THIS ISSUE FEATURES AN exchange of views among Walter Block, N. Stephan Kinsella, and Frank van Dun. At issue is nothing less than the foundation of libertarian jurisprudence.
The Spring 2001 JLS (vol. 15, no. 2) was a symposium on libertarian legal theory, and included Block’s “Toward a Libertarian Theory of Blackmail” and Kinsella’s “Against Intellectual Property.” Van Dun disagreed with their analysis, and in the Summer 2003 issue (vol. 17, no. 3), he replied with “Against Libertarian Legalism.” Van Dun was critical of Block’s and Kinsella’s use of the non-aggression axiom as the foundation for their jurisprudential positions, and sketched out a brief synopsis of his own views on the natural law tradition.
In the current issue, all three were given a chance to sort out their positions more fully. In “Reply to ‘Against Libertarian Legalism’” Walter Block defends his use of the non-aggression axiom as the foundation of the entire corpus of his work in legal theory and application. He offers a series of examples in defense of his position.
In “Natural Law and the Jurisprudence of Freedom,” Van Dun replies to Block’s article, drawing instead on a tradition indicating that those acts which are “unlawful” (or against natural law) and generate harm lead to liability. In an appendix, Van Dun provides a chart featuring side-by-side comparisons of his own views and those of Block and Kinsella.
Kinsella also responds in “Reply to Van Dun: Non-Aggression and Title Transfer.” He points out that Van Dun implicitly accepts the non-aggression axiom, but rather than ending there, has a broader understanding of what is unlawful. However, Kinsella argues, for Van Dun to punish anyone based on this broader understanding requires him to initiate force against someone who has not already initiated force. In short, any punishment under this broader scheme necessarily violates the non-aggression axiom itself.
Block gets the last word in his “Reply to Frank van Dun’s ‘Natural Law and the Jurisprudence of Freedom.’” In this short comment, Block tries to clear up a few final misconceptions, nonetheless leaving the disputants with differing positions. Clearly, leading libertarian thinkers can, and do, hold more than one view on this important foundational issue.
Also in this issue is an article by Josef Sima entitled “Praxeology as Law & Economics.” He makes the case that while the modern Law & Economics movement is based, in part, on work done at the University of Chicago, an older movement had long considered the nexus between economics and the law. In particular, he points out that Austrian-School economists, starting with Menger (himself both a lawyer and an economist), and including Hayek, Mises, Rothbard, and nearly all current Austrian-School economists, have long been interested in the relationship between human action and the surrounding institutional settings (e.g., the law) in which that action has taken place. What’s more, Sima points out, the Austrians don’t end their analysis with the law, but expand it to include a broader understanding of social processes. In short, law and economics is a mere sub-set in the broader study of praxeology.
Summary written by Scott Kjar.