Kinsella on Liberty Podcast, Episode 206.
[Transcript below]
I discussed various libertarian with Tom Woods on his show today, Episode 592. From Tom's show notes:
Stephan Kinsella joins me to discuss negative/positive rights and obligations, “loser pays,” whether creation makes you an owner, how we can consider spam aggression, and more. Fun!
Grok shownotes:
[00:00:00 - 00:15:00] In this episode of the Tom Woods Show, host Tom Woods interviews Stephan Kinsella, a libertarian lawyer and theorist, to discuss five common mistakes libertarians make. Kinsella begins by addressing the misuse of terms like "coercion" and "aggression," which libertarians often apply too broadly, diluting their precision in describing violations of property rights. He critiques the tendency to treat all government actions as inherently coercive, emphasizing that fraud or contract breaches also constitute aggression under libertarian principles. The conversation highlights the importance of grounding libertarian arguments in property rights, as seen in Kinsella’s title-transfer theory of contract, and avoiding oversimplified rhetoric that conflates voluntary agreements with coercion.
[00:15:01 - 00:30:53] The discussion continues with Kinsella identifying additional pitfalls: misunderstanding the role of the state, overemphasizing utilitarianism, neglecting legal theory, and failing to engage with opposing views. He argues that libertarians should view the state as a monopolistic aggressor but avoid dismissing all governance outright, advocating for decentralized, voluntary systems. Kinsella warns against relying solely on utilitarian arguments, which can undermine principled libertarianism, and stresses the need for robust legal frameworks like his title-transfer theory to address issues like fraud and contract enforcement. The episode concludes with a call for libertarians to refine their arguments by studying philosophy and law, engaging critics thoughtfully, and avoiding dogmatic echo chambers to strengthen the movement’s intellectual rigor.
Background materials for topics discussed:
Spam:
Why Spam is Trespass (Jan. 18, 2010)
Kinsella & Tinsley, Causation and Aggression
Positive rights and libertarianism:
How We Come To Own Ourselves
Objectivists on Positive Parental Obligations and Abortion
Loser pays unlibertarian: See "Losing Patentee Pays" section of Reducing the Cost of IP Law
Creation not a source of ownership:
Hoppe on Property Rights in Physical Integrity vs Value
Intellectual Freedom and Learning Versus Patent and Copyright
“Locke on IP; Mises, Rothbard, and Rand on Creation, Production, and ‘Rearranging’,” Mises Economics Blog (Sep. 29, 2010) [updated C4SIF version, including Hoppe comments]
“The Intellectual Property Quagmire, or, The Perils of Libertarian Creationism,” Austrian Scholars Conference 2008 (March 13, 2008)
“Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors,” Mises Economics Blog (April 19, 2011)
Rand on IP, Owning "Values", and "Rearrangement Rights"
Related/previous talks:
KOL118 | Tom Woods Show: Against Fuzzy Thinking
KOL 044 | “Correcting some Common Libertarian Misconceptions” (PFS 2011)
“Libertarian Controversies”
“Correcting some Common Libertarian Misconceptions,” 2011 Annual Meeting, Property and Freedom Society (May 28, 2011) [podcast here]
KOL185: Clarifying Libertarian Theory (Liberty.me, July 2014)
Grok Detailed Shownotes:
Detailed Segment Summary
[00:00:00 - 00:07:30] Introduction and Mistake #1: Misusing "Coercion" and "Aggression"
Tom Woods introduces Kinsella, noting his expertise in libertarian legal theory and his work on the title-transfer theory of contract.
Kinsella identifies the first mistake: libertarians’ overuse of "coercion" and "aggression" to describe any disliked action, which dilutes their meaning.
He clarifies that aggression, per libertarianism, involves violating property rights, including through fraud or contract breaches, not just physical force.
[00:07:31 - 00:15:00] Mistake #2: Treating All Government Actions as Coercive
Kinsella critiques the tendency to label all government actions as coercive, arguing that some, like enforcing valid contracts, align with libertarian principles if done voluntarily.
He emphasizes that libertarianism should focus on property rights violations, using his title-transfer theory to explain how contracts are about title transfers, not enforceable promises.
Woods and Kinsella discuss how sloppy terminology can weaken libertarian arguments, urging precision in debates.
[00:15:01 - 00:22:00] Mistake #3: Misunderstanding the State’s Role
Kinsella identifies the third mistake: viewing the state as inherently evil without nuance, which ignores the possibility of voluntary governance in a free society.
He advocates for decentralized, market-based systems over monopolistic state control, but cautions against rejecting all forms of governance outright.
The discussion touches on historical libertarian debates, with Kinsella citing Rothbard’s nuanced views on governance.
[00:22:01 - 00:27:30] Mistake #4: Overemphasizing Utilitarianism
Kinsella warns against relying solely on utilitarian arguments (e.g., “libertarianism maximizes wealth”), as they can falter against competing utilitarian claims.
He argues for grounding libertarianism in principled property rights and natural law, which provide a stronger, more consistent foundation.
Woods agrees, noting that utilitarianism can lead libertarians to compromise core principles for perceived practical gains.
[00:27:31 - 00:30:53] Mistake #5: Neglecting Legal Theory and Engagement
Kinsella highlights the final mistake: libertarians’ failure to develop robust legal theories and engage with critics, often retreating to echo chambers.
He promotes his title-transfer theory as a framework for addressing complex issues like fraud and contract enforcement in a free society.
The episode ends with a call for libertarians to study philosophy, law, and opposing views to refine their arguments and strengthen the movement’s intellectual credibility.
❧
Transcript [not yet edited]
Tom Woods Show: Five Mistakes Libertarians Make
Stephan Kinsella and Tom Woods, "Tom Woods Show: Five Mistakes Libertarians Make," StephanKinsella.com (Feb. 12, 2016)
00:00:00
TOM WOODS: The Tom Woods Show, episode 592.
00:00:03
INTRO: Prepare to set fire to the index card of allowable opinion. Your daily dose of liberty education starts here, the Tom Woods Show.
00:00:14
TOM WOODS: Hey everybody. Welcome to another episode of the show. Talking to Stephan Kinsella today because he’s just – he’s got one of those sharp, sharp minds. He thinks clearly. He writes clearly. He writes and speaks very precisely. He helps to clarify my own thinking, and I thought we’d talk about some areas of libertarian thought or some questions where we’re liable to get off track or get confused or maybe not really know what the right libertarian answer is. So it’s always fun to talk to Stephan who is a libertarian legal theorist. He is the author of Against Intellectual Property and many articles that are of importance in libertarian theory. We’ll be linking, of course, to his material and his contact information at tomwoods.com/592.
00:01:09
Now, let me tell you one quick thing. I don’t know why this happens, but one episode out of 100 the recording software I use just fails completely, and you have no warning that it’s going to fail. It’s recording perfectly fine. You can catch the clock going, and then boom, no recording when you’re all done. It’s Pamela, by the way, Pamela for Skype. Now, you really need software to be 100% reliable. You really do, so if you have an alternative to Pamela, I would grab it. Right now, I don’t have time to figure out an alternative, so thank goodness; thank goodness Stephan was recording the episode on his end. So whatever gremlin was trying to screw with me, we got the last laugh here because Stephan was doing the recording.
00:01:52
So in this episode, his audio will be better than mine because he’s recording himself basically locally and then me through Skype, so his audio will be better than mine. That’s the reason. And then at the end, apparently what – I – we – the connection got dropped, which there’s no reason Pamela shouldn’t have still recorded. I mean there’s no reason. You should record what you have, but anyway, ridiculous Pamela. Anyway, the point is, at the very end, I’ll jump back in on my end here and wrap it up because just as I was wrapping it up the connection cut out. So anyway, that’s way more information than you need, but I’m giving it to you anyway. I want you to know what goes on here at the show, so off we go, talking to Stephan Kinsella whom I am very glad to welcome to the show right now. Stephan, welcome back.
00:02:40
STEPHAN KINSELLA: Thanks Tom, glad to be here.
00:02:41
TOM WOODS: I’ve got a whole bunch of these things to talk to you about because you sent them to me. So it helped me to come up with some ideas of things we can talk about. There are so many things we can talk about, but I love these little bite-sized errors and fallacies that even I myself I’m sure have fallen into in a few cases. But it helps us to get our thinking clear and straight.
00:03:04
So let’s see here. Let’s start with one that’s a little theoretical but is pretty fundamental to libertarianism. There is this idea that we believe in the idea of negative rights, and our opponents believe in positive rights. And negative rights are things that don’t actually require us to do anything.
