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Hoppe and Intellectual Property: On Standing on the Shoulders of Giants

Tags Monopoly and CompetitionPhilosophy and Methodology

It is often the case that the great intellects advance ideas so rich and prescient that they anticipate, in however embryonic form, ideas that are more fully developed later on. One of my favorite examples is Hans Hoppe's monumental argumentation ethics defense of libertarian rights, where Hoppe gives credit to Rothbard for recognizing, in a brief passage, the insights that Hoppe builds on more systematically: As Hoppe writes:

[T]his defense of private property is essentially also Rothbard's. In spite of his formal allegiance to the natural rights tradition Rothbard, in what I consider his most crucial argument in defense of a private property ethic, not only chooses essentially the same starting point—argumentation—but also gives a justification by means of a priori reasoning almost identical to the one just developed. To prove the point I can do no better than simply quote: "Now, any person participating in any sort of discussion, including one on values, is, by virtue of so participating, alive and affirming life. For if he were really opposed to life he would have no business continuing to be alive. Hence, the supposed opponent of life is really affirming it in the very process of discussion, and hence the preservation and furtherance of one's life takes on the stature of an incontestable axiom."

Hoppe, Economics and Ethics of Private Property, pp. 186, quoting Rothbard, The Ethics of Liberty, p. 32; see also Hoppe's A Theory of Socialism and Capitalism, n. 14 at p. 236; and Hoppe's Introduction to The Ethics of Liberty, text following note 29; and Hoppe's Murray N. Rothbard: Economics, Science, and Liberty, paragraph containing n. 24.{C}This is probably why Rothbard immediately recognized the power of Hoppe's argumentation ethics, when he wrote:

In a dazzling breakthrough for political philosophy in general and for libertarianism in particular, he has managed to transcend the famous is/ought, fact/value dichotomy that has plagued philosophy since the days of the scholastics, and that had brought modern libertarianism into a tiresome deadlock. Not only that: Hans Hoppe has managed to establish the case for anarcho-capitalist-Lockean rights in an unprecedentedly hard-core manner, one that makes my own natural law/natural rights position seem almost wimpy in comparison.

Rothbard, Beyond Is and Ought, p. 44; see also Rothbard, Hoppephobia.

I'm sure other good examples of this phenomenon can be found (commenters? let's have it!), but one that came to mind tonight also involves Hoppe, in my view our greatest living libertarian theorist, and the humble author of this post. To-wit: in my Against Intellectual Property, I argued that one problem of IP is that its advocates make arbitrary distinctions: patents last 20 years, instead of 14 or 83, for example--and that one way to avoid the arbitrariness would be to advocate infinite patent terms:

By widening the scope of IP, and by lengthening its duration to avoid making such arbitrary distinctions as Rand does, the absurdity and injustice caused by IP becomes even more pronounced .... by extending the term of patents and copyrights to infinity, subsequent generations would be choked by ever-growing restraints on their own use of property. No one would be able to manufacture—or even use—a light bulb without getting permission from Edison's heirs. No one would even be able to build a house without getting permission from the heirs of the first protohuman who left the caves and built a hut. No one could use a variety of life-saving techniques, chemicals, or treatments without obtaining permission of various lucky, rich descendants. No one would be able to boil water to purify it, or use pickling to preserve foods, unless he is granted license [i.e., permission] by the originators (or their distant heirs) of such techniques. ... Such unbounded ideal rights would pose a serious threat to tangible-property rights, and would threaten to overwhelm them. All use of tangible property would by now be impossible, as every conceivable use of property, every single action, would be bound to infringe upon one of the millions of past, accreted IP rights, and the human race would die of starvation. ... Any system that elevates rights in ideas to such an extreme that it overrides rights in tangible things is clearly not a suitable ethical system for living, breathing human beings. No one living can actually act in accordance with such an unrestricted view of IP.

Notice, now, how such reasoning is already anticipated in Hoppe's earlier work (and even, as Hoppe argues, that of Rothbard):

Taking his cues from the very same sources, Rothbard then offered this ultimate proof for these rules as just rules: if a person A were not the owner of his physical body and all goods originally appropriated, produced or voluntarily acquired by him, there would only exist two alternatives. Either another person, B, must then be regarded as the owner of A and the goods appropriated, produced, or contractually acquired by A, or both parties, A and B, must be regarded as equal co-owners of both bodies and goods.
In the first case, A would be B's slave and subject to exploitation. B would own A and the goods originally appropriated, produced, or acquired by A, but A would not own B and the goods homesteaded, produced, or acquired by B. With this rule, two distinct classes of people would be created—exploiters (B) and exploited (A)—to whom different "law" would apply. Hence, this rule fails the "universalization test" and is from the outset disqualified as even a potential human ethic, for in order to be able to claim a rule to be a "law" (just), it is necessary that such a rule be universally—equally—valid for everyone.
In the second case of universal co-ownership, the requirement of equal rights for everyone is obviously fulfilled. Yet this alternative suffers from another fatal flaw, for each activity of a person requires the employment of scarce goods (at least his body and its standing room). Yet if all goods were the collective property of everyone, then no one, at any time and in any place, could ever do anything with anything unless he had every other co-owner's prior permission to do what he wanted to do. And how can one give such a permission if one is not even the sole owner of one's very own body (and vocal chords)? If one were to follow the rule of total collective ownership, mankind would die out instantly. Whatever this is, it is not a human ethic.

See also p. 142 of A Theory of Socialism and Capitalism; and The Idea of a Private Law Society.

Ah... when we peons stand on the shoulders of giants, I sometimes wonder if we ever even see over their heads.

Update: see also the concluding portion of my Ideas are Free: The Case Against Intellectual Property speech transcript, noting Hoppe's comments on IP at a 1988 panel discussion on ethics with Rothgard, David Gordon and Leland Yeager, in the following exchange:

Question: I have a question for Professor Hoppe. Does the idea of personal sovereignty extend to knowledge? Am I sovereign over my thoughts, ideas, and theories? …
Hoppe: … in order to have a thought you must have property rights over your body. That doesn’t imply that you own your thoughts. The thoughts can be used by anybody who is capable of understanding them.

Stephan Kinsella

Stephan Kinsella is an attorney in Houston, director of the Center for the Study of Innovative Freedom, and editor of Libertarian Papers.