 All right, so with us next speaker here is a Stefan Kinsella. He is the author of again Which is a fantastic book. I recommend you all read He is a former adjunct scholar of the Mises Institute and also the founder and director of the Center for the Study of Innovative Freedom And without any further ado Mr. Kinsella, hey, I'm totally I'm glad to be here. I assume we're slightly behind. Oh, no, this is on time Okay, I had my clock real here. So good. We're on time Hello, everyone glad to be here. This is a great opportunity to speak this way Without having trouble I'm Stefan Kinsella. I'm an attorney in Houston I'm a longtime Austrian and Rothbardian anarcho-capitalist have been associated Mises for long the Mises Institute for a long time and have written on a variety of basically legal theory topics a Lot of rights theory contract theory intellectual property, which is my specialty in law. I'm a patent attorney But back in 19, I think I want to say 95 or so I wrote a long article in the Journal of Libertarian Studies on Legislation that arose from my studies into the topic from a libertarian and economic point of view and as a lawyer Studying the civil law in Louisiana, which is my home state Which is unlike the other 49 US states that which have a common law-based system The Louisiana has a Roman and European civil law type system So I've been long interested in the civil law and the common law and also libertarian theory So some of these thoughts grew out of my studies in that regard Basically what I learned and what has been fascinating you for a long time is that The way law is perceived now is perverted Okay, most people even let even libertarians tend now to accept a more legal positivist understanding of law Which is that law is basically something written down by some lawgiver now the anarchists Understand that can't be a legislature of a government, but it's a little bit confusing when they think of law as being written down in a law code Because there's no lawgiver exactly But most people that are menarchists or just regular people that are not anarchists They imagine law is what the government issues or decrees as the law Now this is basically what has happened to the law, but that is not the classical understanding of law and not its origins any more than Government's domination of say roads and health care and education Means that these things are essentially something the government can provide well or necessarily has to provide You know roads roads makes sense without the government and but the government co-ops it same thing with money And with health care and with other institutions defense police things like that To go back to law so you can think of the term law as a general term that we use in many contexts And society and in social theory and in thinking so we say law We're lost something that's regular something that repeats something that governs things One type of law would be say moral law So we mean that when we talk about what's right and wrong like what's immoral what's immoral or ethical rules? We think of the laws of the natural sciences like the law of gravity physical laws. That is the laws of cause and effect then you have Economic law like the law of supply and demand. These are all different types of laws distinct in their own domains When we took but most of the time the word law means what you can call juristic or legal law That's the law enforced by some law Enforcing mechanism in society, which is typically in today's world the state So law is the are the set of binding interpersonal rules that are enforced by physical force in an institutional way That is generally in a given community or society So they're enforced by the courts and they're they're they're they're made by the legislature This is how they're conceived of now. This is not the origin of law So the origin of law is basically the response to The fact that we are human beings We're individual human actors who live in a world of scarcity and in this world of scarcity. What that means is we We're actors as Mises calls us so we envision a future that's coming Something about it dissatisfies us and we have some understanding of the way the world is and what's available to us And what we could do to change it so we act to change it So this is what all human action is human action means Having some idea about the future that's coming without our intervention that we don't like Some idea of how we can change things so we choose an end or a goal and to do that We try to interfere with the course of events by causally manipulating Scarce resources or means of action to achieve that so that's what humans do But when we act we employ these scarce resources that is we control our bodies with our will and we use our bodies to Grapple and interface with other things in the world that you can think of as tools or scarce means of action to intervene And they have to be causally efficacious. So you have to have under some understanding of cause and effect What's possible to achieve an end and what ends are possible to act? So all these things are the background of human action But because because of the nature of the world that it's a world of scarcity That is these scarce means of action these resources that we want to use to achieve our ends or Scarce or rivalrous in the economic sense, which means that there can be conflict over their use. Okay, so We need to use resources which we sometimes Informally call property now, but we need to use or employ resources to get things done and The problem is that these resources have the nature that only one person can employ them for that use at a time So my use excludes your use and so on Which means that someone else can interfere with my use of this resource Now we like to live in society with each other because we have certain advantages We like work we're a social species We get enjoyment out of living with other people and we're immensely richer for that because we get to learn from each other And we get to trade with each other. So people develop develop specializations So you have the specialization and division of labor and you have trade and we're all better off for that reason And we get to live among other people which is in coherent Consistent with our with our humans our social human nature So those are the advantages of living in society with other people But the disadvantages that you can be disturbed in your possession and use of these resources these means these tools by other people Because of the nature of scarce resources so the possibility of conflict exists because the universe is scared has scarce resources and Because people have free will and they can choose to try to take the things from us So because most of us are civilized and we prefer to live in peace and harmony and cooperation with others We prefer to live in a society where everyone can benefit We want to benefit ourselves, but we want others to benefit too because most of us are not sociopaths And we have some degree of empathy for others We tend to favor the creation of rules that assign Exclusive rights to use these these things that otherwise could be conflicted over and that is what property rights are That is what all rights are and that is what law is law basic always the use of force to to or other or other social controls to set To identify the owner to to identify an owner of a resource and to help protect them In their ability to use it so to enforce their rights So this is what law is and the rules that developed in this way from early From early negotiation from primitive man and then from settlement of disputes You know when two people would have a dispute if they wanted to avoid All-out conflict and violence and war and fighting they would go to a wise man the so-called king or some arbitrator To just to decide the case This is not a state. This is not legislation This is just an attempt at people to work together to find reasonable fair rules among each other as to how resources can be used In a way that we can all go about our business and productively live in the world and then trade with each other So this is how rights emerge and they're going to have to emerge in the basic core way that libertarians believe to think of as rights The rights to private property and to self-ownership to own your body and to own other things in the world That you either are the first one to use which we call homesteading or appropriation original appropriation Something that had no owner, but that you start using or something like that that someone else owned But that you got it from by contract like they sold it to you or they gave it to you So those are the core rules of what the so-called private law is that developed in this way So the private law is basically rules of property allocation and property determination which are based upon self-ownership everyone owns themselves and for an unknown resource in the world That was previously unknown when there's a dispute over it the person who had it first wins Unless he made a contract to give it to someone else it was contract wins. So you have contract contractual title transfer Original appropriation or homesteading and body ownership. Those are the core principles of the law Now the way this developed in practice In the great legal systems of the world was first in the roman law which lasted for hundreds of years In the roman republic and then later the empire Um and the roman law was developed in this way Uh, it was developed in a decentralized way, which means that Uh, it resulted the law developed as the result of the outcome of many Many thousands of disputes actual cases brought before people that could decide a case And the goal of the law finder there was to do justice to try to come up with a fair result in this case Based upon the core principles I mentioned and based upon the elaborations of those principles that were developed Um over past decades by previous so by previous uh Tribunals so in this way the law gradually develops and gets more sophisticated and you have a body of law that develops Now on occasion these these scattered rulings and principles need to be consolidated and streamlined so that people can understand them So the judges can understand So the merchants can understand and so the average person can understand and so There emerges a role for codification that is someone to sit down and Write a code which codifies this now. This can just be a private code written by a scholar saying okay I've summarized all the law Um, and this is what happened in history. Um now the second great system was the common law of of england Which came later and which also lasted uh for centuries and also developed in a decentralized fashion Um by courts deciding cases and and and using previous decisions, which we call precedent or stereoses stereoses Um and gradually building the law that way and because the common law came later It often borrowed from and relied upon to some extent the the old roman law as well So these are the two great private law systems of the world. They're not the only ones There were more ancient one. Uh, there were crude ones. There were there were there's also a roman I'm sorry a church uh canon law. There was the law merchant among merchants in italy in the in the 1415 hundreds um and there's also jew uh jewish law and there's uh, um The sharia law islamic law. So you have different legal systems and structures But the two great ones of the world have been the western systems of the roman law and the english common law In today's world. This has largely been forgotten By most people because we are used now to thinking of law as Whatever's written down on paper by a legislature In both systems in both in both the continental european countries and in other countries and in in the in the common law countries in the us And so what happened was in in europe, um Um After the roman law was sort of rediscovered it was rediscovered because it was lost for a time After the fall of roam, but it was preserved because the emperor justinian Had thought to preserve the bulk of the roman law in terms of of code the just the the digest of justinian Which preserved the law and it was rediscovered and so we now know what we know roughly what the roman law was And that was rediscovered and used in europe and developed in It was added to with customs and things like this and finally in the late 1700s 1800 Modern codification effort was started by napoleon and then others um, so you have the french code civil or the code the Civil code of france and then others the italian the german the swiss the greek other civil codes And louisiana civil code in the u.s. Which borrowed upon the spanish And the and the and the french law These were basically modern codifications of the combination of the law that had evolved and developed in europe the customary law And also the some some church canon law plus the roman law vestiges And the legal the private the body of private law is beautiful and um Very very consistent with libertarian principles um By and large the one problem was that The this was a legislative codification effort In other words, it was a committee of experts that codified the law a bunch of scholars And then the legislature took that and enacted it as a law as a statute So that set in that set in motion the idea that of legislative Supremacy or legislative positivism the idea that law comes from the legislature So even though the the substance of the law that the legislature enacted In this statute called the civil codes Was based upon decentralized private law principles that had been developed previously It was it established a principle that law comes from the legislature Now in the common law countries um The common law lasted longer But over time more and more statutes were enacted by parliament and then by the legislatures in um in the us and the congress and the federal system And these statutes over time have invaded the province of the core of the common the common law Various codification efforts like the uniform commercial code and things like this Now Aside from the from the codes which are basically codifications of previous private law principles Which were enacted by the legislature and thus put in motion the principle of legislative supremacy or legal positivism um, they're uh, there were also private codes like there was Lord coke and then there was blackstone, which many people have heard of and then in the us today there are the Restatements of the law by the american law institute, which are basically systematic treatises which Summarize what the common law is without being a legislative announcement. They're just authoritative guides So this kind of codification is perfectly expectable and would exist without the state But it wouldn't be legislation So the problem is now that people are so used to this The law being whatever is written down in statutes And the problem also is that most of the statutes that have been written lately in the last 100 or so years Are not mere restatements and refinements of private law that was developed in a centralized way in the common law Roman law Or in the in the european continental law merchant or something like that But they are just artificial arbitrary statutory schemes that have nothing to do with natural law or with natural rights or private law You know, like tax statutes administrative law Environmental regulations things like this So and even the even the constitution like in america, we have a written constitution And everyone thinks of that as some kind of great natural law thing But it's really just another form of legislation It's just a committee of people wrote it and then the congress enacted it as legislation Now it is fairly general and It borrows a lot of concepts that did evolve In a roughly decentralized way in the in the in the english common law system like the magna carta and the forest charter and things like this But it also has just artificial provisions in there, you know, like the president has to be 35 years old and things like this So these are simply decrees written by a committee Which has nothing to do with justice necessarily. So as james carter wrote Um He was a new york lawyer in the late 1800s and there was an effort in the u.s To codify lots of the private common law of many of the american states As as louisiana had already done because it was a civil law state which had the which had a civil code So there was an effort in several states to take the common law Write it down into a code and then had the legislature enacted and that would basically Move us away from the common law of decentralized way of finding and making law that we have Borrowed from the english common law And this never really succeeded to any large extent in any of the major states And one reason was there was an outcry by the common law one of them James carter who opposed this and he wrote this amazing tract Fighting against it and he has some some kind of great quote where he says that um, you know Under the earlier private law It was always a dispute where every party was represented by a lawyer and the the goal of the of the of the Of the court of the judge was to try to do justice He would listen to the facts He would listen to the evidence try to determine the facts and then consult previously established principles of justice And try to do the right thing. He didn't always get it right But that was the goal and over time that's how the law developed and got you know got better and better because Um as new as new Techniques were found to solve a problem Then those rules were adopted more or less by other judges if they were successful And then the bad ones were tended to be ignored or overridden Overruled by other cases so over at least you can have an improvement of the law in that way But when law is thought of as statutory law then The concept of justice is lost. Um, and so the goal of the judge is not to do justice anymore is simply to read and interpret the words written down by a committee Which we call a statute or legislation and to apply it even if the result is unjust Like his job is to do that. This is what the supreme court in the u.s. Does they're interpreting the constitution and federal law Which is statutory Um, and this is what judges do when they have to interpret a statute instead of interpreting the common law their job now becomes Not a judicial job of trying to do justice But to try to interpret words and apply them no matter what the results Um, so this is the problem with thinking of law as being Decreed by a sovereign instead of being natural and discovered by a decentralized fact-finding process um So this is where we are now Now there is international law, which is another type of law which in a sense and there's been a lot of hostility towards natural law by Libertarians in the last several decades partly because they associated with the united nations and there's a hostility towards united nations either by conspiracy type thinking Or by people that are leery of centralization So they're they're worried about a one world government which a concern which I share Although I think it's pretty clear that that is not a real danger anymore Uh, if anything the united states combined possibly with the european union and NATO that kind of thing but basically the u.s. Is the world hegemon? And they're never going to give up seed power to the united nations in any meaningful way So the real danger is is the super states Not the not the united nations the united nations has no taxing power It's its mission is basically to be a forum for dispute resolution among the 200 nation states in the world Even though it's socialist leaning and its outlook because most of the states that are members of it are socialistic and their outlook It has very little power and its rulings are basically general and tentative And the core aspect of international law is that nations should maintain their own borders So it's sort of a roughly anti-war type ideology And pacta soon savanna, which means agreements Are to are to be respected, which is what treaties are based upon So in a sense the core of the international law Is less legislation dominated because there is no really real legislature. There's the union can issue resolutions But it's hard to enforce them like regular statutes can be in state in state legal systems So it's it's actually closer to the model we have as libertarians of a decentralized Justice-based legal system, although its subjects are nation states not individuals So it's not perfect, but it's it's closer actually than today's modern legal systems So that is where we are and that's what I put in detail about now There are many problems that emerge and rise when we think of law as being Written by the government now and and by the way this this this modern practice of of law the shift in the impression of law from being imminent Natural rules of justice that that are fair or that attempt to be fair Into whatever the government decrees Roughly started with the the birth of Of the with the industrial revolution and then really it sped up after the fall of the monarchies after world war one So with the 20th century really so you have had a radical exponential increase in the amount of legislation Basically, what's happened is Hans Harman hop a democracy book You have an increase in democratic lawmaking, which is what legislation is an exception So there's no because of all of Hans Harman hopper's criticisms of democracy There's no surprise that the quality of law has declined and by quality we mean Several things number one. It's not truly law anymore because it's just the decrees of some of some state Um There's no reason to believe that these laws would tend to be Correlative with what justice would be because the state is not trying to do justice They're trying to basically redistribute wealth and transfer power around To prohibit things they don't like like, you know, the drug war or taxation or antitrust law things like that So that's that's kind of the feel we have now that's where we are now in the world Um And Let's see here. What what else I can add before I open the floor up to questions. Let me check my time here six I guess I've gone for about 40 minutes now Let me do this Let me stop now and open the floor for any questions And I'd be happy to take any any further questions and point anyone who's interested in this topic You can search this further. Just go to my site stephan consala dot com slash l l w And you'll see my legislation article and other things Related to this if you just search for legislation Thank you All right. Thank you very much. We have a few questions here for you So the first one here comes from ie you read nes. Do you have an estimate for when law in a libertarian world is going to come out? uh This year Say I'd say within but before pfs this year, which is a property freedom society in september So before september hopefully within six to eight months Next question here comes from gary. One two three He asks what do you think of the legal theory of david freedman parentheses private law firms setting laws and small domains across territories Um, there's a lot of value in david freedman's work. Um He is more of a david has less of an adherence to Sort of the natural law. I mean i'm not a clinical natural law thinker But I I am sympathetic to natural law and the and the principles But I do think that you can have Reasoned arguments by libertarians that demonstrate what what our rights are our basic abstract rights And that is what that's what the standard of justice would be it's not Just whatever the market process happens to result in in a given community So if a given community chooses to have intellectual property law, let's say or chooses to have slavery I would say that's unjust and unlibertarian Even if they do it you can't just sit back and wait and see what they do But give that said I do agree with him that there would be and necessarily would be wide diversity Of the approach different legal systems would take in a private law society in a libertarian anarchist You would have different regions with different customs different cutoff points different legal defaults Lots of variation so What law can do is law can deduce or what what libertarian legal theory can do is deduce Only certain abstract or general legal principles what Randy bernett talks about that's in the structure of liberty, but the concrete implementation of those rules Can vary from from from society to society or from culture to culture A lot All right next question when we have here comes from bay He asks as you know the law as described by frijek bastia is a spontaneous order However, in your opinion, what are the prerequisites for such a spontaneous order to appear? Oh, yeah, that's that's a good point. Um, so it's spontaneous. I mean as as a mizizi in australian. I don't really Have much sympathy or use for that term spontaneous, which I think is more of a hayaki thing I do believe in human action I think people people do things for reasons and there are things that happen in society Generally that are not the result of one person's choice but result of You know the negotiating of the market or impersonal forces and things like that But I do think that law True law can only develop organically so you some might some might call us spontaneously But I would call organically and by that I mean decentralized So law develops from the desire of relatively civilized people coming together in a community in society In in a civilized peaceful attempt to solve a problem to solve the problem of conflict So when you do that you're constrained by the nature of things which is the nature Of the scarcity of the resources at an issue right and then how they can be How how these disputes can be solved in a way that it seemed to be fair by people in society And by the by the participants in the discourse itself, which kind of harks back to Hans Herman Hoppe's argumentation ethic So I think the prerequisite would be you have to have enough people Which are willing to be civilized which means they prefer peace to conflict Now I think that the human race happens to be like that and we're we're like that for various Natural reasons because of our social because of our evolution our social nature Most people that are not sociopaths tend to have some degree of empathy for others So they value themselves they value others and they have enough rationality and reason to understand That if you can avoid violent physical conflict and you can have peaceful trade and cooperation Then that is better for basically everyone involved most people understand that rationally So I think you have you need to have a certain degree of rationality of people to understand that And and a and a relative benevolence among people and a willingness to try to find Rule property rules that allow them to get along with each other Once you have that I think You all start to have a proto-libertarian set of private law rules that will that will emerge and then over time they will be developed Um, I won't say that private property has to be respected for this to happen I would say in a way private property flows from this Once people do that then private property rules are the result of that, but they go hand in hand Next question here comes from veto. He asks, why do you not consider yourself a natural law theorist? well, I'm I'm very much in line with most of Hans Hermann Hoppe's social theory and uh, the standard argument for rights would be kind of the The the the the um the deontological or natural law approach um Or the or the consequentialist or utilitarian approach um And there are problems with both The problem with well Consequentialism, I think is fine as far as it goes. It simply means if you prefer Say peace and prosperity among humans To violence and chaos and destruction and death Then if you have a modicum of understanding of markets free market economics and and just history and A little bit of social theory and political theory You'll understand that you have to have roughly libertarian private law rules to achieve this So that's consequentialism. That's fine as far as it goes Um utilitarianism as a subset of that is flawed methodologically because you can't sum up utilities You can't compare them interpersonally So you can't think of it in that kind of numerical way that some utilitarians do the chicago school But consequentialism is fine as far as it goes because it just means that You know, we want a just system because it leads to better results for everyone There's nothing wrong with that. It doesn't mean you can't have a principled approach Which is what the natural law approach is the problem with the natural law approach as hapa points out is that number one There are logical problems going from an is to an ought which is what some natural law Thinking arguably does it tries to say because our nature is this Therefore we should do this or because our nature is this therefore we should have these These types of laws in force But logically as hume pointed out as hapa agrees you can't go from an is to an ought um And the second problem is that human nature is very very wide and broad and diffuse So it's hard to get specific prescriptions out of it You know, like you could argue like like robert robert and wilson and his And one of his books he he he ridicules or criticizes natural law doctrine Now he equates it with the roman catholic church and like their prescription on using a condom He says like it's just ridiculous if you think natural law means look at him come up with the rule Contraceptives are Illegal or immoral that's obviously absurd because you can't go from something so Human nature to something like that now. I think that's slightly an unfair criticism But the point is you can only get so much out of broad human nature So hapa instead roots his theory of rights in the nature Not the nature of human action but a subset called the nature of communication or argumentation or discourse When people come together as rational people In in a in a in a dispute resolution attempt in an attempt to find a rule that can allow them to live together In that context they they are people with scarce resources like their bodies and other things they need to survive And they have a a peaceful predisposition because that's what it means to have a rational discourse with some So they're already looking for peace They're trying to find a rule that makes sense and that is practical and fair and that lets everyone live together in You know peace cooperation and prosperity and harmony together when you have those constraints Then you can start getting the libertarian court norms out of it Now han says that you could think of this approach as natural law rightly conceived and I agree with that So I would say I agree with natural law If it's if it's hapa's version of it But the general version is slightly problematic because of the is-aught problem now some some are near Aristotelian libertarians like roger long argue that You're not going from an is to an ought which is analogous to the if then or hypothetical hypothetical construct If if something then something Which would just be consequentialist or or not really it wouldn't be It wouldn't be an absolute categorical imperative. It would just be hypothetical He says you're not going from an if then you're going from a sense then like since you agree with peace and prosperity Or whatever these values are then you should favor the libertarian norms Which I think is roughly similar to what hapa does in his argumentation ethics So if you think of the natural law is not being an if then like going from is to ought But but being a sense then which is really going from an ought to an ought Like since you believe in these lower level or base level norms or odds or values Then higher level ones follow. So that's the reason for that Next question here comes from castor trey. He asks are there any areas in the united states that common law is flourishing Well, I do think that I mean most states outside Louisiana have common law and it it's it's There might be one or two where it's been codified like Montana or something I can't recall but most states have have a vibrant common law sector It's just that they're they're always under siege from the encroachment of statutory regimes So every time a judge wants to decide a case Yeah, he can rely upon the way the common law in that state has handled it before But he has to always be aware that it's possible the legislature has has ruled and changed it or past us A comprehensive legislative scheme which governs that instead Like in tort law this happened quite often for example, so I mean the private law like even the private law area and property law And criminal law Often there is the model penal code has been adopted as a statute Even though the principles in there were developed in a decentralized fashion More and more often There's a statute the judges have to look at now to their credit in the common law in england and the other commonwealth countries The judges of the common law, they're said to be jealous of their domain, which means They're not going to give up resorting to their common law unless you force them to with a very very explicit detailed statute Which is one reason that in the common law countries Statutes tend to be extremely detailed and redundant and long And not elegant and abstract in general like the european statutes At least the european civil codes tend to be because in the european system the judges are used to being mere functionaries They're not really as high and mighty and powerful They don't really make the law like in the common law the judges are used their their job is more like a bureaucrat They're they're supposed to read the code and apply it to this case in front of them and just apply it Now let me say one other thing here i mentioned meant to mention earlier One comment i've had before This is a us centric point and in the united states system the united states federal government Is one of the most unique governments in the history of the world for several reasons not only its size and reach and power and and and wealth Um, but also it's the most powerful government and yet it's the as far as i'm aware it's the only sovereign state On the earth Which doesn't have general powers general legislative Or police power it's called plenary powers most states are said to have plenary or complete legislative power Which means the legislature like say australia or germany or um or texas These states can just issue a law based upon whatever topic that they want or or or their law can cover So their laws can cover murder and their laws can cover theft The united states because we have this federal the constitution which grants them enumerated powers Doesn't have general legislative power now The courts have twisted that to find it more or less in the in the commerce clause and in other clauses By by bending it but still it's theoretically technically a government of enumerated powers Which means the congress and the us could not enact the law um Saying murder is illegal Not because such a law is unjust, but just because they don't have the power to do it So they have some laws making murder illegal, but it's only like where there's a the person crosses the interst Interstate borders. So it's a it's just a or they kill a federal agent Like it's just a narrow case but not in general. So that's one interesting thing and so because of this system um In my view in in in the united states in the federal system, which is dominant Excuse me except in the private law the private law is still roughly governed by the private laws of the states like marriage law and property law tort law things like that um Because of this there is no such thing as federal common law In in the in the federal government the federal law in the united states consists only of two things It consists of the constitution which is arbitrary law written down by a committee of bureaucrats It's a statute and federal statutes which are all arbitrary and written down And they're not private law that was developed in decentralized form in roam or in the common law They're just arbitrary decrees And the job of federal judges the supreme court included is primarily to interpret The constitution or federal statutes So their job is almost never to do justice There's a one one rare exception that is when they hear a diversity case Distribute between two private parties between two states That's on a private law matter that court will apply under the eerie doctrine They will look to the state's private law and apply that law So in that case the judge is pretending to be a state judge state court judge and applying private law So in that case, they're doing real real real judging. They're trying to find a fair result based upon Organically developed private law principles, but for the most part federal judge's job is simply to read the words written down on paper Which have nothing to do with justice. They're just what a committee Issued and apply them This is why we have people in jail for long sentences that make no sense and that are totally unfair copyright infringement and all kinds of things Um, so I made the comment I don't know a few weeks or months ago. I've made it many times before Federal judges are not really judges, you know, the supreme court judges. They're just guys in robes They're employees of the federal government and and Nick Sarwark who used to be the head of the libertarian party here Who I know You know told me oh, that's a stupid comment just saying you don't think someone's a judge because you don't agree with them It's like no, I'm not saying it's because I don't agree with them It's because their job is not to be judges their job is not to do justice in a given case Their job is just to interpret words and apply them No matter what the result is so A state court judge, I wouldn't say the same thing a state judge in in um in australia or germany or texas or new york At least if it's a matter governed by the common law They are they actually are trying to do justice in those cases because that is their their mission their remit Uh, anyway, that's a little bit of a tangent, but go ahead. I'll take another question All right next question here comes from Murray Rothbard He asks what is review on the death penalty and retributive justice in general Do you believe that a tort system might be a good replacement? Um Well, I wrote an article around the time of that legislation article I went earlier On my theory of rights, which is complementary to builds upon hoppa's argumentation of mine is based on principle called a stop-all And I do think that In general, there's a right to retribution. I know a lot of libertarians don't think that there is I think they're wrong. I think um I think they're confusing motivation and purpose of the victim With the nature of what he has the right to do So basically if someone commits an act of aggression, they're invading the borders of your resource, which could be your body Which would be, you know assault and battery or rape or murder Something like that kidnapping um, or it could be the invasion of the or the Unconsent to use of which is called conversion sometimes of a resource that you own So in both cases the aggressor is acting upon the the rule. He's laying down, which is Someone can use other people's resources without their consent or someone can use someone's resources even if they object to it So he's laid down that law So I believe you can argue you can show that it's just for the victim or his agents If they if they catch the criminal later to do the same thing to him because he can't object to his property being used Without his over his objection because he's already laid down that law. He's already in effect pre-consented to it. Um, so What that means is that the victim has the right to inflict force Or to use the resources of his aggressor Even though the guy is objecting Now how he uses it is up to him. He can use it to punish, which we can call retribution So that's just his motivation, but he has the right to do it He can use it to bargain with the guy to get a payment, which you could call restitution Uh, he could use it He could forgive the guy if you wanted to or he could use it to imprison the guy for a while hoping to rehabilitate So then his purpose would be rehabilitation Or he could use it to send a message to other people in which case his purpose is deterrence So the purpose is you might use your right to punish Or up to you, but you have the right to do it now That is a theoretical thing And I do think in in primitive systems or in systems where you don't have time to do others You you you could have rough justice like that if someone steals your horse West and that could basically kill you because you need your horse to survive You could see the capital punishment being inflicted for crimes like that Like having harsh punishment and rough justice, but I think as the legal system develops as we become more modern society I think that over time what would happen and what has happened and what would happen in a private law society Is that retribution would be would be used very very rarely Or incarceration Execution And even punishment and the reasons are manyfold randy barnett goes into some of the structure of liberty, but one is that um There's always a possibility of mistake and If you punish someone and it turns out that you punish an innocent person now you've committed a crime Okay, and so who's going to take that risk? So you could see isolated acts of vigilante justice You know some guys kid gets murdered and he goes out and The guy gets caught and he just kills the guy instead of taking restitution and everyone just walk blake turns their head and lets it pass But it's hard to imagine an institutionalized setting. I mean Hiring, you know abc corp to put people in prison Uh, number one would be very expensive and number two They they would incur possible lots of liability if they incarcerated innocent person So because the standard of proof would be so high be beyond a reasonable doubt to justify imprisoning someone And because the cost is high and who's going to pay the the victim? you know The incarceration is expensive and so would be execution and the proceedings surrounding it So I believe what would happen in society is that you would tend to have a restitution based system But it would ultimately be based upon the right to punish So right now if someone commits a tort against someone Um The jury is simply told if you decide the tort was committed You have to decide what the damages are. So if someone is harmed The jury just randomly arbitrarily makes up a number of 300 thousand dollars for you know loss of loss of a finger or something like that But if you told him instead Imagine that the defendant had the right to punish this guy Proportionately and do on to him what he did to the victim how much would this victim how much would this aggressor? Be willing to pay to buy his way out of the punishment And that kind of construct can give a more narrow Way to confine what the jury can imagine it would tend to make the results more predictable and more more related to justice And it would also saw the millionaire It's just this idea that well if if a life is worth three million dollars Then bill gates can go murder as many people as he wants and just buy it and just pay the pay the fine No, if you imagine that the victim's family has the right to catch and kill you in return Then a billionaire would be willing to pay, you know Nine tenths of his estate as a fine right to to get out of being killed So The rich guy would pay more in terms of restitution. So that way of looking at it would handle this I discuss a lot of this by the way in detail in my punishment proportionality article from 1995 or six Okay, well in closing you have to say thank you very much, mr. Consola for being here with us tonight We appreciate it very much answering all of our questions and everything So, uh, before we wrap up our time with you here, do you have anything to plug or anywhere where people can follow you at? No, just stay tuned first at stuff in consola slash llw for my upcoming book Which will be edited selection of my legal theory articles and uh, I am behind the The new podcast feed for the property freedom society. We're releasing all of our old episodes Of speeches given at property freedom society means that's a property So you might want to subscribe to that podcast feed and we will be caught up To 2021 by the time this coming meeting starts in september and then we will start releasing All the current speeches every year on that podcast feed. So just in case anyone's interested in that