“All property is fundamentally intellectual.”

by Stephan Kinsella on February 8, 2025

Adapted from my Tweet.

Replying to a previous tweet, which stated: “All property is fundamentally intellectual.” This is the Objectivist bait and switch. All property involves the intellect–the mind, rationality, decisions, ideas. Sure. All property involves labor too. Why not say all property is labor? You need to start with a definition. What do you mean by property?

I try to clarify all this in my writing.¹

The fact that the intellect is needed to use and employ resources and to acquire property does not mean “property” is “fundamentally intellectual”–or that this bizarre phrasing is even coherent. As noted above, “property” is a relationship between a human actor (the owner) and other humans,² with respect to a given (ownable) scarce resource. We do not “create” “property.” Yes, by our actions we create “value” or, more precisely, wealth. But we do not have a property right in value, only in material resources.³ And the ownership of those resources that we transform or rearrange (production)⁴ is determined in accordance with two simple private law principles: original appropriation, and contractual title transfer. That is it.⁵

Unfortunately Randians, because of Rand’s obsession with the US Constitution’s IP clause and IP itself (she was a “writer” after all; and she values innovation, as we all do, but mistakenly thinks this means there is a property right in “creations” of mind such as artistic works and inventions or innovation) are completely confused as to the nature of property rights and their origin. Property rights “come from” use (occupation) and transfer (contract) of previously unowned material resources (yes yes, the “use” involves the intellect, and labor, as does all action⁶ —but this does not mean that we “own actions” or “labor” or that property rights are “intellectual”), while wealth simply involves the transformation of already-existing and already-owned input factors/resources (i.e., “production”) … —which I have already explained dozens of times to you people but you are simply incapable of listening or understanding what is a fairly simple and even obvious point in the throes of your stubborn, tendentious desire to argue for IP at all costs.

His response:

For objectivists, the human intellect is the source of all rights. For example, an animal performs some labor, and the more intelligent animals even perform complicated mental tasks to acquire food, yet they gain no rights to their food.

The reason humans have rights is due to the particular type of conceptual and volitional consciousness that humans possess, or in other words, a consciousness with the faculty of reason.

Without going into more detail for now, the fact that reason is a human’s basic means of survival and through which humans create all the values that they require for their life, is what leads to the concept of rights.

For an objectivist, a right is the moral sanction to use or dispose of the product of their work based on their own judgment.

So, whether someone creates a chair or a song, for an objectivist, they have the right, or the moral sanction to decide how it is used or disposed of.

My reply:

“For objectivists, the human intellect is the source of all rights.”

Well, even if this is correct it does not mean that all property rights are “intellectual.” It is also confusing and somewhat of a mistake to talk about the “source” of rights. Rights have no “source” as they are not physical things. Rights are not facts, or things. They are prescriptive and normative, not descriptive and factual. Rights need to be justified, but have no “source.”
To talk about the “source” of rights is to adopt a type of monism and to treat norms, rights, normals as types of “facts” and to treat moral, ethical and normative laws as the same as the causal laws of the causal world. It is a type of legal positivism.

This is a mistake. It is literally impossible for anyone or any thing to “disobey” a causal law, like gravity; but people can disregard normative laws like rights or oughts–they can choose to violate rights. This is why injustice is possible and why it is impossible to violate the causal laws of nature. The types of “laws” are different.⁷

So yes, rights can be justified, but they do not have a “source” as in someone that “decrees” them, like God or a legislature. You could say they “come from nature” but even this is not quite right: our nature including our nature as reasoning beings plays a role in why we can justify our rights (and only some rights: only those compatible with the non-aggression principle, as Rand herself explicitly says: “So long as men desire to live together, no man may initiate — do you hear me? No man may start — the use of physical force against others.” But notice the “so long as” meaning there is an “if” there–rights are of the if-then type, or maybe the since-then type–a hypothetical (or assertoric hypothetical⁸ meaning her rights do not “come from” nature, that is, is statements do not turn into ought statements; instead they rest on earlier value or ought statements or norms, precisely as Hoppe argues in his argumentation ethics.⁹

In any case it cannot be denied that humans have rights because of our reasoning capacity, or “intellect,” but this does not mean that “all rights are intellectual”—or, if this is the case, is it simply a broad and vague qualifier that does not imply that patent and copyright rights are legitimate just because you call them “intellectual property”—and to argue that this is the case is either a case of dishonest equivocation or, frankly, stupidity—¹⁰ and either case the person making this argument is not fit to step into the arena of serious and honest discussion of such matters, but instead should STFU, read, listen, and learn, and have a bit of humility and think about these matters before bellying up to the bar like a belligerent drunk spouting off shit they really haven’t figured out yet and know nothing about.

I have spoken. I have provided tons of explanation of these difficult issues–difficult at first, easy once you then see the nature and purpose of rights and understand the nature and purpose of so-called IP rights and understand that they are utterly in conflict with each other–IP rights are totally unjust and evil and contrary to true freedom and justice and capitalism, and anyone who does not see this is simply confused, stupid, or misled, or is some dishonest shill arguing to butter their own bread (like all of my fellow patent attorneys, for example). Shame, shame on any supposed advocate of individual rights, capitalism, and justice who loudly advocates for IP, the opposite of these things. IP is evil, and death;¹¹ and if you don’t understand this, it’s not my fault, it’s yours, especially today, now that I have explained this all so easily and clearly for you people to understand.

As Hoppe says in a somewhat different context,

even if the libertarian ethic and argumentative reasoning must be regarded as ultimately justified, this still does not preclude that people will act on the basis of unjustified beliefs either because they don’t know, they don’t care, or they prefer not to know. I fail to see why this should be surprising or make the proof somehow defective. More than this cannot be done by propositional argument.