Reply to Kinsella on IP and ethics

A few days ago, I wrote a blog post detailing why I thought that the natural rights anti-IP arguments made by Stephan Kinsella and others were problematic. Mr. Kinsella himself responded on the Center for the Study of Innovative Freedom blog, and for that I thank him sincerely for taking his time to formulate a reply. Although his response was thought-provoking at times, I did not ultimately change my position based on it.

Kinsella begins by addressing a segment I had written on how the “scarcity theory of property” relies on consequentialist judgements:

I am not opposed to consequentialism. I think it is compatible with other defenses of rights. It is utilitarianism that is problematic; see the section on utilitarianism in my Against IP; for some discussion of the difference between consequentialist and utilitarian arguments, see the introduction to Randy Barnett’s The Structure of Liberty: Justice and the Rule of Law, and his article Of Chickens and Eggs—The Compatibility of Moral Rights and Consequentialist Analyses.

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I view Mises’s own arguments for liberty to be consequentialist, not utilitarian. Ayn Rand’s own argument for rights is hypothetical and thus in a sense consequentialist: IF you choose to “live”—that is, you make a pre-moral choice to value living-as-a-human—then, given these expressed preferences, you ought to favor individual rights and certain ethical rules.

I actually tend to agree with this. “Utilitarianism” generally refers to attempts to objectively aggregate happiness through some kind of “social welfare function” which can be “solved” to provide a set of rules and policies. This, I believe, is at odds with the subjective theory of value. Consequentialism can refer to any attempt to justify a rule based on how effectively it satisfies certain desired ends. But, since said ends are decided upon subjectively, the ethical rules produced to satisfy them are based on subjective judgements and not objective, deontological truth.

Hoppe’s argumentation ethics is similar in structure: if you value or prefer peace and harmony—which you necessarily do if you ever engage in argumentative justification—then certain libertarian-type norms follow.

I maintain some issues with argumentation ethics, mostly related to the idea that the act of arguing is indicative of one’s desire for peaceful conflict resolutions in all contexts, not merely the argument one is engaged in at that moment. These are probably not worth writing about here; I would instead direct those interested to this page laying out some problems with the concept and its use in ethics.

What in the world is wrong with people having decent, civilized basic values, or grundnorms as I call them, and then having enough honesty, sincerity, consistency and economic literacy to recognize that only libertarian norms are compatible with them? This is to be commended, not criticized. How else are we supposed to ever achieve a more liberal society, if not because more people have ever more libertarian basic values and realize that libertarianism is the only way to implement or achieve them?

Once again, I agree. In fact, these types of values are my basis for supporting libertarianism; I believe it to be conducive to a wealthier, more civil society. I merely caution people to not lose sight of these values by trying to objectively “prove” some sort of natural law. It is not ethics I object to, but “objective” ethics.

IP is incompatible with property rights in scarce resources. It redistributes property rights in already-owned resources from the original homesteader or owner, to some third party. It is socialistic.

IP interferes with physical property claims, but, as I demonstrate further on, physical property claims interfere with bodily property claims. It is only if we establish property as not including IP that we can derive the conclusion that IP is anti-property. Perhaps establishing property as excluding IP from the beginning is the best course of action (and I am an IP skeptic), but after this, it is unnecessary to assert that IP “violates property rights”.

It it not circular and not leftist at all.

I never asserted it to be a leftist argument, nor did I assert that IP opponents are “left-anarchists” (although I am told that some people misread it that way). The only reason I used a left-anarchist in the example was to represent someone who supported bodily sovereignty but not physical property.

I have disposed of this horrible argument already: The Non-Aggression Principle as a Limit on Action, Not on Property Rights; IP and Aggression as Limits on Property Rights: How They Differ.

As the first article says:

The limitations you are speaking of [limitations imposed by physical property rights] are not a property rights limitation but rather a limitation on one’s actions.

But if one is said to own one’s body, is not a limitation on action a limitation on how one may use one’s property?

And, furthermore, most tort systems would not allow me to shine a multi-megawatt laser into someone’s house, despite the laser being my property. In this sense, physical property rights can act as limitations upon physical property.

From the second article:

It is the nature of scarcity that restricts how people may act.

Ultimately, this is true in the sense that people can’t just do whatever they want. However, in the context of society, it is the nature of scarcity which provides a reason to have property rights, which in turn impose restrictions on individual actions. These restrictions might be less onerous in practice than they would be in a propertyless society, but the nature of property rights requires that they be enforced by restricting action.

So physical property does limit human action (and thereby bodily property if one accepts self-ownership). Even if these limits might make humanity better off anyway, they are still very real. And from here, we return to the original point of why IP can coexist with physical property if physical property can coexist with bodily property.

With regard to claims I made about IP in a polycentric legal system:

A contractual scheme is not IP, since IP is in rem and not merely contractual.

Fair enough, although what I meant is that a contractual scheme could exist which would closely resemble IP in practice.

For example, if I sell you a book and make you agree to pay ten dollars damages if you copy it or allow some third party to copy it, or if you use the knowlege in the book to write a sequel or to improve your life in some way—then this deterrent will be useless, because it is so small. If I specify a million dollars in damages, no one will agree to it; they’ll just buy from someone else or get a pirated copy.

Couldn’t the penalty be somewhere in the middle?

This is a very confused, rambling post; in the end the author seems to basically agree with deep IP skepticism, yet for some bizarre reasons, does not like my systematic and sustained, multi-faced and comprehensive demolition of every IP argument that has been mounted…

My purpose was not to defend IP itself, but rather, to demonstrate some flaws in the arguments used against it. This is important, because using problematic arguments to arrive at a correct conclusion puts one on very shaky ground in terms of arguing the position before opponents who might be aware of the flaws. Furthermore, it might lead to attempts to apply the same problematic arguments to other areas in which they produce incorrect conclusions. (I use “correct” loosely; I really just mean conclusions which agree with a libertarian subjectivist approach, not ones which masquerade as being objectively “true”.) The point is, the arguments we use certainly do matter.

…this guy, who is skeptical of IP already, should realize that, and focus on their poor arguments. Even if he finds fault in some of mine, this is no argument for IP at all. In the end, this guy’s argument seems to be: “well maybe someone could someday find a good argument for IP.” Ya think?

Again, I sought not to defend IP, a concept I have objections to, but rather, to clarify the arguments surrounding the issue.

It is good to see that Mr. Kinsella is not opposed to consequentialism per se, and that he favors ethical theories based ultimately upon subjective values. I only would encourage him, and other supporters of the “scarcity theory of property”, to base anti-IP and pro-libertarianism arguments on the full range of economic effects of property.