Abstract: Inchoate crime consists of acts that are regarded as crimes despite the fact that they are only partial or incomplete in some respect. This includes acts that do not succeed in physically harming the victim or are only indirectly related to such a result. Examples include attempts (as in attempted murder that does not eventuate in the killing of anyone), conspiracy (in which case the crime has only been planned, not yet acted out) and incitement (where the inciter does not himself commit the crime he is urging others to undertake). The present paper attempts to analyze these inchoate crimes from a libertarian perspective, based on the non-aggression principle.

Download Paper: Inchoate Crime, Accessories, and Constructive Malice in Libertarian Law.

Abstract: In this paper, I show that Polleit and Mariano (2011) are right in concluding that Credit Default Swaps (CDS) are per se unobjectionable from Rothbard’s libertarian perspective on property rights and contract theory, but that they fail to derive this conclusion properly. I therefore outline the proper explanation. In addition, though Polleit and Mariano are correct in pointing out that speculation with CDS can conceivably hurt the borrowers’ interests, they fail to grasp that this can be the case only in some peculiar circumstances that I identify. In other words, they miss the bigger picture, the one outside special circumstances, in which CDS trading has the opposite effect. That is, CDS facilitate debt accumulation, including government debt accumulation. Finally, I point out how this can precipitate the collapse of fiat money regimes. An incidental goal of the analysis is to provide a better account than Polleit and Mariano of recent government interventions in and around CDS markets.

Download Paper: Credit Default Swaps, Contract Theory, Public Debt, and Fiat Money Regimes: Comment on Polleit and Mariano.

Abstract: Brettschneider argues that the granting of property rights to all entails a right of exclusion by acquirer/owners against all others, that this exclusionary right entails a loss on their part, and that to make up for this, property owners owe any nonowners welfare rights. Against this, I argue that exclusion is not in fact a cost. Everyone is to have liberty rights, which are negative: what people are excluded from is the liberty to attack and despoil others. Everyone, whether an owner of external property or not, benefits from this and thus rationally exchanges that liberty in exchange for a like abandonment of it by others. The proper social contract trade is thus liberty for liberty—not liberty for owners and positive welfare rights for nonowners (though the latter in fact benefit greatly from the property rights of owners).

Download Paper: Liberty, Property, and Welfare Rights: Brettschneider’s Argument

Download Paper: Book Review: Anthony Gregory, <em>The Power of Habeas Corpus in America</em>

Abstract: The necessity for a government “lender of last resort” has been advanced as a justification for central banking. In this paper, I compare lending practices under central banking with those that would be likely to exist under a system of fractional-reserve free banking (FRFB). To do this I examine the underlying nature of banks as warehousing and credit-granting institutions and consider how redemption runs can arise as a consequence of fractional reserves in this system. Following the work of Thornton and Bagehot, I describe principles of prudent lending that can be used to stem a redemption run when it arises. I examine the market incentives that apply under FRFB and how these incentives are perverted under a system of central banking. I find that a government central bank is not well-placed to lend according to prudent standards, and in fact is likely to use its power to pursue political goals that are at odds with prudent lending. I examine the US financial crisis and the actions of the Federal Reserve System to illustrate this view.

Download Paper: The Lender of Last Resort: A Comparative Analysis of Central Banking and Fractional-Reserve Free Banking

Abstract: This paper is my last word, in the present journal, in the debate I have been having with Walter Block on the subject of evictionism as an alleged libertarian “third way,” capable of transcending the familiar “pro-life” and “pro-choice” dichotomy. In this debate, I myself defended what might be regarded as a qualified “pro-life” position, while Block consistently argued that the mother is morally allowed to expel the fetus from her womb provided that no non-lethal methods of its eviction are available. While my position articulated in this paper contains an element of what Block might consider a concession on my part—i.e., an explicit declaration that abstaining from lethal evictions of fetuses conceived as a result of rape is a libertarian duty, but only an imperfect one—I continue to regard the unqualified support of evictionism as indefensible on libertarian grounds.

Download Paper: “Abortion, Libertarianism, and Evictionism: A Last Word.”

Abstract: In Chinese history the periods known as Spring and Autumn (770-476 BC) and the Warring States (475-221 BC) were times of conflict and political instability caused by the increasing power of centralized and competing states. During this time of crisis many schools of thought appeared to offer different philosophical doctrines. This paper describes and studies ideas about the limitation of power defended by these different schools of ancient Chinese thought, and suggests some reasons why they failed to prevent the emergence of an authoritarian imperial government in early China.

Download Paper: “The Dao Against the Tyrant: The Limitation of Power in the Political Thought of Ancient China.”

Abstract: Klein and Clark (2010) initiated a debate about libertarian theory to which this paper hopes to add. Starting with the old libertarian principle of “direct liberty” (adherence to the non-aggression principle) Klein and Clark introduced two new concepts to complete it: “indirect liberty,” and also direct liberty plus indirect liberty, which sums to “overall liberty.” In my critique of this article of theirs (Block, 2011A), I congratulated them for their creativity, but rejected these innovations. In Klein and Clark (2012), these authors responded to my initial criticism. The present essay hopes to fruitfully continue the discussion of these new concepts of liberty.

Download Paper: Klein and Clark are Mistaken on Direct, Indirect, and Overall Liberty.

Abstract: In his book, Defending the Undefendable, Walter Block (1976) makes the case that an individual counterfeiter of fiat notes does not commit a natural law crime, because money issued by the government is itself counterfeit. Several authors, including Murphy (2006), Machaj (2007), and Davidson (2010), have taken issue with Block’s argument. In Davidson (2010), I maintain that while the issuance and use of fiat currency by the state violates the natural law, fiat notes are not counterfeit, and their use by ordinary people is legitimate. The private counterfeiter is a thief when he exchanges his notes with these innocents, because they are rightful owners of both the fiat currency and the goods for which it is exchanged. Block (2010), in a rejoinder, disputes this on both ethical and utilitarian grounds. The present paper is a response to Block, and an elaboration of my original article. From a natural law perspective, I explore the ethical violations surrounding counterfeiting, and the legitimacy of producing and using fiat money by both the state and the individual.

PAPER HERE: “Countering Walter Block’s “Heroic” Private Counterfeiter.”

Abstract: In Escape from Leviathan, Jan Lester sets out a conception of liberty as absence of imposed cost which, he says, advances no moral claim and does not premise an assignment of property rights. He argues that, so conceived, liberty implies libertarian property rules, free-market anarchy, and the maximisation of welfare. However, analysis of Lester’s conception of liberty shows it to be inconsistent with liberty as ordinarily conceived, and further reveals that maximising liberty, as Lester conceives it, would run counter to self-ownership, private property, open markets, and improving welfare. Lester seems to arrive at his conclusions only because, in his arguments, he abandons his own account of liberty and derives his conclusions instead from familiar libertarian assumptions about property rights.

Download Paper: A Critique of Lester’s Account of Liberty.

Abstract: An ethic of self-ownership combined with Lockean homesteading of external resources provides a plausible grounding both for anarchist opposition to the state and for an attractive anarchist legal order. Such an ethic can be understood as specifying that each person prima facie has the right to control his or her own body; and that Lockean homesteading, under which the owner of any scarce resource is its first user (or his contractual transferee), should provide the basis for property rights in such previously unowned goods. Given these rules, monopoly privileges like patent and copyright (intellectual property, or IP) cannot be justified, as they infringe on self-ownership-based body-rights and/or property rights in external resources. In this article, I explain why IP rights are inconsistent with the moral grounds for a stateless society’s legal order, and speculate about the practices or laws that might prevail in the absence of IP in such a system.

Download Paper: “Law and Intellectual Property in a Stateless Society”