The Twentieth Anniversary of Kinsella’s “Estoppel” Defense of Libertarian Rights

It is on the edge of Fall 2012, and I realized today that it is about twenty years since the publication of my first scholarly article, Estoppel: A New Justification for Individual Rights. It was published in Reason Papers No. 17 (Fall 1992), a journal established and then edited by my friend Tibor Machan. In How I Became A Libertarian, I explain how it came about:

By 1988 I was in law school, and becoming a more well rounded libertarian, having read by this time Rothbard, Mises, Bastiat, the Tannehills, and a non-trivial portion of the books offered in the Laissez-Faire Books catalog. In that year there were two significant events in my life, from a libertarian perspective. One was Hans-Hermann Hoppe’s controversial and provocative article in Liberty, “The Ultimate Justification of the Private Property Ethic” (related articles linked here). In this article Hoppe sets forth his “argumentation ethics,” which holds that the libertarian private property ethic is implied in the very activity of argumentation—because those engaged in argumentation already presuppose the value of conflict-avoidance and the ability to control property and thus, those arguing in favor of socialism contradict themselves.

The second thing was that I encountered the legal principle of “estoppel” in my contracts class. This is the ubiquitous legal principle that precludes someone from asserting a legal claim or position that is inconsistent with earlier statements or behavior. I remember sitting in contracts class, as Professor Morris lectured on this topic, thinking “Eureka!” to myself, as I began to see that the concept of estoppel meshed perfectly with libertarian logic (and also with Hoppe’s argumentation ethics). The libertarian non-aggression principle holds that force may only be used in response to (initiated) force. There is a nice symmetry here. One may use force, if and only if it is response to initiated force (aggression).

I saw in class that day that the principle of estoppel could help explain and justify the non-aggression rule. Force was justified against an aggressor, because having used force himself he would be estopped from objecting to retaliation. For him to assert that force is wrong—which he must do in order to object to retaliation—would contradict the “force is permissible” maxim underlying his own act of aggression. He is “estopped” from asserting a claim inconsistent with that underlying his earlier behavior.

My estoppel theory complements and draws on Hoppe’s argumentation ethics. For years I believed that I first came up with my estoppel theory and then read Hoppe’s work, and linked the two together. Now I am not so sure, and think that I first read and absorbed Hoppe’s argumentation ethic, which made me fixate on the similar logic of estoppel when I coincidentally studied it in law school shortly thereafter.

I was at King’s College London–University of London in 1991, pursuing a master’s degree in law, when I produced the first draft of a paper arguing estoppel can help justify libertarian rights. Somewhat naïvely, I submitted it to King’s College Law School’s law review, whereupon it was summarily rejected. Not daunted, I submitted an improved draft to Tibor Machan for his journal Reason Papers. I had read many of Machan’s works, including his Human Rights and Human Liberties and Individuals and Their Rights, and he had been kind enough to respond to several of my letters. I remember speaking with him one night, about the submission, from a students’ pay telephone at King’s College in London, and then getting drinks at a pub with friends, none of them knowing or able to appreciate I had just spoken with a libertarian writer whose books I had read. Estoppel: A New Justification for Individual Rights was published in the Fall 1992 issue of Reason Papers ….

In the meantime, I’ve elaborated on this theory in:

This whole topic still interests me. In the meantime, I realize some think of me as “Mr. IP” in the libertarian movement, but I am far more interested in rights theory than in patents and copyrights…

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