KOL338 | Human Action Podcast Ep. 308 with Jeff Deist: Rothbard on Punishment, Property, and Contract

Kinsella on Liberty Podcast, Episode 338. Update: See also KOL463 | Contracts, Usury, Fractional-Reserve Banking with André Simoni  and this Grok analysis of various problems with smart contracts including the fact that most loans are unsecured. From Human Action Podcast Ep. 308, "Rothbard's The Ethics of Liberty with Stephan Kinsella" (May 27, 2021), with Jeff Deist, discussing Rothbard’s Ethics of Liberty, chapters 9, 13, 19, et pass. (PDF). Shownotes: Lawyer and legal theorist Stephan Kinsella joins the show as we dive into Part II of Rothbard's The Ethics of Liberty, grappling with the foundational issues of crime, proportionality, and contract. When is property justly held? When may injuries to a person or property be addressed with force, and how much force? How do we deal with one another contractually, in terms of promises and expectation? How do we resolve disputes privately? Rothbard presents a remarkable exposition of a theory of liberty, a normative justification for laissez-faire which was sorely lacking. Kinsella does a remarkable job of explaining Rothbard's concepts with force and clarity, so you won't want to miss this episode! Transcript below. Youtube: https://youtu.be/AkEdMTDrPfY Raw video (unedited): Related Links Rothbard on the “Original Sin” in Land Titles: 1969 vs. 1974 (Nov. 5, 2014) KOL146 | Interview of Williamson Evers on the Title-Transfer Theory of Contract A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability, Journal of Libertarian Studies 17, no. 2 (Spring 2003): 11-37 A Libertarian Theory of Punishment and Rights, 30 Loy. L.A. L. Rev. 607-45 (1997) Fraud, Restitution, and Retaliation: The Libertarian Approach KOL197 | Tom Woods Show: The Central Rothbard Contribution I Overlooked, and Why It Matters: The Rothbard-Evers Title-Transfer Theory of Contract Justice and Property Rights: Rothbard on Scarcity, Property, Contracts… KOL004 | Interview with Walter Block on Voluntary Slavery   TRANSCRIPT Rothbard on Punishment, Property, and Contract Stephan Kinsella with Jeff Deist The Human Action Podcast, Mises Institute May 27, 2021   00:00:08 JEFF DEIST: Kinsella, you ready, Freddy? 00:00:09 STEPHAN KINSELLA: I’m ready.  I guess I can take my mask off. 00:00:12 JEFF DEIST: What is it?  I can’t see.  What’s it got on it? 00:00:16 STEPHAN KINSELLA: V for Vendetta. 00:00:17 JEFF DEIST: Oh yeah, yeah. 00:00:19 STEPHAN KINSELLA: I got it backwards.  That’s why. 00:00:21 00:00:24 JEFF DEIST: I love that movie.  I like Stephen Fry generally, and it’s got a very young, cute Natalie Portman. 00:00:30 STEPHAN KINSELLA: She had her day. 00:00:31 JEFF DEIST: Before she was in all those – I think she was in Star Wars movies at some point. 00:00:35 STEPHAN KINSELLA: Yep. 00:00:37 JEFF DEIST: And then she became sort of a Hillary person. 00:00:41 STEPHAN KINSELLA: True. 00:00:42 JEFF DEIST: All right, we good, Clay? 00:00:44 Ladies and gentlemen, welcome back once again to the Human Action podcast.  If you have been following along—you should be following along—you’ll know that we’ve been working our way through some various Rothbard texts in the past few weeks.  And at some point we announced that we are going to tackle The Ethics of Liberty, which, after Man, Economy, and State might be the most treatise-like or full-length work of Rothbard’s for our purposes. 00:01:09 And we started the analysis of this book last week with Dr. Walter Block.  We went through part one of the book, which deals in natural law.  If you haven’t seen that show, be sure and go back and take a look because it’s got a lot of Walter Blockisms, and we wrestled with a lot of things conceptually in that show.  But part two of the book where Rothbard lays out a theory of liberty is really the meat of it. 00:01:32 And I thought there would be nobody better for our purposes this week than our friend, Stephan Kinsella who is, of course, someone most of you probably already know or are familiar with.  He’s not just an IP lawyer.  Of course he’s written the definitive text, Against Intellectual Property.  But he’s also written quite a bit about libertarian law more generally, the idea of when is force permissible, what is proportionality, what is contract, what is property, all of these things we wrestle with. 00:01:57 And Stephan, I guess by way of welcome, it’s interesting to me that Rothbard is writing this book in the’70s, comes out around ’82.  I mean you think all this stuff would have been settled by 1500 or so.  I mean we’re still talking about this stuff in the ‘80s.  And now we’re talking about it in the 2020s. 00:02:14 STEPHAN KINSELLA: Yeah, and in a way, Rothbard was – he was lucky that he came in at the time where there was lots of low-hanging fruit.  I think that’s one reason he made so much progress, but I always feel like the libertarian movement, the modern one, really started around Ayn Rand and that crowd in the ‘50s.  So it was relatively new when Rothbard was writing in the ‘70s. 00:02:35 JEFF DEIST: Well, so his big chapter in here, “Property and Criminality,” I mean this is a very different approach I think to libertarianism than a lot of people take, and certainly a different one than the general public would conceive of.  In other words, he roots it entirely in property.  So maybe we can start with this idea.  In modern statutory law and positive law, there’s a concept of tort and there’s a concept of crime.  In the Rothbardian conception, for starters, those two things collapse into one another.  So let’s give everybody the quick and dirty of what this means. 00:03:11 STEPHAN KINSELLA: Right.  I think most people think of different branches of law.  There’s contract.  There’s property.  There’s family law, international law, domestic law.  But really there’s private law and civil law, tort law, and crime, so they’re all treated differently.  And of course in the modern conception, crime is considered – a tort is when someone commits an offense against someone else.  And in libertarian terms, it’s basically trespass, which means using their property or their resource without their permission.  So that’s an offensive touching, like a battery, assault and battery, using their land or stealing their car. 00:03:46 Those are all types of torts.  But they’re also – some of those are considered crimes, and in our current system, the statist system we have, the victim is the state, which is why, when you have a crime, it’s the state versus O.J. Simpson, which is why Ron Goldman’s family could sue O.J. Simpson separately in a civil trial.  So there’s different standards of proof.  There’s preponderance of the evidence for a civil trial, that is, to prove that someone harmed you and owes you damages.  So you have to prove that more likely than not. 00:04:17 But if you convict someone of a crime, which is against the state, you have to prove by – beyond a reasonable doubt.  So there are different standards, and people have sought to collapse law into one thing, sort of like mathematicians and scientists – I mean physicists search for the grand unified theory to unify quantum theory and relativity.  So we seek to simply and unify these things, and Rothbard’s idea is that really it’s all tort.  And of course the state shouldn’t even exist and shouldn’t be the plaintiff or the prosecutor in a criminal action.  The victim should be the one that is able to seek restitution. 00:04:59 JEFF DEIST: So when we think of torts, I guess we think of a civil wrong other than a breach of contract for which the law provides some kind of remedy.  And that’s become an entire field of law, and of course there’s personal injury, which is a huge source of income for a lot of lawyers.  How radical do you think this was?  I mean in 1982 when this book comes out, if we say that, for example, as Rothbard says, all property is really private. 00:05:31 There’s no – the distinction isn’t public versus private property.  The distinction is whether there’s public or private actors controlling it.  And that at the end of the day, control is the most important right in the bundle of sticks that makes up a property.  So I mean do you buy this, this idea that private versus public is not the distinction? 00:05:52 STEPHAN KINSELLA: Well, yeah, and I think it was really radical at the time.  I think that a lot of things we read now seem tame because we’re so used to it.  I remember reading something by – Lew Rockwell had written something in – I think it was in the Hoppe Festschrift from just 11 or 12 years ago.  And he mentioned one splash Hans Hoppe made about maybe 10, 15 years before that was when he was critiquing the US Constitution and how it was a centralization.  It wasn’t really – the Constitution is not about protecting rights.  And he said something like you could hear a pin drop in the audience, so everyone was stunned by that. 00:06:31 That was a little boldly radical to say before an American audience, even libertarians, to criticize the Constitution and the alleged minimal state nature of the original founding, which is all nonsense.  But now that seemed like, oh yeah, we take that for granted, or at least it’s not – it doesn’t shock people to say that now.  So I think a lot of this stuff was more pioneering than we give it credit for because it seems so – not tame but seems obvious to us now. 00:07:00 I do think it was radical in part because even for libertarians to hear that it was radical because the common view is that the common law is the thing.  And also legislation is the primary source of law that can supersede the private common law, and even libertarians seem to have this view.