Ultimate Foundation of Private Property, Part 2: Presuppositions of Communication

April 24th, 2014   Submitted by Christopher Zimny

EstopleIn Part 1 I disputed the foundation on which Hans-Hermann Hoppe builds his argument ethics. Because his argument is based on the implications of argumentation itself, his argument leaves no room for recognition of ownership by actors who do not argue with one another. In Part 2, I will review these points, but focus mainly on reconstructing Hoppe’s argument using the basic act of communication, rather than the act of argumentation itself.

Thus, let us begin.

I object (I do not reject, since I would be caught in a performative contradiction) to Hoppe’s justification of the libertarian ethic on the grounds that it requires argumentation itself in order for his insights to follow. In his construction, self-ownership and property rights are only granted to actors who actually undertake discussion with one another in order to avoid conflict over scarce resources. But suppose an actor does not engage in discourse or does not desire a conflict-free environment. Hoppe’s ethic, as proposed, simply does not apply to such an actor. (Indeed, Walter Block, an ardent supporter of Hoppe’s argument, admits: “Suppose [an actor] is a mute who never wrote, spoke or argued about anything. Then, he may commit all the mayhem he wants to, and he is beyond Hoppe’s reach. The ‘fault’ of the argumentation ethics is that it is limited to people who argue.”) This renders the conclusions drawn from his argumentation ethics—including Stephan Kinsella’s estoppel approach, which I will discuss as well—contingent upon both arguing and the wish to avoid conflict, falling short of the universal characteristic that Hoppe seems to have in mind for his argument, which ostensibly shows that all actors have property rights. Here, I aim to remedy that.

Property rights do not exist because there is a wish or a need for peace among actors. They exist prior to peace or conflict. They follow directly from the implications of action itself, whether one acts alone or toward another.

First, I will substitute “argumentation” with “communication”. This opens Hoppe’s argument to all actors everywhere, whether they are arguing or not. Since argumentation is a form of communication, Hoppe’s insights remain unchanged, and the libertarian ethic remains undeniable without performative contradiction. Communication applies to any form of meaningful interaction with one or more actors. Whether a man speaks, writes, exhibits some meaningful facial expression, or hits another man over the head, he communicates. Thus communication itself allows Hoppe’s original implications of irrefutable recognition of property ownership and nonaggression to stand in all cases of action whatever.

A Detour: Distinguishing Between Man and Animals

It must be qualified who, precisely, is an actor in the praxeological sense, and therefore to whom the rights of private property apply. For this, I turn to Ludwig von Mises in Human Action:

We interpret animal behavior on the assumption that the animal yields to the impulse which prevails at the moment. As we observe that the animal feeds, cohabits, and attacks other animals or men, we speak of its instincts of nourishment, of reproduction, and of aggression. We assume that such instincts are innate and peremptorily ask for satisfaction. But it is different with man. . . . [Man] arranges his wishes and desires into a scale, he chooses; in short, he acts. What distinguishes man from beasts is precisely that he adjusts his behavior deliberatively. Man is the being that has inhibitions, that can master his impulses and desires, that has the power to suppress instinctive desires and impulses. . . .

If we were in a position to interpret such [animal] behavior as the outcome of purposeful aiming at certain ends, we would call it action and deal with it according to the teleological methods of praxeology. But as we [find] no trace of a conscious mind behind this behavior, we suppose that an unknown factor—we call it instinct—[is] instrumental. We say that the instinct directs quasi-purposeful animal behavior and unconscious but nonetheless serviceable responses of human muscles and nerves. . . . We must never forget that this word instinct is nothing but a landmark to indicate a point beyond which we are unable, up to the present at least, to carry our [praxeological] scrutiny.

Praxeology—and thus the rights of property—apply definitely to man. Whether praxeology proper and the rights of property apply to animals as quasi-actors is yet an open question. I must leave this important matter to be discussed elsewhere. Here, I am concerned with deriving the rights of acting man and not of quasi-actors.

Ownership of Objects Outside of the Body

All goods are used exclusively by a specific actor at a specific point in time. Such objects have a history of exclusive use and a history of de facto ownership, which are separate things. The individual, in order to claim ownership of an object, must physically appropriate the good. He must artificially deviate it from its natural course for use as a means to some conscious end. If an object in nature has never been used before by an actor, and an actor physically takes it from nature, one may rightfully call oneself the de facto owner of the object. Since no one else made use of it before, another actor’s claim to ownership is ipso facto an illegitimate claim. When the original appropriator of a good uses it to create another good, this good, too, becomes his own. It is an extension of what was originally appropriated from nature. This is production of properly owned goods. When a person trades any properly owned goods for the goods of any other person gained in the same way, this is an exchange of properly owned goods. When a person gives such goods away, it is a gift of properly owned goods. Thus is the history of properly owned goods. Any person’s conscious deviation of a good from this chain of ownership is ipso facto an illegitimate appropriation—or expropriation. (It is possible for a man to exclusively use an illegitimately gotten good, i.e. stealing it, or for a man to damage a legitimately owned good of another actor, which interferes with this actor’s ownership of the good. Both of these actions constitute aggression against property. Redress against such aggression is discussed below.)

Presuppositions of Intrapersonal Communication

Inherent in the ability to act is the ability to communicate with oneself. One must consciously choose what ends one wishes to meet in order to act. This is a self-evident, praxeological truth. Without this ability, one would be unable to act. One would by definition be an inanimate object. Actors act. And in order to act, actors must communicate with themselves.

Communicating with oneself presupposes ownership of oneself. An individual is the first user of himself—the first to appropriate himself from nature. Therefore, he is the proper and exclusive controller of them, for no one has a better claim to the actors own mind and body than the actor himself. Because of this fact, asserting otherwise would result in a performative contradiction, for in the very act of declaring that one does not own oneself, one recognizes proper and exclusive ownership of oneself.

One could not communicate with oneself, nor could one act, without existing in order to do so. Existing as a conscious actor at any particular point in time implies previous action using means outside of one’s body prior to an action. In other words, communication presupposes exclusive control over objects outside of the body. If it were otherwise, the individual would not exist to communicate. Exclusive use of objects by actors at some point in time implies a history of exclusive and legitimate use of such objects, ultimately dating back to an act of original appropriation. In short, communication and acting presuppose exclusive use of objects outside of the body, and since exclusive use by certain actors has taken place at a certain point in time, that such objects necessarily have a history of exclusive and legitimate use.

Thus, contra Hoppe, Robinson Crusoe may live on an island and exclusively own his own body as well as legitimately own his possessions, regardless and independent of another actor’s existence on the island. These principles are presupposed insofar as Crusoe communicates with himself, which he necessarily does as a condition of acting. There is no need for Friday to introduce potential conflict, nor for Crusoe to have discourse with him, in order to establish Crusoe’s self-ownership and proper ownership of property. Ownership of property is necessarily antecedent to peace, conflict, and discourse.

Presuppositions of Interpersonal Communication

Indeed, meaningful, i.e., interpersonal, conflict would never arise if only one actor were present. Such conflict could only arise if another actor presented himself, and still there would be no conflict if the two actors never communicated. Thus, the nonaggression principle only becomes apparent at the same moment it becomes needed—that is, when the two actors decide to communicate, whether argumentatively or leisurely, physically or verbally. (This, too, is an important deviation from Hoppe, who claims that the nonaggression principle only becomes apparent after the two actors decide to submit themselves to discourse.)

As I have shown, in order to relate in any way with himself or his fellow man, man must make use of some mode of communication. Through communication with his fellow man, the principle of nonaggression is necessarily established. When one communicates (or even intends to communicate) with another person, one is required to assume that the receiver of the communication is able to understand and contemplate it. If one did not expect the other to understand the communication, the statement itself would, naturally, not be interpersonal communication but words spoken in self-contemplation. In brief, by communicating (or intending to), one supposes that the receiver is also an actor. Therefore, one presupposes and recognizes the receiver’s equal self-ownership. Since one, by virtue of being an actor, has already recognized ownership of objects outside of the body and their history of ownership, one must assume the receiver’s exclusive control of objects outside of the receiver’s body and their history of ownership. Without such use and ownership, the receiver of one’s communication would not exist to receive the communication. Since this is necessarily assumed, it is presupposed that undue aggression against the receiver of one’s communication or the receiver’s legitimately owned property is an illegitimate invasion of property rights. (In order to avoid misinterpretation, I hasten to mention that such mutual recognition does not establish specifically what property is owned or specifically when it was legitimately owned, just as no praxeological theorem can give quantitative insight, but can only give qualitative insight. The history of ownership of a good itself is a matter of examination and dispute should conflict over it arise.)

Communication Ethics and Communicative Estoppel

Stephan Kinsella has added an important element to Hoppe’s argumentation ethic which he calls “dialogical estoppel”. Instead of focusing on discourse between two rights respecting actors, as Hoppe does, Kinsella considers discourse between an aggressor and his victim. Kinsella shows that an aggressor is unable to argumentatively justify an objection to being punished for his aggression, for the aggressor has established that aggression, at least to the degree that he himself has aggressed, is a legitimate invasion of property rights. Thus, the aggressor could never meaningfully object to being punished for his crime. He is “estopped”. However, as Kinsella admits, an aggressor is only estopped if he argues, for only then is he caught in a performative contradiction. Thus, Kinsella’s argument too is contingent upon discourse.

I want to reconstruct his argument as well and show that an aggressor is estopped prior to any actual discourse by drawing it from the principle of nonaggression as I discussed it above. As I have intimated, an aggressor communicates with his victim in the very act of aggressing. Since he communicates with the victim, he performatively contradicts the principle of nonaggression that he has thus supposed. The aggressor, through his communication with the victim, has established that aggression, at least to the extent that he himself has aggressed, is a legitimate invasion of property rights, and could thus never meaningfully object to being punished for his crime. In other words, a criminal is estopped from objecting to punishment for his crime the very moment that he commits the crime. A man who robs another man or communicates with his fists is ipso facto estopped. The victim’s equal degree of punishment of his aggressor for violation of his rights therefore constitutes due redress. Not a word needs to be said. There is no need for the aggressor to performatively contradict himself through argumentation in order to establish the principle of communicative estoppel.

A Final Word on Argumentation Ethics and Dialogical Estoppel

Here, I want to take the matter of private property, crime, and punishment as provided by Hoppe and Kinsella to their logical conclusion. Suppose that all actors remained silent, choosing not to partake in any discourse whatever. Thus, there will be no discourse over scarce resources or over the bodies of the actors and the space that they occupy. Hoppe would hand such a society potential conflict over scarce resources and nothing that they could use to deal with their conflicts, for they do not speak. But the case becomes worse, for if one follows his “argumentation ethics”, there is by definition no presupposition—and therefore no mutual establishment—of self-ownership or property rights. And there can be no invasion of such rights, for such rights are nonexistent; the discourse that presupposes and establishes them has never taken place. Property rights—as Hoppe says, the only viable solution for potential conflict—are prevented from coming into existence in the first place. Thus, one would follow Kinsella’s “dialogical estoppel” approach to nowhere. An actor who commits a violent act against another actor would never even need to open his mouth to defend himself, for there would be no crime to defend himself against. He would not have invaded anyone’s property rights, for they were never presupposed and established by dialogue to begin with. Not only would the estoppel principle never be needed, it would not even exist.

It seems evident in light of such a hypothetical example which ethic is better equipped for actors in general. Hoppe’s argumentation ethic and Kinsella’s approach to estoppel apply only to actors who argue, whereas communication ethics as I have constructed them necessarily apply to all actors universally, stemming from the a priori implications of action itself. Thus, the actors in such a society would nevertheless presuppose and establish self-ownership and private property through communication, and, insofar as they communicate with one another, nonaggression and estoppel.


All actors inherently presuppose the principles of action, self-ownership, and private property, and insofar as communication is intended in any form by on actor to another, one presupposes the principles of nonaggression and estoppel. The truth of these principles cannot be undone by any actor, for they are implied in the concept of action itself. With such axiomatic ground for the existence of private property thus established, the essence of Hoppe’s argumentation ethic has been wholly vindicated.

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7 Responses to “Ultimate Foundation of Private Property, Part 2: Presuppositions of Communication”

  1. HReardenNo Gravatar says:

    Seriously? You don’t believe that one has property rights? Really?

  2. Foo QuuxmanNo Gravatar says:

    You may find this interesting, it links property to animal territoriality and gives good reason for why such a thing would exist.

    http://catb.org/~esr/writings/cathedral-bazaar/homesteading/ar01s 14.html

  3. I’ll read this in detail later. Couple of preliminary questions (if you address them in the text, my apologies).

    First, what is *your* foundation for property rights? Could you briefly summarize?

    Second, I pointed you elsewhere to other passages in Hoppe and other important works you ought to try to grapple with in these critiques–in particular, Hoppe’s long footnote explaining what is wrong with Gewirth/Pilon’s focus on action instead of argumentation; and subsequent and other defenses of a similar idea by others, such as (and especially) Frank Van Dun’s defense of Hoppe in Libertarian Papers from a few years ago. I’d be curious as to see your take on these points/arguments, at some point.


  4. YohanNo Gravatar says:

    Christopher in all my reading of Hoppe’s AE and Kinsella’s numerous elaborations, I have always taken the word ‘argumentation’ to actually mean ‘discourse’ or ‘communication’. I presumed Hoppe just used a different word to distinguish his branding against Habermas and Apel’s use of ‘discourse ethics’.

    So when you claim to substitute argumentation with communication, are you sure you are not just playing semantic word games?

    For example, ‘when the two actors decide to communicate’ you claim is an important deviation from Hoppe’s ‘after the two actors decide to submit themselves to discourse’. Well I would say this is a stretch of the use of language, along with some of the other claims to differences.

    Don’t get me wrong, I really enjoyed your elaboration of AE, and too few people out there have taken up the challenge to expand and elaborate on this topic.

    • VanmindNo Gravatar says:

      Could people not call out Hoppe as well for similar semantic shenanigans?

      I have only read his “Theory of Socialism and Capitalism.” Mostly great stuff in there.

  5. To Stephan and Yohan,

    I’ll have to read that paper by Van Dun (along with all the other papers you sent me on Facebook). And Yohan, that’s a good point, although he says repeatedly in many different places that argumentation ethics stem from the act of argumentation *itself*, hence why I wrote this. I’ll respond in more detail as soon as I get enough time. I’m very busy until tomorrow night, but I’ll try to get back to you before then.

  6. ConzaNo Gravatar says:

    Re: “…First, I will substitute “argumentation” with “communication”. This opens Hoppe’s argument to all actors everywhere, whether they are arguing or not…”

    = That’s not necessary given it’s already been done. Block is also wrong in his characterization/understanding:

    “Any truth claim, the claim connected with any proposition that it is true, objective or valid (all terms used synonymously here), is and must be raised and settled in the course of an argumentation. Since it cannot be disputed that this is so (one cannot communicate and argue that one cannot communicate and argue), and since it must be assumed that everyone knows what it means to claim something to be true (one cannot deny this statement without claiming its negation to be true), this very fact has been aptly called “the a priori of communication and argumentation.”
    — Hoppe, EEPP, p. 314

    And; “Indeed as it is implied in argumentation that everyone who can understand an argument must in principle be able to be convinced by it simply because of its argumentative force, the universalization principle of ethics can now be understood and explained as implied in the wider a priori of communication and argumentation.[20]
    — Hoppe, EEPP, p. 316