From the recently-concluded Eleventh Annual Meeting of the PFS, Bodrum, Turkey (Sept. 1–6, 2016).
At repeated requests from many sides – and given my already advanced stage in life – I have deemed it appropriate to take this opportunity to speak a bit about myself. Not about my private life, of course, but about my work. And not about all subjects—and there are several to which I have made some, however little contribution in the course of the years—but one subject only. The one subject, where I consider my contribution the most important: the apriori of argumentation as the ultimate foundation of law.
I developed the central argument during the mid-1980s, in my own mid-thirties. Not from scratch, of course. I took up ideas and arguments previously developed by others, in particular my first principal philosophy teacher and Doktorvater, Jürgen Habermas, and even more importantly Habermas’ long-time friend and colleague, Karl-Otto Apel, as well as by the philosopher-economists Ludwig von Mises and Murray Rothbard. In any case, however, the argument I ultimately developed appeared to me essentially new and original. (Around the same time, Frank van Dun, living in Flanders and writing in Dutch, and having been brought up in very different philosophical circumstances and traditions, had come up with a very similar argument and conclusion. Yet at the time, we both did not know of each other’s work and would only find out years later.)
In a nutshell – I shall come to more detailed explanations and clarifications shortly – the argument runs like this:
That: All truth-claims – all claims that a given proposition is true, false, indeterminate or un-decidable or that an argument is valid and complete or not – are raised, justified and decided upon in the course of an argumentation.
That: The truth of this proposition cannot be disputed without falling into contradiction, as any attempt to do so would itself have to come in the form of an argument. Hence, the“Apriori” of argumentation.
That: Argumentation is not free-floating sounds but a human action, i.e., a purposeful human activity employing physical means – a person’s body and various external things – in order to reach a specific end or goal: the attainment of agreement concerning the truth-value of a given proposition or argument.
That: While motivated by some initial disagreement, dispute or conflict concerning the validity of some truth-claim, every argumentation between a proponent and an opponent is itself a conflict-free – mutually agreed on, peaceful – form of interaction aimed at resolving the initial disagreement and reaching some mutually agreed-on answer as to the truth-value of a given proposition or argument.
That: The truth or validity of the norms or rules of action that make argumentation between a proponent and an opponent at all possible – the praxeological presuppositions of argumentation – cannot be argumentatively disputed without falling into a pragmatic or performative contradiction.
That: The praxeological presuppositions of argumentation, then, i.e., what makes argumentation as a specific form of truth-seeking activity possible, are twofold: a) each person must be entitled to exclusive control or ownership of his physical body (the very mean that he and only he can control directly, at will) so as to be able to act independently of one another and come to a conclusion on his own, i.e., autonomously; and b), for the same reason of mutually independent standing and autonomy, both proponent and opponent must be entitled to their respective prior possessions, i.e., the exclusive control of all other, external means of action appropriated indirectly by them prior to and independent of one another and prior to the on-set of their argumentation.
And that: Any argument to the contrary: that either the proponent or the opponent is notentitled to the exclusive ownership of his body and all prior possessions cannot be defended without falling into a pragmatic or performative contradiction. For by engaging in argumentation, both proponent and opponent demonstrate that they seek a peaceful, conflict-free resolution to whatever disagreement gave rise to their arguments. Yet to deny one person the right to self-ownership and prior possessions is to deny his autonomy and his autonomous standing in a trial of arguments. It affirms instead dependency and conflict, i.e.,heteronomy, rather than conflict-free and autonomously reached agreement and is thus contrary to the very purpose of argumentation.
When I had worked out this argument at last, I was struck by how simple and straightforward it was. I was almost astonished why it had taken me so long to develop, and even more so why no one else apparently had thought of it before.
Yet then I thought of Ludwig von Mises and his famous argument concerning the impossibility of economic calculation under socialism. Mises, incidentally, had worked out this argument also in his own mid-thirties. In short, what Mises had argued was that the purpose of all production is the transformation of something – an input – less valuable into something – an output – morevaluable, i.e., efficient and economic instead of wasteful production. That in an economy based on the division of labor recourse must be taken to monetary calculation in order to determine if production was efficient or not. That input prices must be compared with output prices to determine profit or loss. And yet, that no input prices exist under socialism – and hence no possibility for economic calculation -, because under socialism all production factors are, by definition, owned by one single agency (the State), thus precluding the formation of any and all factor-prices.
When I had first encountered Mises’s argument, I was immediately convinced. My reaction was, wow, how obvious, straightforward and simple! And also: why did it take Mises so long to state something so obvious, and why had no one else discovered his seemingly elementary insight before?! To be sure, some historians of economic thought were eager to point out that some earlier authors had already hinted at Mises’ argument. Terence Hutchison even discovered a glimpse of Mises’ argument in Friedrich Engels, of all people. But this notwithstanding, it appeared to me a gross distortion of intellectual history and a grave intellectual injustice to claim anyone but Mises as the originator of the argument and the man who had finished off classical (Marxist) socialism intellectually, once and for all.
As well, while perhaps not quite so surprising, the reaction to Mises’ “impossibility proof” was also instructive – especially given that Mises’ proof concerned a problem that at the time of his writing, in the immediate aftermath of WW I, had taken on enormous importance with the Bolshevik revolution of 1917 in Russia.
By and large: There was no reaction at all. Mises was simply ignored. And the continued existence of the Soviet Union and, after WW II, of the entire Soviet Empire was taken by most of the economics profession and large parts of the lay public as well as empirical proof that Mises was wrong or in any case irrelevant.
A few young economists such as Friedrich Hayek, Fritz Machlup, Wilhelm Röpke and Lionel Robbins were immediately converted by Mises, abandoned their erstwhile leftist leanings and became prominent spokesmen of capitalism and free markets; and a few prominent socialists such as Otto Neurath, Henry D. Dickinson and Oskar Lange tried to refute Mises’ argument. But, in my judgment, even Mises’ early “fans” watered-down, misconstrued or distorted and so weakened Mises’ original argument; and as for his socialist “foes,” they did not even seem to comprehend the problem. Indeed, even after Mises had systematically restated and further elaborated his argument, two decades after its original presentation, in his magisterial Human Action, and even after the implosion of socialism in the late 1980s and early 1990s, when a few socialists such as Robert Heilbronner felt compelled to concede that Mises had been right, they still showed no sign of having grasped the fundamental reason why.
The fate of my own argument was in many ways similar to that of Mises’s proof.
Most certainly, given that we live today in an age of rampant legal-ethical relativism – of “anything goes” – and a world in which private property rights have been almost everywhere and universally transformed into mere State-granted or fiat-property instead, my argument concerned a matter of some importance. For it implied a refutation of all forms of ethical relativism as self-contradictory doctrines, and positively it implied that only the institution of private property in one’s body and prior possessions could be ultimately justified, whereas any form of fiat-property was argumentatively indefensible. If anything, then, my argument concerned a matter of even greater and more fundamental importance than Mises’ proof.
Nonetheless – but not unexpectedly so – my argument, too, was largely ignored.
But not entirely so. Murray Rothbard, I am particularly proud to say, accepted my proof immediately as a breakthrough,2 and so did Walter Block and Stephan Kinsella. Indeed, only shortly after the first English language presentation of my argumentation ethics, Kinsella brilliantly supplemented and expanded it by integrating it with the legal theory of “estoppel,” i.e., “the legal principle that bars a party from denying or alleging a certain fact owing to that party’s previous conduct, allegation, or denial.”3 As well, several more or less friendly reviews and discussions of my argument appeared in print. A small symposium on my argument appeared in Liberty Magazine, with both supporting “fans” and critical or hostile “foes.”4 I replied to some of my initial critics and their criticisms,5 but then, except for a few occasional asides, let the matter rest. Not least, because I was paid at the time to do economics, not philosophy. Some later critics, in particular Robert Murphy and Gene Callahan, who apparently accepted my libertarian conclusion but rejected my way of deriving it (without, however, proposing any alternative reason for their own libertarian “beliefs”), were argumentatively demolished by Stephan Kinsella, Frank van Dun and also Marian Eabrasu.6 The debate concerning my argument continued, however, and has in the meantime reached a substantial size. Thankfully, Kinsella has documented and regularly updated the still growing literature on the subject.
It is not my purpose here to give a summary account and assessment of the entire debate. Instead, I want to take the opportunity to further clarify and elaborate on the elementary character and indeed the simplicity of my argument and along the way dispel some recurring misunderstandings. In this, I will proceed in two consecutive steps. First, I will try to clarify the “argument from argumentation” itself and the implied notion of “ultimate justification” (and, mutatis mutandis, of an “ultimate refutation” of all forms of relativism). Then, in a second step, I will try to clarify the specifically and decidedly libertarian implications that follow from the “apriori of argumentation.”
The question of how to begin philosophy, i.e., the quest for a starting point, is almost as old as philosophy itself. In modern times, Descartes, for instance, claimed his famous “cogito, ergo sum” as such. Mises considered the fact that humans act, i.e., that humans pursue anticipated ends with means (whether successfully or not), as such. The later Wittgenstein thought of ordinary language as the ultimate point of departure. Others, such as Popper, denied that any such starting point existed and could be found. As a little reflection shows, however, none of this will quite do. After all, Descartes’ “cogito” is a propositionand its justification comes in the form of an argument. Likewise, Mises speaksabout action as an “ultimate datum” and presents an argument: namely that one cannot purposefully not act, to justify this point of departure. Similarly, Wittgenstein’s ordinary language philosophy is not just ordinary talk but claims to be true talk about talking, i.e., a justificatory argument. And as for relativists a la Popper, to assert that there is no ultimate starting point and yet claim this proposition to betrue is plain contradictory and self-defeating.
In short: Whatever has been claimed here as starting points, or even if the existence of such a point has been denied, they all, unwittingly and as a matter of fact, have affirmed the existence of one and the same point of departure: namely argumentation; and they could deny argumentation the status as ultimate starting point only at pain of contradiction.
This criticism of other philosophers is not meant to deny some partial truths of their various contributions. Indeed, upon reflection we can recognize that every argumentation is also an action, i.e., a purposeful pursuit of ends with the help of means (Mises). But: not every action is an argumentation. Indeed, most of our actions are not. Further, we can recognize that argumentation is a speech-act, involving the use of a public language as a means to communicate with other speakers (Wittgenstein). But: not every speech-act is an argumentation. Indeed, most are not. As well, we recognize that every argumentation, and by implication also every speech-act and every action whatsoever presupposes the existence of an acting, speaking or arguing person (Descartes). But: it is only from the vantage point of anarguing person that the distinction between actions, speech-acts (or the so-called “lower” – expressive, signaling and descriptive – functions of language) and argumentation (as the “highest” function of language) can be made and claimed to be true.
[As for Popper and Popperian critics: It is certainly true that deductive arguments proceeding from premises to conclusions are only as good as their premises are, that one can always ask for a justification of these premises, and then of the premises of this justification, and so on and on, leading to an infinite regress. However: The argument presented is not a deductive argument, but a transcendental one directed at the skeptic by pointing out what even he must, and in fact does accept as an ultimate truth simply in order to be the skeptic that he is. Thus, a skeptic could certainly deny that humans act, speak and argue and claim instead that no, they do not, and in doing so he would not become involved in a formal, logical contradiction. But in making this claim he would be involved in a performative, pragmatic or dialectic contradiction, because his words would be refuted by his actions, i.e., by the very fact of claiming his words to be true.]
Argumentation, then, is a (comparatively rare) sub-class of action, and more specifically also of speech-acts, motivated by a unique reason and aimed at aunique purpose. It arises from interpersonal disagreement or conflict concerning the truth-value of a particular proposition or argument (more on the important distinction between disagreement on the one hand and conflict on the other later on!) and it aims at the dissolution or resolution of this disagreement or conflict by means of argumentation as the unique method of justification. One cannot deny this statement and claim such denial as true without actually affirming it by one’s very act of denial, i.e., without performative, pragmatic or dialectic contradiction. Indeed, to paraphrase van Dun, ‘to claim that you cannot or ought not to argue and take arguments seriously is to say that you cannot do what you actually are and claim to be doing.’ It is like saying ‘there are no reasons for claiming this or that to be true and here are the reasons for why there are no such reasons.’ As well, as van Dun keenly observes, Hume’s famous dictum that ‘our reason is and ought to be the slave of our passions,’ while not a contradictio in adjecto, is in fact a performative or dialectic contradiction. For Hume gives reasons and pays serious attention to reasons while claiming that no attention should be given to them.
In light of this insight into the nature and epistemological status of argumentation as the unique method of justification many objections directed at my original argument can be easily discarded.
It has been held against the “argument from argumentation,” for instance, that one can always refuse to engage in argumentation. This is certainly true and I have never said anything to the contrary. However, this is not an objection to the argument in question. Whenever a person refuses to engage in argumentation, he is also owed no argument in return. He simply doesn’t count as a rational person in regard to the question or problem at hand. He is treated as someone to be ignored in the matter. Indeed, someone always, on principle, refusing to argumentatively justify any of his beliefs or actions whatsoever against anyone, would no longer be considered and treated as a person at all. He would be considered and treated instead as a “wild thing” or an “outlaw.” His presence and his behavior would pose for us a merely “technical” problem. That is, he would be treated like the little child screaming “no” at everything said to him or like an animal, i.e., as something to be controlled, domesticated, tamed, drilled, trained, or “coached.”
Another “objection” to my argument from argumentation, advanced repeatedly and by several opponents in a seemingly most serious manner, actually better qualifies as a joke. It boils down to the claim that, even if true, my argument is irrelevant and inconsequential. Why? Because the ethics of argumentation is valid and binding only at the moment and for the duration of argumentation itself and even then only for those actually participating in it. Curiously, these critics do not notice that this thesis, if it were true, would have to apply to itself, too, and hence, render their own criticism irrelevant and inconsequential also. Their criticism itself then would be just talk for the sake of talking, without any consequence outside of talking. For, according to their own thesis, what they say about argumentation is true only when and while they are saying it and has no relevance outside the context of argumentation; and moreover, that what they say to be true is true only for the parties actually involved in argumentation or even only for them alone, if and insofar as there is no actualopponent and they say what they say in an internal dialog only to themselves. But why, then, should anyone waste his time and pay attention to such private “truths”?
More importantly and to the point: In fact, these critics are not engaged in idle talk or a mere joke, of course, but in serious argumentation, i.e., in the presentation of an alleged counter-argument, and as such and in this capacity, then, they become inescapably entangled in a performative or dialectic contradiction: because they actually do claim that what they say about argumentation is true inside and outside of argumentation, i.e., whether one actually argues or not, and that it is true not only for them, but for everyone capable of argumentation. That is: contrary to what they say, they actually pursue a purpose above and beyond the exchange of words itself. Argumentation is a means to an end and not an end in itself. It is the very purpose of argumentation to overcome an initial disagreement or conflict regarding some rival truth claims and to change one’s former beliefs or actions depending on the outcome of argumentation. That is, argumentation implies that one ought to accept the consequences of its outcome. Otherwise, why argue? Hence, it is a performative or dialectic contradiction to say, for instance, ‘let us argue about whether or not minimum wages increase unemployment’ and then add: ‘and let us then, regardless of the outcome of our debate, continue to believe what we believed beforehand.’ Similarly, it would be self-contradictory for a judge in a trial to say ‘let us find out who of two contending parties, Peter and Paul, is right or wrong, and then ignore the outcome of the trial and let Peter go, even if found guilty, or punish Paul, even if found innocent.’
Equally silly, some critics have charged me for supposedly claiming, falsely, that the truth of a proposition depends on someone making this proposition. But nowhere did I claim any such thing. Certainly, that the earth orbits around the sun, that water runs downward or that 1+1=2 is true, whether we argue about it or not. Argumentation does not make something true. Rather, argumentation is the method for justifying propositions as true or false when brought up for consideration. Likewise, the existence of property and property-rights or -wrongs does not depend on the fact that someone argues to this effect. Rather, property and property-rights or -wrongs are justified when up for contention.
With this I come to the second part of my clarifications: the libertarian implications of the ethics of argumentation.
For this, it is first necessary to point out the obvious fact that all argumentation has a propositional content. Whenever we argue, we argue about something. This can be argumentation itself, i.e., the very subject I have been speaking about so far. But the content can be all sorts of things: matters of fact or of cause and effect, such as whether or not global warming presently exists and is man-made, or whether or not an increase in the money supply will lead to greater over-all prosperity; but also normative matters, such as whether or not the possession (actual control) of something by someone implies his rightful ownership (property) of the thing in question, or if slavery or taxation are justified or not.
In short: argumentation can be either about facts or it can be about norms. The source of an argumentation about facts is what I shall call a disagreement; and its purpose is to resolve this disagreement and effect a change to the better in one’s factual beliefs so as to make the actions motivated by these beliefs more successful. The source of an argumentation about norms, on the other hand, isconflict; and its purpose is to resolve this conflict and effect a change in one’s system of values so as to better avoid future conflict.
In the original presentation of my argument, I was exclusively concerned about the latter matter and this shall also be the central topic here. But I have come to realize that in order to better understand the nature of an argumentation about norms it is instructive to first look briefly, by way of contrast, at an argumentation about facts.
How is a factual disagreement settled within an argumentative setting? That depends of course first on the subject matter of the disagreement and then on the method(s) – the actions and operations – to be employed in order to come to a conclusion and decide between the rival truth claims under consideration. What methods are appropriate for the given purpose? What, if anything, must be observed, and how and under what circumstances? What needs to be measured, and by means of what measuring standard or device? What other purposefully constructed tools, instruments, machines, etc., must be at hand and in working condition to gather the relevant data? Is there anything that must be counted or calculated? Must time and time-lags be considered and time be measured? Must and can a controlled experiment be set up? Are we aiming to establish a correlation or are we looking for causation? Or is it a matter of “meaning” and “understanding” rather than “measuring” that is of concern? Is the matter of contention at all an “empirical” matter? Or is it a “logical” matter instead that must and can be settled by deductive reasoning, or geometric, mathematical or praxeological proof? – And finally then, when one has settled on the question which method(s) to choose for a given purpose, these methods, tools and operations must be put into action and practiced. The relevant data must be actually collected and the measurements, calculations, experiments, tests or proofs actually taken and performed, so as to bring the initial disagreement to a possible conclusion.
Now: What makes this endeavor of solving some factual disagreement anargumentative justification? First and most obviously, both disputants, and indeed everyone concerned about the matter of contention, must consider each other as another person, equally independent and each with his own, separate physical body. That is, no person is to exercise physical control over any other person’s body without his assent during the entire undertaking. Rather, each person acts and speaks on his own, so as to make it possible that everyone may arrive at the same resolution on his own, independently and autonomously, and then accept the conclusion as in his own self-interest. Nor, presumably, is any person involved in the undertaking threatened, paid-off or bribed by any other to merely pretend to argue and pronounce instead, regardless of outcome, a pre-determined verdict.
While all this is generally recognized and accepted as a matter-of-course by the “scientific community,” another requirement is often overlooked – and yet it is in particular this requirement that best brings out the crucial difference between “factual” and “normative” argumentation.
Not only must everyone engaged in the endeavor of resolving some factual disagreement be equally respected and assured in his own personal bodily integrity to speak of an argumentative justification. It is also necessary that each person must have equal access to all “data” and all means, implements, instruments or tools methodically required to decide the question at hand, so that each person may perform the same actions and operations and replicate the results on his own. That is, if it is necessary in order to resolve some factual disagreement, for instance, to use paper and pencil, a yardstick, a clock, a calculator, a microscope or a telescope, etc., or simply some ground on which to stand and make one’s observations, then no one may be denied access to such devices. In fact, it would be contrary to the purpose of an argumentation about facts and hence entail a dialectic contradiction for anyone person to say to anyone else, for instance: we disagree regarding the height of this building or the speed of that car and to bring this disagreement to a resolution we need a yardstick and a clock, but I deny you access to a yardstick and a clock.
But – and with this I come slowly to my central concern: argumentation about normative matters, i.e., of right and wrong, – it would not entail a performative or dialectic contradiction if I denied you access to this or that instrument or tool or this or that standing room, if the source and content of our argumentation is a conflict rather than a mere disagreement. That is, if you and I have different and incompatible plans, interests and goals regarding the instruments, tools and standing room in question. Then, my refusal to permit you access to this or that may be justified or not, but it would not in itself be a self-contradictory demand.
It is the characteristic mark of an argumentation about facts, that for the duration of argumentation a harmony of interests among all participating parties must prevail. All property disputes are temporarily suspended and also the outcome of the argumentation has no consequences or repercussions for the subsequent distribution of property. To bring a factual disagreement to a conclusion, every actual or potential participant must perform, and is expected by everyone else to perform, the same actions and operations with the same or the same kind of objects. As long as the argumentation lasts, everyone does what everyone else expects and wants him to do. All act in harmony with one another. And at the end, after some at least temporary conclusion has been reached, everyone, with his newly learnt lesson, returns back to his normal life, in which everything else has remained and stayed the same as before. – Yet in this normal life, then, people do not only encounter factual disagreements. Indeed, as an empirical matter, at least in the life of an adult person, factual disagreements giving rise to argumentation are comparatively rare. Because the most fundamental and elementary facts about the composition and inner workings of the external world are long recognized, accepted and taken for granted by everyone in his daily life so as to never rise to the level of serious doubt. And if and whenever any serious doubt concerning the truth-value of some factual claim does arise, such disagreements are generally routinely and methodically brought to some at least temporary settlement and accepted quickly and without any resistance by all interested parties. Rather than factual disagreements, then, it is the experience of conflicts that motivates most serious argumentation. And it is argumentation about conflicts that generates our most intense interest.
Conflicts arise, whenever two actors want and try to use one and the same physical means – the same body, standing room or external object for the attainment of different goals, i.e., when their interests regarding such means are not harmonious but incompatible or antagonistic. Two actors cannot at the same time use the same physical means for alternative purposes. If they try to do so, they must clash. Only one person’s will or that of another can prevail, but not both.
Whenever we argue with one another about a matter of conflict, then, we demonstrate that it is our purpose to find a peaceful, argumentative solution to some given conflict. We have agreed not to fight, but to argue instead. And we demonstrate as well that we are willing to respect the outcome of our trial of arguments. Indeed, to argue otherwise and say, for instance, ‘let us not fight, but argue whose will is to prevail in our conflict, but at the end of our argumentation, and irrespective of its outcome, I will fight you anyway’ would entail a performative or dialectic contradiction. To say so is to contradict the very purpose of argumentation.
The task faced by any proponent and opponent engaged in an argumentation about conflict, then, is to find a peaceful resolution not only for a conflict at hand but also for all potential future conflicts, so as to be able to interact henceforth with one another in a conflict-free and peaceful manner, despite and notwithstanding each other’s differing interests, whether now or in the future.
The definitive answer to this problem is provided by a brief analysis of the logic of action, i.e., by method of praxeological reasoning.
Logically, to avoid all future interpersonal conflict, it is only necessary that every good – every physical thing employed as a means in the pursuit of human ends – be always and at all times owned privately, i.e., be controlled exclusively by one specific person (or voluntary partnership or association) rather than another, and that it be always recognizable and clear, which good is owned by whom and which is not or by somebody else. Then, the interests, plans and purposes of different actors may be as different as can be, and yet no conflict will arise between them as long as their actions involve exclusively the use of their own, private property and leave the property of others alone and physically intact.
This is only part of the answer, however. For then immediately the next question arises of how to accomplish such a complete and unambiguous privatization of all economic goods peacefully, i.e., without generating and leading itself to conflict? How can physical things become someone’s private property in the first place; and how can interpersonal conflict in the appropriation of physical things be avoided?
Praxeological analysis also yields a conclusive answer to these questions. For one, to avoid conflict it is necessary that the appropriation of things as means is effected through actions, rather than mere words, declarations or decrees. Because only through a person’s actions, taking place at a particular place and time, can an objective and thus inter-subjectively ascertainable link between a particular person and a particular thing and its extension and boundary be established and hence, can rival ownership claims be settled objectively.
And secondly, not every recognizable taking of things into one’s possession is peaceful and can thus be argumentatively justified. Only the first appropriator of some previously un-appropriated thing can acquire this thing peacefully and without conflict, and only his possessions, then, are property. For, by definition, as the first appropriator he cannot have run into conflict with anyone else in appropriating the good in question, as everyone else appeared on the scene onlylater. And any late-comer, then, can take possession of the things in question only with the first-comer’s consent. Either, because the first-comer had voluntarily transferred his property to him, in which case and from which time on he became its exclusive owner. Or else, because the first-comer had granted him some conditional use-rights concerning his property, in which case he did not become the thing’s owner but its rightful possessor. Indeed, to argue to the contrary and say that a late-comer, independent and irrespective of the will of the first possessor of some given thing, should be regarded as its owner entails a performative or dialectic contradiction. Because this would lead to endless conflict rather than eternal peace and hence be contrary to the very purpose of argumentation.
If different persons want to live in peace with one another, conceivably from the beginning of mankind until its end – and in arguing about conflict they demonstrate that they do want this! –, then only one solution exists that I shall call the “principle of prior possessions:” All just and lawful (and argumentatively justifiable) possessions, whether in the form of outright property or as rightful possessions, go back directly, or indirectly through a chain of conflict-free and hence mutually beneficial property-title transfers, to prior and ultimately original appropriators and acts of original appropriation or production. And vice versa: All possessions of things by some person that are neither the result of his prior appropriation or production, nor the result of voluntary and conflict-free acquisition from a prior appropriator-producer of these things, are unjust and unlawful (and hence argumentatively unjustifiable) possessions.
The question to be settled in an argumentative dispute between a proponent and an opponent, then, does not really concern a matter of principle. Because the principle of prior possession itself cannot be argumentatively denied without falling into a performative or dialectic contradiction. It is an ultimate ‘given’ and can be recognized as apriori valid. Under dispute between a proponent and an opponent can only be matters of fact, i.e., whether or not the principle had been correctly adhered to and applied in all instances. Whether the proponent’s each and every current possession was acquired justly, in accordance with the principle of prior possession, or whether the opponent of the status quo of current possessions can demonstrate the existence of a prior and un-relinquished title of his to some or all (but not quite all, as we will see in a moment) of the proponent’s present possessions. – And the principle of prior possession also implies that in any dispute between a proponent and opponent about rival property claims concerning some particular means of action, it is always the current and present distribution of property among the contending parties that serves as first and prima facie evidence for deciding on their contentious claims. Prima facie, the present possessor of the thing in question appears to be its prior possessor and hence its rightful owner, and the burden of proof to the contrary, i.e., the demonstration that the evidence provided by the status quo is false and deceptive, is always on the opponent of the present state of affairs. He must make his case, and if he can’t, then not only remains everything as before but the opponent owes the proponent compensation for the misuse made of his time in having to defend himself against the opponent’s unjustified claims made against him (thus reducing the likelihood of frivolous accusations).
And moreover: It is not just the principle and the procedure to be applied in any debate between a proponent and opponent that is irrefutably ‘given,’ it is also one elementary fact that is so ‘given’ and beyond any dispute – which leads me back to the just mentioned restriction of ‘all, but not quite all’ and the argument from argumentation itself.
For while it is a contingent empirical question which external good is or is not rightfully owned by whom, and while in principle it is possible to place any current possession of any and all external goods by any one person into doubt as regards its lawfulness, this is not the case and it is not possible to do so with respect to anyone person’s physical body as his primary means of action. No one can consistently argue that he is the rightful owner of another person’s body. He can say so, of course. But in doing so and seeking the other person’s assent to this claim he becomes involved in a performative or dialectic contradiction. Hence, it is and can be recognized as an apriori truth that each person is the rightful owner of the physical body that he naturally comes with and has been born with, and that he has directly appropriated prior and before any other person could possibly do so indirectly (by means of his own body). No argumentation between a proponent and an opponent is possible without recognizing and respecting each other as independent and separate persons with their own independent and separate bodies. Their bodies do not physically clash or collide, but they argue with one another and hence, they must recognize and respect the borders and boundaries of their separate and independent bodies.
Some critics have argued that this does not demonstrate a person’s ownership of his entire body, but at best only of parts of it. Why? Because to argue it is not necessary to use all body parts. And true enough, you do not need two kidneys, two eyes or an appendix to argue. Indeed, you also do not need your body hair or even arms and legs to argue. And hence, according to such critics, you cannot claim to be the lawful owner of your two kidneys or eyes, your legs and arms. Yet this objection does not only appear silly on its face – after all, it implies the recognition of these ‘un-necessary’ parts as natural parts of one unitary bodyrather than as separate, stand-alone entities. More importantly, it involves, philosophically speaking, a category mistake. The critics simply confuse thephysiology of argumentation and action with the logic of argumentation and action. And this confusion is particularly surprising coming from economists, and even more so from economists familiar also with praxeology. For the fundamental distinction made in economics between ‘labor’ and ‘land’ as the two originary means of production, which corresponds exactly to the distinction made here between ‘body’ and ‘external world,’ is also not a physiological or physicalistic distinction, but a praxeological one.
The question to be answered is not: which body parts are physiologically necessary requirements for one person arguing with another person. Rather, the question is: which parts of my body and which parts of your body can I or you argumentatively justify as my or your lawful possessions. And to this a clear and unambiguous answer exists. I am the lawful owner of my nature-given body with everything naturally in it and attached to it, and you are the lawful owner of your entire nature-given body. Any argument to the contrary would land its proponent in a performative or dialectic contradiction. For me to say, for instance, in an argumentation with you, that you do not rightfully own all of your nature-given body is contradicted by the fact that in so arguing, not fighting, with you, I must recognize and treat you as another person with a separate body and recognizably separate physical boundaries and borders from me and my body. To argue that you do not lawfully own your entire natural body, which you actually possess and have peacefully taken into possession before I could have possibly done so indirectly by means of my natural body, is to advocate conflict and bodily clash and hence contrary to the purpose of argumentation: of peacefully resolving a present conflict and avoiding future conflict.
All I could possibly claim without immediate contradiction is that you do not own all of your current body, because not all of its current parts are its natural parts. That some current body parts are artificial parts, i.e., parts that you had acquired and attached to your nature-given body only later and indirectly. I could claim, for instance, that your kidney is not lawfully yours, because you were not born with it but had taken it against my will from my body and implanted it in yours. Yet in all cases such as this, then, in accordance with the principle of prior possessions, the burden of proof is on me, i.e., the opponent of the status quo of body parts.
A similar category mistake, i.e., a fundamental confusion of the empirics of argumentation on the one hand and the logic of argumentation and argumentative justification on the other, is the source also of another repeatedly, and from several sides presented ‘refutation’ of the argument from argumentation. This ‘refutation’ consists of a simple observation: the fact that slaves can argue with their slave masters. Therefore, with slaves being able to argue, so the conclusion, my claim that argumentation presupposes self-ownership and libertarian property rights is ‘empirically falsified.’ Astonishingly, then, I should have never heard of arguing slaves.
But I did not claim that in order for one person to argue with another full libertarian property rights must be recognized and in place (which would imply, at least under present circumstances, that no one could ever engage in argumentation with anyone else) and that argumentation under any other, less than libertarian conditions is impossible. Of course, a slave and its master can engage in argumentation. Indeed, argumentation is possible under practically all empirical circumstances, as long as every participant can only say and do what he says and does on his own and no one is threatened or made to say or do so. Hence, the criticism levelled against the argument from argumentation is completely irrelevant and beside the point. The argument is not an empirical proposition about whether or not argumentation between one person and another and non-libertarian conditions can co-exist; and accordingly, it also cannot be countered and refuted by any empirical evidence. Rather, the argument concerns the categorically different question whether the existence of non-libertarian conditions can or cannot be argumentatively justifıed without running into a performative or dialectic contradiction. And with regard to this question the answer is straightforward.
A slave master can argue with his slave concerning the truth value, for instance, of the law of gravitation or the existence of invisible germs, and if he were to permit the slave access to all means and data necessary to bring the contentious matter to a conclusion, his arguing with the slave would not involve any contradiction but constitute indeed genuine argumentation. But matters are quite different when it comes to an argumentation between slave master and slave about the subject of slavery, i.e., the conditions under which their argumentation takes place. In this case, if the slave master would say to the slave ‘let’s not fight but argue about the justification of slavery,’ and he would thereby recognize the slave as another, separate and independent person with his own mind and body, he would have to let the slave go free and leave. And if he would say instead ‘so what, I have recognized you momentarily as another independent person with your own mind and body, but now, at the end of our dispute, I deny you ownership of the means necessary to argue with me and prevent you from leaving anyway,’ then he would be involved in a performative or dialectic contradiction. To do so would be contrary to the very purpose of taking argumentation seriously and of accepting the consequences of argumentation. This ‘conversation’ between slave master and slave would not constitute genuine argumentation, but be at best an idle or even cruel parlor game.
And the same response of ‘you are simply confused,’ then, also applies to those critics who tried to double down on the ‘but slaves can argue, too,’ criticism by dragging up additional ‘counterexamples.’ Yes, true enough, a person in jail can also engage in argumentation with his jailer, and a person subjected to taxation can also argue with the taxman. Indeed, who has ever doubted that? However, the question to be answered, and the one addressed by the ethics of argumentation, is if the current status of the person in jail or subject to taxation can be argumentatively justified or not. The jailer would have to demonstrate that the jailed had previously violated the argumentatively indisputable principle of prior possessions and thus committed an unlawful action or ‘crime,’ and that the current restrictions imposed on the movements and prior possessions of the jailed were justified in light of this earlier crime. And if the jailer would not or could not provide such empirical proof of a prior crime of the jailed, and if he then still did not let the jailed go free and restored him to his prior possessions, the jailer would not be engaged in argumentation but in a mock debate, and it would be he, who was guilty of a crime.
And likewise for any verbal dispute between the taxman and the taxed. The taxman, in order to argumentatively justify his claim to any of the tax-subject’s current possessions, would have to demonstrate that he is in possession of a prior debt contract or some sort of rental contract that would justify his present claim to any of his opponent’s current possessions. And if he would not or could not provide any such evidence – and of course no taxman ever could –, then he would have to give up on his demand; and if he would not do so but insisted on payment, his verbal exchanges with the tax-subject, too, would not qualify as genuine argumentation but as only a mock trial, and it would be the taxman, who was an outlaw.
And that is that. The ethics of argumentation stands unimpaired.
- For background material, see Hoppe, “From the Economics of Laissez Faire to the Ethics of Libertarianism,” “The Justice of Economic Efficiency,” “On the Ultimate Justification of the Ethics of Private Property,” and “Appendix: Four Critical Replies,” as well as other material linked and cited at Stephan Kinsella, “Argumentation Ethics and Liberty: A Concise Guide,”Mises Daily (May 27, 2011); idem, “’Argumentation Ethics and Liberty: A Concise Guide’ (2011) and Supplemental Resources,” Jan. 1, 2015 
- See Rothbard, “Beyond Is and Ought,” originally published in Liberty (Nov. 1988); see also Rothbard, “Hoppephobia.” See also this Rothbard video commenting on Hoppe’s argumentation ethics, May 1989, after the publication of Hoppe’s TSC, which has comments by Rothbard echoing his positive comments in Liberty. See also this amusing anecdote by David Gordon where he recollects a joke Rothbard pulled on him about Hoppe’s argumentation ethics: David Gordon Speaks with The Society of Libertarian Entrepreneurs (part 2). 
- Kinsella, The Undeniable Morality of Capitalism; “New Rationalist Directions in Libertarian Rights Theory“; “Punishment and Proportionality: The Estoppel Approach“; and The Genesis of Estoppel: My Libertarian Rights Theory. 
- Hoppe, “The Ultimate Justification of the Private Property Ethic,” Liberty (September 1988); See also Hoppe, “The Justice of Economic Efficiency,”Austrian Economics Newsletter, Vol. 9, No. 2 (Winter 1988); A Theory of Socialism and Capitalism, 1st ed. (1989), ch. 7. 
- “Appendix: Four Critical Replies.” 
- Kinsella, “Defending Argumentation Ethics: Reply to Murphy & Callahan”, Van Dun, “Argumentation Ethics and The Philosophy of Freedom,” Eabrasu, “A Reply to the Current Critiques Formulated Against Hoppe’s Argumentation Ethics.”