The phenomenology of Edmund Husserl as metatheoretical foundation for a nonpraxeological argumentation ethics Xavier Meulders (Graduate student in philosophy

at Antwerp University, Belgium; and cofounder of the Murray Rothbard Institute. E-mail: xavier.meulders@gmail.com)

Note: To a large extent, this paper is based on my own notes for an informal lecture I delivered for the Rothbard Institute last June in the picturesque city of Leuven, Belgium. Abstract: The scope and method of argumentation ethics still remains widely debated amongst libertarian scholars. Probably the most well-known elaboration on argumentation ethics has been given by professor Hans-Hermann Hoppe. However, professor Hoppe has indeed been target of fierce attacks the last years by (libertarian) opponents of the method of argumentation ethics, maybe most explicitly in the critique delivered by Robert Murphy and Gene Callahan published in the Journal of Libertarian Studies in the Spring of 2006. Although Murphy and Callahan certainly have some valid points against Hoppean argumentation ethics, their critique isn’t sound enough to invalidate the whole body and scope of argumentation ethics itself. At most, they counter its Hoppean variant. Therefore, it may be of great interest to study the form of argumentation ethics as set forth by professor Frank van Dun; which is unfortunately less known in the English speaking world, partly because of the fact that his main treatise on philosophy of law has been published in Dutch in 1983. In fact, we’ll attempt to prove the validity of Van Dun’s argumentation ethics by giving it a metatheoretical foundation. This foundation has already been delivered by the famous German philosopher Edmund Husserl (1859-1938), the founder of the philosophical movement called ‘phenomenology’, whose extensive writings on epistemology, method and ontology seem very fruitful for further elaborations on argumentation ethics. The synthesis between the theories of Frank van Dun and Edmund Husserl will shed some clarifying light on the method, use and scope of argumentation ethics. This synthesis has then a threefold goal it may attain: first, it provides a very sound basis for Van Dun’s argumentation ethics; secondly, it will be solid enough to resist the critiques delivered by Murphy and Callahan, and thirdly, it will seem to be a more fruitful version than professor Hoppe’s edition of argumentation ethics, since it leaves aside the use of the praxeological category of (economic) scarcity.

I. General introduction Ever since the publication of his Theory of Socialism and Capitalism in 1989, professor HansHermann Hoppe has tried to provide an essential link between Misesian praxeology and libertarian political philosophy, by using the philosophical fruits delivered by his former tutor Jürgen Habermas. These fruits, so to speak, are known to us as discourse or argumentation ethics. Nowadays, professor Hoppe's method of argumentation ethics is probably the most widely known amongst libertarian, English speaking scholars. Since I suppose that the general reader will be acquainted with the general outlines of Hoppe's theory, I won't give a summary of it in this paper1. Nevertheless, argumentation ethics ought to be... argued, of course. And as such, in the wake of the publication of Hoppe's theory, it provoked also some heavy reactions against it, published in different journals en media by libertarian scholars such as Douglas Rasmussen, Roderick T. Long and David Friedman. Since the purpose of this paper isn't meant to address each of these critiques, I'll restrict myself to answer some objections made by the, to my opinion, widest read critique in Austro-libertarian circles; namely Robert Murphy's and Gene Callahan's reply to Hoppe2, although some of Murphy and Callahan's objections are indeed correct, as we shall see. But if Murphy and Callahan are indeed right in some of the critiques they delivered in their paper, then this implies that some fatal flaws must have been occurred in Hoppe's theory itself. This is indeed the claim that I shall make in section V of this paper. Of course, Hoppe's theory of argumentation ethics isn't the only one that has been elaborated amongst libertarian circles. Less known to the English speaking world is for example the method of argumentation ethics as espoused by professor Frank van Dun, since the core of it has been published in the Dutch 1983 treatise Het Fundamenteel Rechtsbeginsel (The Fundamental Principle of Law)3. For reasons that shall be elaborated in further sections, professor Van Dun's view on argumentation ethics forms a more solid and coherent system to prove the validity of a libertarian political order (although this is also a term that ought to be rigorously defined). The purpose of this paper is, nevertheless, to confront Van Dun's theory with a completely different body of philosophy, namely the phenomenology of the German philosopher Edmund
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The core points of Hoppe's theory of argumentation ethics are delivered in chapters 11 and 13 of his The Economics and Ethics of Private Property (Auburn, Alabama: Ludwig von Mises Institute, 2006 (1993), 433 p.). A concise summary has been provided by Dr. N. Stephan Kinsella on his website Anti-State.com: see http://www.antistate.com/article.php?article_id=312 See R.P. Murphy and G. Callahan; “Hans Hermann Hoppe's Argumentation Ethic: A Critique”, Journal of Libertarian Studies, 20(2006)2, p. 53-64 Nevertheless, some English material has been provided in the meantime by professor Van Dun. See for example his excellent “Argumentation Ethics and the Philosophy of Freedom”, published on the website of Libertarian Papers: http://libertarianpapers.org/2009/19-van-dun-argumentation-ethics/ .

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Husserl (1859-1938). One who is acquainted with the history of philosophy might be surprised indeed. What have the abstract, even metaphysical, writings on logic and epistemology of a German philosopher – who was initially trained as a mathematician – to do with argumentation ethics? Moreover, Edmund Husserl himself didn't write a single note on political philosophy or philosophy of law during his whole career. But as we shall investigate, Husserl's ground breaking work provides us with a great treasure of philosophical concepts and ideas which may shed some new light on the whole issue of (Van Dunian) argumentation ethics. At the end of this paper, I will than refer back to Hoppe's argumentation ethics and the errors made in his theory, hence replacing Hoppe's theory with a new paradigm of argumentation ethics which may be called the “Van Dun ultra flavour”-edition. In this respect, the criticisms made by Murphy and Callahan will also be addressed. We shall see that my own view on the method and scope of argumentation ethics won't use the presupposition of economic scarcity any longer, hence rendering my own approach to argumentation ethics to a rather transcendental level. The methodological and ethical implications of this non-praxeological version of argumentation ethics will also be discussed4. I'll also elaborate on the relationship between freedom, property and so-called intellectual property. But since it may be useful to start first with those things that may be not too familiar to the general reader, I'll start with a brief overview of Husserl's philosophy.

II. Some key concepts of Edmund Husserl's phenomenology5

One may describe Husserlian phenomenology as a domain that can be accessed through many different gates. Since I suppose that many of the readers of this article will be trained in the Austrian School of economics, I'll take the road that leads to a quite familiar gate, namely the discussion on anti-psychologism. In the Austrian School, it was Ludwig von Mises himself who warned against the dangers of a particular kind of psychologism, called polylogism6. And even nowadays, some Austrian scholars still investigate on the possible dangers of a psychologist epistemology7.

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Of course, even my own idea of argumentation ethics will still deal with acting human persons. But leaving aside the idea of economic scarcity, we cut off the second axiom of praxeology, since praxeological (non-catallactic) phenomena such as marginal utility scales and time preference would be rendered simply nonsensical without scarcity. I'd like to note in advance that I don't attempt to deny the existence of economic scarcity (if this were the case, than it is at least a futile attempt to do so), but will only try to demonstrate that the axiom of scarcity is in fact not a necessary condition in order for the argumentation to take place. My discussion of Husserl's philosophy is largely based on the excellent introductory work by David Woodruff Smith. See D.W. Smith, Husserl, New York: Routledge, 2008 (2007), 467 p. See L. von Mises, Human Action, Chapter III

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Edmund Husserl himself was also one of the most ardent opponents of the psychologist doctrine. But what kind of doctrine is psychologism in fact? Actually, psychologism can be traced back to the early 19th century, when positivism was the general doctrine that held Western philosophy in its sway. According to the French positivist thinker Auguste Comte (1798 – 1857), positivism would make an end to the so-called “metaphysical” stage of philosophizing, in which redundant metaphysical concepts – such as the existence of God or innate ideas – would be finally thrown away. Also the clearly rationalist method of thinking, in which pure logic was used in order to make apodictic statements about reality, would be superseded by a positivist or empiricist account in which only (external) experience would play a role. Hence the method of induction, in which general laws concerning physical and social reality would be established by the use of hypotheses and its verification or falsification through the experimental method, would also render philosophy as a proper science obsolete. Taking for granted that positivism would be the metatheoretical foundation of all sciences, Comte thought that after its successful implementation in sciences such as astronomy, physics and biology, the time had to come to also use it in the social sciences. Hence Comte was seduced to make the fanciful statement that the science of “social physics” - or 'sociology' – would become the absolute 'crown jewel' of the positivist sciences. It might be of no surprise to my Austrian readers that Comte's positivist dream indeed became a regretful nightmare... Nevertheless, Comte was wrong in asserting that the social sciences would become the alpha and omega of positivist reasoning. Half a century after Comte, new scientific advancements also took place in the research field of psychology, which until the mid-1800's remained one of those 'murky' scholastic fields. In fact, separate psychology faculties didn't exist at that time, and were still incorporated in the whole curriculum of philosophy8. This time, it was the German psychologist Wilhelm Wundt (1832-1920) who attempted to detach psychology from its philosophical origin through the use of the positivist method. Hence, a new discipline was born, called experimental psychology. Roughly said, the aim of experimental psychology may also be explained as a kind of physicalism: it tries to explain different psychic phenomena by investigating the different psychophysic strata underlying those conscious experiences. It was at this moment that the famous philosopher Franz Brentano (Husserl's mentor!) published his Psychology from an Empirical Standpoint in 1874 as a reaction against Wundt, stressing the fact that one cannot explain the causal genesis of mental phenomena without first investigating what those mentale phenomena really are, hence stressing the importance of the subject's intentionality. But the disastrous consequences of psychologism didn't remain within the field of psychology and philosophy of mind. Wundt – and together with him the British philosopher John Stuart Mill – also held the opinion that (experimental) psychology, as a positivist discipline, could
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See for example: R.T. Long, “Anti-psychologism in Economics: Wittgenstein and Mises”, Praxeology.net, praxeology.net/antipsych.pdf Most psychological faculties at that time were centers in so-called “pneumatic philosophy”, in which ancient philologists amongst us may recognize the Greek word “πνεύμα “, literally 'breath', but used by Stoic philosophers to indicate the principle (“spirit”) that animates both cosmos and body.

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provide a scientific basis for logic. As such, the last cornerstone of what once was the great, solid borough of philosophy would be finally demolished. Logic, as it was elaborated in ancient times by Aristotle, was – until the emergence of the psychologist doctrine – considered to be a study about the formal truths of being in general. By merely looking at its formal content, one could easily grasp the fact whether a certain proposition is true or false. When I say that I'm both in Antwerp and in Brussels at this very same time, one can identify this statement as false, not by 'experimental' observation (i.e. by walking through the different streets and quarters of both Antwerp and Brussels, and searching after me), but simply by the fact that it implies a formal contradiction. But essentially, Aristotle's conception of logic deals with the laws of reality: a certain proposition about a state of affairs can be true or false, independent of the mental 'belief' the judging subject attaches to this proposition. He simply has to obey the rules of logic; it isn't created by him, as the positivists (or the Kantians) would argue. The latter is what the psychologists held to be true. Since experimental psychology flatly denies the existence of intentionality (i.e. the fact that a conscious act is always directed towards a certain (internal or external) object), this has also the ontological implication that psychologism cuts off the 'bridge' between a judging subject, en the external world. Hence, logical psychologism states that logic isn't a science about the formal truths that can be discovered in reality, but a science that orders the laws of thought. At first sight, this exposition may sound maybe a bit too metaphysical in order to understand the huge dangers that are hidden in the psychologist doctrine. But consider then following ridiculous example that J.S. Mill provides us with in order to illustrate his psychologism. Take the sum '3+2 = 5' . What, then, is the ontologically underlying basis that gives this mathematical operation its undeniable truth? According to 'classical' Aristotelians (and Husserl as well), this sum can claim its a priori truth thanks to the fact that it fully relies upon the formal rules of mathematics, and through this formal rules, each mathematical operation can result in a true or false outcome. But according to Mill, the sum '3+2 = 5' relies fully upon our psychological act that when, through outer experience, we see different objects that form a 'three'-unit and objects that form a 'two'-unit, we ought to believe after a certain time that its result will be five units. Take two apples, and then add three apples to it. Then repeat this process a couple of times, and “experience” the fact that at the end you'll see five apples each time. Thus the way John Stuart Mill tried to deal with mathematics. And with logic as well, where Mill stated that the principle of contradiction isn't a formal truth, but simply is a result of the mental act not to adhere “belief” to two contrasting propositions. Of course, when one states that logic (and mathematics) isn't anything but a form of 'justified belief', then the doors to logical skepticism are widely opened. Indeed, reducing the laws of logic to the laws of our factual thinking implies that some logical laws may be falsifiable, which is of course part of the positivist agenda. Secondly, the positivists' claim must lead to an infinite regress: if the laws of logic that ought to order our thinking are themselves based upon mental experiences, then on which kind of experience do they rely on their turn, for it is needed for logic to find a definite anchor point to rely upon.

The psychologist agenda is thus based on some fatal flaws and errors, which Husserl discusses in the first volume of his Logical Investigations (1900). But rejecting a certain theory is one thing. What can we get in place of it? Husserl stresses – in an old Platonist/Aristotelian fashion – that mathematics and logic don't deal with so-called psychological phenomena at all; but that they represent apodictic formal truths. Asserting the postulate of a Platonic heaven with Ideal Entities is of course one thing, but how to prove the 'existence' of this realm? Therefore Husserl starts his investigations again in... psychology! Not in Wundtian experimental psychology this time, but in so-called 'descriptive psychology', a research field that has been elaborated by Husserl's earlier mentioned tutor Brentano. The quintessence of descriptive psychology is that each mental phenomenon is intentional, i.e., directed towards an object. Thinking, feeling, wishing, judging,... aren't mental acts that occur in a kind of unreflected void, but always point toward a certain object. But for Husserl, intentionality has a clear epistemological connotation. In fact, the usage of the word 'intentionality' may be traced back as early as Saint Thomas Aquinas. It may be enlightening to focus upon Aquinas' theory in order to fully grasp Husserl's usage of it, since both Aquinas' and Husserl's use of the term are very similar. According to Aquinas, the beginning of each form of human knowledge is sensory perception. When we perceive something – a physical object in the outside world – our so-called “passive intellect” is activated. Through the passive intellect, the perceived object leaves its trace, just as a stamp prints its form into a wax seal; which is denoted by Aquinas as the species impressa. But at this moment, no genuine knowledge exists yet. Therefore, the so-called active intellect will operate: the active intellect will attribute a certain meaning to the perceived object. As such, Aquinas distinguishes between the forma in re (universals in things)– which is given to the intellect by the impressed form – and the forma post rem (universal attached by the intellect to the object). The ‘forma post rem’ ought to be in correspondence with the forma in re, and is as such called the intentio. Hence, Aquinas is one of the chief proponents of the so-called correspondence theory of truth, which states that a certain propostion ought to be in accordance with a certain state of affairs in the external world. Husserl explicitly builds his theory upon this Thomist epistemological framework. Like Aquinas, Husserl claims that intentionality is always adequate (cfr. Aquinas: adaequatio intellectu et rei, or the Latin verb indicating the mentioned correspondence theory). But what does it mean for intentionality to be adequate? Herefore we could point to a philosophical notion that is often used by Husserl, namely that of a 'categorial' or 'eidetic' intuition. The adjective 'eidetic' may be reminiscent to the ancient Greek notion of 'eidos', as used in the philosophy of Plato. 'Eidos', then, can be literally translated as 'idea', and Plato himself indeed used the word to indicate his supposed heavenly sphere of eternal, immovable Ideas. But in a more down-to-earth-fashion, as used by Husserl, the word 'eidos' can be best translated as 'essence'.

As a result, when Husserl states that (descriptive) psychology is the main entrance gate in order to hold an investigation into the aprioristic laws and essences that structure reality, he stresses the importance of investigating those mental acts which he calls 'pure experiences' (reine Erlebnisse), i.e. those acts that can grasp certain essences into their intentional modes. Phenomenology then, as understood by Husserl, is the science that investigates those psychological experiences that seek after certain essences and a priori laws governing reality. It are these pure acts which are called 'adequate' by Husserl, and are thus object of phenomenological investigation. The question on which we should now focus our attention, then, is what the proper method of phenomenology ought to be. Husserl herefore introduces two key concepts: the transcendental (a parte intellectu) and the eidetic (a parte rei) reduction. Let us first elaborate on the transcendental reduction, or epoché, as it is often called by Husserl with a Greek word borrowed from the ancient skeptics. The word 'epoché' can be best translated as 'abstaining from any judgment'. Indeed, in order to analyze consciousness on a pure, phenomenological basis; it should be literally 'purified' from each presupposition. In our daily experience – which Husserl calls the 'natural attitude' – we take for granted different presuppositions or categories that order our grasp of the world; for example the occurrence of physical phenomena in a construct of space and time, or the existence of the outer world, or the famous twelve Kantian categories. But according to Husserl, these are presuppositions that ought to be suppressed in order to analyze the content of a pure phenomenological experience. Hence, Husserl states that presuppositions stemming out of our natural attitude should be temporally put between brackets ('einklammern'), in order for consciousness to experience the thing as it appears as such. Indeed, the method Husserl hereby uses recalls us of the principle of methodological doubt, as initiated by René Descartes. But contrary to Descartes, it wasn't Husserl's aim to make an ontological commitment and to deny the existence of – for example – the outside world; nor was it Husserl's intention to state that the senses should 'deceive' us. But we must keep in mind that phenomenology is an essentialistic science, and that for the sake of it, the transcendental reduction remains a very important step in Husserl's method. After the elaboration on the transcendental reduction, Husserl proceeds to the eidetic reduction. After the transcendental reduction has been set forth, the intellect has gained a presuppositionless view on the object it intends. But what are the essential characteristics of this object? This is a question answered by the eidetic reduction, sometimes also called the eidetic variation. In fact, the intellect toys with past, similar experiences it had in the past of similar objects and/or phenomena ('retention'). In imagination, the intellect varies those past experiences in order to grasp the essences that lie underneath those experiences. For example, when we see a table (in our 'natural attitude', Husserl would add), our sensory perception tells us only that we see a certain number of table legs and a table top. We can see it in different shades and from different angles in the room, but sensory data alone won't give us a clear and distinct idea that the thing we perceive is, in fact, a table and not, say, a chair. But through his process of eidetic variation, it nevertheless becomes possible to grasp the whole table in a single unity, and as such, to create a distinct conceptualization of it. But since phenomenology

is considered to be a formal method of investigation dealing with the a priori sciences, it could be interesting to implement its method into the field of mathematics. Take as an example following sums (which, for the sake of clarity in my discourse, take place within the set of natural numbers): 2+4=6 5 + 17 = 22 8+0=8 0+0=0 Although these are clearly distinct and different mathematical operations, one may nevertheless indicate that through 'pattern recognition'9, we may formulate a general (formal) rule that applies to all these sums, namely A + B = C whereby A ≤ C and B ≤ C. We must also stress the fact that the method of eidetic variation makes use of the principle of parsimony, better known to us as Occam's razor. This principle, in fact, also applies to the formal sciences. In an essay published in 1936, called The Origin of Geometry as an Historical and Intentional Problem, Husserl shows us how the eidetic reduction in fact worked throughout the genesis of Euclidean geometry. Geometry is, rightfully, conceived as a formal science; whereby the use of axioms and definitions play a central role. And each geometrical theorem, then, also rests upon those formal axioms. For example, the truthfulness of the Pythagorean theorem fully relies upon the definition of the essence of a triangle. But although geometry rests on some undeniable truths, Husserl stresses that its theorems weren't simply created out of thin air. In fact, the origins of geometry can be traced back to a definite time and place in history, namely ancient Egypt, where so-called “geometrical” theorems were used in order to calculate the surface of certain pieces of land near the shores of the Nile. One can indeed point out to the fact that the word “geometry”, which is of Greek origin, literally means 'measuring the Earth'. By way of certain experimental, practical-oriented methods; those ancient Egyptian land surveyors used some geometrical principles 'unconsciously'. But pieces and strips of land aren't themselves “perfect” geometrical figures, of course. Therefore it was needed that some genius “all-geometer” abstracted out of the imperfect calculations used by the land surveyors, some general laws and principles that govern the realm of pure geometry. As such, those merely theoretical concepts – concepts such as the perfect circle or the perfect triangle – could be used again in order the further develop and enhance practical applications in land surveying. But, and this is the point Husserl wants to focus upon, those theoretical concepts contain for themselves eternal and apodictic truths. Hence, the method of eidetic variation seemed to be fruitful in order to gain insight into those apodictic truths set forth by geometry. And once one abandons this eidetic principle – as the psychologists would do – then of course all our a priori concepts will simply fade away.
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This idea of 'pattern recognition', which may be traced back to Husserl's conception of eidetic reduction, also had a great impact on the field of so-called Gestalt Psychology.

As we’ve already stressed several times, Husserl starts his investigations by entering into descriptive psychology or phenomenology (the study of the things as they appear to a subjective, intentional consciousness from a first person’s perspective). Nevertheless, Husserlian phenomenology isn’t committed to the fatal flaws of psychologism, nor does it adhere to (Kantian) idealism in which the human mind “constructs” its reality. Hence, in order to distinguish between a so-called noetic act and its noematic (ideal) content 10, Husserl also elaborated on different topics considering ontology and the philosophy of language, of which I’ll give a brief overview. According to Husserl, a certain proposition can be analyzed in no less than four different ways, that ought to be sharply distinguished from each other. Hence, Husserl distinguishes between the linguistic expression of a certain proposition, the intentional act (the thought about something), the meaning of the proposition and, finally, the state-of-affairs to which the proposition refers. The latter distinction is by the way a quite famous one in the history of philosophy, albeit through the earlier work of the German logician Gottlob Frege, and his distinction between sense (Sinn) and reference (Bedeutung). Consider for example following ordinary sentence: “The leaves are green.” This sentence has been written down in a certain particular language; English in this case. However, the meaning of it is of course not dependent of its linguistic expression. It is possible to write the sentence down into different languages – “Die Blätter sind grün”, “Les feuilles sont vertes”, “De bladeren zijn groen”, … - without changing anything to the meaning of the proposition. It is also possible just to think about (intentionality) a certain tree having green leaves, without having to think about it in a certain language. That meaning then, is the knowledge we have about that certain tree outside, having green leaves. This meaning however, is always about a certain state of affairs; and may not be conflated with the state of affairs itself, since it is possible for the tree and its leaves to burn down; but the meaning (as a certain ‘universal’) itself cannot burn (although it would be quite foolish to speak about a burnt – i.e. non-existent – tree). Nor can the intentional act, which always carry the meaning into itself. This being said, I hereby close my section on the philosophy of Edmund Husserl, and draw the reader’s attention back to more worldly (would it?) things such as philosophy of law and argumentation ethics.
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The terms ‘noetic’ and ‘noematic’; or the respective nouns ‘noesis’ and ‘noema’ of which they are derived, are – again – Greek terms borrowed by Husserl. Their etymological origins can be traced back to the Greek word ‘Nous’ – meaning ‘spirit’, but in a more worldly fashion it simply denotes ‘psychic activity’ in general. In fact, both terms were only coined by Husserl in his later works from the Ideas I (published in 1913) onwards. Although their meaning slightly differ from Husserl’s earlier work, the noesis can be best defined as the intentional act, whereas the noema is the intentional content of the act. For a further elaboration on this issue, see R. McIntyre and D.W. Smith, “Husserl's Identification of Meaning and Noema”, The Monist 59 (1975) 1, p. 115-132

III. Frank van Dun’s system of argumentation ethics In his brilliant 1983 treatise ‘Het Fundamenteel Rechtsbeginsel’ (The Fundamental Principle of Law), professor Van Dun starts his theory of libertarian legal philosophy that only four different political orders are possible, in order to provide an answer to the question: “What is a rightful ordering of society?” . Van Dun hereby uses the concepts of masters and slaves, i.e. persons who dictate to others how they ought to behave and what they ought to do with their means, and persons who only have to obey the orders dictated by their masters. The combinations that can be formed with those concepts, are then the following four: 1) All people are slaves, and no one is his own master
 E.g.: (anarcho-)communism, in which all rights on private property are abolished.

Theoretically, communism doesn’t recognize the lawfulness of a certain ruling master. 2) Some people are slaves, and some of them are master  E.g.: democracy, where some people – elected into parliament – have the “right” to decree laws, and compel other citizens to behave as they want. Also, an oligarchy would fit as well into this theoretical model. 3) One person is master, all the others slaves  E.g.: dictatorship; an authoritarian regime 4) No person is a slave, and each person is master of himself  The so-called ‘fundamental principle of law’ or a libertarian political order in which personal freedom and private property rights exist These are all the different social orders that may exist, written down in a formal system abstracted from their respective ideological commitments. But how, then, can we prove which one of these four statements is a formally valid one? Therefore, Van Dun indeed turns his attention to argumentation ethics, for it is only through the course of argumentation that it can be revealed whether or not a certain proposition is true or false; just or unjust. Why is this the case? Why can’t we simply flip a coin in order to decide which political order may best fit as “just” ? Argumentation ethics functions as a kind of demarcation criterion in order to filter out true from false propositions. As each normative set of possible norms claims to solve intersubjective conflicts , then one cannot deny that it is only through the course of argumentation that its validity can be justified or nullified. One may indeed say: “I order you to do all the things I ask!”. But once this proposition is put into question by the other person, then it is indeed obvious that the course of argumentation has been put into progress. Not all kinds of argumentation are discussions about a certain set of ethical, political or legal (intersubjective) norms, of course. A teenager may have a quarrel with his parents whether or

not he’s allowed to go to a party in town, but in this case, the only persons involved into the argumentation are the family members. No one else will bear the consequences of the agreement that has been set between the kid and his parents. This, however, isn’t the case when we deal with argumentation ethics. In fact, it searches for a certain set of metanormative and general principles that govern each kind of intersubjective action, albeit a quarrel between son and parents, a buyer and a seller making a contract, etc. As argumentation ethics looks for general, and hence universal, principles that govern our conduct; then it also needs the assumption of certain metaphysical conditions in order to make its labour fruitful. These metaphysical conditions are in fact the preconditions for a successful argumentation. The task of metaphysics is to look whether there may be some general principles, laws and concepts in reality that can be known with an apodictic certainty. As such, metaphysics searches for certain non-contingent, truth-bearing universals within reality11 . What, then, are those universal principles that guide the course of argumentation ethics? Van Dun stresses the importance of human rationality, which is an undeniable, axiomatic fact. It may be indeed compared with Mises’s axiom of human action that opens his eponymous treatise: “Human action is purposeful behavior.” . This is indeed an undeniable fact: one cannot simply switch of the teleology of his own behaviour without falling into a contradiction. Nor can human rationality be denied, according to Van Dun: “It is out of question to neglect or belittle human rationality. When we say that a person is a rational creature, we don’t claim that he’s a reasonable one. ‘Rationality’ is a descriptive term, referring to the modus operandi of a human person as acting creature. ‘Reasonableness’ is a criterion by which we evaluate the behaviour of a rational creature. ‘Reasonable’ means as much as ‘how a rational creature ought to behave’, and can only be used to evaluate the behaviour of a rational creature: it is only about a rational creature that we can say that he is unreasonable. Probably no one is always reasonable, but this statement doesn’t prove at all that man is an irrational creature, for example a helpless slave of his own irrational feelings.12” Again, there is a distinct Aristotelian framework at work in here. It was Aristotle who discovered the obvious link between speech and the political sphere, hence defining man as a zoôn logon echon, or as Aristotle himself stated: “Now, that man is more of a political animal than bees or any other gregarious animals is evident. Nature, as we often say, makes nothing
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The most obvious definition still remains the one provided by Aristotle(or better: circumscription, since the term ‘metaphysics’ itself was coined only a few centuries after Aristotle!) : “Hence to investigate all the species of being qua being is the work of a science which is generically one, and to investigate the several species is the work of the specific parts of the science.” (Metaphysics, Book Gamma, 1003b20-23) F. van Dun, Het Fundamenteel Rechtsbeginsel: een essay over de grondslagen van het recht, Antwerp: Murray Rothbard Institute, 2008 (1983), p. 6-7 ; translation mine.

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in vain, and man is the only animal whom she has endowed with the gift of speech. […] the power of speech is intended to set forth the expedient and inexpedient, and therefore likewise the just and the unjust.13” One must indeed notice that the Greek term for ‘word’ – logos – also implies the use of one’s rational capacities (our current term ‘logic’ has in fact the very same etymological origin!) . This is evidently the reason why Van Dun stresses the link between the validity of one’s utterances (words or logoi) and the laws of logic. At the same time, this passage shows indeed the quintessence of Van Dun’s argumentation ethics: human rationality is a universal common to all human beings. If one were to neglect his rationality during the course of argumentation, he would simply got involved into a socalled dialectical contradiction14: he would argue that he cannot argue (a point that has also been rightfully stressed by Hans-Hermann Hoppe). The same contradiction would happen when one would state that he himself is indeed a rational creature, endowed with a certain amount of rights, but the other person isn’t: according to the metaphysical principle of identity, this claim would namely also rule out his own rationality, since this is a principle common to all human beings. Indeed, this can be formally proved: suppose that each person is a rational being (a metaphysical truth), then this means that person A = B = C = ... from a metaphysical (essentialistic) point of view (metaphysical identity). Now, then, each person is thus endowed with an equal amount of rights, according to the very same principle of metaphysical identity: (x)A ^ (x)B ^ (x) C ^ etc. Suppose then that person A would claim that he is endowed with more rights than his fellows, he would be indeed caught in a dialectical contradiction, for according to the principle of excluded middle: ~(A ^ ~A) 15, for if B and C have a lesser amount of rights, then according to the very same metaphysical principle of identity, person A must also have, automatically, a lesser amount of rights. Finally, one can indeed continue to hold that he’s not a rational creature, but in that case, he simply turns himself into an outlaw; a person that has put himself outside the legal order. As each human person is a rational being, and ought to behave as such, Van Dun further outlines the scope of argumentation ethics: it constitutes general rules amongst equals16. And
13

Aristotle, The Politics, Book I, 1253a8-15 Compared to Hoppe's performative contradiction, the scope of the dialectical contradiction is much narrower. The dialectical contradiction only relies upon certain purely logical principles that would be violated when the person utters a proposition leading to such a contradiction. Hoppe's performative contradiction, on the other hand, also makes uses of certain praxeological principles, such as economic scarcity. Hence Hoppe states: “Simply saying that the first-user-first-owner rule of the ethics of private property can be ignored or is unjustified implies a performative contradiction, for one's being able to say so must presuppose one's existence as an independent decisionmaking unit at a given point in time and space.” (The Economics and Ethics of Private Property, 2006 (1993), p. 388 ). But as noted in the beginning of my essay, we'll challenge the Hoppean idea of the performative contradiction in section V. Read as: “it is not the case that A and not-A”, e.g. It is not the case that it is both raining and not-raining. See F. van Dun, The Lawful and the Legal, http://www.anthonyflood.com/vandunlawfullegal.htm

14

15

16

as such, justice is meant as a horizontal relationship between equal human beings, each of them endowed with an equal amount of rationality. This, then, is the reason why options (2) and (3) in the scheme are ruled out, since they simply cannot conform to the principle of universalizability. But the first hypothetical order, in which everyone is a slave and hence master of each other, must also be rejected; since it relies upon the model of universal consensus. However, such a model would require that an agreement between all the participants involved in the discourse can ever settle such an agreement. For purely theoretical and practical reasons, this option doesn't seem very plausible. As Van Dun states: “The striving for a universal consensus, when no spontaneous consensus exists, demands time and effort, and not a single guarantee can be given that this striving will be successful in the end. If no decisions could be made before a general consensus has been reached, then most decisions will be made too late and others simply never. [...] It is also the least probable that decisions that will be finally made, will be more than a kind of compromise that won't be welcomed with the highest esteem, because everyone knows that the compromise has been settled in order to make an end to the quarrels that bother everyone. The result is either that nothing will be done, if the framework of people adhering to the principle of consensus is indeed the one that works itself out; or otherwise, that everything that will be done cannot be justified according to the consensus principle, when we deal with people whose striving for survive is larger than their esteem for the rules of universal negotiation.17 “ All three other options being eliminated, only the so-called fundamental principle of law (FPL) remains intact. Indeed, the FPL is both a necessary and a sufficient condition in order to speak of justice. Necessary, because only the FPL meets the agreement with the principle of universalizability, and sufficient, because apart from the principle of human autonomy , no other condition is needed in order to meet with the universalizability principle18.

IV. Husserl meets Van Dun: on the phenomenological foundations of Van Dunian argumentation ethics Thus far we've only given a brief overview of the respective theories of both Husserl and Van Dun. I suppose that the reader will be indeed quite curious to know what kind of similarities there may arise when both theories are compared, and how this may lead to an improvement on the current academic researches in argumentation ethics. The latter, however, will be something to be done in section V.

17

F. van Dun, Het Fundamenteel Rechtsbeginsel: een essay over de grondslagen van het recht, Antwerp: Murray Rothbard Institute, 2008 (1983), p. 79-80 ; translation mine. For an excellent essay on the metaphysics of the philosophy of law in general, see G. Husserl, “Justice”, International Journal of Ethics 47 (1937) 3, p. 271-307

18

We stated that Husserlian phenomenology studies the (pure) phenomena from the standpoint of intentional consciousness. A standpoint on the existence of the phenomena as such – which would be a discussion on ontological realism vis-à-vis idealism – is then put aside through the transcendental reduction. When compared to Van Dun’s philosophy of law, one may indeed come to the observation that Van Dun’s ontology of law also has the individual judging subject as its starting point, whereby the judging subject operates through an argumentative discourse. The realm of justice, according to Van Dun, doesn’t form a sphere outside of us (as was the case in, for example, Hegel’s philosophy; or even in the claim of legal positivism that the lawful can only be found in certain written, imposed laws that are put into society by an external force, i.e. the state) . However, ‘intentionality’ or ‘aboutness’ in Van Dun’s philosophy of law doesn’t occur in an empty void: it always searches for certain apodictic or dialectical truths, that cannot be denied, and hence form a certain sphere of necessary conditions that create a rightful order. This, again, may be compared to Husserl’s aim for intentionality to seek after apodictic truths and essences (‘Wesensschau’) trough the operation of the eidetic reduction. These essences or ‘meanings’, then, are independent of the linguistic expressions or the intentional acts wherein they occur. A similar thought can be observed in Van Dun’s argumentation ethics, where dialectical truths are indeed universal truths, hence independent of a certain culture or time and place in history. According to Husserl, intentional or ‘pure’ consciousness must be sharply distinguished from empirical consciousness, or the ‘natural attitude’. Using this distinction, Husserl attempted to overcome the psychologist’s challenge that all knowledge is based upon certain inner, intuitive ‘feelings’ that even render aprioristic disciplines such as mathematics and logic obsolete. Almost exactly the same remarks have been made by Frank van Dun, who stresses the importance and predominance of human rationality against those philosophical movements – such as skepticism, postmodernism and structuralism – that deny even the possibility of a rational discourse amongst equals19. We may conclude our brief comparison between Husserl and Van Dun with a schematic overview:

EDMUND HUSSERL

FRANK VAN DUN

19

Concerning Van Dun’s views on human nature, see also his article “Can We Be Free If Reason is the Slave of the Passions?”, The Freeman 57(2007)8, p. 31- 38 , which explicitly challenges the ‘common sense’ tradition of law and morality, as espoused by David Hume.

Logic and mathematics as formal sciences ( empirical sciences): the validity of mathematical and logical propositions depends on their ideal contents; not the psychological acts that would ‘constitute’ those meanings, as the psychologists would claim. Rejection of psychologism: the empirical subject isn’t a reliable source in order to gain knowledge about formal sciences such as logic and mathematics

Philosophy of law as a formal science: the validity of propositions stated in the argumentative discourse depend upon their accordance with certain logical and metaphysical principles, such as the principle of identity (A = A) Rejection of Hume’s dictum that reason ought to be the slave of the passions (hence, Hume advocated a form of psychologism in the social sciences!)

Achieving a transcendental reduction: by Primordiality of human rationality  putting the empirical ego between brackets, a categorical commandment that you ought to new modality of consciousness opens itself be rational. which is purified from subjective, naive presuppositions from the everyday life world. Achieving an eidetic reduction: phenomenology as an eidetic science, searching for eternal ‘forms’ or ‘essences’ in the formal sciences Investigation into the apodictic conditions of possibility of intersubjective action  ‘eidetic reduction’ as a quest for those conditions that remain unchangeable, and are thus universalizable

Intentionality as a cognitive act wherein pure Intentionality by the employment of a consciousness works itself out (cfr St. rational dialogue  process in order to obtain Thomas Aquinas) new knowledge Sharp distinction between linguistic Universalizability of the rational dialogue expression and its ideal content. Inferiority because of the ideal meanings uttered in the though necessity of language as a course of argumentation. communicative tool. Principle of parsimony as precondition for Principle of parsimony as precondition for eidetic variation (necessary and sufficient the necessary conditions that guide conditions for imaginary variation) intersubjective ‘just’ action: the fundamental principle of law as both necessary and sufficient condition for justice

Of course, the comparative interpretation of Husserl and Van Dun is complete my own account. We shall now proceed to the next section, where the usefulness of those phenomenological investigations on argumentation ethics will seem fruitful. For the sake of clarity of my own discourse, I’ll hereby use the critique of Murphy and Callahan (hereafter MC) as mentioned in footnote 2 of this essay as guideline in order to provide an answer to

both MC and Hans-Hermann Hoppe, since it seems to me indeed that MC’s (sometimes justified) criticisms are themselves based upon fatal flaws in Hoppe’s own theory. But this, of course, doesn’t invalidate the usefulness of argumentation ethics.

V. A phenomenological reply to Murphy, Callahan and Hoppe.

It is not my purpose to answer MC’s critique step-by-step, because this job has already been thoroughly done by authors such as Frank van Dun and Stephan Kinsella. Both Van Dun and Kinsella have in particular provided excellent answers to some obvious ‘metatheoretical’ principles of argumentation ethics, shared by almost all authors in the field – i..e. questions such as why rights are not only valid during the course of argumentation, why we can’t argue with animals and why not only the persons involved in the course of argumentation, but in fact the whole of mankind, are subject to the rights discovered through this course (hence, why Aristotle indeed would get involved into a dialectical contradiction when he would argue with a barbarian on his human inferiority). For these issues, I’d refer to the texts I already mentioned in footnotes 1 and 3 in order to avoid iteration of the same argument. Nevertheless, there are indeed some issues raised by MC on which they are certainly right. In order for my own phenomenological approach on argumentation ethics to appear step-by-step, I’ll deal with those issues at once. So here it goes. The first statement made by MC I want to discuss, is the following: “As we stated above in the introduction, we believe that even if one grants the basic validity of Hoppe’s approach, his argument still fails to make the case for full self-ownership. At best, Hoppe has proven that it would be contradictory to argue that someone does not rightfully own his mouth, ears, eyes, heart, brain and any other bodily parts essential for engaging in debate. But that clearly would not include, say, a person’s legs; after all, it is certainly possible for someone to engage in debate without having any legs at all.” (MC, p. 55-56) This is indeed an often heard criticism of Hoppean argumentation ethics, and to my view, MC are indeed right to criticize the Hoppean account as such. For according to Hoppe: “For one thing, no one could possibly propose anything, and no one could become convinced of any proposition by argumentative means, if a person’s right to make exclusive control over one’s own body were not already presupposed.” (Economics and Ethics of Private Property, p. 342) Hoppe hereby gets indeed involved into a naturalistic fallacy: it is not because I possess my own body, that I therefore also own it. Possession and ownership are two distinct categories, that may not be conflated (we’ll elaborate on this in detail further in this section) with each other. Ownership, in fact, needs an intersubjective justification that can only be reached through the course of argumentation, and not already prior to it, as Hoppe would state. This doesn’t mean that I’m hereby committed to a kind of relativist aposteriorist empiricism of course, since it has been stressed enough in sections III and IV of this essay that during the course of argumentation, one ought to obey the rules of logic. Hence, MC are indeed right to stress that one can indeed argue without having any legs and arms. I’d even go further, and

claim that one doesn’t even need his eyes or ears in order to get involved into a rational discourse, since it is (theoretically) even possible to communicate with other means such as sign language, touching or via electronic computer devices or applications. Does this mean that I hereby hold a plea for ‘zombie argumentation ethics’, in which only persons with cut tongues, amputated legs and dissolved eyes will get involved? Maybe we can try this on the night of Halloween, but in general, the phenomenologist’s answer would be no. How then? For a start, each course of rational argumentation about general intersubjective (legal) rules shall need to start with an intersubjective transcendental reduction. Hereby we leave all our presuppositions – wishes, desires and so-called (political) ideologies about right and wrong – aside; in order to focus upon the pure concepts (logic) ruling the course of intersubjective action. Hence, the transcendental reduction prohibits us to make any valueladen statement about the intersubjective state of affairs we face (cfr. a similar method used in the Austrian School of Economics). This prohibition, or abstinence, from judging then makes it impermissible both to interfere and not to interfere with the other’s human autonomy; since during the operation of the transcendental reduction, not a single intersubjective norm has been established so far. But of course, according to the logical principle of non-contradiction, it is simply impossible both to interfere and not to interfere with the other’s physical integrity. So we then have to take a decision, and choose either way. However, if one is abstaining from judging during the transcendental reduction, then it seems obvious that one simply has to leave reality intact as it appears to him, hence not to interfere with the other’s physical integrity, since in appearing reality, the bodily parts of the other are indeed his; as a mere physiological matter of fact. But this choice for non-intervention of course isn’t yet a justification for the ownership of one’s bodily parts. This is the task of the second step in the course of argumentation, namely the eidetic reduction, in which the preconditions of intersubjectivity are investigated through rational discourse. At this moment, it seems obvious that one recognizes the other as an equal human being, endowed with a same amount of unalienable rights, through the recognition of the principle of metaphysical identity. And of course, then one has to accept the ownership of, at least, the body of each human being as a principle that is both a sufficient and necessary condition to speak of justice; since proposing the other universalizable norm (that no one is his own master, and each one is slave of the other) requires the utopian framework of universal consensus. At this moment, the phenomenological method has indeed established the right of the ownership of one’s entire body. What, then, about property; an enigma that hasn’t been touched upon so far. I’ll quote once again MC: “But now we move on to a more fundamental objection to Hoppe’s argument: one is not necessarily the rightful owner of a piece of property even if control of it is necessary in a debate over its ownership. Because of this fact, a crucial link in Hoppe’s argument fails.” (MC, p. 60) And when we analyze his theory, Hoppe indeed once again conflates the concepts of use (or possession) with property. As he states: “Second, it must be noted that argumentation does not

consist of free-floating propositions but is a form of action requiring the employment of scarce means; and that the means which a person demonstrates as preferring by engaging in propositional exchanges are those of private property.” (TEEPP, p. 342) The right to use (and therefore, to own) scarce means is indeed the second prerequisite of the Hoppean version of argumentation ethics, and thus considered by Hoppe as a necessary condition. Hoppe hereby even adheres to the Lockean theorem of the labour theory of value , when he states that property is an objective link between a person mixing his labour with a piece of previously unowned land or property20. Hoppe even provides us with a philosophical explanation why he adheres to the Lockean theorem: “Finally, acting and proposition-making would also be impossible if the things acquired through homesteading were not defined in objective, physical terms (and if correspondingly, aggression were not defined as an invasion of the physical integrity of another person’s property), but in terms of subjective values and evaluations.” (TEEPP, p. 343) For a start, maybe the most unforgivable fatal flaw in Hoppe's argumentation ethics – and one that generates skeptical replies such as MC's – is the fact that economic scarcity is considered to be a necessary condition for the argumentation to start. But would that really be the case? I don't think so. Suppose that we would live in a world in which the Marxian utopia of a world of economic abundance would have been realized. One could then state that there is in fact no reason for interpersonal conflict to arise, since the problem of scarcity would have been solved. And indeed, according to the Marxian creed, the state would then “wither away” (at least one lucid idea Marx had in mind!) in order to make place for a peaceful, harmonious convivial order. But is it really the case that in a world of abundance conflict wouldn't arise anymore? This doesn't seem plausible, since economic abundance doesn't take away the fact that human beings are still supposed to act as rational beings, and that they ought to make a commitment always to seek for the truth. Indeed, economic abundance doesn't yet take away the laws of logic. As such, the principle of human autonomy – and the reciprocal respect for the integrity of the other's body – still remains the only one that can be logically defended. We may even proceed further: suppose that in this proto-Marxian world a genius human being has finally found an elixir by which he has provided the whole of humanity with the gift of eternal life. Would it then not be possible to strive after a 'universal consensus', as formulated by the Marxists? Even then, this is a statement of mere probability that cannot be taken into consideration in a formal science such as argumentation ethics. It is as probable as the theory of the big crunch in current astronomy, and should hence be neglected21.
20

It is indeed very surprising to see that most Austro-libertarians - including Hoppe but also Rothbard, for example – rightfully attack the Lockean/Smithean labour theory of value in economics, but then silently steep into this paradigm when it comes to political philosophy. As far as I know, the big crunch is a hypothesis in current astronomy which states that the universe will collapse at a certain point in time due to the influence of gravity. The other theory – the big chill – holds the opposite claim, and states that the universe will continue to expand forever. However, due to this expansion, the universe will be so

21

But what then about private property? So far, we have stated that the acceptance of economic scarcity isn't a necessary condition at all for the argumentation to work itself out. Moreover, we've only proved the validity of the ownership of one's own body as a justifiable, universalizable norm. Hence, the phenomenological approach does indeed cut through the link between one's body and one's private property (the so-called unity of the praxeological body), which is mostly taken for granted by libertarian thinkers such as Hoppe. Does the phenomenological approach, which I tried to defend so far, not fail to prove the ethics of libertarian political philosophy, which also includes the right to private property? Not necessarily. Let me quote, at length, a very interesting and enlightening passage from Frank van Dun's Fundamental Principle of Law: “For each human being counts the following: that his life belongs to him, and to nobody else. All these formulas are logical equivalent expressions of the very same fundamental principle of law. Many will be prepared to admit that every human being has a right on selfdetermination, but only provided that this self-determination remains limited to the ownership of his own body (and maybe some “personal” utilities) – i.e. only the somatic means of a human being, but not his extra-somatic means, such as land, instruments and maybe consumption goods. The question then arises whether this interpretation is a coherent one, i.e. if it is possible to give an adequate philosophical justification for such a watered-down conception of human self-determination. In fact, we then deal with a theological interpretation: it presupposes that the extrasomatic means aren't property of a human producer, but of one or the other superhuman instance. [...] Denying that the actor or producer has the right to own his own created mean, implies that someone else has got that right. Such a denial only gains its cognitive value once it is followed by answering the questions: who's got the property title, if not the producer himself? Who has the authority over it, if not the producer? Who's responsible for it? And if not the auctor or producer himself, why then this particular non-producer, and not the other non-producers? Or do only all the non-producers have the property right, and not the producer himself?22” As the principle of scarcity isn't a necessary condition for argumentation ethics (the only necessary condition we take into account is human rationality), the Hoppean may complain that Van Dun hereby provides us only with a 'weak' defense of private property. Indeed, in this illuminating passage, Van Dun walks through the via negativa in order to prove also the validity of private property rights (whereas Hoppe would go through the via antiqua, or the affirmative way, by stating that private property rights are apodictically necessary for the discourse to take place): if no one has the right on private property, then who has this right? This question, in fact, cannot be adequately answered by the opponents of private property; because if one has the right on his own body, but not the right on his extrasomatic means, then there is in fact no one to whom we ought to be responsible in order to merely use the means
cold and idle that no life will be possible anymore. The reason why I gave this small astronomical example, is the fact that it is simply redundant to make any statement about eternity, certainly when applied to argumentation ethics.
22

F. van Dun, Het Fundamenteel Rechtsbeginsel: een essay over de grondslagen van het recht, Antwerp: Murray Rothbard Institute, 2008 (1983), p. 37, 41 ; translation mine.

we find in the world around us. Since, who would that be? It cannot be a human being, because then he would have been granted more rights than the others and hence violated the rules of argumentation. It must be then, indeed, a superhuman being such as God, the Cosmic Order or Mother Nature. Instances with whom we cannot rationally argue, and who are probably rather ideological constructs. Hence, we can flatly deny them, and argumentatively make the valid statement that each person not only has the right on his own body, but also on his extrasomatic means, i.e. property. But is this proof of the validity of private ownership of means by using the via negativa merely a 'weak' defense? In fact, the opposite is true! Consider again our hypothetical world of material abundance: even in this wonderful place, the same 'theological' problem would arise once someone would deny the right of private property. Even in a world of material abundance, one cannot justifiably deny this right. Let us finally address to the failure of using the Lockean homesteading principle to defend this right on private property. We've already noted above the reason why Hoppe adheres to this Lockean dictum, i.e. because it establishes an 'objective' link between the creator and his property. Again, the mixing of one's labour with undetermined matter is just a matter of fact, that can be empirically observed, but which doesn't provide us yet with the justification of it (i.e. the distinction between the quaestio facti and the quaestio iuris of private property) On this topic, we've already elaborated enough in this essay. But there is another problem with the adherence to the Lockean labour theory of property via mere homesteading, namely the fact that this theory of property (again, this is a legal concept, sharply distinguished from possession!) can only hold in a world of material scarcity. This might be indeed the reason why Hoppe was seduced by the Lockean theory of property, since it is also the case for Hoppe that property rights are established in order for humanity not to perish during the course of argumentation. This has some very severe consequences, on which Locke himself already stressed (but on which Hoppe himself remains suspiciously silent...), namely the fact that the total amount of property rights must be limited, and that only those persons who add a certain, objective value to it, have a genuine right to it. In his Second Treatise of Government, after elaborating on his theological framework in which God gave the Earth to human mankind in order to make it theirs, Locke continues as follows: “God gave the world to men in common, but since He gave it them for their benefit and the greatest conveniences of life […] He gave it to the use of the industrious and rational (and labour was to be his title to it); not to the fancy or covetousness of the quarrelsome and contentious.” (Second Treatise of Government, § 34) Once again, I remind the reader of my astonishment that Austro-libertarian authors such as Hoppe and Rothbard one time adhere to the (correct) Austrian view of the subjective theory of value in economics, and the other time to Locke's flawed account of the labour theory of value (23), for the simple reason that Locke's labour theory has some very unwelcome consequences for a coherent and righteous theory of private property. It does indeed state that
23

Concerning Rothbard's commitment to Locke in his political philosophy, see his Ethics of Liberty, New York: New York University Press, 2002 (1982), p. 45-61

those persons who aren't “industrious” enough, cannot bear any property title at all. But who, then, has to decide who's industrious? And industrious to whom? To society? To God? And industrious to what kind of purpose? Once these questions arise, we're falling into an infinite regress. This unjust and unjustifiable theory indeed lied at the heart of Locke's claim that the property rights of the Indians in the English colonies were due to expire, since they didn't care “industriously” enough with the Earthly fruits given by God. And it seems to me that Hoppe as well hasn't avoided well enough the trap laid by Locke. Since at a certain point Hoppe boldly states: “Yet in order for any person – past, present or future – to argue anything it must evidently be possible to survive then and now. And in order to do this property cannot be conceived of as being “timeless” and non-specific regarding the number of people concerned. Rather, they must necessarily be thought of as originating through acting at definite points in time for specific acting individuals.” (TEEPP, p. 343) Of course, Hoppe is quick enough to further proceed – in a genuine libertarian fashion – that the denial of the first-user-first-owner rule of libertarianism, would imply a contradiction, and as such, the reader won't even notice the fact that Hoppe slightly went of the libertarian road for a few sentences. Since the above cited quote reveals that at least implicitly, Hoppean argumentation ethics remains at odds with its intellectual indebtedness to Locke. Because, what does it mean to say that “property cannot be conceived of as being timeless and nonspecific regarding the number of people concerned”? Does this imply that at a given point in time, certain property titles will expire since it won't be possible anymore for late-comers to survive? For example, one may in that case argue that the current existing legal institution of inheritance should be abolished, and that after the death of a certain person, his belongings would simply become 'res nullii' in order for late-comers to survive. Or even worse, one may then advocate a Rawlsian theory of justice in which a 'just distribution' of property is needed for the whole of mankind, including future generations, not to perish. This, of course, is a consequence that Hoppe certainly won't agree with (I may hope so...), but unfortunately, it lies implicitly – as the seed of a potential deathly cancer to libertarianism – at the heart of the Lockean framework. So, then, who is in fact the one advocating a 'weak' defense of private property rights?... Now the Hoppean might indeed challenge the phenomenological/Van Dunian stance to argumentation ethics. If the presupposition of economic scarcity is cut out of the a priori realm of argumentation by using Occam’s razor, and if the Lockean theory of homesteading doesn’t prove the justification of private property; then the question still remains what kind of ‘things’ can be justified as property. Since if we make abstraction of the ‘objective link’ between one’s labour and the matter he transforms, are we then supposed to adhere to a merely subjective theory of value, in the ‘Austrian’ sense? And if so, would this mean that according to the phenomenological approach, there could be a justification for some kinds of subjective ‘imaginary property claims’ (not to be confused with Mengerian imaginary goods, of course) that do not need a physical ‘objective’ bearer; such as – to utter the ugly bastard –

intellectual property? Thus, property titles wherefore it isn’t required to actually have any physical control over it. This would certainly sound horrible to most libertarians. And they are indeed right to do so! Although the phenomenological approach does indeed reject the labour theory of property, which provides us with an ‘objective’ link between producer and certain physical matter, we must hereby point to the fact that property titles aren’t objective, nor are they subjective facts. Rather, they are intersubjective facts, that emerges out of an intersubjective dialogue, according to the principles of rational discourse. A main principle of intersubjective discourse is that the propositions must be knowable to the other. I may say that this particular thought that I have ‘in mind’ is my own property, and that the other has to respect this intellectual/imaginary property right or that he would otherwise be caught op in a dialectical contradiction. On the other hand, the other person could then challenge him with the statement that this pile of stencils and this particular photocopy machine are his, and that he is allowed to do with it whatever he likes24. As such, we have two conflicting property rights. Again, we then have to use the principle of parsimony, and rule out one of those property claims, namely the least knowable. Which is indeed the intellectual property claim, since intellectual property titles don’t occur within a world consisted of ontological substances. As such, we have indeed opened the back door for ‘objectivity’ to come into our theory, and thus ‘objectified’ intersubjectivity, but this still remains only a far cry from the ‘classical’ libertarian rejections of intellectual property that are largely based on the Lockean/Hoppean principle of economic scarcity25. Obviously, even from a phenomenological perspective, one cannot give a rational defense of intellectual property. And once again, our defense against intellectual property seems a far stronger one than the
24

As long as he doesn’t get involved in fraudulent operations, such as violations of certain trademarks, or forging other persons’ signatures; for example. But this would be a matter for discussion in another paper.

25

See e.g. S. Kinsella, “Against Intellectual Property”, The Journal of Libertarian Studies 15 (2001) 2, p. 20 : “Nature, then, contains things that are economically scarce. My use of such a thing conflicts with (excludes) your use of it, and viceversa. The function of property rights is to prevent interpersonal conflict over scarce resources, by allocating exclusive ownership of resources to specified individuals (owners). To perform this function, property rights must be both visible and just. Clearly, in order for individuals to avoid using property owned by others, property borders and property rights must be objective (intersubjectively ascertainable); they must be visible.” I fully agree with Mr Kinsella that property rights must be intersubjectively justified, and must hence be ‘knowable’ or ‘visible’, in Kinsella’s terms. But again, this has in fact nothing to do with the principle of economic scarcity: even if matter is available to abundantly available to us, even then it is indeed only matter – or “Aristotelian substances” – of which property titles can be intersubjectively shared. Nor is the case that the human race would die out of starvation – as Kinsella notes in a very Hoppean fashion on page 19 of the same text – a necessary condition to speak of the injustice of intellectual property: even if the human race won’t die out due of it, it cannot be justified at all without falling into a dialectical contradiction (since neglecting the principle of parsimony in the justification of certain property rights, would be a denial of the laws of logic, since there cannot be two propositions – i.e. intellectual property and physical property are justified at the same time - be true at the same time)

traditional ‘Hoppean’ one, since in our view, intellectual property cannot be justified – again even in a world of economic abundance.

VI. Conclusion

Through a discussion of Husserl’s phenomenological philosophy, we’ve provided a metatheoretical defense of the argumentation ethics as elaborated by professor Frank van Dun. We’ve also tried to show that Van Dun’s account of argumentation is a far more mature one than the more popular account (certainly in the English speaking world) of professor Hans-Hermann Hoppe, since, in essence, Van Dun’s argumentation ethics fully relies upon the principle of parsimony through eidetic variation; hence showing the necessary preconditions of intersubjective action through rational dialogue. In fact, this precondition is the simple fact of human rationality, which cannot be denied without getting caught into a dialectical contradiction. From this principle, the principle of universalizability also follows automatically according to the metaphysical principle of identity (A = A). This, in fact, is the only necessary precondition that should be taken into account in order to prove the ethics of libertarianism, or the fundamental principle of law. Thus it is a stronger, though partially non-praxeological, defense of libertarian philosophy of law; since it states that even in a world of economic abundance, the ethics of libertarianism, i.e. human individual freedom and the right to (physical) private property, remains the only one that can be justified. Leaving aside the axiom of economic scarcity, the phenomenological account of argumentation ethics can provide an adequate answer to authors such as Robert Murphy and Gene Callahan, who attempted to destroy the whole scope of argumentation ethics. And although Murphy and Callahan were indeed right in some of their claims – especially Hoppe’s conflation of use and property (usus vis-à-vis dominium) – their critiques are indeed only valid, due to professor Hoppe’s own treacherous, mainly Lockean, premises of argumentation ethics. Isn’t this not really that new elaboration on argumentation ethics (since it almost fully relies upon the accounts of professor Van Dun) then committed to a kind of mysticism? Isn’t it completely obsolete to speak in apocalyptic terms of ‘worlds of abundance’ , since it doesn’t appear to be very plausible that this Marxian Kingdom on Earth (sic!) will be set in the near future ? Actually, it wasn’t our attempt at all to deny the existence of economic scarcity, but only to make temporally abstraction of it, since this principle isn’t required at all in order to provide a clear account of the method, premises and scope of argumentation ethics. I hope that this contribution will provoke some discussion, since there must be certainly one common ground on which both Hoppean and Van Dunian advocates of argumentation ethics should rely, namely the fact that at least the purpose of argumentation ethics ought to be… argued!

References

Books Hoppe, Hans-Hermann; The Economics and Ethics of Private Property, Auburn (AL): Ludwig von Mises Institute, 2006 (Kluwer 1993), 433 p. Locke, John; Two Treatises of Government, London: Everyman, 2004 (1993, 1924, 1689), 277 p. Ross, W.D. (ed.), The Complete Works of Aristotle: volume X, Oxford: Clarendon Press; 1966 (1938) Smith, David Woodruff, Husserl, New York: Routledge, 2008 (2007), 467 p. Van Dun, Frank; Het Fundamenteel Rechtsbeginsel: Een Essay Over De Grondslagen Van Het Recht, Antwerp: Murray Rothbard Institute, 2008 (Kluwer 1983), 575 p.

Articles Friedmann, Wolfgang; “Phenomenology and Legal Science” in Natanson, Maurice (ed.), Phenomenology and the Social Sciences: volume 2, Evanston (IL): Northwestern University Press, 1973, p. 343 – 366 Husserl, Gerhart; “Justice”, International Journal of Ethics 47 (1937) 3, p. 271-307 Kinsella, N. Stephan; “Against Intellectual Property”, Journal of Libertarian Studies 15 (2001) 2, p. 1 – 53 Kinsella, N. Stephan; “Defending Argumentation Ethics: Reply to Murphy and Callahan”, N. Stephan Kinsella’s website, http://www.anti-state.com/article.php?article_id=312 Murphy, Robert and Callahan, Gene; “Hans-Hermann Hoppe’s Argumentation Ethic: A Critique”, Journal of Libertarian Studies 20 (2006) 2 , p. 53 – 64 Van Dun, Frank; “Argumentation Ethics and the Philosophy of Freedom”, Libertarian Papers 19 (2009) 1, p. 1 – 32 Van Dun, Frank; “Can We Be Free If Reason is the Slave of the Passions?”, The Freeman 57 (2007) 8, p. 31- 38 Van Dun, Frank; “The Lawful and The Legal”, Frank van Dun’s website, http://users.ugent.be/~frvandun/Texts/Articles/The%20Lawful%20and%20the%20Legal.html Van Dun, Frank; “Vrijheid, Argumentatie en Contract”, Murray Rothbard Institute, http://rothbard.be/artikels/77-vrijheid-argumentatie-en-contract