19. “Action-Based Jurisprudence: Praxeological Legal Theory in Relation to Economic Theory, Ethics, and Legal Practice”
by Konrad Graf
Abstract: Action-based legal theory is a discrete branch of praxeology and the basis of an emerging school of jurisprudence related to, but distinct from, natural law. Legal theory and economic theory share content that is part of praxeology itself: the action axiom, the a priori of argumentation, universalizable property theory, and counterfactual-deductive methodology. Praxeological property-norm justification is separate from the strictly ethical “ought” question of selecting ends in an action context. Examples of action-based jurisprudence are found in existing “Austro-libertarian” literature. Legal theory and legal practice must remain distinct and work closely together if justice is to be found in real cases. Legal theorizing was shaped in religious ethical contexts, which contributed to confused field boundaries between law and ethics. The carrot and stick influence of rulers on theorists has distorted conventional economics and jurisprudence in particular directions over the course of centuries. An action-based approach is relatively immune to such sources of distortion in its methods and conclusions, but has tended historically to be marginalized from conventional institutions for this same reason.
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This is brilliant.
Nice paper. I thought that this was the most interesting paragraph:
“In claiming that the is/ought gap has been “transcended” in Rothbard’s words, there remains a risk of overstatement, to assuming that an “ought” has actually been derived from an “is.” While it may nearly appear that it has, this is not claimed. What has been done, in my view, is subtler. Praxeology has delimited a sphere of possibility for the category of justification with regard to property norms. With no recourse to “oughts,” praxeology arrives at a somewhat surprising conclusion: there is only one set of norms at the level of property theory that are compatible with the requirements of justification itself—and these are the NAP-based norms.”
On a separate note, choosing to remain motionless is an action.
Thanks. On your last comment, I am guessing this might concern the idea that actions necessarily involve the use of physical matter (“what is seen”), as contrasted with counterfactual non-actions, which do not (“what is not seen”). I agree that acting to remain motionless is also an action. Interestingly, it is still matter that is being kept motionless, so the action of remaining motionless also entails the use of matter.