Announcing new book on bitcoin and legal theory

The first of several concurrent research and writing projects has just hatched: Are Bitcoins Ownable? Property Rights, IP Wrongs, and Legal-Theory Implications.

This is a study in the foundations and implications of action-based jurisprudence, forged through applying it to bitcoin. This brings together for the first time the two major fields on which I have been writing over the past five years.

The context includes relationships among crypto-anarchist thought (such as contract assurance through software code), conventional legal administration (bureaucratic classificationism and rule through law), and ideal legal practice (actual promotion of justice), as well as related philosophical issues such as the combined use of multiple knowledge fields and the ethics of legal practice. Among the book’s central themes is whether and how the same principles that both support property rights in measurable objects and locations and argue against IP claims in copiable ideas and abstractions may apply to the unique new case of bitcoin.

Here is the back-cover description:

Bitcoin has fresh implications for economics and law at many levels. This book addresses whether bitcoins ought to be considered ownable under an action-based approach to property theory, which—like bitcoin itself—transcends the boundaries of existing positive law jurisdictions. Beyond instinctive answers is a rich opportunity to examine the many technical facts and legal-theory issues involved. Bitcoin has a unique new place among types of economic goods, between the physically and spatially defined goods of property theory and the copiable, abstract ideas, patterns, and methods associated with IP rights. It does not fall so easily into existing categories.

The author brings together here for the first time his work in an approach to legal philosophy grounded directly in the analysis of human action, which he has termed action-based jurisprudence, with his several years of writing about bitcoin from a monetary theory perspective and contributing through articles, presentations, and video productions to raising general public understanding of how Bitcoin works on a technical level.

This content (22,000 words) is licensed under Creative Commons and has been made available in commercial paperback and Kindle versions on Amazon as well as other ebook store versions, and a free PDF of the paper version to facilitate quick and full access to the text, previewing, sharing, text searching (beats an index), quoting, and citation by page number.

Ways to support this work and encourage future work like it include spreading the word and sharing, writing reviews on Amazon and elsewhere, posting quotations, and buying a commercial edition.

Most of all, enjoy. Hopefully, no reader’s views on the topics addressed will remain entirely unaffected. Mine were not.

Paperback edition at Amazon ($6.99)

Ebook stores ($2.99): Kindle edition (free under Kindle MatchBook program for buyers of paper version), iBooks, Kobo, Nook, Oyster, Page Foundry, andScribd.

PDF of paperback edition (Free supplement to commercial editions or consider sending an optional bitcoin tip)

Watch the five-minute video introducing the book on my Amazon author page, which can also be followed for future releases.

The paperback version is available at least on US, UK, and EU area Amazon sites, but not sure about elsewhere. The Kindle version is available on most national Amazon sites worldwide.

Another layer of distinction behind Tucker’s humanitarians and brutalists

Jeffrey Tucker’s article “Against Libertarian Brutalism” (12 March 2014) describes two broadly drawn ideal types within the libertarian movement. After briefly presenting and discussing these, I will suggest what I think is a more fundamental distinction that might help illuminate the background to the perception of these proposed ideal types.

Tucker’s “humanitarians” are said to be drawn to and consider liberty in a positive context of its role in promoting individual and social flourishing and prosperity. This is above all a constructive and forward-looking appeal to the best of human social possibilities, promoting creative cooperation over both ad-hoc violence and systematic control.

The “brutalists,” in contrast, are said to emphasize a strict application of a few core principles and self-consciously eschew nuances of context, application, and image marketing. Moreover, brutalists are said to not only support, but even proudly embrace, the rights of persons to engage in what are today broadly considered negative and even reprehensible pursuits, such as for example, refusing to associate with certain types or classes of persons based on various demographic characteristics. The brutalist, in this view, not only embraces individual rights because they promote positive social values, but because they can be used to defend the rights of individuals to make what are today generally considered highly backward social choices.

With this stylized typology in mind, it is first of all fascinating to observe that the general public perception and straw-man concept of libertarianism is precisely this “brutalist” picture. In this popular image of libertarianism, it is a position that promotes a few simplistic and unrealistic ideas over any and all other competing values, perhaps due to some mysterious sociopathic refusal to integrate with ordinary society. And yet, it is also true that certain ways of presenting and discussing libertarian positions do help contribute heartily to this “brutalist” image in the popular imagination. Some statements in this genre are positively cringe-worthy by almost any standard.

While the humanitarian versus brutalist model may be of some help in advancing this conversation, I think another way of framing the background could bring additional clarity. I have come to believe that a great weakness in the heart of libertarianism has been the failure to differentiate legal from ethical issues with sufficient and systematic clarity. What are actually strictly legal-theory questions have been at times vaguely identified as “moral” or “ethical” questions when they are nothing of the kind. One origin of this has been the desire to distinguish “ethical” matters of ought from strictly economic-theory treatments of social issues. Yet not all that is non-economic is necessarily ethical in nature. In fact, much of the non-economic in social discourse is specifically legal rather than “ethical.”

The core of the libertarian position on political philosophy is a position on property theory, a topic belonging squarely within the domain of legal theory. Those who have sought to defend libertarian positions on property theory have at times seemingly fallen into the trap of downplaying the importance of authentically moral and ethical issues. The trap is sprung because proponents of alternative positions on property theory (various forms of forced redistribution) often use ethical rhetoric in their attempts to justify their various proposals for institutionalized takings.

In a developing body of work beginning in 2011 that I have labeled under the heading of action-based jurisprudence, I have sought to more carefully differentiate the realms of legal theory and legal practice both from each other and from the realms of ethical and moral theory and practice. One of the simplest ways to get across the kinds of distinctions proposed is to say that legal theory defines what “theft,” for example, is, whereas ethical theory provides advice on, among many other things, whether or not one ought to steal. That is, legal theory is fundamentally a cognitive discipline, whereas it is ethical theory (and aspects of legal practice; what should be done?) that are disciplines properly dealing with oughts and shoulds.

On this basis, the following picture emerges in terms of Tucker’s ideal types: the “humanitarian” libertarians are not willing to neglect or play down the legitimate importance of complex moral questions next to (fundamentally property-theory based) libertarianism. The “brutalists,” meanwhile, on a favorable interpretation, are concerned that misplaced attention to moral and ethical concerns could be used (and very often is used) to justify systematic violations of legal principles, principles that are among the defining characteristics of civilization as such.

My suggested path toward a resolution of this dichotomy has several steps. First, all parties should seek to clearly differentiate a separate scope for legal theory and for ethical theory. They are two quite distinct fields, the confusion of which has led to unending injustice and immorality on a society-wide basis. Second, embrace the insights that are to be gained from each of these quite distinct fields, and apply them each in suitable ways. Either/or must give way to yes/and when it comes to working with multiple fields, each one of which has valuable and distinct insights on offer.

Legal theory provides the definitions of property boundaries, the outermost boundaries within which ethical social action can possibly take place without becoming legal infringement in the process. Within this widest scope for possibly ethical actions, various specific ethical conceptions then seek to inform and advise actors as to which among the many possible ways to live within the sphere of the legal are also morally desirable and laudable in addition to merely not being acts of aggression in the property-theory sense.