Legal Foundations of a Free Society

Excerpt from Hans-Hermann Hoppe’s foreword to Stephan Kinsella’s new book, “Legal Foundations of a Free Society”.

The objective for a human ethic or a theory of justice, then, is the discovery of such rules of human conduct that make it possible for a—indeed, any—bodily person to act—indeed, to live his entire active life—in a world made up of different people, a “given” external, material environment, and various scarce—rivalrous, contestable or conflict-able—material objects useable as means toward a person’s ends, without ever running into physical clashes with anybody else.

Essentially, these rules have been known and recognized since eternity. They consist of three principal components. First, personhood and self-ownership: Each person owns—exclusively controls—his physical body that only he and no one else can control directly (any control over another person’s body, by contrast, is invariably an in-direct control, presupposing the prior direct control of one’s own body). Otherwise, if body-ownership were assigned to some indirect body-controller, conflict would become unavoidable as the direct body-controller cannot give up the direct control over his body as long as he is alive. Accordingly, any physical interference with another person’s body must be consensual, invited and agreed to by such a person, and any non-consensual interference with his body constitutes an unjust and prohibited invasion.

Second, private property and original appropriation: Logically, what is required to avoid all conflict regarding external material objects used or usable as means of action, i.e. as goods, is clear: every good must always and at all times be owned privately, i.e. controlled exclusively by some specified person. The purposes of different actors then may be as different as can be, and yet no conflict will arise so long as their respective actions involve exclusively the use of their own private property. And how can external objects become private property in the first place without leading to conflict? To avoid conflict from the very start, it is necessary that private property be founded through acts of original appropriation, because only through actions, taking place in time and space, can an objective—intersubjectively ascertainable—link be established between a particular person and a particular object. And only the first appropriator of a previously unappropriated thing can acquire this thing as his property without conflict. For, by definition, as the first appropriator he cannot have run into conflict with anyone else in appropriating the good in question, as everyone else appeared on the scene only later. Otherwise, if exclusive control is assigned instead to some late-comers, conflict is not avoided but contrary to the very purpose of reason made unavoidable and permanent.

Third, exchange and contract: Other than per original appropriation, property can only be acquired by means of a voluntary—mutually agreed upon—exchange of property from some previous owner to some later owner. This transfer of property from a prior to a later owner can either take the form of a direct or “spot” exchange, which may be bi- or multi-lateral as when someone’s apples are exchanged for another’s oranges, or it may be unilateral as when a person makes a gift to someone else or when someone pays another person with his property now, on the spot, in the expectation of some future services on the part of the recipient. Or else the transfer of property can take the form of contracts concerning not just present but in particular also prospective, future-dated transfers of property titles. These contractual transfers of property titles can be unconditional or conditional transfers, and they too can involve bi- or multi-lateral as well as unilateral property transfers. Any acquisition of property other than through original appropriation or voluntary or contractual exchange and transfer from a previous to a later owner is unjust and prohibited by reason. (Of course, in addition to these normal property acquisition rules, property can also be transferred from an aggressor to his victim as rectification for a previous trespass committed.)

Drawing on the long, but in today’s world largely forgotten or neglected intellectual tradition of natural law and natural rights theory with its three just briefly sketched principal components, then, the most elaborate, systematic, rigorous and lucid presentation of a theory of justice up until then had been developed in the course of the second half of the 20th century by economist-philosopher Murray N. Rothbard, culminating in his Ethics of Liberty, originally published in 1982. Unfortunately, but not entirely surprisingly, however, his work was typically either completely ignored or else dismissed out of hand by the gatekeepers and high priests of academia. The anarchist conclusions ultimately arrived at by Rothbard in his works appeared simply outlandish in an ideological environment molded overwhelmingly by tax-funded intellectuals and steeped to the hip in statism or étatisme. Among academic big-shots, only Harvard philosopher Robert Nozick in his Anarchy, State and Utopia acknowledged his intellectual debt to Rothbard and seriously tried to refute his anarchist conclusions—but miserably failed.

While Rothbard’s work largely fell on deaf ears within academia, then, it exerted considerable influence outside of it, in the public at large. Indeed, through his work Rothbard became the founder of the modern libertarian movement, attracting a sizable popular following far exceeding that of any mainstream academic in numbers. As for the further development of a natural-law and -rights based theory of justice, however, this very success turned out to be a rather mixed blessing. On the one hand, the movement inspired by Rothbard likely helped dampen and slow down the popularity and growth of statism, but it manifestly failed in halting or even reversing the long-run historical trend toward ever increasing state-power. On the other hand (and that may well be one of the reasons for this failure), the larger the movement grew in numbers, the greater also the confusion and the number of intellectual errors spread and committed by its followers. The pure theory of justice as presented by Rothbard was increasingly watered down, misunderstood, misinterpreted or downright falsified, whether for short-run tactical gains, out of ignorance or plain cowardice. As well, all too often sight was lost of the fundamentally important distinction between the core, the foundational principles of a theory on the one hand and its application to various peripheral—often far-fetched or merely fictional—practical problems on the other; and far too much effort and time, then, has been spent on debating peripheral issues the solution of which may well be arguable, but which is of minor importance in the larger scheme of things and helps distract public attention and concentration away from those questions and issues that truly matter and count.

In this situation, then, more than 40 years after the first publication of Rothbard’s Ethics of Liberty and characterized by much practical disappointment and increasing theoretical confusion, the publication of Stephan Kinsella’s present work must be considered a most welcome sign of renewed hope and new, refreshing intellectual inspiration. Indeed, with this work, that has been in the making for more than two decades, Kinsella has produced no less than an intellectual landmark, establishing himself as the leading legal theorist and the foremost libertarian thinker of his generation. While following in Rothbard’s footsteps, Kinsella’s work does not merely rehash what has been said or written before. Rather, having absorbed as well all of the relevant literature that has appeared during the last few decades since Rothbard’s passing, Kinsella in the following offers some fresh perspectives and an innovative approach to the age-old quest for justice, and he adds several highly significant refinements and improvements and some centrally important new insights to the theories of personhood, property and contract, most famously some radical criticism and rejection of the idea of “intellectual property” and “intellectual property rights.”

Henceforth, then, all essential studies in the philosophy of law and the field of legal theory will have to take full account of the theories and criticisms expounded by Kinsella.