kinsella is back with us again.  There are so many episode topics I could cover with Stephan Kinsella, and today we’re talking about law and legislation.  Is it possible to think of law other than as something that’s imposed from the top down by a bunch of legislators on society?  That’s what we want to talk about because it’s important, has important ramifications, and I thought I haven’t done it yet.  Doggone it; it’s episode 557.  Let’s do it. 00:00:48 Stephan Kinsella is a libertarian legal theorist.  He has pioneered in the study of intellectual property.  I’m going to link to all kinds of material about Stephan at tomwoods.com/557.  You can find out more about him at stephankinsella.com.  Let me remind you because there’s been a little bit of confusion.  I am giving away a free autographed book.  You can look through my book selection at tomwoods.com/books.  I am giving away a free autographed and personalized book to people who buy gift subscriptions to libertyclassroom.com this year, only for gift subscriptions. 00:01:28 It’s like when you go to Chili’s, which I don’t recommend, but if you go to Chili’s and you buy a $25 gift card, they give you a $5 gift card, it’s that kind of principle.  So if you buy a gift, you get something for yourself.  So I probably won’t be able to get it to you before Christmas, so don’t think of it as a gift to give to your recipient.  You’ve already given your recipient a gift.  It’s enough giving for one person.  Keep the book for yourself.  So just get the subscription at libertyclassroom.com and just drop me a line at tomwoods.com.  Tell me what book you’d like, give me your address, and I’ll mail that baby right on out to you.  All right, let’s talk now to Stephan Kinsella.  Stephan, welcome back to the show. 00:02:08 STEPHAN KINSELLA: Thanks Tom, glad to be here. 00:02:09 TOM WOODS: This is a topic I get but I don’t fully get, and I say that as somebody who’s been a libertarian for a long time, and I want you to help us flesh out this topic of law and legislation as two different things that if we say that we don’t like legislation that doesn’t mean we don’t like law.  What do these things mean?  Can you have law without a centralized lawmaker that hands down authoritative statements that bind everybody in society?  Is there another way of thinking about how law comes about?  That’s what we want to look at today.  We’re going to have a lot of links on the show notes page, so if this topic interests you, tomwoods.com/557 will have a whole bunch of stuff, some stuff by Stephan Kinsella, some stuff by Bruno Leoni and others. 00:02:57 All right, let’s set the stage here.  Let’s bear in mind that obviously as anarcho-capitalists we don’t see a role for a legislature to begin with, but that’s not the central claim that’s being made here.  I mean F.A. Hayek was not an anarchist, and yet he still spoke very favorably about what we might call judge – not judge-made law because that again sounds constructivist, but judge-discovered law.  Give me the two-minute bird’s eye view, and then we’re going to take it apart. 00:03:29 STEPHAN KINSELLA: Well, let’s go back to what the term law means and why we use law because the word law is used in the physical sciences, in physics, and it’s used in the social sciences as well in different ways.  I was just reading – listening to a great speech by a professor at Oxford about the famous scientist, James Clerk Maxwell, who’s a – I’m an electrical engineer background, so all double E’s, no Maxwell’s equations.  So Maxwell is like one of the top brilliant natural scientists of all history really.  I mean he’s up there with Einstein and Newton. 00:04:06 What he came up with in the 1800s was incredible.  He unified electromagnetism and light theory, and his father wanted him to be a lawyer, and he said, dad, I’m going to pursue another kind of law.  So I kind of like that because it shows that there’s this unifying idea of laws that we all search for in different realms of intellectual inquiry.  But the physical laws are one thing.  They’re physical laws you’re trying to discover according to the scientific method.  And then we have laws, like what people talk about normally as it’s against the law to do A, B, and C. 00:04:47 Nowadays, because we have a heavily, legally positivistic culture and I can explain what that means, most people nowadays think in those terms, so they think of a law as a piece of paper with words on it that some legislature has written down what the law is just like people think of contracts, and I think we talked about this recently.  They think of contracts as a piece of paper with words on it that announce what the contract is.  So they identify the contract with the piece of paper.  They identify the law with what’s written down in a statute.  That’s what legislation is. 00:05:26 And sometimes you’ll hear the more simple-minded types talk about the law books, the law books.  You’ll hear these common law court nuts or the income tax conspiracy types who will say that it’s not illegal to pay income tax because show me the law books.  Show me the law.  So they’re equating in their minds law with what’s written down on a piece of paper that was published by some authoritative body, the legislature, or the king or maybe God or maybe the Bible, whatever.  So they’re thinking of law that way. 00:06:01 But this is not – and I think they think of that now because – and they didn’t used to, Tom.  And you know a way lot more about history than me, so you might be able to fill in some of my meanderings or gaps on this issue.  But the approach I like to take is this.  Law in terms of legal law, in terms of normative rules that humans come up with to help us get along with each other in society, and basically all laws are property rights that determine who can use resources that we could otherwise conflict over. 00:06:35 So the question is what should the law be, which means who should the owner be?  Who should win in this dispute?  In older times, the conception of law was that there’s a sort of natural justice.  There’s a background of what we call higher law, and we’re trying to do justice.  So you have a judge or a court or a tribunal or an arbitral tribunal, someone who is appealed to because of their wisdom or their place in society, and the two or more contestants who have a dispute over who basically gets to own a given resource that’s in dispute – who’s going to get to own it? 00:07:12 And then the job of the judge is to do justice, that is, to try to find the right answer, and they try to do this.  And over time, a body of law develops in a decentralized fashion.  Now, this happened historically, Tom, and the two major periods would be in the Roman law period roughly from -500 to 500 – from -500 A.D. to – or B.C. to 500 A.D. like the thousand-year period of the German – I’m sorry, the Roman empire.  And then the second period would be the English common law, which started developing around – I think probably around 1000, something like that.  And it borrowed partly from the Roman law,

Kinsella on Liberty Podcast, Episode 198. This is a discussion with Ash Navabi, an economics grad student at George Mason, who messaged me this question: Hi Stephan. I'm having a conceptual problem distinguishing IP and tangible property. In Against IP, you said that an IP right gives the IP owner "invariably transfer partial ownership of tangible property from its natural owner to innovators, inventors, and artists." But doesn't this apply to every property right? If I own a tract of land, why can't we say that if I ban you riding across it with your dirt bike, then I am claiming ownership over your dirt bike? I decided to just discuss this with him for the podcast. We ended up veering into a couple tangential issues like auctions for trade secrets in an IP-free world, and so on. Before we talked, I asked him to read: “The Non-Aggression Principle as a Limit on Action, Not on Property Rights,” StephanKinsella.com Blog (Jan. 22, 2010) “IP and Aggression as Limits on Property Rights: How They Differ,”StephanKinsella.com Blog (Jan. 22, 2010) Other materials mentioned during our discussion: Against Intellectual Property Roderick Long, Owning Ideas Means Owning People and The Libertarian Case Against Intellectual Property Rights The video is streamed below.

Kinsella on Liberty Podcast, Episode 197. I discussed Rothbardian/libertarian contract theory with Tom Woods on his show today. Update: See also Łukasz Dominiak & Tate Fegley, "Contract Theory, Title Transfer, and Libertarianism," Diametros (10 Sep. 2022; doi: 10.33392/diam.180) Transcript below. Ep. 547 The Central Rothbard Contribution I Overlooked, and Why It Matters Youtube: 3rd December 2015 Stephan Kinsella explains the importance of Rothbard’s theory of contract — a point I myself did not appreciate until this episode — and contrasts it with mainstream theories, which most libertarians think are the same as their own. We need to get these fundamentals right, so listen in and learn with me! Articles Discussed “Toward a Reformulation of the Law of Contracts,” by Williamson M. Evers “A Libertarian Theory of Contract: Title Transfer, Binding Promises, Inalienability,” by Stephan Kinsella Book Discussed The Ethics of Liberty, by Murray N. Rothbard For some more related posts/resources: A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability, Journal of Libertarian Studies 17, no. 2 (Spring 2003): 11-37 [based on paper presented at Law and Economics panel, Austrian Scholars Conference, Auburn, Alabama (April 17, 1999)] Justice and Property Rights: Rothbard on Scarcity, Property, Contracts… KOL020 | “Libertarian Legal Theory: Property, Conflict, and Society: Lecture 3: Applications I: Legal Systems, Contract, Fraud” (Mises Academy, 2011)  around Slide 16: slides here The Libertarian View on Fine Print, Shrinkwrap, Clickwrap KOL146 | Interview of Williamson Evers on the Title-Transfer Theory of Contract KOL004 | Interview with Walter Block on Voluntary Slavery Transcript The Central Rothbard Contribution I Overlooked, and Why It Matters: The Rothbard-Evers Title-Transfer Theory of Contract Stephan Kinsella, interviewed by Tom Woods The Tom Woods Show, Ep. 547, Dec. 3, 2015 Transcript 00:00:00 TOM WOODS: The Tom Woods Show, episode 547. 00:00:03 INTRO: Prepare to set fire to the index card of allowable opinion.  Your daily dose of liberty education starts here, the Tom Woods Show. 00:00:14 TOM WOODS: Hey everybody.  Christmas is coming, and chances are you’re going to be doing a lot of online shopping.  Well, why not get cash back at virtually all the retailers you’re going to be using anyway?  Sign up for Ebates and you’ll get just that.  Check it out through tomwoods.com/ebates. 00:00:30 Hey everybody.  Welcome to another episode of the Tom Woods Show.  We’re joined once again by Stephan Kinsella because today we’re talking about foundational issues related to libertarianism, and I can think of no one better to help us clarify our thinking on questions like this than Stephan.  And ordinarily, as I would do in these episodes and as I’ve done in the past with Stephan, I would launch into a biographical discussion of the guest.  But instead, I’m going to turn things over to Stephan and say, Stephan, what do you think people should know about you? 00:01:02 STEPHAN KINSELLA: Well, I was born in a little town in Louisiana. 00:01:06 TOM WOODS: I knew I shouldn’t have done this. 00:01:07 STEPHAN KINSELLA: I’m a libertarian patent attorney in Houston.  How about that? 00:01:12 TOM WOODS: Oh, but you’ve done so much more.  I want to know about your writings. 00:01:16 STEPHAN KINSELLA: Okay, so I am a practicing attorney, but I’ve written a lot on libertarian legal theory for the Journal of Libertarian Studies, and then I founded sort of a successor journal called Libertarian Papers, which is still ongoing, which I’m the managing editor of.  And I’ve written some books, and I’ve written on intellectual property, both the legal side and the libertarian theory side. 00:01:42 TOM WOODS: I am going to be linking to everything that we talk about today in terms of articles that you’ve written and stuff like that.  I’ll like to it at tomwoods.com/547.  I spent last night actually reading some of your stuff that I hadn’t read before, and then all the way up to the moment I called you today I was reading your stuff.  So I am very much in a Kinsella frame of mind right now, and I have to say, I want to get to this later.  I was really struck by – I guess I hadn’t read – gosh, I hadn’t – I’ve read so much Rothbard, but it’s – I haven’t read it in the past week, and sometimes I forget what was in it. 00:02:22 And some of the insights are so interesting because they apply to current debates.  I was interested to see that Rothbard I guess deals with the question of how do we confront problems in, let’s say – well, let’s just say this.  Sometimes we don’t have a – what we might call a clean capitalism.  Sometimes property titles are not legitimate because they – when you go back into the mist of time, you might be able to say that so-and-so stole it, and you’re an inheritor of stolen goods.  But the difficulty is how can we know that today?  We can’t always, and so does that mean that everybody holds his property only precariously, or it’s all questionable? 00:03:07 These are the sorts of complaints that left libertarians have made, and Rothbard addresses this as if he’s living in 2015 debating the same people I debate just exactly right, so I want to get to that later.  But right now I want to talk about the issue of contract is so important for libertarianism, and I guess, frankly, even up until today, this very day when I read your discussion of the Evers-Rothbard title-transfer theory of contract I guess I just assumed that our view of contract was not all that different from the mainstream view, and I guess you learn something every day.  How is the main – well, first of all, what’s a contract?  And how does the mainstream try to justify the – basically forcing somebody to live up to his side of a contract? 00:03:56 STEPHAN KINSELLA: Right.  And actually I think this is one of Rothbard’s sort of seminal contributions to political theory or legal theory, and it’s relatively unappreciated.  It’s… 00:04:08 TOM WOODS: Yeah, you can say that again.  I’ve been praising the guy for decades, and I didn’t appreciate it. 00:04:13 STEPHAN KINSELLA: I think it’s in the final chapter of The Ethics of Liberty if I’m not mistaken, which is – I think ’82 it was first published. 00:04:20 TOM WOODS: Yeah. 00:04:21 STEPHAN KINSELLA: Which fascinated me when I read it.  And then it’s based upon a 1977 article by Williamson Evers in the Journal of Libertarian Studies, which Rothbard was the founder and editor of and which was the very first article.  It was Volume 1 No. 1, so this was the first article ever published in the JLS, the article by Evers, on contract theory. 00:04:42 I later discovered – after I wrote a long article about this in 2003, I later discovered that in ’74, Rothbard had sort of had the germs of this idea in one of his earlier articles, the one you were alluding to so – which is fascinating.  The standard understanding of contract, which I think most libertarians actually share in a sort of kind of crude way, is that a contract is a binding promise. 00:05:09 Now, legally speaking, if you get more precise, you can distinguish three things.  You can distinguish consent from agreement and from contract.  They’re all different things.  Consent just means the person who has the right to give permission or to deny permission gives permission.  That’s consent.  We determine who can do this by deciding what property rights there are.  So it’s really a propertarian kind of issue.  The owner of a certain – their body or something else – has the right to permit or to deny others from using that thing.  That’s just consent. 00:05:42 A contract is what we call in the law a binding agreement.  So an agreement is just when people come to an agreement they say things that they’re going to do something, and if it satisfies certain requirements in the law, then it’s called a contract, which means it’s a binding agreement or it’s a binding obligation.  So the standard view of contract is that it’s basically a promise of a certain type that is binding, and most libertarians think of this too.  They’ll say that you have to keep your contracts.  They view it as something you promise to do that has certain formalities like consideration or whatever that makes it legally enforceable.  So the standard view of contract is a legally enforceable promise or agreement, and this is not Rothbard’s understanding. 00:06:30 TOM WOODS: Well, if a promise then is not really what’s at the heart of what makes a contract binding so to speak, what is the correct way to think about it? 00:06:40 STEPHAN KINSELLA: So Rothbard’s view, which again, I think he came up with this in ’74, and he was thinking from a Misesian point of view about the nature of property and a libertarian view about the nature of property rights.  And then Evers elaborated on this, and then Rothbard built upon that, so it was really a collaboration between the two.  And by the way, I have an interview with Evers on my podcast, which I finally was able to – after trying for years to reach him, finally last year he spoke with me about this, and he… 00:07:06 TOM WOODS: Wow.  I didn’t realize that.  I figured – I really thought he basically was unreachable at this point. 00:07:11 STEPHAN KINSELLA: I tried for years and finally he consented.  I was able to do it, and it was fun to do it.  It was great.  I think it was important to do it.  He basically confirmed my understanding of the chronology of this, of the idea.  In any case, so Rothbard’s rooted in thinking of human action as the use of resources, right?  And libertarianism is the property rights in resources, and what it means to have ownership of a resource is you can grant permission to others,

Kinsella on Liberty Podcast, Episode 196. This is my appearance on the Jason Stapleton Program: Intellectual Property: A Libertarian Debate with Stephan Kinsella.

Kinsella on Liberty Podcast, Episode 195. This is my appearance on the The 21st Century Anarchist Podcast Ep. 038: IP with Stephan Kinsella, with host Hermann Morris: "An introduction to intellectual property law and how it relates to libertarianism." Youtube:

Kinsella on Liberty Podcast, Episode 194. This is an impromptu discussion with my wonderful parents, Norman and Patsy Kinsella, who live in Prairieville, Louisiana. We did this a couple days ago, Oct. 1, on my 50th birthday. As sometimes happens in October in Louisiana, the weather starts getting nice around that time, and so we were sitting outside on the porch and when my dad got out his ballot to vote by mail in an upcoming election, I whipped out my iPhone and did a quick interview with them about politics that I thought might be of interest to some of my followers. (N.b.: For those interested in more details on related matters, see How I Became A Libertarian (2002), later published as “Being a Libertarian” in I Chose Liberty: Autobiographies of Contemporary Libertarians.)

Kinsella on Liberty Podcast, Episode 193. This is my appearance on Albert Lu’s “The Economy” podcast. This is part 3 of 3. We discussed property rights, bitcoin ownership, intellectual property, and related matters. See also: KOL085 | The History, Meaning, and Future of Legal Tender Episode video below: Full video of all three parts below.

Kinsella on Liberty Podcast, Episode 192. This is my appearance on Albert Lu’s “The Economy” podcast, Episode 2015-9-23. This is part 2 of 3. From Albert Lu's description: Your host Albert continues the discussion with patent attorney Stephan Kinsella. In the second of a three-part interview, they discuss the concept of “ownership”. Topics Covered The entire world is made of hardware and owned by someone Fiat money is similar to Bitcoin How property rights arise de facto vs. de jure ownership What is a “good”? Part 1 is here: KOL191 | The Economy with Albert Lu: Can You Own Bitcoin? (1/3). Part 3 follows in the next episode. Episode video below: Full video of all 3 parts here:

This is my appearance on Albert Lu's "The Economy" podcast. This is part 1 of 3. We discussed property rights, bitcoin ownership, intellectual property, and related matters. Parts 2 and 3 to follow in due course. Relevant links at KOL274 | Nobody Owns Bitcoin (PFS 2019). See also: KOL085 | The History, Meaning, and Future of Legal Tender. Episode video: Full video below: