Concerning Estoppel

April 26th, 2014   Submitted by Christopher Zimny

EstopleArgumentation ethics or communication ethics does not establish what is morally right or wrong, it only establishes what is the case. For instance, the praxeological theorem of exchange shows only what happens when two actors trade goods; it does not say this is a morally good thing (at least in an objective sense). The praxeological theorem of theft (in the economic sense, not the ethical sense) states only the conditions under which theft can take place. It does not say or prove that theft is a morally bad thing.

Argumentation ethics and my adaption of it, communication ethics, logically shows, in short, that whenever one communicates, even with oneself, one presupposes that one has exclusive control and legitimate ownership of one’s own body and objects outside of the actor’s body; in order to communicate with another person, insofar as one expects the other person to understand what is being said, one must assume that the other person also has these same rights. It follows that any undue aggression against these implicitly recognized rights is an illegitimate invasion of them.

Now, because communication ethics establish praxeological truths, it cannot prove that they are moral truths. It merely establishes that actors have property rights, and that removal of legitimately owned property is aggression. The connotation of what ought or should be done in a case of aggression comes from the logical implications of retribution for aggression, i.e., the estoppel approach.

Kinsella’s dialogical estoppel shows that an aggressor is unable to meaningfully object to being punished for aggression insofar as he actually attempts to defend himself against punishment, for the aggressor has established through action that aggression, at least to the degree that he himself has aggressed, is a legitimate invasion of property rights. In my reconstruction of Kinsella’s argument, the aggressor is implicitly estopped the very moment he commits an invasion of property rights; there is no need for the criminal to object against punishment for his crimes so that estoppel can be recognized.

I have several thoughts on estoppel which are problematic for the praxeologist who is:

1.) Attempting to show that an aggressor, in his action, affirms that retribution is a legitimate action, when it is clearly not, if one follows communication ethics up to this point (homesteading, history of ownership, intrapersonal, and especially interpersonal communication).


2.) Attempting to derive a standard of justice (which does, by the way, imply or connote that there is an objectively correct or incorrect, morally right or wrong standard of retribution or recompense), for which no praxeological standard can be found.

Where the former is concerned: the principle of estoppel assumes that an aggressor implicitly recognizes that aggression—at least to the same degree that he himself has violated the property of another—is legitimate. But insofar as the principle of mutual recognition of property rights holds true (and it does) through interpersonal communication, a person’s violation of another’s property rights cannot imply that the aggression is legitimate, not even subjectively, i.e., for the aggressor himself. For it is the case—indeed, it is objectively the case—that the aggressor has acted in an illegitimate way toward the victim’s property. The aggressor’s actions therefore cannot be said to be legitimate in any sense at all. This cuts the head off the estoppel approach, and thus renders the rest of it void of any use.

However, even if one assumes that estoppel is valid, the idea crumbles into shambles and smithereens if one attempts to apply it in reality. The estoppel approach says, in effect, that the victim is entitled to equal recompense from the criminal. But what does equal recompense mean? If a person steals a ring, for instance, what qualifies as proper recompense? A new ring? The same ring? The monetary value of the ring? Or perhaps a totally different article of equal value? And what of the time and efforts used to recover it? The victim is entitled to—what? But in a way all of these questions are beside the point, for the praxeologist knows that value is in the eye of the beholder. In other words, the value of any good is completely subjective, and unique to every actor. This is a basic economic truth. Therefore, there is no standard of measurement, and no objective or praxeological way to determine what “equal recompense” actually means. The praxeologist is at an utter loss here. Thus, even if the estoppel approach follows from the principles of private property and non-aggression, it is an inoperable concept, and quite nearly meaningless. (In fact, the only situation in which it might be applicable, because the situation is so absolute, would be if the aggressor murdered someone. In this case, using this standard, it is quite obvious that the murderer deserves death. But even still, suppose he murders two people—one can’t very well kill a man twice.)

So, considering these things, what should one think of the estoppel approach to aggression? It is an illogical concept from the start if it is said to stem from the principles of private property and non-aggression, and from the praxeological point of view its application leads to naught.

Although I did write in affirmation of it in my article on communication ethics, I now think it’s an empty concept. While it has good merit for what it is (and good on Kinsella for the attempt to tie it into argumentation ethics), it makes no more sense than a round square, and can no more be applied to reality than Plato’s theory of forms.

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8 Responses to “Concerning Estoppel”

  1. jonNo Gravatar says:

    If one argues with oneself that presupposes that one owns their own body unless they’re crazy or under control of a microbe or chemical imbalance that causes them to do things they wouldn’t otherwise do.

    I wonder how much Curry’s paradox has to do with this. I’m well versed in logic so I would have to think about it for a while. Plain English for the layman would be nice.

  2. CDNo Gravatar says:

    I don’t think your opposition to estoppel is entirely correct. The legal theory of estoppel can apply both to actions that are licit and actions that are illicit. For instance, someone who knowingly violates a statute concerning public safety, and who commences to injure someone by violating that statute immediately after, could be said to be “estopped” from claiming lack of knowledge of the statute as a defense.

    In this instance, Kinsella’s theory could best be put like this. If low-life criminal Andre is sitting at home, and Boris breaks in and robs him at gunpoint, Andre is likely to complain and want restitution. This desire for his own restitution when he’s the victim (which can be presumed in a society based on private property) would “estop” Andre from denying the validity of restitution when he later robs Clarence.

    So, in the context of Kinsella’s dialogue, the positions that would be inconsistent for Andre are (a) he clearly could be presumed to watch jealously over his private property, and may have asserted that in the past, and (b) he has attempted to violate others’ property. Those are the contradictory assertions that would give rise to estoppel.

  3. Sam SpadeNo Gravatar says:

    Estoppel be damned. I am a sovereign state. In so becoming it was necessary for me to come to terms with myself about the time by whence I should lick my wounds and move on. I can’t set that term for others — I can only refrain from engaging in aggression.

    As a sovereign state I have boundaries across which you must not step without my explicit permission. Or, I wish you wouldn’t. I’m old and feeble and not as capable as I once was to restrain you.

    But I probably can’t stop you, and that’s what’s being discussed here. I think.


  4. Rick DiMareNo Gravatar says:

    In plain English, is it the Hoppe/Kinsella view that victim rights don’t exist unless the victim is able to effectively ARGUE that s/he is being victimized, presumably in a court of law?

    Stated/asked differently, it is not enough that the victim COMMUNICATES in various non-verbal ways, so the victim must ARGUE??

    • To have rights one must be able to have moral claims against others, and these have to be rationally justifiable. People have to claim their rights, and understand them and each other. They have to be able to communicate enough to know that they agree to respect each other’s rights. That requires intelligence, conceptual faculty, and some ability to communicate, of course. Without these traits, interpersonal morals and rights are inconceivable.

      • Rick DiMareNo Gravatar says:

        Okay, Stephan, I can see your point, but I also can’t accept the idea that we should ignore blatant (and sometimes heinous) abuse of minors (and other categories) simply because they cannot, in a court of law, “claim their rights and, understand them and each other.”

        Ignoring the (often unsophisticated) plight of those who can’t express or defend themselves is not “libertarian” to me, and not something I’d be proud of if I were to identify as a libertarian.

        • “Okay, Stephan, I can see your point, but I also can’t accept the idea that we should ignore blatant (and sometimes heinous) abuse of minors (and other categories) simply because they cannot, in a court of law, “claim their rights and, understand them and each other.””

          What you can or cannot accept or not is not the criteria. Anyway, take a look at Lomasky’s piggybacking argument.

          • Rick DiMareNo Gravatar says:

            “What you can or cannot accept or not is not the criteria.”

            Regarding the topic we’re discussing, yes it is. In my view, by your logic, you’ve given yourself permission to ignore anyone rights you don’t agree with, simply because of your advantaged position in the social structure. I cannot accept your view that I don’t have rights if I can’t argue with you in a court of law. The rights might not be defended by anyone, for example, if I can’t find a lawyer to defend them, but they are still there.