The Genesis of Estoppel: My Libertarian Rights Theory

I’ve been ruminating recently about my “libertarian career”—the one that has run parallel to my law career. Here are a few more thoughts and recollections, focused on the libertarian topic that has always greatly interested me: rights theory: what our rights are, what rights mean, how we justify them. (N.b.: This is a bit self-indulgent and probably only of interest to a very small number of people, so trudge on at your peril…)

When I was younger I was interested both in STEM topics as well as philosophy, but had almost no views on political or economic topics. I was basically tabula rasa. Reading Ayn Rand in high school catapulted me into deeper interest in philosophy, political theory, economics. I ended up going to LSU and studying electrical engineering (started in 1983), but I was also devouring this other kind of material “on the side.” I started getting the itch to have conversations or interactions on these topics with others, but it was hard to find anyone to talk about them with. Frustrating. You can’t find engineering students who care about this stuff. And there was no Internet back then. This itch is probably one reason I eventually gravitated towards law school. I gradually realized I would not be satisfied being a practicing engineer. I liked using normative and verbal and legal type reasoning and argumentation too much, plus the scholarship opportunities a law career can offer. I liked writing. Engineering would not have suited me—it would have been too stultifying and boring.

In any case, in college I occasionally attended some artsy things, like Free Speech Alley, a couple of Libertarian Party meetings, some plays, etc., but it was always a dud. Even though I liked math and the sciences and found electrical engineering interesting and challenging, I was sort of a frustrated wanna-be humanities type.

For a while I was heavily involved with local versions or chapters of the national Skeptics’/Secularist groups like CSICOP. I finally quit them out of frustration (and boredom). I played D&D once or twice with friends, but didn’t get it. Yawn. I went to arthouse movies with English major friends and read their draft plays. But it was always short-lived, a strain. It should go without saying that I find all this youthful probing and searching a bit embarrassing now, but hey, what the hell. It’s life.

After getting tired of wasting my time on such pursuits, being a bore to friends clearly not interested in ideas, and so on, I started writing letters to the editor to the local newspaper and the LSU student newspaper, The Daily Reveille. I eventually persuaded some editors at the Reveille to let me be an occasional guest columnist. I published a few while I was in grad school pursuing my MSEE and then later as a law student (from about 1987 to 1991). I remember I would have to walk to the offices of the Reveille, find a terminal, and type my entire article in by hand from my own printed copy (which I had typed on my home computer, a Franklin Ace Apple II+ clone—but I knew of no easy way to transfer the files from my computer to theirs—no thumb drives, email, etc.), adding formatting codes and editing it myself. This was 1988 or so. Times were very primitive, technologically. No laptops in schools, yet, yada yada. I wrote now-embarrassing columns defending Israel (2), opposing minimum wage, arguing for a national sales tax, the voucher system—all on sort of Milton Friedman/Randian type grounds. This minarchist/moderate phase was pretty temporary, however, since I was on the cusp of shifting more into hard-core Rothbardian-style anarchist libertarianism.

In any case, during this time, I felt I had a dual life: engineering (or law) classes and normal friends on one side; and, on the other, I was getting interested in reading and writing on economic and normative matters—and libertarianism—that had little to do with my regular studies and that none of my friends were interested in. Just about the only friend I had who was interested in ideas was Jack Criss, a libertarian-Objectivist from Jackson, Mississippi, whom Objectivist David Kelley had introduced me to. I finished my MSEE in 1990 and graduated from law school in 1991, and then went to London for a year to get a master’s in law from King’s College London in 1992, before joining a Houston law firm to practice oil & gas law in 1992. Soon thereafter I shifted my practice to patent and intellectual property (IP) law.

As I noted in my previous post, since the beginning of my legal career I’ve published a great deal on both legal topics and libertarian topics. In the legal sphere most of my writing involved either patent/IP law (my main practice area) or international law (the focus of my LL.M.). In the libertarian arena, most of my more serious or scholarly writing has focused on libertarian legal theory, much of it published in law reviews or legal journals, in part so I could “count” some of these articles as “legal” publication for my legal c.v. Some of these papers will be included in my upcoming Law in a Libertarian World: Legal Foundations of a Free Society, due out later this year.

Nowadays, among libertarians, I’m best known for my work on IP policy and theory, such as my 2001 JLS paper Against Intellectual Property and subsequent publications, speeches, and lectures. Part of the reason my IP writing has gained more attention than other topics is the increasing interest in IP in libertarian circles since the advent of the Internet in the mid-late 90s, plus the fact that I have been in a unique position to write about IP from a libertarian perspective given my legal practice. But I’ve always been more interested in rights theory than in IP law and policy.

Now back in 1988, during my first year of law school, as I’ve recounted before, I came across the concept of “promissory estoppel” in contracts class. This is basically the idea that if you make a representation or statement that someone relies on, you can’t “be heard” to contradict that later on in a dispute with that party. You are “estopped” from contradicting your own previous assertions. Thinking more about this fascinating (to me) legal concept, the germ of an idea occurred to me: that an argument could be constructed along similar lines as the legal estoppel argument to justify libertarian rights, mainly because of the extreme “symmetry” of the libertarian non-aggression principle. In libertarianism, we say that initiated force (aggression) is impermissible, but that force in response to aggression is permissible. It occurred to me that one way to characterize or justify this formulation is to say that normally, a person can object to force—unless, that is, he has himself initiated force, in which case he is “estopped” from complaining. He is unable, in effect, to object to his victim’s use of (retaliatory or defensive) force against him because this would be inconsistent with the implicit rule he had relied on, or “announced,” in his previous act of aggression. He would be “estopped” from objecting to punishment. But an innocent person would not be estopped, since he would not have engaged in any action that would make his objection to aggression contradictory or inconsistent. So, the estoppel logic was a way to show that the NAP makes sense: you can normally object to force, if you are innocent (a non-aggressor), but aggressors have no right to object to force from their victims. That is essentially what the NAP was saying.

These ideas were somewhat vague in my head, but when I had them—I believe it was in contracts class when I first heard the estoppel concept explained—it felt like a “Eureka!” moment to me. I’ve only had a few of those (another one was figuring out why IP can’t be justified), so they are memorable.

Around the same time, I had begun to develop a deep interest in Hans-Hermann Hoppe’s “argumentation ethics” defense of libertarian rights, which had just been published in an issue of Liberty magazine in 1988. In those days I read every issue of The Freeman, Reason, and Liberty. I became fascinated with Hoppe’s argumentation ethics and started to think that, with many of the insights of Hoppe’s approach (scarcity, universalizability, the relationship between body- or self-ownership and ownership of external things), I could develop an extended argument for libertarian rights using some of the reasoning and rationale behind the various legal doctrines of estoppel. I wasn’t ready to write a scholarly paper yet, and in any case didn’t have it all worked out yet. I kept thinking about it and toying with the idea over the next few years, taking notes, reading more Hoppe and more political and legal philosophy, and so on. For example, I found useful nuggets in the writings of disparate thinkers, such as H.L.A. Hart, Murray Rothbard, Wesley Hohfeld, Hans Kelsen, Roger Pilon/Alan Gewirth, Bruce Benson, Fr. James A. Sadowsky, F.A. Hayek, Lon Fuller, Mary Ann Glendon, Loren Lomasky, Jan Narveson, Isaiah Berlin, Richard Epstein, Saúl Litvinoff, Erick Mack, Rasmussen/Den Uyl, David Gauthier, Alasdair MacIntyre, Henry Veatch, Jurgen Habermas, Karl-Otto Apel, Tibor Machan, Randy Barnett, John Locke, Antony Flew, and many others (as may be discerned from the references in the footnotes to the longer articles I’ll link below).

I graduated from law school in 1991, and then went to King’s College London for a year for a master’s in law, 1991–92. While there, I would discuss my developing estoppel argument with the few friends who would humor me—mostly fellow Hall-mates at King’s College Hall, such as my friends Paul Comeaux and Danesh Sarooshi, an Eastern European philosophy grad student who was studying Kant and his “categorical imperative” (which makes use of “universalizability,” key to argumentation ethics and the estoppel argument), and so on. And I had discussed it with my lone libertarian friend, Jack Criss, in preceding years, of course.

During my time in London I kept writing down notes and draft ideas and formulations, eventually drafting early versions of an article setting forth my estoppel defense of rights. I did some of it in longhand because I had no computer or even typewriter, and finally went to some computer room at King’s to type it all in and print it, so that I could submit it to various publications. For those interested, some of my earlier notes and musings and scribblings, from 1991–93 are here (PDF). I came up with some early drafts while in London but assumed I would have trouble finding a publisher (it was my first attempt at a scholarly piece and I was a newb). In Jan. 1992, I wrote an earnest fanboi letter to Hoppe (handwritten, from London; no typewriter or computer) to introduce myself and mention my estoppel draft article, mainly because I didn’t expect it to be published but thought he would want to see it. At that point I had submitted the piece to several fora, but I eventually received rejections from all of them: King’s College Law Journal, Liberty (thanks Timo Virkkala), Reason, Critical Review (Jeffrey Friedman).

The end result was an article published in as Estoppel: A New Justification for Individual Rights, Reason Papers No. 17 (Fall 1992), p. 61

In the meantime, I decided to write both a longer review essay of Hoppe’s second book, EEPP (1993) and a shorter version as well. These were rejected by a number of publications (Reason, Liberty (Timo Virkkala), Cato Journal (Sheldon Richman), Chronicles (Thomas Fleming)). I even sent a copy in to the Journal of Libertarian Studies, and received my only letter from Rothbard back, which said they were considering the piece. At this point I knew Rothbard, and both Hoppe, were aware of my estoppel argument and my familiarity with and advocacy of Hoppe’s argumentation ethics. I ended up publishing the shorter view in as Book Review (of Hans-Hermann Hoppe, The Economics and Ethics of Private Property (1993)), The Freeman: Ideas on Liberty, November 1994, and the longer review essay in a law review, The Undeniable Morality of Capitalism (text version), 25 St. Mary’s Law Journal 1419 (1994) (review essay of Hans-Hermann Hoppe, The Economics and Ethics of Private Property (1993)). I sent these on to Hans and he sent me a warm note complimenting the pieces and sending me some of his more recent material. As I was living in Philadelphia at the time, I decided to travel by train to D.C. where Rothbard, Rockwell, Hoppe, and David Gordon would be present at the John Randolph Society meeting in Nov. 1994. There I met these fellows plus many others, but Hans and I became fast friends. Rothbard was early and alone in a classroom before a seminar, so I sat next to him and talked a long time, about what I cannot remember, and got him to sign my copy Man, Economy and State, which he inscribed “To Stephan: For Man & Economy, and against the state —Best regards, Murray Rothbard.” Just two months later, in Jan. 1995, Rothbard died. I’m so glad I got to meet him, if only once.

Hoppe became editor of the Journal of Libertarian Studies and co-editor of the QJAE, and asked me to be book review editor of the former, which I did over the the next ten years that Hoppe remained editor (1995–2005). In 2009 I founded a successor journal, Libertarian Papers, with Hoppe’s blessing.

Meanwhile, the rejections were not yet over. A book length proposal based on my estoppel theory of rights was rejected by Paragon House. Long articles were ultimately published as Punishment and Proportionality: The Estoppel Approach, 12:1 Journal of Libertarian Studies 51 (Spring 1996) and A Libertarian Theory of Punishment and Rights 30 Loy. L.A. L. Rev. 607-45 (1997). Liberty (Timo Virkkala) again rejected my contract theory and intellectual property rights submission, in 1996. Versions of these pieces were later published as A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability, Journal of Libertarian Studies 17, no. 2 (Spring 2003): 11-37, and as “Against Intellectual Property,”Journal of Libertarian Studies(Spring 2001). And, ironically, Liberty later published an IP article of mine after all 13 years later: “Intellectual Property and Libertarianism,” Liberty vol. 23, no. 11 (Dec. 2009), p. 27.

In any case, I ended up publishing a great deal more on this topic, such as:

I’ve also spoken a great deal on these topics, such as:

And there ye have it. I still stand by the theory today, as augmented and elaborated in subsequent posts such as Fraud, Restitution, and Retaliation: The Libertarian Approach (Feb. 3, 2009).

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