Attacking Argumentation Ethics

Replying to a defense of argumentation ethics

Kinsella has written a defense of argumentation ethics, titled “Defending Argumentation Ethics.” In this article I will criticize his defense of argumentation ethics—and in turn, attack argumentation ethics. The arguments presented in this article are nothing new. Proponents of argumentation ethics abuse claims of ambiguous scope to form clearly erroneous arguments. As we shall see.

The central question here is: does Hoppe’s theory establish that there are libertarian rights?

No!

Scarce resources are those things over which there can be conflict; two or more individuals may want to use or control a given scarce resource at the same time, but only one of them can, because use by one excludes use by the other.

This is false—it can be interpreted in two ways. Either

A) Only scarce resources can have conflict.

B) All scarce resources have conflict.

A is false—there can be conflict in a boxing match, for example, or over a sports game, or just generally over disliking another person. B is false, there is no conflict over the space in my room, despite it being scarce. However, this could be interpreted to mean

C) Some scarce resources generate conflict.

This is clearly true.

Thus, as Hoppe explains, a theory of interpersonal ethics must be a theory of property rights, “a theory of the assignment of rights of exclusive control over scarce means.”[8] The purpose of rights is to specify which individual has the right to control a given scarce resource, so that conflicts may be avoided.

This is a total non-sequitur. It doesn’t follow from the notion that X prevents conflict that morality fundamentally concerns X. It certainly doesn’t mean that X is irreducibly normative. This just means, if we want to prevent conflict (which we should, according to my utilitarianism), that morality has some implications for rights, not that a theory of impersonal ethics is necessarily a theory of property rights.

However, this certainly doesn’t mean that rights matter in the objective sense. It merely means that if we want to avoid conflict, then we should have some notion of property rights to prevent that conflict.

The person who has the right to control a given scarce resource—its owner—is the person who is justified in using the resource, in excluding others, and in enforcing this exclusion against non-owners who would act in disregard of the owner’s property rights.

This doesn’t follow from any of the previous claims. Additionally, property rights don’t give total ownership over an item. They merely guarantee the ability to use it for limited purposes. I cannot, for example, use a sound making device, even one that I own, to create a sound so loud that it deafens my neighbors. If we analyze the notion of rights, they seem valuable iff they produce good outcomes.

Everyone has at least an implicit view of rights. An aggressor—or at least one who would try to justify his aggression—maintains that he is entitled to a given scarce resource “because” he is strong enough to take it.

The aggressor doesn’t in most cases, and certainly does not as a matter of necessity, think that they deserve or are entitled to a resource. Rather, they merely have a desire for the resource, and they decide to act on that desire. Jeffrey Dahmer was presumably under no illusion that he was entitled to kill people.

Others, such as socialists, believe that the state is entitled to the means of production “because”—well, because they are the state, “because” capitalists “exploit” workers, and so on. Mainstream liberal-democratic types believe that, for example, the poor are entitled to property formerly owned by the not-poor, “because” the property is transferred from the latter to the former by means of a democratic process, which is “legitimate.” Everyone assigns each disputed scarce resource to some owner—whether to a thief, the state, or a relatively-poor “needy” person—for some reason.

This is false again. As a utilitarian, I don’t think that anyone is fundamentally entitled to property. Property is a useful legal concept, but its importance is reducible to utilitarian calculations.

The libertarian view of rights, as distinct from all others, says that we answer the question of who owns a scarce resource simply by asking who was its first user.

But this view is crazy. Consider several counterexamples.

1. We live in a simulation, so everyone the simulators are the first users of all land. Could they take all of our land? Of course not.

2. Someone uses all of space for some mundane, cheap purpose. Would they own the universe.

There’s another problem of figuring out whether one has used it enough. Suppose I use the ocean for fishing. Would I then own the ocean—even if I were the first to do it. Or imagine I used most of a plot of land for planting crops. Would I only own the segments on which I planted crops—or would I own the nearby segments?

In the case of bodies, the person himself is the owner of his body, as he was its first user.

Consider a hypothetical—imagine if, somehow, before one was born, their parents used their fetus as a football (technology permitted this). Would their parents then own them? Of course not? Or let’s imagine that, rather than parents, there were very small nazis, that used our bodies as a place to sit, prior to birth. Would they own us? Of course not.

In the case of external scarce resources, the owner is the original appropriator (or someone he transferred it to). Thus, under libertarianism, an individual has (a) a right to the exclusive control of the scarce resource of his body, sometimes called “self-ownership”; and (b) a right to the exclusive control of other, previously-unowned scarce resources that are originally appropriated by the individual or by his ancestor-in-title.

So the question is, does Hoppe’s theory establish that the libertarian view of rights, as opposed to competing views, is the correct one?

That is the question: the answer is no!

Hoppe’s Theory: Let’s Try Again

I do not intend here to restate Hoppe’s entire argument, as I believe it has been adequately explicated and defended already by Hoppe, in the literature referenced above. And he has already replied to numerous criticisms, some of them similiar to MC’s. Instead, I will try to show, as simply as possible, why Hoppe succeeds. I’ll then address, in view of this, a few of MC’s concrete critiques, but it should be clear by this point why I think their criticism is off base.

Hoppe’s view has, seemingly not even convinced a majority of libertarians. This is rather odd. In general, people use arguments as weapons to defend their side, rather than as a path to truth. Thus, even if an argument weren’t true, if it were a minimally decent argument without obvious flaws, we’d expect most people who agree with its conclusion to thus endorse the argument.

Thus, while this comment refutes no premise of the argument, it is higher order evidence that it’s false. If libertarians are rejecting an argument for libertarianism—just like if progressives were rejecting an argument for progressivism—we’d know, or at least have decent evidence, that something was very wrong with the argument.

Hoppe starts by noting that if any proposed theory of rights is going to be justified, it has to be justified in the course of an argument (discourse). I fail to see how MC can disagree with this without falling into contradiction. It follows that if any norms, ethics, facts, or rules of discourse are necessarily presupposed by participants in argumentation simply by virtue of arguing, then no theory that contradicts these presupposed facts or norms could ever be justified.

This is almost scandalously false. Consider the following scenario: a totalitarian government will kill and torture all who don’t praise the government whenever they have discourse. Even though discourse would presuppose verbal assent to the greatness of the government, that would be no reason to suppose that the government was actually good.

Okay, perhaps you think that there’s a difference between verbally assenting to a proposition and truly believing it. Well, this is both true and irrelevant. We can modify the hypothetical again to be such that absent believing truly that the government is great, one cannot speak. This would be no justification for the notion that the government is great.

Even if this showed that those who speak are implicitly committed to argumentation ethics, this wouldn’t give those who don’t speak any reason to accept it.

By contrast, any proposed theory that is consistent with, indeed implied by, these presuppositions, would have to be seen as irrefutably justified. This type of reasoning is called the “apriori of communication and argumentation,” and was pioneered, to my knowledge, by German philosophers Jürgen Habermas (Hoppe’s PhD advisor) and Karl-Otto Apel (but was applied by them to reach non-libertarian results).

This is disproved by my above comments.

Again, I fail to see how MC can disagree with any of this, in general. Rather, the disagreement is over what norms are actually implicit in the activity of argumention—that is, over what participants in discourse must presuppose to be true in order to participate in argumentation. Whatever these presuppositions are, they rule out of court any proposed norms inconsistent with them. And, any such normative presuppositions, or norms deduced from these presuppositions, would have to be considered to be ultimately and irrefutably justified, as their validity could never be coherently denied.

I, perhaps unlike MC, do disagree with this. The things which we need to assent to as a precondition for arguing are contingent—but a truly objective morality would have to be necessary, true in all possible worlds.

Universalizability

So let’s see what Hoppe contends. First, any norm proposed in argumentation is presumed to be universalizable. Writes Hoppe:

Quite commonly it has been observed that argumentation implies that a proposition claims universal acceptability, or, should it be a norm proposal, that it is “universalizable.” Applied to norm proposals, this is the idea, as formulated in the Golden Rule of ethics or in the Kantian Categorical Imperative, that only those norms can be justified that can be formulated as general principles which are valid for everyone without exception.[9]

In other words, any proposed norm—that is, an attempted justification for a given action—is not justified if it is not universalizable. This rule is presupposed by the very attempt to argumentatively justify something, because “argumentation implies that everyone who can understand an argument must in principle be able to be convinced of it simply because of its argumentative force.”

This is another claim that I would rate as pants on fire. For one, even if norms of argument must be universal, that wouldn’t mean that one who argues makes all moral norms universal. For another, the claim that “argumentation implies that everyone who can understand an argument must in principle be able to be convinced of it simply because of its argumentative force.” I think, for example, that one can be justified in being a Christian, deontologist, or radical skeptic, even after hearing my arguments. Arguments rely on seemings—one with very different seemings won’t be moved by argumentative force alone.

Because the universalizability priniciple is an inherent feature of argumentation in general, “the universalization principle of ethics can now be understood and explained as grounded in the wider ‘apriori of communication and argumentation.’”[10] I.e., no one can deny that only universalizable norms can be justified.

Even if, contrary to what I said above, those making arguments did so with the notion that everyone could be swayed by reason alone, this wouldn’t show that to argue one has to think this. There’s no reason, in principle, to think that everyone who argues must be committed to any norm—much less this one. Finally, being committed to the universalizability of reason doesn’t require being committed to the universalizability of moral norms.

So, we have our first presupposition: that only universalizable ethics can be possible candidates for being justified. By the same token, so-called “particularizable” norms are not justifiable. However,

the universalization principle only provides a purely formal criterion for morality. To be sure, checked against this criterion all proposals for valid norms which would specify different rules for different classes of people could be shown to have no legitimate claim of being universally acceptable as fair norms, unless the distinction between different classes of people were such that it implied no discrimination, but could instead be accepted as founded in the nature of things again by everyone. But while some norms might not pass the test of universalization, if enough attention were paid to their formulation, the most ridiculous norms, and what is of course even more relevant, even openly incompatible norms could easily and equally well pass it. For example, ‘everybody must get drunk on Sundays or be fined’ or ‘anyone who drinks alcohol will be punished’ are both rules that do not allow discrimination among groups of people and thus could both claim to satisfy the condition of universalization.[11]

But even though universalizability is merely a formal requirement, it does eliminate many proposed norms, such as those underlying most versions of socialism which amount to “I can hit you but you cannot hit me” particularizable rules.

[T]he property theory implicit in socialism does not normally pass even the first ecisive test (the necessary if not sufficient condition) required of rules of human conduct which claim to be morally justified or justifiable. This test, as formulated in the so-called golden rule or, similarly, in the Kantian categorical imperative, requires that in order to be just, a rule must be a general one applicable to every single person in the same way. The rule cannot specify different rights or obligations for different categories of people (one for the red-headed, and one for others, or one for women and a different one for men), as such a ‘particularistic’ rule, naturally, could never, not even in principle, be accepted as a fair rule by everyone. Particularistic rules, however, of the type “I can hit you, but you are not allowed to hit me,” are at the very base of all practiced forms of socialism.[12]

He makes the same mistake as I point out here. The socialist doesn’t univesalize the rule: stealing is okay. Instead, they universalize the rule “Stealing is okay if and only if it maximizes well-being.” This could be willed to be a universal law. Or how about “Stealing is okay if done by a legitimate government.”

Additionally, the socialist could universalize the maxim I get to steal from you by making it (Bentham’s bulldog) gets to steal from (reader). This is a universal law—for any agent, if they’re Bentham’s bulldog, they get to steal from any other person if they are you dear reader.

Additionally, consider the moral maxim “don’t have children to preserve the future of humanity.” That isn’t universalizable—we couldn’t all do it—but it’s nonetheless not immoral.

Now one might object that the relevant question isn’t what the maxim could be, but instead it’s what the maxim actually is. It’s not clear why this would be the case. Why would ones motivation matter for their acts. If this were true, then if Jim Stevens really stole because they believed in the morality of the maxim “Jim Stevens always gets to steal,” they’d be acting morally.

Additionally, there are clear counterexamples. Suppose a person acts on the egoistic maxim: always do what’s best for yourself. However, they save a person’s life because it will give them fame and fortune. Their action is good, even though the maxim that they act on is bad.

For more on this, read Parfit’s on What Matters, in which he reduces the universalizability criterion to smithereens with overwhelming firepower.

The universalization principle filters out many possible norms, but many possible, mutually incompatible, and nonlibertarian candidates remain (“anyone who drinks alcohol will be punished”).

However, there are other positive norms implied in argumentation aside from the universalization principle. In order to recognize them, it is only necessary to call three interrelated facts to attention. First, that argumentation is not only a cognitive but also a practical affair. Second, that argumentation, as a form of action, implies the use of the scarce resource of one’s body. And third, that argumentation is a conflict-free way of interacting.[13]

Participants in discourse cannot deny the existence of scarcity (discourse is a form of action, after all, and action implies scarce resources, in one’s body and in external objects) nor the possibility of conflict over these scarce resources.

One can certainly deny scarcity while arguing. They’d be wrong to do so, but they can do it nonetheless.

They also value the ability to participate in argument (they are engaging in it, after all) and thus its practical preconditions, namely the ability to actually use scarce resources in order to survive (for argumentation is not possible without survival).

The fact that to argue one has to be alive doesn’t require presupposing that one values the ability to participate in arguments. One can hold that participating in arguments is not valuable but do it anyways. Additionally, one can hold that using scarce resources to survive is valuable only under certain conditions—say, iff¹ it maximizes utility. The same can be true of argument—I can consistently hold that arguing with argumentation ethics proponents is useful, while also holding that arguments are valuable iff they maximize happiness.

And because argumentation/discourse is cooperative, civilized, peaceful activity, and because “justifying means justifying without having to rely on coercion,”[14] participants in discourse necessarily value being able to use scarce resources in a conflict-free way.

This is particularly asinine. The fact that one acts without using coercion while they argue doesn’t mean that have to act without using coercion in any circumstance. That’s like claiming that because swimming takes place in the water all swimmers have to move to Atlantis. I’m genuinely baffled that this is considered persuasive.

One adopting a civilized, peaceful stance and trying to justify a norm cannot coherently advocate non-peaceful norms. In fact, the very attempt to justify a resource allocation norm is an attempt to settle conflicts with regard to the use of that resource

I don’t think the first part is true, but even if it were, the fact that people allocate some resources peacefully doesn’t mean that they must allocate all resources peacefully. One can advocate peace in only some circumstances. Additionally, the libertarian justifies non peaceful means, for they advocate using violence to uphold property rights. Everyone holds that violence should be used to uphold a just allocation of resources—people just disagree about which allocations are just.

Thus, a participant in discourse could never justify the proposition that there is no value to being able to use resources, or that conflict should not be avoided, or that cooperation and peacefulness are bad things. Valuing the avoidance of conflicts also presupposes the value of attempting to find rules that make conflict avoidance possible. I.e., property rules.

Does this also mean that participants in discourse have to endorse all peace treaties, because peace treaties restrain conflict? Even if one finds conflict prima facie bad, that doesn’t mean they need to hold that it’s bad all things considered, or that some specific set of norms should be adopted to limit it.

Accordingly, participants in discourse, in particular those seeking to justify proposed norms, implicitly recognize the value and legitimacy of assigning specified property owners to specified scarce resources—for reasons that are universalizable and that make conflict-avoidance possible. However, property rights make conflict avoidance possible by establishing perceivable boundaries to property indicating the property’s borders and who the owner is, and by basing the assignment on universalizable rules that could be accepted as fair by all potential arguers. For this reason, the assignment of property rights has to be based on some objective link between the claimant and a particular resource.

The words following “for this reason,” in no way follow from the preceding words. Given the vast number of errors so far, even if the last part of the argument follows from the first part, the first part is eggregiously false!!

What all this means is that anyone ever attempting to (argumentatively) justify any norm is already presupposing a host of norms and argumentative rules. The substantive presupposed norms rule out many proposed norms, even if they are universalizable. For example, a rule such as “no one should ever be able to use any scarce resource” could never be justified. It is incompatible with the speaker’s evident value for the ability to use scarce resources, because he has to use (and be able to use) the scarce resource of his body in order to engage in any activity, including argumentation.

Valuing the use of some scarce resources doesn’t require valuing the use of all scarce resources. This also is parasitic on the previous, totally false line of reasoning.

And he, or someone, had to be able to use other scarce resources such as food, shelter, etc., so that the arguers are alive and able to argue (remember, discourse is a practical affair, and requires the speakers to be alive, to have control of their bodies and their standing room, etc.).

Even if speakers have to be alive to speak, that doesn’t mean life is objective valuable, any more than the fact that only those praising Stalin in Stalinist Russia were able to speak means that Stalin was objectively correct.

In addition, a rule specifying that all resources, or even some resources, should have no owner at all, simply does not allocate ownership in the scarce resources at issue, i.e. it does not fulfill its function of conflict-avoidance. Unless property rights are allocated to someone, conflict over each scarce resource is possible; that is the nature of scarcity. (As a practical matter, most such rules also imply that, if a given resource should not be “owned,” then some person or agency is authorized to prevent others from using the thing. In which case the rule is in reality assigning ownership to the agency with control, and would need to be justified. For example, the public forests are said to be “unowned” but the federal government prevents homesteaders from moving in. Clearly here the federal government is asserting ownership. The necessity of justifying this cannot be avoided by the fiction that the property is not owned.)

We could imagine a grab-bag world, wherein anyone can take any property and use it for any purpose, but people can’t challenge other people’s property ownership. Relative to that world, this one just has more force. In that world, if people really acted on the principle, there wouldn’t be conflict over scarce resources. The libertarian, thus, has no principled, non-consequentialist objection to such a world.

Objective Links: First Use, Verbal Claims, and the Prior-Later Distinction

So now we come to libertarianism. It turns out that libertarianism is the only theory of rights that satisfies the presuppositions of discourse, because only it advocates assigning ownership by means of objective links between the owner and the property. This link, of course, is first use, or original appropriation. Only the norm assigning ownership in a thing to its first user, or his transferee in title, could fulfill this requirement, or the other presuppositions of argumentation.

There is clearly an objective link between the person who first begins to use something, and emborders it, and all others in the world. Everyone can see this. No goods are ever subject to conflict unless they are first acquired by someone. The first user and possessor of a good is either its owner or he is not. If he is not, then who is? The person who takes it from him by force? If forcefully taking possession from a prior owner entitles the new possessor to the thing, then there is no such thing as ownership, but only mere possession. But such a rule—that a later user may acquire something by taking it from the previous owner—does not avoid conflicts, it rather authorizes them. It is nothing more than mights-makes-right writ large. This is not what peaceful, cooperative, conflict-free argumentative justification is about.

What about the second user? Why don’t they get it?

What about the person who verbally declares that he owns the good that another has appropriated? Again, this rule is not justifiable because it does not avoid conflicts—because everyone in the world can simultaneously decree that they own any thing. With multiple claimants for a piece of property, each having an “equally good” verbal decree, there is no way to avoid conflict by allocating ownership to a particular person. No way, other than an objective link, that is, which again shows why there must be an objective link between the claimant and the resource.

How about the FIRST person who verbally declares that he owns the good. Or how about distributing property by lottery.

Thus, Hoppe is correct, when he writes:

Hence, one is forced to conclude that the socialist ethic is a complete failure. In all of its practical versions, it is no better than a rule such as “I can hit you, but you cannot hit me,” which even fails to pass the universalization test. And if it did adopt universalizable rules, which would basically amount to saying “everybody can hit everybody else,” such rulings could not conceivably be said to be universally acceptable on account of their very material specification. Simply to say and argue so must presuppose a person’s property right over his own body. Thus, only the first-come-first-own ethic of capitalism can be defended effectively as it is implied in argumentation. And no other ethic could be so justified, as justifying something in the course of argumentation implies presupposing the validity of precisely this ethic of the natural theory of property.[16]

How about the utilitarian ethic, which is universalizable. Kinsella (predictably) has no rejoinder to it. If one accepts that socialism is good for utility (something which I’m not taking a stance on), then the consistent, universalizable utilitarian ethic would justify socialism.

Well, that’s argumentation ethics. Totally ridiculous, poorly argued, ridiculous, and not worth taking particularly seriously. People should try to make a deductively valid argument if they think it works. They will fail!

1. This means if and only if