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Source link: http://archive.mises.org/18069/action-based-jurisprudence-praxeological-legal-theory-in-relation-to-economic-theory-ethics-and-legal-practice-libertarian-papers-vol-3-no-19/

“Action-Based Jurisprudence: Praxeological Legal Theory in Relation to Economic Theory, Ethics, and Legal Practice”–Libertarian Papers vol. 3, no. 19

August 13, 2011 by

Published today at Libertarian Papers: “Action-Based Jurisprudence: Praxeological Legal Theory in Relation to Economic Theory, Ethics, and Legal Practice,” Vol. 3 (2011), Art. No. 19, by Konrad Graf. View the .pdf for this article View the .doc for this article

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.

This is an interesting, provocative analysis of libertarian theory that highlights the strength of the Mises Institute’s approach and model of openness. ((See Doug French, “The Intellectual Revolution Is in Process“; Jeffrey Tucker, “A Theory of Open” and “up with iTunes U“; Gary North, “A Free Week-Long Economics Seminar”; and Kinsella, “Fifteen Minutes that Changed Libertarian Publishing“.)) First, this piece was inspired by the author’s participating in a Mises Academy course.

Second, the author is not a professional scholar or academic. In days past such authors–who are often the source of new ideas–would be shut out by credentialism and the iron grip certain institutions had over the few avenues of publication. The open model of the Mises Institute’s Libertarian Papers–rigorously double-blind peer-reviewed but open to private scholars as well as academics, as its focus is on ideas–breaks free of this hidebound model.

Third, the article is 75 pages long, much longer than many journals can accept. But this is no problem for the Libertarian Papers model as it is online, not centered on paper.

To sum up, this provocative piece was stimulated by the Mises Institute’s being on the forefront of technology (Mises Academy), not to mention the gargantuan volume of free, online resource such authors are able to draw on (Mises.org), and then was offered a publishing platform (Libertarian Papers) despite its length and the author’s private, “non-credentialed” status. In my view, this is all to the good and a testament to the heroic work done by the Mises Institute.

{ 1 comment }

loki August 13, 2011 at 7:28 pm

In the last few weeks it has been dawning on me that the efforts of the ‘freeman’ movement would be massively augmented by an overlap of knowledge between praxeological theory and the underlying epistemology and rational ethics with the practise of law. In particular, the existing body of jurisprudence of the field called ‘equity’ is of great interest as it is the proper foundation of all practise of contract and trust law. Statutory regulations are below these laws as they are the laws of a trust, the terms of a trust agreement, that trust having its deed of public trust in the form of a national constitution.

Austrolibertarian theory gives a substance to the process of refining how law should in the objective sense be operated, and interestingly enough it overlaps almost perfectly with most of the ‘unwritten’ law that guides all types of law, which is the law and equity maxims which are axioms of their specific field, which are of course relateable to principle axioms of praxeology such as the axiom of action from the austrian and the non-aggression principle from the libertarian.

It is my opinion that if the same kind of vigorous reasoning and discussion and debate we see about the laws of economics could be applied to the economics of law we would really start to see some change in the world. The interesting thing, looking at the current state of knowledge in the field of what I guess you could call ‘libertarian legal theory’ seems to suggest that there is a very fundamental, single core basis upon which they arrogate power that we all know instinctively is our own.

The process of abuse of one party by another always starts with an idea implemented by the abuser, which follows to become an expression in the form of words, which then is the first incursion of the property (a person’s rights) which forms the precedent which then allows the following up with the use of force, the combined process would be properly termed ‘coercion’ but the key insight I am trying to get at is that coercion always lacks critical logical grounds somewhere in the pattern and once you find the inversion you can simply point at it and the game is up. Once it comes to fisticuffs it’s all over.

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