Stephan Kinsella has explained the thought process that led him to overturn the libertarian theory of Intellectual Property. Initially, he accepted the starting premise of almost all other libertarians that IP is valid. Pro-IP libertarians began with this premise and then looked for ways to justify it as a foregone conclusion, but Kinsella noticed that they only came up with bad arguments:
I still assumed IP rights were, somehow, legitimate property rights… So I dove deep into the literature and tried to find a way to justify IP rights, only to keep hitting dead ends. Every argument I could come up with was as flawed and shaky as Ayn Rand’s.
Kinsella then took a different approach. He explored the hypothesis that arguments for IP are weak because IP is incompatible with libertarian theory. This was a decisive step in coming up with a different approach:
No wonder I had been failing in my attempts: I had been trying to justify the unjustifiable!
Rather than prejudging the conclusion and looking for supportive arguments, he identified sound arguments and then accepted whatever conclusion those arguments led to. The result was that he corrected a long-held error in libertarian theory and showed that IP is invalid.
The Problem Of Motivated Reasoning
Pro-IP libertarians were using motivated reasoning when thinking about IP. They knew the conclusion they were supposed to reach and tried to retrofit their arguments to it. Kinsella did not use motivated reasoning, so he was able to come to a sound conclusion.
I give this background because I now want to point out that Kinsella explicitly uses motivated reasoning when it comes to his theory of acquired rights and his dismissal of the theory of inherent rights. As can be seen from the title of Kinsella's main article on the origin of rights, "How We Come To Own Ourselves", he starts out with the assumption that rights must be acquired at some point rather than being inherent: Kinsella says we "come to" own ourselves. Given this assumption, he thinks that the only remaining question to answer is exactly when rights acquisition takes place.
In this way, Kinsella has prejudged the validity of acquired rights theory much like the pro-IP libertarians prejudged the validity of IP. He openly admits to using motivated reasoning when thinking about rights theory and does not seem to be aware of any problem with the admission. He says:
we know the endpoints: zygotes have no rights; adult humans do. Somewhere in between we develop rights.
How does Kinsella know the end points? He prejudged them. This reasoning would be equivalent to saying "we know IP is valid, now we just need better arguments to show why." This approach cannot lead to a sound conclusion.
If Kinsella used the same approach to rights theory as he did to IP, he would instead start with the premise that for any rights theory to be valid, it must be compatible with sound meta-ethical principles derived from the logic of argument. He would then evaluate theories of inherent vs acquired rights against this criterion. The conclusion would be whatever is supported by the arguments.
Ironically, Kinsella believes that advocates of inherent rights are themselves the ones using motivated reasoning. He thinks one would only claim that rights are inherent in deference to religious dogma. He does not seem able to imagine that there could be secular arguments for inherent rights. However, there are lifelong atheists who have concluded– for entirely secular reasons– that rights are inherent. I am one of them.
Pointing out that Kinsella has used motivated reasoning does not constitute a detailed critique of his arguments for acquired rights or a defence of inherent rights theory (although that may be a topic for a future post). My goal in this post is just to point out the overall problem in the way that he has approached the question until now. I hope Kinsella will rethink the question of inherent vs acquired rights without prejudging the conclusion.