Practicing Law in Light of Rothbard

0:00Good morning. I, too, am honored to be here. I didn't know I was conscripted into Professor Hoppe's gang. In keeping with Professor Hoppe's theme, Rothbard was a system builder. In Man Economy and State, Rothbard saw a need to make Mises more accessible, and he ended up setting out the fundamentals of Rothbardian economics. Similarly, in Ethics of Liberty, Rothbard saw that the libertarian movement lacked a systematic exposition of first principles, and they ended up setting forth the philosophical foundations for the anarcho-capitalist society. I'm going to put up another example of Murray as a system-builder. I hope for the technology's sake that this... What I'm showing you here is the syllabus from his Econ 742 History of Economic Thought class from the fall of 1994.

0:56As you know, Murray would die in January of 1995. Now, I am really one of the most fortunate people on the face of the planet, I think. I have had the distinct pleasure of and privilege of having had classes from both Professor Hoppe and Professor Rothbard. And this was the very last class that Murray Rothbard taught before he died. And this is the actual syllabus that he handed out for that class. Now, I want you to notice a few things about this syllabus. First of all, this is the actual honest-to-goodness syllabus, and it's written with a typewriter. That's the first thing I want you to notice. Rothbard absolutely refused to give up the typewriter. Second, and I know it's a little hard to read, so I'm going to put this up a little bit. Notice The class lectures are the central material for the course. Rothbard's lectures were always grand affairs. He never knew where he would go. He was always entertaining. His knowledge was encyclopedic, and it often filled the margins of my notebooks with references to journals and authors and books that he would just throw out in the middle of his lectures.

2:18Finally, I want you to notice the section marked textbooks, textbooks and other readings. The quote here that's fantastic is, there is no fully satisfactory textbook in the history of economic thought. Now what's interesting about this statement, what we didn't know at the time, was that Rothbard was writing the fully satisfactory textbook in the history of economic thought. Notice the outline of topics right above the textbook section there. For those of you that have read Rothbard's Magnificent History of Economic Thought published posthumously, you'll note that the outline of topics looks remarkably similar to the table of contents at least to the first two volumes through Marx.

3:14And then if you note, after Marx, there's a couple of allusions to the marginal revolution in the Austrians, the return of the currency through banking schools, the neoclassicals, the Ricardians and Keynes. I can think of some topics that may be appearing in volume three. So Murray was using his notes from the manuscript for his history of economic thought from which to lecture. In other words, Murray saw a need and once again set out to fill that need and then up writing another magnum opus. Okay, so what's all of this got to do with the practice of law and legal scholarship? There are kernels of libertarian jurisprudence peppered throughout Rothbard and other writers, but no one to my knowledge has systematically set out a cohesive, praxeological Austrian theory of jurisprudence.

4:02I see a need to do this. Legally speaking, libertarians get a lot of things right. non-aggression axiom, all rights are fundamentally a function of property rights, there's Rothbard's underused typology of government intervention in power and market, that's especially helpful in legal analysis, Kinsella's work on IP seems to be on the right track, Hubert has my colleague Jacob Hubert has his book coming out in June, shameless plug there, but libertarians also have areas that I think are lacking. For example, punishment theory. There's a lot of stuff that's not settled there, right? Corporations. I think there's a lot of stuff that's not settled there. Causation.

4:52And now let me give you an example of an area that I think is lacking that my colleague Lee and I are working on. So imagine if I should smack my friend Lee and give him a bump on the head. Accidentally. Accidentally. Now, imagine I smack my friend Lee intentionally and give him the same bump on the head. Now, for argument's sake, Lee doesn't know whether or not I smacked him on the head intentionally or accidentally. From Lee's perspective, he doesn't know whether I did that. He just knows that he's been injured and it's the same physical injury in both cases. Now, modern law treats both cases differently. Why? Well, in the case of the accidental smack, Lee's only entitled to recovering compensatory damages. Medical bills, lost wages, maybe some pain and suffering. In the case of the intentional smack, Lee is not only entitled to compensatory damages, but punitive damages.

5:40Even if he deserves it. And he does. Why? Well, the distinction here, of course, is my intent. The modern law punishes evil intent. That's so ingrained in our thinking that it's almost an automatic reaction. And of course intentional acts should be punished more severely than accidental acts. The question is why? From Lee's perspective the damage to him is the same. He still has the same bump on his head whether the act was intentional, the act was accidental. But really short of me confessing I intentionally hit Lee, no one can ever really know my intent. Utterly unknowable. So why all this hullabaloo about intent? Well the concept originally stems from canon law and ecclesiastical courts.

6:28Catholic priests hearing confessions of penitents were concerned about measuring offenses against God in order for sin to be a mortal sin. The sinner had to, among other things, know that he was committing a mortal sin and assent to it. That required the penitent to confess his sin. His government powers grew and secular courts, secular law replaced canon law. The secular law simply expropriated, and I would argue perverted, the concept embodied in the Canon Law. Thus the modern law's concept of intent is a perversion of the Canon Law and arguably should be jettisoned by libertarian law, libertarian jurisprudence. Okay, just a snapshot of maybe another paper for next year, right? So here's the challenge. I think there's a need to create a systematic cohesive system of libertarian jurisprudence. In order to create this libertarian jurisprudence, we need more legal scholars. Here's the The Controversy. In order to do that, the movement needs more lawyers. I know, that's a very popular statement to make, right? But I submit that that means that if students

7:34insist on going to graduate school, we should encourage graduate students perhaps to move away from PhDs in economics and into law degrees, at least in the United States. There's three advantages to that. You can do practical work like union busting, from my colleague Deanna you can do scholarly work like my colleague Jacob Hubert and finally in conclusion you can also have the advantage of being conscripted potentially into Hoppe's gang.