Heresy

No, this isn’t your standard, run-of-the-mill heresy.  And unlike my normal practice, regarding this heresy and this theology I will allow comments and dialogue.

Against Libertarian Legalism: A Comment on Kinsella and Block, by Frank Van Dun (FVD)

What follows is a comment on some of the arguments on intellectual property and blackmail presented respectively by N. Stephan Kinsella and Walter Block….

I understand fairly well the arguments of Kinsella and Block on these topics, but this is in any case secondary to FVD’s purpose:

After all, etching in the fine points of libertarian jurisprudence on blackmail or intellectual property is hardly a pressing need.

So why is FVD writing this paper and why am I writing about what FVD is writing about?

Rather, I believe my disagreement on those small matters critically involves the very basis on which Block and Kinsella chose to erect their legal arguments. I am referring to their use of the so-called Rothbardian non-aggression rule as the foundation or axiom for libertarian jurisprudence.

Heresy.  Hilaire Belloc defines heresy as follows:

Heresy is the dislocation of some complete and self-supporting scheme by the introduction of a novel denial of some essential part therein.

The question we will explore: which party is doing “the dislocation of some complete and self-supporting scheme by the introduction of a novel denial of some essential part therein”?

You can surmise from the following the view of FVD on this question:

The purpose of my comments is to explain why I think that this axiom is inadequate from a libertarian point of view…. I shall endeavour to show briefly where the so-called non-aggression axiom fits in a libertarian philosophy of law.

FVD describes many of the same struggles I have with considering the most restrictive definition of the non-aggression principle (and you will forgive my shortcut): it considers only life and property; contracts are valid only when they involve title transfer; physical property is the only type of property; relationships are defined only via what is explicitly considered in a contract.

I will let FVD explain it:

I shall argue that, if pressed to their logical conclusion, [Kinsella’s arguments against the legitimacy of trademark protection] would make the very idea of a contractual order and therefore of a free market incoherent.

It is my contention that [Block’s arguments concerning libel and labour contracts] lead to results that are incompatible with the requirements of freedom and justice that define the libertarian perspective on human relations…. It seems to legitimize only a world in which every possible contingency must be covered by an explicit contractual stipulation. 

The whole of FVD’s argument can be summarized as follows:

My differences with Kinsella and Block stem from the fact that it does not follow from those theses that defensive use of force is justified or lawful only in response to aggressive violent invasions of persons or property.

FVD is suggesting that the heresy – if freedom and justice are the objectives of libertarian law – is committed by those – paraphrasing Belloc – who have developed a novel denial of some essential part of an otherwise complete and self-supporting scheme:

It does not follow that only aggression against another person or his property is unlawful.

Everything in my gut has struggled with this issue from the beginning of my journey in this blog. 

There may be unlawful acts that are not invasions of a person’s physical domain, yet justify the defensive use of force to prevent, stop, or exact compensation for such acts.

In other words, FVD offers that there is – there must be – more to libertarian law than considerations of violations against person and physical property…if one’s objective is freedom and justice.

There is no inconsistency in the belief that force may be used lawfully in defence against unlawful acts that are not physical invasions of person or property.

I am reminded of Hoppe’s statement: 

A conflict is only possible if goods are scarce.  …property ownership means the exclusive control of a particular person over specific physical objects and spaces.

This has never sat well in my gut either.  Of course, we are familiar with the libertarian debates over certain forms of intellectual property, trademarks, etc.  These are neither scarce goods nor physical objects.  Yet we see daily that conflicts arise over such as these (and we must recognize that conflicts would arise over such as these even without government laws).

And this is what FVD will examine as it relates to Kinsella’s argument regarding trademark; this can be summarized here using an analogy of a signature (the connection to a trademark should be easily understood, I think):

Is there a fundamental objection to regarding a trademark as similar to a person’s signature, his personal mark for purposes of trade and other forms of communication? I cannot see one. Even if there was a fundamental difference, it would still be the case that a person that forges another’s signature – using his own ink, pen and paper – is not by that act alone invading  another’s  rights.  Nonetheless, his forgery should become legally relevant as soon as he starts using it to misrepresent himself to the world as the person whose signature he has learned to forge. However, under the Kinsella Code, we should say that F (the forger) does not invade any right held by O (the person that F pretends to be).

Your forging of my signature does not deprive me of my signature.  I am still free to sign my name as many times as I want.  One can, I assume, see the chaos that would then ensue, and in this chaos see the deprivation of freedom and justice.

FVD offers a further example – banknotes.  You are not deprived of your banknotes if someone counterfeits more notes.  So much for any concern about fractional-reserve banking.

Anyone can print the label of a well-known, highly reputable quality control lab and then pass off his work as that of the lab.  What happens to the reputation and therefore the future of the lab – built after years or decades of hard work?  We might glibly (and technically accurately) say that one doesn’t own his reputation…but think about what that means in a world where freedom and trade can only flourish or even exist in a world of high trust.

Speaking of reputation, FVD moves on to Block’s view on libel – basically that libel is not against libertarian law:

While it is true that one cannot own one’s reputation (that is, other people’s opinions about oneself), it is also true that one can sell one’s reputation. It happens all the time when businesses are taken over, in advertising campaigns, or when the retiring author of a comic strip sells the right to the continued use of his name to his successor. How can one sell what one does not own?

A curious question, it seems.

Let me briefly discuss another of Block’s cases. “Should it be legal,” Block asks, “to fire an employee who refuses to sleep with the boss?” His answer is an uncompromising yes.  “It is always legitimate to  fire  an  employee  for  any  reason  at  all,  at  any  time,  assuming  that there is no long-run contract in force precluding this option.”

FVD suggests:

In no world, whether libertarian or not, do labour contracts (or any other contracts) exist in a vacuum…. Most contracts, indeed, are very simple agreements made by people who do not bother to insert clauses for every possible contingency that might arise.

Anyone who has had to negotiate a contract understands this.  In a given environment, would it be expected that the employee would demand a clause in her contract that stated clearly that she would not have to sleep with the boss.  (Yes, I know, here is that pesky culture and tradition thing.)  As FVD suggests, even the most complex contracts are built on inherent assumptions – sometime verbally spoken, often not.

Conclusion

FVD summarizes:

As I see it, the trouble with Kinsella’s and Block’s libertarian legal theory has its immediate roots in the elevation of the non-aggression rule to the status of the one and only axiom of legality.

I know, I know, to consider anything more than life and physical property muddies the waters.  Well, guess what?  Life is muddy; conflict arises for more than issues regarding life and physical property.

A libertarian legal theory must be founded on a sound philosophy of law if it is to have any chance of holding its ground in serious intellectual debate. Block and Kinsella do not provide such a philosophy.

Natural law is, of course, the place to start.

In this paper, FVD summarizes his analysis of the meaning of natural law.  Waiting its turn in my stack is another paper of his that more deeply examines his view on this topic.  So this will come another day.

Epilogue

Stephan Kinsella replied to FVD’s piece, Reply to Van Dunn: Non-Aggression and Title Transfer.  It can be summarized as follows:

In my view, Van Dun cannot really agree with the non-aggression principle, if he is going to adhere to his “broader” view of unlawfulness.

But it seems to me that FVD is not disagreeing with the NAP; he is merely stating that it is not functional as the entirety of libertarian law.  It raises the issue: FVD is suggesting physical force to stop a non-physical aggression (like punching a man for insulting my wife!!!).

But put yourself in a human body, not utopian body: how do you envision your freedom is enhanced if everyone is free to libel you, if you cannot trust in some manner the representations of a manufacturer, if you neglected to include a clause in the homeowners’ association agreement that said sex orgies on the front lawn are not allowed?  How do you envision that such activities will reduce chaos and not invite it?

Kinsella continues with details regarding his view of trademark – obviously contrary to that posed by FVD.  In the real world, populated by real humans, Kinsella’s view will not reduce conflict and enhance liberty; it will do just the opposite. 

All of his legal theorizing will not change this.