Correcting Some Common Libertarian
Misconceptions
Stephan Kinsella
Libertarian Papers, C4SIF.org, Mises.org
Property and Freedom Society
2011 Annual Meeting
May 27-29, 2011
1 | Correcting Some Common Libertarian Misconceptions
Stephan Kinsella | PFS 2011
Coercion, Force
►
Coercion is not unlibertarian
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Aggression ≠ coercion
Force not unlibertarian
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Kinsella, The Problem with Coercion
False idea that PDA can assert jurisdiction only over someone
who has agreed to it


Committing aggression is consenting to the victim’s jurisdiction
Two ways force against another is justified
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Consent (permission, invitation), e.g. a kiss
Committing aggression

A type of consent to retaliation since no one committing aggression can object to
retaliation
2 | Correcting Some Common Libertarian Misconceptions
Stephan Kinsella | PFS 2011
Restitution and Punishment
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Restitution vs. retribution (punishment)

General concept: responsive force
►
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Defense, restitution, incapacitation, deterrence, rehabilitation
►

Force in response to aggression
Depends on motive or purpose of the victim
Restitution can still be the dominant mode of justice
►
Costs of punishment:
Possibility of error
 Standard of proof higher (beyond reasonable doubt vs. preponderance)

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Restitution may have lower cost, better results
But the standard of restitution is based on the more fundamental right to
punish

Kinsella, Punishment and Proportionality: The Estoppel Approach; Fraud,
Restitution, and Retaliation: The Libertarian Approach; The Libertarian Approach
to Negligence, Tort, and Strict Liability: Wergeld and Partial Wergeld
3 | Correcting Some Common Libertarian Misconceptions
Stephan Kinsella | PFS 2011
Positive obligations
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Libertarianism: negative duty to avoid aggression
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Trespass
Invasion
Border crossing
Unconsented to use
4 | Correcting Some Common Libertarian Misconceptions
Stephan Kinsella | PFS 2011
Positive obligations
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Positive obligations can exist

If voluntarily incurred
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By crime (owe restitution)
By tort (pushing in a lake  duty to rescue)
By action (having a child  parental obligations)
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Kinsella, How We Come To Own Ourselves
By word?
Problems with standard theory of contract
► Binding promise versus title transfers (Rothbard and Evers)
► Inalienability (more on this later)
 Plus, speech can be the means of aggression (“Ready, Aim, Fire!”; or “Drop the
bomb on Hiroshima” or “Lynch him!”) or can be tantamount to an invitation to be
punched (“fighting words” – “your momma is ugly”)
► See Kinsella, Causation and Aggression

5 | Correcting Some Common Libertarian Misconceptions
Stephan Kinsella | PFS 2011
Contracts; Fraud
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Contracts are not binding promises; they are exchanges (or
unilateral transfers) of title to owned resources.
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
Rothbard and Evers
Implications for alienability and body – external object distinction
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Kinsella, A Libertarian Theory of Contract: Title Transfer, Binding Promises,
and Inalienability
Fraud is not merely dishonesty

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Has to be rooted in property rights and title-transfer theory of contract
Danger of equivocation
Fraud is essentially theft-by-trick
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Theft of owned goods
Danger of equivocation if fraud used to mean merely “dishonesty”

Kinsella, The Problem with “Fraud”: Fraud, Threat, and Contract Breach as Types
of Aggression; Fraud, Restitution, and Retaliation: The Libertarian Approach; The
Limits of Armchair Theorizing: The case of Threats.
6 | Correcting Some Common Libertarian Misconceptions
Stephan Kinsella | PFS 2011
Contracts; Inalienability
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Two related fallacies:

If you can sell it, you own it.
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E.g. a “sale” of labor or service implies you own it
Sloppy equivocation
Really one-way contracts, not title exchanges
If you own it, you can sell it.
►
Ownership is right to control; does not automatically imply a right to get rid
of the right to control
Applies in the case of acquired goods (external objects), by “un-acquiring” them
(abandonment)
 Does not apply to one’s body; one is a homesteader; one does not homestead
himself (in the same way that we homestead objects)

7 | Correcting Some Common Libertarian Misconceptions
Stephan Kinsella | PFS 2011
Contracts; Inalienability
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Inalienability is not about impossibility of the will.

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Prisoners are slaves
Defensive force is justified even though criminal has free will and objects
or fights back
Only aggression alienates the right to object to force
►
Kinsella, A Libertarian Theory of Contract: Title Transfer, Binding Promises,
and Inalienability; Inalienability and Punishment: A Reply to George Smith
8 | Correcting Some Common Libertarian Misconceptions
Stephan Kinsella | PFS 2011
Self-ownership
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Self-ownership is neither “incoherent” nor mystical


In fact it is THE libertarian view
Just means body-ownership
►
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Hoppe, State or Private-Law Society (“Every person is the private (exclusive)
owner of his own physical body”)
Kinsella, What Libertarianism Is (“each person is prima facie the owner of his
own body”)


Prima facie because it can be alienated or forfeited by committing aggression
Versus slavery, murder, aggression, rape
►
►
Richard Overton, An arrow against all Tyrants, (1646) : "To every individuals
in nature, is given an individual property by nature, not to be invaded or
usurped by any ; for every one as he is himself, so he hath a selfe propriety,
else he not be himselfe".
John Locke, Second Treatise of government (1690) : (chap V, 27) : “Though
the Earth, and all inferior Creatures be common to all Men, yet every Man has
a Property in his own Person. This no Body has any Right to but himself”
9 | Correcting Some Common Libertarian Misconceptions
Stephan Kinsella | PFS 2011
Creation and the Source of Rights
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It is often maintained that there are three means of creating and
coming to own goods: original appropriation (homesteading),
contractual exchange, and production.
But production is a source of wealth only

Hoppe: “One can acquire and increase wealth either through
homesteading, production and contractual exchange, or by expropriating
and exploiting homesteaders, producers, or contractual exchangers.
There are no other ways.”
►

Banking, Nation States, and International Politics: A Sociological
Reconstruction of the Present Economic Order (1990), p. 60
New property rights do not arise from production of wealth
►
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Homesteading creates new property titles; contract transfers existing
property titles; production transforms already-owned goods
Kinsella, Against Intellectual Property; Locke on IP; Mises, Rothbard, and
Rand on Creation, Production, and “Rearranging”
10 | Correcting Some Common Libertarian Misconceptions
Stephan Kinsella | PFS 2011
Creation and the Source of Rights
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Rand: “The power to rearrange the combinations of natural
elements is the only creative power man possesses. It is an
enormous and glorious power–and it is the only meaning of the
concept “creative.” “Creation” does not (and metaphysically
cannot) mean the power to bring something into existence out
of nothing. “Creation” means the power to bring into existence
an arrangement (or combination or integration) of natural
elements that had not existed before.”
Rothbard: “Men find themselves in a certain environment, or
situation. It is this situation that the individual decides to change
in some way in order to achieve his ends. But man can work only
with the numerous elements that he finds in his environment,
by rearranging them in order to bring about the satisfaction of
his ends.”
11 | Correcting Some Common Libertarian Misconceptions
Stephan Kinsella | PFS 2011
Creation and the Source of Rights
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To ward off claims Rothbard was plagiarizing Rand: Mises:
“[speaking of] the widespread misconception of the nature of
production. There is a naive view of production that regards it
as the bringing into being of matter that did not previously
exist, as creation in the true sense of the word. From this it is
easy to derive a contrast between the creative work of
production and the mere transportation of goods. This way of
regarding the matter is entirely inadequate. In fact, the role
played by man in production always consists solely in
combining his personal forces with the forces of Nature in such
a way that the cooperation leads to some particular desired
arrangement of material. No human act of production amounts
to more than altering the position of things in space and leaving
the rest to Nature.”
12 | Correcting Some Common Libertarian Misconceptions
Stephan Kinsella | PFS 2011
Creation and the Source of Rights
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Related confusions:

Labor is not owned (neither are actions)
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Redundant with body and property ownership; a consequence of it
No property rights in value of property but only in physical integrity
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Gives rise to idea of reputation rights
Rose garden example
Competition example
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Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and
Creation Metaphors; Comment to Patents and Utilitarian Thinking; Rand on IP,
Owning “Values”, and “Rearrangement Rights”
Misplaced emphases on “harm” and “imposing costs”
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Patrick Burke, J.C. Lester
Equivocation: we oppose aggression, which is “harm”; so we have to oppose
other types of harm that are not aggression (reputation rights)

Kinsella, "Aggression" versus "Harm" in Libertarianism
13 | Correcting Some Common Libertarian Misconceptions
Stephan Kinsella | PFS 2011
Individual Rights and Property Rights
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Mistake: forgetting that all rights are property rights; other
“rights” (free speech etc.) are just consequences of basic
property rights in our bodies and homesteaded scarce resources


not independent rights
“the concept of “rights” only makes sense as property rights. For not only
are there no human rights which are not also property rights, but the
former rights lose their absoluteness and clarity and become fuzzy and
vulnerable when property rights are not used as the standard.” -Rothbard, "'Human Rights' As Property Rights”
14 | Correcting Some Common Libertarian Misconceptions
Stephan Kinsella | PFS 2011
Individual Rights and Property Rights
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“there are no human rights that are separable from property rights. The
human right of free speech is simply the property right to hire an
assembly hall from the owners, or to own one oneself; the human right
of a free press is the property right to buy materials and then print
leaflets or books and to sell them to those who are willing to buy. There
is no extra "right of free speech" or free press beyond the property rights
we can enumerate in any given case.” –Rothbard, For A New Liberty: The
Libertarian Manifesto
Danger:
►
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leads to rights inflation,
“human rights,”
rights that invade other rights
gun rights on employer property
 free speech rights in private malls
 IP “Creationism”


Plus, as noted earlier, speech can be the means of aggression (“Ready,
Aim, Fire!”; or “Drop the bomb on Hiroshima” or “Lynch him!”)
15 | Correcting Some Common Libertarian Misconceptions
Stephan Kinsella | PFS 2011
Property Rights, Means, and Action
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The prohibition on aggression does not mean property rights are
“limited.”
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Socialist/statist: what’s the big deal if IP stops you from using your
property as you see fit? All property rights are limited, after all; you can’t
use your gun to shoot someone.
Confusion:
Aggression involves the use of scarce (causally efficacious) means to
invade borders of/use others property without consent
Aggression is impermissible regardless of the means employed, whether
owned, unowned, borrowed, or stolen, or using your bare hands
It is actions that are limited, not property rights
16 | Correcting Some Common Libertarian Misconceptions
Stephan Kinsella | PFS 2011
Property Rights, Means, and Action
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Instead of saying "There are things you may not do with your
property,” we should instead say “Some actions are
impermissible."


What actions? Those that (causally, with means) invade the borders of
others' property.
Limitations on action are a result of property rights. To twist this into an
argument that property rights are limited is perverse.
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Kinsella, IP and Aggression as Limits on Property Rights: How They Differ; The
Non-Aggression Principle as a Limit on Action, Not on Property Rights.
Parallel to Holmes “fire in a crowded theater” mal-meme
Rothbard’s answer: rights to free speech are not independent


Just consequences of property rights
Discussed before
17 | Correcting Some Common Libertarian Misconceptions
Stephan Kinsella | PFS 2011
Extra/Other material follows//
18 | Correcting Some Common Libertarian Misconceptions
Stephan Kinsella | PFS 2011
Legal and Logical Positivism
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Identifying positive law does not mean condoning it.

pointing out that the income tax is legal does not mean favoring it
►

Kinsella, Logical and Legal Positivism;
Income tax protestors: SHOW ME THE LAW!
►
Law is not “what’s in the law books”; it’s the rules the state enforces
Holmes’s Bad Man Theory of law/ legal realism
 Natural Law, Positive Law, Tax Evasion, Rituals and Incantations

►
The state is not out for justice; cannot assume you can find “the right
arguments” and win
It’s criminal
 Doherty's It's So Simple, It's Ridiculous and Five Reasons You Don't Owe Income
Tax, Dammit!
 See also Huebert's comments

19 | Correcting Some Common Libertarian Misconceptions
Stephan Kinsella | PFS 2011
Common Libertarian Misconceptions & Mistakes
►
Limited Government is a Pipedream.

And, closely allied with this proposition: The move to democracy was not
progress (and Hans-Hermann Hoppe is not a monarchist)
20 | Correcting Some Common Libertarian Misconceptions
Stephan Kinsella | PFS 2011
Common Libertarian Misconceptions & Mistakes
►
The positivism of asking for the “source” of rights

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The hypocrisy of demanding your argumentative partner prove
why you have rights
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Even God
If you don’t respect his rights, he should regard you as an animal, outlaw,
criminal
If you do respect his rights, why does he have to prove to you why you
do?
Affirmative action is not unlibertarian
Do campaign finance regulations violate “free speech” rights?

Can be seen as just another eligibility requirement for holding office?
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--Kinsella, What's Wrong with Campaign Finance Regulations?
21 | Correcting Some Common Libertarian Misconceptions
Stephan Kinsella | PFS 2011
Common Libertarian Misconceptions & Mistakes
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Scarcity does not mean non-abundant
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Liability of the boss does not absolve the underling, and viceversa

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Rivalrous; conflictable
“good ideas are pretty scarce!”
No “fixed pie” of liability
“But-for” causation is neither necessary nor sufficient for
liability

Not necessary: two guys lighting fires or firing bullets
►

Regarded as joint even if not
Not sufficient: Hitler’s mom is not guilty
22 | Correcting Some Common Libertarian Misconceptions
Stephan Kinsella | PFS 2011
Common Libertarian Misconceptions & Mistakes
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A constitutional “right” often means greater state power
It doesn’t matter whether the 2nd Amendment protects a
personal right to bear arms.

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9th says you cannot take the lack of enumeration of a right to be
construed against that right
10th says Congress has no power to regulate guns unless it’s enumerated
23 | Correcting Some Common Libertarian Misconceptions
Stephan Kinsella | PFS 2011
Common Libertarian Misconceptions & Mistakes
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Advocates of “states’ rights” do not believe states have rights.
Critics of Lincoln and the Civil War are not neo-Confederates
Anarchists need not prove anarchy can “work.”
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It is not “unrealistic” or “naïve” to be a libertarian or anarchist.
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Anarchists believe (a) aggression is unjust and wrong, and (b) the state
necessarily commits aggression by its nature; so that (c) the state is
necessarily unjust and criminal.
Is it “unrealistic” to oppose murder even though it will happen?
The state’s existence proves anarchy is feasible

Cuzan: there is no over-state to force state actors to abide by internal
state rules and hierarchy
►
Do We Ever Really Get Out of Anarchy?
24 | Correcting Some Common Libertarian Misconceptions
Stephan Kinsella | PFS 2011
Common Libertarian Misconceptions & Mistakes
►
Loser pays is not libertarian.
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Educational vouchers are not libertarian.
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If Sally sues Harry for battery and loses, and there is a loser-pays rule:
this is also unjust since injury is being added to injury.
In a state-run system, neither loser-pays, nor winner-pays, nor each-sidepays-his-own-fees, is just.
The only just system is a voluntary, private justice system where
customers of competing justice agencies agree voluntarily ahead of time
to some rule–in this case, any of the fee-payment schemes is libertarian
since it is agreed to by all sides.
Kinsella, Is “Loser Pays” Libertarian?
Expands state welfare and propaganda, entrenches government
education, threatens independence of private schools
“Would you push the button” hypos usually meaningless

Not well specified
Are rights a subset of morals?
25 |►
Correcting Some Common Libertarian Misconceptions
Stephan Kinsella | PFS 2011
Common Libertarian Misconceptions & Mistakes
►
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Should government be more efficient?
Aggressors are not innocent until proven guilty.

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Contracts do not have to be written

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Aggressors do not have a right to due process or deserve a fair trial
Prophylactic rule needed to limit the state and for epistemic reasons
(fallibility)
Just evidence of agreement
The Constitution is not libertarian nor was early America
26 | Correcting Some Common Libertarian Misconceptions
Stephan Kinsella | PFS 2011
Common Libertarian Misconceptions & Mistakes
►
Spam and hacking can be forms of aggression


Use of others’ property without consent
Kinsella, Why Spam is Trespass
27 | Correcting Some Common Libertarian Misconceptions
Stephan Kinsella | PFS 2011
Common Libertarian Misconceptions & Mistakes
►
The dangers of metaphors in scientific discourse (and imprecise
language, and equivocation)
►
See my Appendix: On the dangers of metaphors in scientific discourse to my
post Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor,
Value, and Creation Metaphors , also http://blog.mises.org/13064/locksmith-marx-and-the-labor-theory-of-value/ and Peter Surda:
http://blog.mises.org/15188/undermining-the-mises-institute/#comment750410
28 | Correcting Some Common Libertarian Misconceptions
Stephan Kinsella | PFS 2011
Misconceptions: Metaphors
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“For it would be an absurd undertaking to banish from the
language of economic theory every manner of speaking that is
not literally correct; it would be sheer pedantry to proscribe
every figure of speech, particularly since we could not say the
hundredth part of what we have to say, if we refused ever to
take recourse to a metaphor. One requirement is essential, that
economic theory avoid the error of confusing a practical habit,
indulged in for the sake of expediency, with scientific truth.”

–Eugen von Böhm-Bawerk, (1881), “Whether legal rights and
relationships are economic goods.” In H. Sennholz (Ed.), Shorter classics
of Böhm-Bawerk, Volume I. Spring Mills, PA: Libertarian Press, 1962, p.
135
29 | Correcting Some Common Libertarian Misconceptions
Stephan Kinsella | PFS 2011
Misconceptions: Metaphors: Examples
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►
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Ownership of labor
Paterson or Lane’s use of “energy circuits” …. very scientistic.
Similar to the way people talk about the “momentum” of a
football game or the “energy” of a crowd or a crystal
Economy is overheated
30 | Correcting Some Common Libertarian Misconceptions
Stephan Kinsella | PFS 2011
Misconceptions: Metaphors: Examples
►
Prices “convey knowledge”

“Only in a metaphorical sense could one say that prices reflect or contain
information on present conditions. … It is asserted that prices
communicate abridged relevant information. This, however, is only a
metaphorical expression. It is not prices that coordinate the actions of
sellers and buyers of tin; prices are the outcome of (coordinated) action,
not its coordinators. It is property, rather than knowledge, that
coordinates the separate actions of different people. The terms
coordination and communication rather obfuscate than adequately
express this fact. This is another example of the dangers linked to the
use of metaphors in scientific discourse.”
►
Guido Hülsmann, “Knowledge, Judgment, and the Use of Property,” p. 29
31 | Correcting Some Common Libertarian Misconceptions
Stephan Kinsella | PFS 2011
Misconceptions: Metaphors: Examples
►
“The term “consumers’ sovereignty” is a typical example of the
abuse, in economics, of a term . . . appropriate only to the
political realm and is thus an illustration of the dangers of the
application of metaphors taken from other disciplines.
“Sovereignty” is the quality of ultimate political power; it is the
power resting on the use of violence. In a purely free society,
each individual is sovereign over his own person and property,
and it is therefore this self-sovereignty which obtains on the free
market. No one is “sovereign” over anyone else’s actions or
exchanges. Since the consumers do not have the power to
coerce producers into various occupations and work, the former
are not “sovereign” over the latter.” –Rothbard, MES, ch.10.1.A
32 | Correcting Some Common Libertarian Misconceptions
Stephan Kinsella | PFS 2011
Misconceptions: Metaphors: Examples
►
“Mises rightly criticised treating imaginary things (collectives,
analogies, metaphors, etc.) as real and warns us to be very
cautious when using fictitious auxiliary constructs to explain
things”

►
Benjamin Marks, Synthetic Apriori Truths and Mind Structure: A
Nominalist Perspective
“in his memoirs Mises accuses Bohm-Bawerk (in their dispute
over Cantillon effects) of being led astray by the idea of
“friction” and other metaphors from the physical sciences.” -Roderick Long

See Kinsella, Objectivist Law Prof Mossoff on Copyright; or, the Misuse of
Labor, Value, and Creation Metaphors
33 | Correcting Some Common Libertarian Misconceptions
Stephan Kinsella | PFS 2011
Misconceptions: Metaphors: Examples
►
►
Tom DiLorenzo (email): “A fun paper … would be to ridicule the
metaphors in macroeconomics with all the talk of “injections,”
“Leakages,” shocks,” etc. I would start by comparing it all to the
movie Young Frankenstein, where they tried to “shock” the
monster to life, just as “infusions” of money or tax dollars
supposedly shock the economy out of a recession. Then when
shock therapy didn’t work, Gene Wilder pulled out a giant
needle and “injected” the monster, just as money is supposedly
injected into the economy by the Fed. The possibilities are
endless.”
Copying “is” “theft”
34 | Correcting Some Common Libertarian Misconceptions
Stephan Kinsella | PFS 2011
Misconceptions: Equivocation
►
Left-libertarian fallacy: we oppose the state’s “authority” or
authoritarianism; so we libertarians have to oppose even nonaggressive types of authority and hierarchy (employeremployee, corporation, family, church, natural elites)


The “thickism” fetish: confuses some reasons for, or ideas related to,
libertarianism, with libertarianism itself
Results-oriented versus means or process oriented
35 | Correcting Some Common Libertarian Misconceptions
Stephan Kinsella | PFS 2011