First, don’t take this as a personal attack.
Second, I tried. No wonder I haven’t seen anyone articulate a simple argument of a position which contradicts mine. The pages you referenced from Smith are almost unreadable philosophical analysis. It didn’t (near as I could tell) deal with the ideas L&L or I have been talking about.
LS, I just didn’t get around to responding to your other post. I don’t see how it is “unreadable”. It makes perfect sense to me. Tell me the first place you get stuck at and I will help you. It probably doesn’t address whatever you said but it deals with the foundation of all sciences, so it is important to understand going forward.
Please tell me you are not comparing subjectivism to the second law of thermodynamics.
Austrians do recognize the significant role of subjectivism, but there are still objective facts of economic reality. To prescribe subjectivism for both leads you to the flawed hermeneutic position of Lavoie and others. There is a whole different character to laws of praxeology versus those of the natural sciences, but both are equally valid scientific theories, and the former is not just some wishy-washy relativistic poetry.
I am a fairly bright guy, perhaps average in these parts. If I can get a synopsis, or if you can articulate the article content in a condensed form, that would be a big help to me, and probably many other casual readers of these discussions.
It’s fine if you don’t have time. I wanted to fully treat each of the subjects that this thread started to branch off into, but there can be no discussion of “libertarian law” without outlining the methodology. I barely wrote anything on that because it seems more worth my time to keep learning and developing the theory. I feel that I am basically on the right track, but each time I peel back a layer there is a whole new range of issues to address. Skimming around the outside doesn’t do much for me usually. Some topics of those papers will certainly be addressed though.
I’ll try to pare back my response and deal with the Hoppe problem first. It’s just frustrating when someone wants to “debate” an issue like argumentation ethics but hasn’t read, for instance, Kinsella on estoppel. It’s bad science, but a valid cognitive proof that 2x2=4 doesn’t stop someone from saying 2x2=5. Lilburne’s basic error, the one I said can be briefly stated, is conflating the personal, subjective mental episode of valuation, or the judging A as being more valued than B, with a “complex” of social acts comprising the process of argumentative justification.
I’m pretty sure that he doesn’t even understand Hoppe’s argument, at least I have no clue how he could legitimately come to the conclusion that, “Hoppe is trying to refute justification”. There’s a sort of linguistic equivocation that can happen with “justification”. “Justifying” the eating of a donut after 2 weeks of dieting to oneself is merely a personal valuation (value judgment). I prefer the having dieted for two weeks but enjoying a donut to the having dieted for two weeks and continuing to resist sweets. The whole interpersonal form of argumentative justification is another matter entirely.
Anyhow, I’m not all that interested in criticisms that have already been dealt with years ago. Rasmussen asks some good questions about Hoppe’s theory in his Arguing and Y-ing such as “What does it really mean to argue?” So, I think with the help of phenomenology we can better answer this question. Since I’ve started going on this it seems like there are implications for economic theory as well. But, Hoppe’s argument isn’t necessarily the best starting point for a legal theory. Arguing for a socialist ethic does place one in a state of performative contradiction, but rambling nonsense isn’t a crime per se. Instead I will choose the common law tradition of estoppel.
So, I want to do two things. One is to go to the root of argumentation and determine what social acts it contains (spoiler: there is more than one relevant form of argumentation). The other is to analyze delict-types and penal law, with influence of Rudolf von Jhering and Ernst Beling, at a sort of macro-level as mentioned in this blog post about Mises possibly anticipating AE:
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An important basic question is what are “social acts”? Austin and Searle used the term “speech acts” in their somewhat similar work on the subject. Searle says:
One of the reasons why the subject of speech acts is so much fun, is that you don’t have to worry about what all the great figures from the past said, because most of the great philosophers had no theory of speech acts. You can’t go and find Kant’s view on apologising or congratulating, as far as I know…
Reinach makes mention of having “discovered” social acts but he does have one predecessor, Thomas Reid who wrote Essays on the Active Powers of the Human Mind in 1787. From the Stanford Encylopedia entry on Reinach in part:
Reinach mentions many social acts in his treatise on “The A Priori Foundations of the Civil Law” (1913)—commanding, requesting, warning, questioning and answering, informing, enacting, revoking, transferring, granting, and waiving of claims—but he devotes the most attention to the act of promising. Drawing on the theory of essences or intrinsically intelligible structures referred to above, Reinach offers the following examples of a priori truths about what he sees as the intrinsically intelligible structure instantiated through the performance of a promising act:
- through promising one incurs an obligation;
- by receiving a promise one has a claim to what was promised;
- such claims are extinguished when the promise is fulfilled;
- such claims may also be extinguished if the claimholder waives the claim;
- promising is subject to a range of variations or modifications, including conditional promising, promising on behalf of or as a representative of someone else, promising to a group, promising by a group, and so forth.
Reinach maintains that such truths are not merely necessary and universal, but also informative, thus that they are examples of truths that are both a priori and synthetic.
Obviously the range of social acts goes beyond what are used in argumentation. Reinach explicitly states that his research is not comprehensive and, unfortunately, he died at the age of 34 in WW1. One type of social act which I have tried to advance is “titling” or promulgating legally issued norms (Bestimmungen) related to property titles. This is just one aspect of the first major hurdle for social act theory within libertarianism.
Reainach explicitly respects state authority so how can it work with anarchy? Must there be some sort of republicanism or “monolithic law beast” like the anti-Rothbardians have nightmares of? For more on this we’ll have to look back to Menger on the “source of law”, but a couple last points: Mises is the godfather of the Austrian school but his Kantianism, while rectifiable, must be set apart from the Aristotlean-Thomist tradition of most of the other members of the Austrian School. Mises leaves all sorts of maddening hints, like the one above, and several unbacked (and ultimately flawed) assertions, such as that the use of violence is somehow a special good requiring monopoly provision.
@Clayton: You’re talking about praxeological legal theory vs. jurisprudence (or law in action). It’s definitely true that whatever happens, happens, but one must be careful to avoid legal positivism and saying that whatever happens is right.