 and in free market principles to save the free market system. In a world of conventional confusion, there will be time for them to make profits. Now is not that time. Daddy, what do taxes pay for? Oh, why everything? Policemen, trees, sunshine? And let's not forget the folks who just don't feel like working, God bless them. Don't be afraid. Don't be afraid. Prepare to unshackle your mind. An idea whose time has come cannot be stopped by any army or any government. Your professor has arrived. Tom Woods. Beware, citizen, you are now departing from the world of allowable opinion. The Tom Woods Show. Welcome, everybody. It's Friday, March 28, 2014. It's back to basics Friday. There is no day of the week that starts with B, so there's no alliteration possible. So we might as well make it back to basics Friday with Stefan Kinsella. In addition to his well-known work on intellectual property, which I'm sure we'll talk about at some point down the line, Stefan is just a great explainer of foundational concepts. He's very clear. He's like a laser beam, no nonsense. That's just what I wanted to have, because these days, varieties of libertarianism are proliferating, like every young person feels it necessary to redefine what libertarianism is or what amounts to aggression and so on and on. And, you know, nah, nah, not interested in that. Let's clear up what these terms mean, and we're gonna do that today with Stefan. Stefan, in case you don't know, is a practicing patent attorney and the executive editor of Libertarian Papers, LibertarianPapers.org, which publishes scholarly papers in the libertarian tradition across a wide variety of topics. He was formerly a partner with Dwayne Morris LLP, an adjunct law professor at South Texas College of Law. His books include International Investment, Political Risk and Dispute Resolution, a Practitioner's Guide from Oxford University Press, Louisiana Civil Law Dictionary, Property, Freedom and Society, essays in honor of Hans Hermann Hoppe and the forthcoming Law in a Libertarian World, Legal Foundations of a Free Society. Stefan, welcome to the program. Thanks, Tom, glad to be here. There's so many things we can talk about because really we're talking about libertarianism in general and you and I both find it fascinating in all its aspects, but it's something that can easily, somebody who doesn't get the main concepts or gets them only superficially can go really wrong and there are all kinds of divergences among libertarians and some of them boil down to an inability to grasp or refusal to grasp first principles. So we wanna talk about some of those. I get new listeners all the time and I don't wanna assume that everybody just knows everything. So I think before you can talk about things like aggression, I think first you need to talk about self-ownership because it seems to me that if you're gonna engage in aggression, you're violating self-ownership. So self-ownership has to be the prior concept. So let's first start talking about what does that mean and is there maybe a better way to understand self-ownership? I mean, you suggested body ownership as a way of clarifying so we don't get lost forever in defining what the self is. Yeah, and this arises, look, I think libertarianism is in a way a new science, okay? So we made a lot of progress in the last say 100 roughly years even by using a lot of metaphorical, flowery, flowery, colorful language, but at a certain point you have to start refining it and using more precise language in part because we confuse ourselves or because our adversaries will take advantage of it and dishonest types of argumentation. So I think the use of metaphorical language and more descriptive language, which is unavoidable, but we should be at least aware of it. So over the years, I have come to see the traps that can be set either unintentionally or intentionally by not using clear and precise terms in a consistent way, conceptual thinking and the language we actually use. And so one of them is self-ownership. There are others like property and digression and coercion that we can go into as well. So self-ownership is a good one to start with because the kind of intuitive concept of self-ownership is the root of the entire libertarian philosophy, I believe. However, the word self is something that's vague and open to interpretation. If you're religious, you might have one conception of the self, it might be related to the soul or to spiritual matters. If you are a materialist, you might have a different idea. I think the bottom line is what we're really talking about is body ownership. I use the term self-ownership on occasion, but when I have to, when I have to clarify the discussion, I always say we're really talking about ownership of the physical borders of your scarce resource of your physical body, because that's really the only way that you can be harmed by someone in a way that we need rights to protect us from. Trust-pass invasion, the very idea of aggression in a simple way means, you know, punching someone, stabbing them, physically manipulating their body or harming it without their consent or permission. So I think the fundamental root of libertarian norms is body ownership. You are the one who has the right to own and control your body or at least the first one, the presumptive one, unless you do something that changes that. Now that, on one level, seems intuitive, but on another level, I think it's hard for people to grasp the idea that they own their physical bodies the same way they might own a Frisbee or an automobile, and I think a useful illustration to help people get it, to help them understand that they do actually accept this principle is the thought experiment of G.A. Cohen who was an analytical Marxist who was nevertheless very attracted to the idea of self-ownership, and he said, well, let's imagine that we had an eye lottery. You know, we have blind people in this world and we'll just put everybody's name into a hat who has two functioning eyes and if we draw your name out, we'll take one of your eyes and give it to a blind person. Now, the blind person going from not being able to see to having one eye, that's a huge jump in satisfaction for him. And you going from two eyes to one, well, that's unfortunate, but certainly your fall in satisfaction can't be compared with his rise. Well, why would we nevertheless find this appalling? It's because we feel like I own those, right? Those are my eyes. They're not part of the common wealth, right? You don't have the ability to do that. So once we get self-ownership under our hats, we still can't get to aggression completely because aggression doesn't necessarily have to be committed against the physical body. It can also be committed against the things that you own. So now we have to talk about property and how it is that people legitimately come to own property. Right, and I think that the equivalent example illustrates the perils of both utilitarian philosophy, which is the idea that something is permissible if it increases overall utility, even if it's at the expense of someone else. You know, if you can take $10,000 from Bill Gates and distribute it to some four persons, by some people's account, you're doing net benefit to the world. But, you know, if you have a moral principle upon a due, you're still committing theft against Bill Gates. In terms of property, I think the reason people are reluctant sometimes to view themselves as self-owned or as body-owned is that they're sort of a framer that might lead. They're afraid to treat the body as a commodifiable object, like an object of commerce. They're afraid of the idea of voluntary slavery. They're afraid of freedom of choice and where it might lead. I think a lot of those fears are understandable but are misplaced if you understand that the basis of rights in our bodies is not exactly the same as the basis of rights in other resources in the world. There's relationships, there's similarities, there's dependencies, but they're not exactly the same. And this gets back to a lot of, and I've talked about this in a couple of lectures on libertarian controversies or libertarian confusions, trying to clear these issues up. And so you talked about the idea of property. One problem with using the word property as we do nowadays as basically a synonym for the physical object that you own. So for example, we're used to saying that car is my property, or you would even say something like that's a piece of property. That sandwich is a piece of property. Then when you say your body is a piece of property, people start getting uneasy about it. I try to avoid nowadays using words in a way that could lead to equivocation or to abuse by our adversaries. So for example, I try not to say government instead of state, because government has different meanings. Sometimes it means these full governing institutions of law and justice and order. Sometimes it means the state because the state has co-opted it like the state has co-opted roads. So you will have status, we'll use the word government in an equivocational way to trap you, okay? Same thing with the word property, I find. If you make the question, is that property or is that not property? You sort of lose the original reason for property, which is the possibility of conflict in the real world between human beings with scarce resources of their bodies and other things that they can use to accomplish their goals, which is what Misa talks about in his proxy logical framework of how people get things done. We basically act, which means we use our bodies and we move and we employ things in the world, sticks, wood, food, heat, and we use them to achieve our ends. These are scarce means or scarce resources and property rights originally, word property was meant more like the word characteristic. So you would say that because you could use that stick or that farm or that field or that horse or that house to achieve your ends, it was a property of yourself. It was an extension of your own ability to control the universe. So the notion of property rights arose because of that, but originally the word property meant the relationship between you and the thing, or you could say the relationship between you and other people with respect to your right to control that thing, but it wasn't the thing itself. So I always try to be careful to say, what is the scarce resource that people can fight over that they can conflict over, that we have a dispute over, the thing that we need to identify the owner of? Okay, who has the property rights in it or who has the ownership of it? So that's always the question. And if you keep the question on that level and you don't get bogged down and say, is it property or not, which could use the issue, it helps to solve the issues. And another thing I would point out is we need to recognize that the distinct aspect of libertarianism is not that we believe in property rights. In fact, I think everyone in every political system, every political theory has a view of property rights because that is simply whatever the rules of a given order say as to who gets to control a given scarce resource. What is distinct about libertarianism is how we allocate property rights. Every system allocates property rights in a certain way. Every one of them except for libertarianism basically advocates some form of slavery, which is the person doesn't completely own their own body. Someone else gets to control it or the resources that they have a legitimate right to control. All right, so how is it then, what is the rule? What's the benchmark for determining that somebody owns something legitimately as opposed to somebody who doesn't? Like how do we say for sure in a world, let's imagine in a primordial, let's imagine the very beginning of time and nothing has yet come into individual ownership yet. What needs to be done for me to say this is mine and it's not yours? So the way I think we have to look at it is we have to first identify what is the object under dispute, and others what is the thing or the scarce resource that the ownership or the control of it is contested. And that is usually brought out by the dispute itself. If two people, two or more people both argue they can control certain things, by the nature of their dispute they're defining what they're talking about. If it's a piece of land, if it's a cow, if it's an apple, et cetera. So that defines the thing that we're talking about. And then the question simply becomes if we believe that we ought to have a normative property system where we have rules that determine who gets to use this thing so that it's not a system of chaos where we're fighting over things all the time and no one has sure possession of their resources. If we want a system of rules, then the question is what rules could possibly be adopted in a society of civilized people as legitimate and fair and valid? And it turns out that, at Rothbard pointed this out, there's only two or three or four candidates of possible rules. One is the Lockean rule of first possession, okay? Augmented by contract. So in other words, if you are the first one to take something out of the state of unowned, the commons, and transform it and put borders up around it, then you have a better claim than anyone else. Simply because if you didn't, you would never be able, no one would ever be able to use anything in the first place. Someone has to be the first user or resources to be employed usefully in the world. So we can't say that no one could ever be the first one. And then if we say that the first user doesn't have a better claim than later users, well then that means that no possession is ever secure because anyone could come along and be a third taker or a fourth taker and just keep taking things. So we go back to a world of might versus right and a world where possession is only in the matters and there's no such thing as right or wrong or right. So these rules basically show that the only logical conclusion is the Lockean rule that the first person has to have a logically better claim than anyone else unless he has contractually given it to someone else, in which case that person now has a better claim than him because of the contract. Or if he may be committed a tort or a crime against someone and owes them compensation. But unless you can find some special reason, the earlier possessor of a resource has to have a better claim in any kind of proper terrain, any kind of civilized system. All right, so let's turn now to aggression. And before we get into the issue of aggression, can you clarify why it is that some libertarians seem to prefer non-aggression principle over non-aggression axiom? What's the significance of that? Well, I think that a lot of libertarians got their influence from Ayn Rand. And Ayn Rand has a sort of a peculiar use of the word axiom, by which she means something more like me is meant by a priori statements. By axiom, I think Ayn Rand meant something that was fundamentally true because the denial of it was self-contradictory. It was something so basic and elemental that you couldn't deny it, like the law of non-contradiction, for example. In normal terminology, we would mean an axiom in mathematics to mean just an assumed, like an assumed state of affairs. It's not something necessarily true. Rand used it to mean something necessarily true, something that was basically undeniable. And that is what Mises means by his a priori-type theory in praxeology, like you can't deny that humans act. Or Hoppe means in his argumentation effect when he talks about the a priori of argumentation, giving a little for a few here, but so the basic thing is that, so I've noticed in the last couple of decades, libertarians have tended to stop saying non-aggression axiom. I think they used to say that maybe under Rand's influence. Nowadays, they mostly say NAP, non-aggression principle, or some of them say ZAP, zero-aggression principle, right? And that is fine. I think it's useful as a placeholder. But I do think we have to recognize that the concept of aggression is a dependent one. It's not an independent one. In the case of your body, it's more or less synonymous with self-ownership or body ownership. To say that it's wrong to commit aggression against another person, to stab them, to kill them, to kidnap them, whatever, is basically the same thing as to say that they have the property ownership right in their own body. Those are basically equivalent statements. But in the case of other resources that we own, which is why earlier I tried to say that the basis for ownership were different in bodies than external resources. For external resources, you can't know if it's aggression to take something from someone else unless you first identify who the owner is. Yeah. So if I see a purse by your feet or an apple by your feet and I just take it without your permission, well, it's only aggression or theft or trespass if I needed your permission. And I only needed your permission if you were the owner. So ownership in the case of external resources is the more fundamental concept. Aggression follows from that. I think it's a useful, compact way of summarizing what we're for, but it does depend upon a specific theory of property ownership and allocation rules. So let's be super clear then. Aggression amounts to a violent interference with the peaceful use of somebody's physical body or justly acquired property. That's what it is. It's not something that makes you feel bad. It's not an insult. It's not anything like that. It's got to be this type of invasive activity. Is that right? I think that's exactly correct. Although in keeping with my very, sometimes overly precise attempt, I would say not property. I mean, I know what you mean by that, but I would say they're scarce resource that they have a property right in, but it's the same idea. I think the idea of aggression is rooted in the body. Okay? So we imagine conflicts between physical bodies and that's why these concepts are so interrelated. Aggression means the violation of the property rights of someone else. In terms of their body. And when we want to extend it to other resources that we have legitimate ownership of, then it's not so obvious. It's always obvious who owns your hand or your eyeball. You're the one who owns it. But it's not obvious who owns the apple or the chair or the purse or the cow or the farm. So we have to have a system of identifying owners of these scarce resources in that sense. So a property system has to play a role in identifying what aggression is. Papa has a very good point. He points out that one mistake a lot of people make is they believe that aggression can be just this kind of vague concept of harm, which means basically taking some action which reduces the value of someone else's property. But if you're in Austria and you recognize that value is a subjective concept and value is simply how other people regard the utility of objects that you have an ownership of and they don't have a property right in that because you are the owner of that. So for example, if you have a nice rose garden which your neighbors might appreciate it might increase the value so-called of their homes because they live next to a beautiful house. They don't have a property right in your rose garden and if you cut the roses down and you reduce the value of their home, you have not committed aggression against their home because you've not committed what Papa calls an active invasion. So the way he characterizes it and Rothbard characterizes aggression is they use different terms. But sometimes they say invasion which implies crossing the borders of a scarce resource which you don't have the right to control without the permission of the owner, right? Or they will sometimes say, you know, interfering with the physical integrity of that thing. But all these ideas give it the same idea. It's a physical invasion or as I think of it in more general terms, it's a use of someone's scarce resource without their permission. That is the basic essence of aggression. All right, let me raise an objection then. Couldn't we then say if that's what aggression is that in that case it would be perfectly fine for me to walk around waving a gun in people's faces, scaring them half to death all the time because after all I'm not physically invading them, right, I mean I haven't done them any physical harm. So what's wrong with me waving a gun around at people all the time? So this is another good point of libertarian theory which sort of the intuition is there but the analysis of it has broken down because of imprecise use of terms. So you hear libertarians say all the time that we're against force and fraud. Now they just sort of throw fraud in there, right? Now I'm bringing up fraud because fraud is related to what you're bringing up which is threat or what the law calls assault. And assault, by the way, does not mean attacking someone, that's battery. Assault, that's why we say assault and battery. Assault is the attempt to commit a battery or putting someone in fear of receiving a battery. So it's a subtly different thing in the law. So assault is like a threat, basically. And coercion, by the way, is basically using the threat of force to tell someone to do something they wouldn't otherwise do which is another term we can briefly talk about. Solution is often used in libertarianism as a synonym for aggression but I think it should not be. Aggression is per se those things that are illegitimate acts of actions that should not be permissible in a free society. Orson is like violence or force. It's a species or type of force but some force is legitimate, some it's not according to libertarian theory. Defensive force, for example, is useful. You could imagine situations where there's someone attacking your family, you have to coerce them, like put them in your basement until someone else arrives to save you from this interloper. You have to point a gun at them and say get in the basement until someone arrives. You're coercing that person but you're justified in doing so because they are a threat to you, a standing threat. So coercion should not be synonymous with aggression. Now on the threat issue that you're talking about, so libertarians just assume, they just assume in this kind of vague way that like fraud and coercion and threat are kind of like aspects or types of aggression. I think their intuition is right. The reason they're right is simply because when you perform an action that either is an attempt, okay, it's an attempt to invade the border to someone else's property or you're putting him in legitimate fear of receiving some kind of a battery like that. When you do that to them, then they have the right to respond reciprocally. The reason is because the person that's doing that to them has no right to complain if whatever he's doing is done back to him. This is sort of my own personal stop-all theory of rights and kind of based upon Hoppe's argumentation of it. It's just the idea of consistency. You really have no grounds to complain if you're threatening someone and that they threaten you back. But to threaten someone back means you have to have the right to carry it through. So if someone puts a point of gun in my head and says, unless you hand over your wallet, I'm gonna shoot you, then they're actually attempting to invade your body, which means you have the right to attempt to invade their body. But if you have the right to attempt to do it, you have the right to complete it, okay? So this shows, to my mind, exactly why the reciprocity of sort of the way norms work, the way things work out, the way universalizability works. It shows why a defensive forceful response to a threat or to coercion or to an assault or to certain types of fraud shows why it's legitimate. If it's legitimate, it shows that the initial act was a type of aggression. Well, Stefan, I can't believe the time just zoomed by, but it's basically all gone. But still, I mean, I think we hid in this short space the key concepts and why fuzzy thinking about them is so, well, dangerous might sound over the top, but so likely to lead people astray, lead them to draw false conclusions, lead them to be confused about libertarianism. But libertarianism is so elegant and simple in so many ways. And yet, at the same time, paradoxically, it's this inexhaustible source of interest and intellectual excitement. And I think you have done Yeoman's work here in helping to clarify a lot of these important concepts. Is there anything I can plug for you before I let you go? Well, I have a, well, I have longer lectures on this as you're right, when we had the luxury nowadays of having a more mature philosophy that we can get into these issues and we stand on the shoulders of giants and I appreciate where we are now and it's good that we can do this and we need to do it. And I've talked for three, four, five hours in two or three other lectures before. You can find them on my website, stefanconcela.com, where I go into more detail on these issues. I think I have a Mises Academy course called Libertarian Controversies, which deals with this. And I did one at Hoppe's Property and Freedom Society on Libertarian Confusions and Fallacies and tried to go into a lot of these issues. So anyone is welcome to go to stefanconcela.com and check it out there. Although the one exception to the non-aggression principle is if people call you Stephen Concella, I think you are allowed to smack them in the head. Hi, I don't care what you call me as long as you call me and I even answer by Norman, my first name. Oh, how about that? I'm pretty cool about that. All right, well, thanks a lot, Stefan. I appreciate you being here. Thanks, Tom. All right, everybody, make sure and check out libertarianpapers.org and stefanconcella.com. Just wanna remind you where I'm gonna be. I'm gonna be speaking April 9th at Florida Southern College, April 10th at Liberty University. April 26th now in Madison, Wisconsin. I'll be making my second visit to the University of Wisconsin at Madison. I'll be posting the details about that one soon. I won't be in St. Paul in May, but I will be in Provo, Utah on May 9th. You can get details about these events at my personal site, tomwoods.com on the events page, tomwoods.com slash events. I haven't yet posted details of the Madison, Wisconsin event on April 26th, but if you're in the area, just save the date for now and we'll put up details very soon. Monday, David Stockman returns to this program. How can you not be subscribing on iTunes and Stitcher? Think of the gems you might be missing. You can find easy subscription links at tomwoodsradio.com for iTunes and Stitcher. So go right over there right now while you're thinking about it. Subscribe and we'll see you on Monday. The Tom Woods Show.