"It is becoming clearer and clearer to me that ethical and legal theory need to be completely disentangled and that at the essence of what libertarianism is we find a legal position rather than an ethical position (sure, the legal position can and is combined with various ethical positions, but this does not make the two identical in content).
Understanding what rights are (legal) is different than deciding how, whether and in what ways to actually respect them or not in action (ethical).
Now when I look back at Rothbard, I am seeing that he effectively was already doing this (some passages above and elsewhere, even in Power and Market), but was still bogged down in the use of the word “ethics” in the effort to distinguish what he was talking about from economic theory (and this usage continues in Hoppe, with the word “ethics” subbing in for what I think is actually “property theory.”).
Yet in looking at what they are actually presenting rather than some labels, it is much much more about legal content (definition of property rights), rather than whether or not one ought to violate or respect such rights (knowing what they are being a separate question) on ethical grounds.”
This is an excerpt from Action-Based Jurisprudence: Praxeological Legal Theory in Relation to Economic Theory, Ethics, and Legal Practice by Konrad Graf, pg 44. Understanding this helps comprehend the structure of reality and its categories. Certain fields of knowledge fall within certain sectors.
Note on “objective, intersubjectively ascertainable”
The term “intersubjectively ascertainable” mentioned in Hoppe’s work and also employed by Kinsella, might appear synonymous with “objective,” with which it is often paired. However, these terms carry an important, but subtle distinction. It is helpful here to refer to Wilber’s four-quadrant model (2006, 18–26), which I will now briefly describe, relate to Misesian concepts, and apply to this distinction.
In this model, an interior–exterior axis crosses with an individual–plural axis to create four quadrants of possible perspectives. These are the interior-individual (subjective), interior-plural (cultural), exterior-individual (objective), and exterior-plural (social/natural-science/systems). Various fields of knowledge are most at home in particular quadrants, while each quadrant is associated with distinctive forms of knowledge. In this view, human beings, for example, stand as both wholes and parts (“holons”)—both individuals and components of plurals—with both exterior and interior aspects. These aspects are both discrete and inseparable—all of them must be present for us to be the kind of beings that we are.
I thought I would recommend some of the not so well known but nevertheless mind-blowing journal articles that should be read by everyone in the movement, especially by those outside it. This will be the first in a series of many.
If you’re just starting out it is probably best to study the classics and introductory books. However, understanding the framework of knowledge, praxeology — the science of human action — and where the two important fields of economics and jurisprudence (political philosophy) reside is very helpful. This is the most cutting edge article out there that exists today.
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.
I don’t think the above will be bested in a very long time. It is a big read for a journal article, but do not let that put you off. It is well worth it. If you’re not a fan of reading online, I would suggest printing it out - which can be done very easily for around $5. It’s something you will come back to often. A one stop shop for understanding Austro-Libertarianism in one read.
Deductive legal theory, when properly applied in a given context, objectively and descriptively defines the parameters of what justice is in relation to questions of property rights, contracts, torts, and other legal matters. This yields a deeper-than-expected foundation for the traditional libertarian insistence on not mixing law with morality and the corollary opposition to “legislating morality.” Legal theory is a discrete field that, like Mises’s conception of economic theory, can provide descriptive, categorical input for use in “ought” considerations, even as legal theory and ethics remain distinct in foundations, scope, and method.
Action-based legal theory provides tools to take into each case. It supplies some of the underlying questions to which case-specific details shape answers. Legal principles guide inquiry into specifics while emerging details suggest the most relevant set of legal principles to apply. Justice may be found at the meeting theory and practice—of deduction, institutions, and the details of specific cases. Sound theory functions as a service to legal practitioners, enabling them do their jobs more easily and reliably. […]
Legal practice should always be on trial in the court of legal theory, while legal theory should be recognized as insufficient to do justice in any real case. Legal theory and legal practice must therefore persist in a challenging but necessary marriage between distinctive partners if they are to produce the offspring of justice. Used properly, praxeological legal concepts not only boost the clarity of legal theorizing from “the armchair,” they also enhance the ability of practitioners to parse specific cases from “the bench.”
To summarize up to this point, using a simple tree metaphor, the root of praxeology can be derived using the analysis of the actions of an isolated individual—the concept of action and its first implications. The trunk comprises the analysis of interaction with classes of communicative acts—embordering/claiming and consenting—and accounts of the concept of first appropriation and the possibility of the consensual transfer of property titles. These concepts are logically prior to branching into economic theory and legal theory because the concepts of both branches logically presuppose some account of the root and trunk foundations, even if this is unacknowledged. The transition into branching may be identified with the move from universal features of all action or interaction to axiomatic deductions that are more narrowly specified with increasing factual or contextual assumptions that assure the relevance of analysis to the parameters of the type of world and context being considered.
The comparative, ordinal nature of the “better claim” test
Under the homesteading principle, it is not necessary to establish a first appropriation claim that lives up to any absolute standard of evidence of what is “sufficient” to be a valid claim. It is only necessary to establish that one party has the better or best claim when compared with conflicting claims.
This is analogous to Mises’s conception of ordinal valuation. The praxeologically defined act of choice means preferring “this” to “that” in a specific rank order, which carries no implication of any cardinal valuation scale. It is a criterion concerned with relative order only. Any alternative to this ordinal approach would require a claim to meet some devised standard of evidence showing some objectivistically defined degree of linkage. However, the legitimacy of an appropriation claim requires no such technocratic approach.
Assuming a competition among claims, each of which are based on some objective links between claimant and resource (some act of appropriation), the first such claim in time is likely to be superior to any later claim. While it is categorically true that the first claim is superior to any later claim, exceptions are possible when an earlier claim is found to lack evidence of an applicable act of appropriation. A first claim may have been overstated in relation to the “relevant technological unit” of the particular claimed resource. For example, perhaps I invented a radio transmitter and sold radios in a certain area. My device transmits only in a certain spectrum over a specified usable radius, but I thereby attempt to claim ownership of all radio waves in all possible spectra and in all places, even with regard to frequency bands and locations that in no way interfere with my radio operations.
Or say I have built a log cabin in one nook of a valley, and announce, “this entire valley is now mine,” expecting the valley to be socially recognized as mine. Clearly, my objective linkage to the use of the entire valley is probably too weak to hold up to any reasonable counterclaim that others might make to other parts of the valley on the basis of their respective activities. I have never put those areas to use in any way that others could possibly perceive.
The clarification and elucidation of the homesteading principle which many would-be libertarians, and even solidly advanced ones can sometimes get perplexed about. You often see this when inevitably someone searches for an objective absolute standard by which they can suddenly proclaim: “If you homestead this land for X time or degree, you can then claim legitimate ownership of it”. Or if you have “mixed your labor with it in such a way you can now claim Y.” As has been shown, it is not necessary to establish a first appropriation claim that lives up to any absolute standard of evidence of what is “sufficient” to be a valid claim.
The above is an excerpt from: “Action-Based Jurisprudence: Praxeological Legal Theory in Relation to Economic Theory, Ethics, and Legal Practice” by Konrad Graf. It is merely one of many gems, in an article that provides the best overarching structure of legal theory and ethics I have ever read. It is fairly long, but mind-blowing in how it puts everything into sharp perspective.