Last night I appeared for two hours on FreeTalkLive (1-22-12 show), with hosts Mark Edge and Stephanie. We discussed intellectual property and SOPA. (Audio)
Kinsella on FreeTalkLive re SOPA and IP Read Post »
Just a couple days ago the New York City council voted to ban the practice by sanitation workers to sticker the window of vehicles that were violating the alternate-side street cleaning rules. Whilst the vehicle’s owner would still receive a parking violation fine, they are no longer allowed to punish drivers by defacing their vehicles with the hard-to-remove stickers. While I find the ban agreeable, I have a bone to pick with the general legislative approach.
One of the problems with positive law is that the mindset it encourages is antithetical to what should otherwise be a presumptive prohibition of aggression and the security of both property and personal liberties. Unlike the “negative” rights of common law, the legislative process of positive law will all too often err and enshrine legal principles that are unjust. This is not to say that legislators do not get it right sometimes– for example laws that prohibit murder, theft and fraud are all [potentially] perfectly just laws.
With a positive law mindset, actions that are not yet defined in the statutes lie in a grey area neither prohibited nor permitted “under the law”. And later, if ever, when the statutes are codified, the result could be in having laws that don’t prohibit or permit enough, or in fact laws that prohibit or permit too much. This is a problem inherent to a process that tries to encapsulate the entire range of possible actions and to explicitly codify them into the written law.
The presumptions now change- anything not explicitly forbidden is arguably permissible. Actions which are now prohibited lie beyond the reach of justice if they were carried out before the law was passed under the legal principle ex post facto. Of course it doesn’t necessarily have to be this way– laws that forbids theft and injury could already be understood to include all forms of theft, damage and injury without the codification of specific actions, i.e. “killing with a knife in the right hand using a stabbing motion”. What the positivist mindset encourages is the tendency to look at the codified word as the source of justice, so that one could then hair-split it so that the actual action is not specified and thereby not prohibited.
That said, property defacement should be considered a forbidden action (regardless of the actual codified law) and therefore there was no actual need for a specific law to ban the stickering practice. Instead the government could have enforced the already existing laws against property defacement to stop this punitive, vindictive crime.
The Perils of Positive Law Read Post »
Mike Masnick has this interesting post up today at Techdirt:
Crowd Cheers Loudly As All Four GOP Candidates Say No To SOPA/PIPA
from the national-issue dept
It really was just a few weeks ago that a Hollywood lobbyist laughed at me (literally) when I suggested that SOPA/PIPA might become a national issue during the Presidential campaign. As he noted, copyright issues just aren’t interesting outside of a small group of people. My, how things have changed. After this week’s protests made front pages and top stories everywhere, it’s not all that surprising that the candidates at the latest GOP debate were asked their opinion of the bills… and all four came out against them. Of course, this seems to fit with the new GOP positioning that they’re the anti-SOPA/PIPA party (so sorry Lamar Smith…). Mediaite has the video:
Masnick quotes each of the four candidates’ responses to the question. I provide them below, with “translations” provided by my friend Daniel Coleman for the three statist candidates:
Gingrich: “You are asking a conservative about the economic interests of Hollywood? I am weighing it and thinking fondly of the many left wing people that I am so eager to protect. On the other hand, you have so many people that are technologically advanced such as Google and You Tube and Facebook that say this is totally going to mess up the Internet. The bill in its current form is written really badly and leads to a range of censorship that is totally unacceptable. I believe in freedom and think that we have a patent office, copyright law and if a company believes it has generally been infringed upon it has the right to sue. But the idea that we have the government start preemptively start censoring the Internet and corporations’ economic interest is exactly the wrong thing to do.”
Translation: I joke about using power to hurt people who disagree with me on policy. But seriously, folks, this bill got way too unpopular for me to be able to support it. I think you need the powers of this bill vested differently so that it won’t cause as much of an outrage. …
Recommended podcasts:
“The Global Rise of the Informal Economy,” Slate’s The Afterword (Dec. 31, 2011): an interview with Robert Neuwirth, author of Stealth of Nations: The Global Rise of the Informal Economy, who argues that “one-half the world’s workers—close to 1.8 billion people—are involved in the informal economy in jobs that are ‘neither registered nor regulated, getting paid in cash, and, most often, avoiding income taxes.’ In researching his book, Neuwirth traveled the world, visiting markets and street vendors in Nigeria, China, Paraguay, Brazil, and around the United States.”TLS Podcast Picks: Stealth of Nations; SOPA Read Post »
In recent years and months, both Austrian economics and libertarianism have received increased attention and criticism. The more recent attention is probably in part due to Ron Paul’s visibility and his publicizing both types of ideas.
I suppose it’s a good sign that they are no longer ignoring us. Now they feel compelled to respond. But it would be nice if they didn’t misrepresent and distort our views. But since both libertarianism and Austrian economics are sound and grounded in reason and reality, I guess that’s all that left to them. Otherwise they’d have to concede defeat. And truth and justice have never really been the raison d’êtres of the mainstream power class, have they?
Recent critics of Austrian economics include Paul Krugman and Brad DeLong (to whom Austrian economist Bob Murphy has responded), Matthew Yglesias in Slate, and others (see also The Economist, Lexington: Ron Paul’s big moment). For a nice response to and overview of some of this, see Sheldon Richman’s recent Reason piece, “How Liberals Distort Austrian Economics: The lame campaign to discredit the Austrian school.”
But the attacks on Austrian economics come from both “left” economics (Keynes, Krugman), since its teachings undermine their arguments for statist central planning; and from “right” economics (monetarists, Milton Friedman), as it shows how unscientific and confused is their scientism and monism and physics-aping methodology.
The attacks on libertarianism likewise come from left and right and other mainstreamer/academic statists. For examples:
(For another insipid recent caricature of libertarianism, see Value for Value: A Short Story on Why Libertarians Fail to Communicate.)
As I note in some of my replies linked above, a common argument made by many of these and other mainstream critics of libertarianism, both left and right, is that they, like libertarians, value liberty; but that the problem with libertarianism that liberty is our “only value.” So they pretend to be more nuanced and wise and subtle. They take liberty into account, sure–but they also “balance” it against “other important values”–say, egalitarianism (for the lefty) or “cultural values” (for the righty).
For example, as Jonah Goldberg writes:
libertarians see freedom as the highest, best value. Conservatives see freedom as one of the highest and best values, but they recognize that no abstraction should get in the way of doing the right thing. Conservatism, rightly understood, requires making hard decisions about the inherent tradeoffs between liberty and community, altruism and economics, ideals and practicalities.
Or as paleoconservative Thomas Fleming writes in the thread discussing Feser, noted above:
The problem with Liberal and Austrian economics is not the economic analysis but the Liberal philosophy which is part and parcel of their system. It is based on utterly fatuous and self-evidently false principles which they choose to regard as universal, even though most people in human history would not have agreed with them at all. The reason they put teh profit motive above all other values is simple: Liberal philosophy only recognizes two moral actors: the individual and the state. Libertarian liberals exalt the individual and denigrate the state, while leftist liberals do the opposite. But both sides begin with entirely false, counter-factual premises about the nature of man and the nature of society. But, quite apart from the falseness, these premises are not only non-Catholic, but they are also non-Christian.
In the same thread, one John Esposito characterized libertarians as “treating material prosperity as the highest good”.
As I wrote in response to Fleming:
I do not agree that libertarians “put the profit motive above all other values.” First, I am not sure what such a statement even means. How do you put a profit motive above other values? Second, libertarians simply maintain that initiating violence against the person or property of innocent, peaceful neighbors is unjustified. If Fleming thinks aggression can be justified he is welcome to try. And libertarians qua libertarians don’t “exalt” anything, much less the individual over the state. How does favoring peace, cooperation, civilization, and prosperity, and opposing violent conflict, struggle, murder, mayhem, rape, pillage, theft, misery, death mean you “exalt” the individual? All this is perfectly compatible with a traditionalist world view as well.
… Libertarianism is simply the view that aggression–violence directed at innocents–is unjustifiable. It does not imply “putting the profit motive above all other values” (whatever this means), or “exalting the individual over the state” (though states are inherently evil, while individuals at least have a chance not to be).
When Fleming starts talking in non-rigorous, liberal artsy type terms about libertarians “recognizing” only “two moral actors: the individual and the state,” and that this is contrary to “the nature of man and the nature of society,” and arguing that “these premises are not only non-Catholic, but they are also non-Christian”–this is just a smokescreen for endorsing acts of aggression. Okay, fine: so Fleming has his reasons for endorsing aggression. So does the highwayman. What does the victim care? Elsewhere he says, ” I don’t at all see that societies are made up of unconnected rational indidivuals possessed of those mystical rights that Liberals are forever speaking of.” So what if he doesn’t see this? Saying he denies mystical rights is a subtle way of reversing the burden of proof. The libertarian say aggression is wrong; “rights” is a convenient way to express this. If you “deny rights” you are really saying “sometimes it’s okay for me to hit you over the head with a rock, even if you are not threatening or endangering me”. (The incongruence of this statement favoring naked violence, made in a purportedly rational discourse about what norms people ought to voluntarily abide by, is what Hans-Hermann Hoppe’s argumentation ethics is getting at–see my “Argumentation Ethics and Liberty: A Concise Guide.”)
And as I wrote in reply to Goldberg:
Another misstatement about libertarians is that we “see freedom as the highest, best value.” This is not true at all. We simply maintain that unprovoked aggression against the person or property of others cannot be justified, and may be countered by responsive (defensive or retaliatory) force. Again, I doubt Goldberg can provide the justification for aggression that he would need, in order to show that libertarianism is wrong.
If this is the neocon critique of libertarianism, it looks like we have already won the debate.
Leftist Metcalf adopts a similar tactic to conservative Fleming. Fleming engages in nonrigorous, flowery liberal arts metaphors about whether there ontologically “are” “moral actors” aside from individuals and the state, to smuggle in the conclusion that aggression against individuals is okay. Metcalf takes a similar tack:
Take Margaret Thatcher’s infamous provocation—”There’s no such thing as society”—with its implication that human beings are nothing more than brutishly competitive atoms.
Notice how disingenuous this is. Instead of just admitting that one favors thuggish, brutish state violence against innocent people to accomplish one’s goals–but this sounds a bit illiberal, doesn’t it?–one says, “welll……. we can’t say that society is only individuals; ‘society’ exists too. We are not ‘just’ brutishly competitive individualistic atoms.” “Therefore” “society” has rights too, so we have to balance societal rights against individual rights, and hey, sometimes you have to crack a few eggs (individuals) to make an omelet (society, greater good). This is very similar to the argument made by the conservatives who place “culture” or “family values” in competition with the individual, and they all go about their balancing. Individuals and their rights inevitably lose. But hey, at least “society” is happy! It’s getting a piece of the pie too!
As I wrote in response to Metcalf’s piece:
This does not imply this at all. It merely recognizes that society is just a concept denoting the activities and interrelationships of actual individual human beings; that individuals do exist and are the primary social unit. It is a call to not be misled by metaphors or sloppy philosophy into overriding the rights of human beings in the name of higher-order concepts like “society.”
In essence, Metcalf’s arguments are just like those of conservatives (which is why I’m a libertarian). The basic argument (of both Metcalf and conservatives) is: “well of course we believe in individualism, individual rights, property rights, free markets–it’s just that it’s not our “only value.”” By this trick they are able to argue for state violence against innocent people. Libertarians are the ultimate liberals because we are tolerant of differences, and respect individual rights. We will never condone physical violence used against innocent individuals. Talk of “other values” “in addition to” “individual rights” is a smuggled, dishonest, indirect way of saying that in some cases it’s okay for the institutional violent force of the state to be brought to bear on innocent people. Obviously, that is not liberal. It’s illiberal. That’s why it has to be disguised. Instead of saying “normally I’m against the commission of violent criminal aggression against peaceful, innocent individuals, I condone it in some cases for the purpose of what to me is a higher value”–which is what the private criminal and the sociopath and the genocidal tyrant also say, of course–they word it differently, to cover this up, just like a cat with his mess in the litter box or a politician on the stump: “We’re in favor of individual ‘autonomy’ but we are ‘also’ in favor of ‘other values.’ We need to ‘balance’ these values for the overall good.” I.e., to make an omelet, you have to break a few eggs.
And the latest to weigh in with this kind of “reasoning” is Jeffrey Sachs, who says:
Libertarianism is the single-minded defense of liberty. … the error of libertarianism lies not in championing liberty, but in championing liberty to the exclusion of all other values. …
Libertarians hold that individual liberty should never be sacrificed in the pursuit of other values or causes. Compassion, justice, civic responsibility, honesty, decency, humility, respect, and even survival of the poor, weak, and vulnerable — all are to take a back seat.
To repeat: the basic problem with this is that it is just a disguised way of saying they are not libertarian–that they think violence are aggression are sometimes okay. As I point out in “What Libertarianism Is” and “What It Means To Be an Anarcho-Capitalist,” the libertarian is simply someone who consistently opposes aggression, defined in terms of the invasion of the borders (unconsented use of/unwanted change to the physical integrity) of the property of (scarce resources owned by) another person (the owner). We oppose aggression. It is not that it is our “only” value. We are not just libertarians. But we do think aggression is unjustified, and immoral.
So when the conservative or liberal starts maundering about how they also support liberty but unlike the libertarian, they don’t “only” support liberty, this is just another way of saying that they sometimes oppose aggression–but not always. They are simply saying that they are in favor of aggression–the naked violence committed against the person or property of innocent individuals–for some reason. Well, good for them–but so what? After all, every criminal, whether private or public, has some reason for committing or condoning aggression. The victim of the aggression doesn’t really care what the motivations of his oppressor are: whether it’s a slimy brigand, the nazi stormtrooper thugs of a dictator–or the tax collector or narcotics agents “democratically” appointed/elected due to the expressed desires of modern liberals and conservatives who have “values” that are “in addition” to their value of non-aggression. All criminals–all aggressors–have some reason or excuse for their actions. Does this make the damage they do to their victims any less?
When I corner some of these guys and try to get them to admit that they simply are against aggression some (maybe most) of the time, but in other cases they are in favor of aggression, they often squirm and try to deny it. Sometimes they equivocate and say that we all favor aggression–even us libertarians, since we think the victim has the right to use “aggression” to defend against crime. Not so fast, Mr. Sneaky. That ain’t aggression. I mean this is just such a tired defense of statism. Conservatives and liberal alike are saying: oh, we value liberty, but it’s not the only thing we value. i.e., “I believe aggression is justified for xyz reasons, but I don’t want to say I do.”
And sometimes they admit it. But that means they do indeed have “other values” than the libertarian: they value the commission of aggression in some circumstances. But it’s hard to get them to to admit this–though sometimes they do–because, you know, it makes them sound like a common criminal or thug. After all, criminals value property among themselves, but have their grounds attempting to justify their other acts of theft and destruction. Basically these people have no argument. It is incoherent to engage in rational, civilized discourse among people who presumptively respect each other’s right to exist, be alive, and discuss things as equals, in an attempt to reach a civilized agreement on how we should arrange our affairs so as to live in peace and prosperity and cooperation and harmony–when one is urging brutish interpersonal violence. Does not compute.
In short: when you hear a liberal or conservative say that libertarians are “too simplistic” and “only value liberty,” whereas they are more nuanced and value liberty but a host of other values too–understand them to be offering a rationalization for why they favor violence and aggression against innocent people.
Update: A commentator adds this:
“Liberty isn’t the only value” he said, while pointing his gun at my head.
This about sums it up. It reminds me of one of my favorite Ayn Rand quotes (from Francisco D’Anconia’s “Money Speech” in Atlas Shrugged):
“Run for your life from any man who tells you that money is evil. That sentence is the leper’s bell of an approaching looter.”
Likewise, be very wary of people who say they value liberty, but it’s not the “only” thing they value. They are making it clear that they are about to propose violating your liberty.
Update: Steve Horwitz says here:
your description of libertarianism is not mine Bob. I *would* be willing to take people’s property against their will IF I really believed that it was true that doing so would make the world a better place on net and in the long run. I don’t think it would, hence I think it would be wrong to do. But it’s wrong, in my view, not because it abridges liberty per se, but because that abridgement of liberty hurts the people it’s trying to help. So for me, liberty is NOT the highest political end. It’s one among many ends, and it’s also a means to many of those ends.
Unlike you it seems, I would be willing to give up liberty if I really thought doing so would produce a world of peace and prosperity for all.
As I wrote in response:
I guess someone could say:
“I *would* be willing to endorse/commit genocide IF I really believed that it was true that doing so would make the world a better place on net and in the long run. I don’t think it would, hence I think it would be wrong to do.”
Well good for them!
