Prometheus readers may know Butler Shaffer as a long-time libertarian/anarchist/agorist activist. He actively champions liberty and challenges the state by writing books and articles, he lectures as a law professor at Southwestern Law School where he skillfully plants the seeds of doubt as to the putative virtues of the State, and he expands on libertarian themes in interviews and panel discussions. Among his honors, the Von Mises Institute has given him its Lifetime Achievement Award, while the Karl Hess Supper Club has conferred the Chaunticleer Award.

Robert Sirico is a Roman Catholic priest and one of the founders of The Acton Institute for the Study of Religion and Liberty. The Church as an institution has often fostered a dim view of property and commerce, but Fr. Sirico brings a rational breath of fresh air to this discussion. He acknowledges that a free and virtuous society runs best with private property, minimum state intervention and optimal social interaction, based on voluntary choices informed by a non-relativistic moral code. Promoting a free and virtuous society, minimizing the role of the state, and educating people about the moral foundations of economic choices, are among the purposes of the Institute, of which he is President.

Shaffer, agorist to the core, finds agreeable and comprehensible only those customs and practices which arise out of voluntary dealings and agreements, in full accord with libertarian root doctrine. Though two or several individuals may contractually bind themselves to the observation of property rights in intellectual property (hereinafter IP), current IP law arises not from custom and practice, but by statute, most particularly from Article I, section 8(8) of the United States Constitution, empowering Congress “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

When Gutenberg made printing a less labor-intensive venture than the older hand-copying procedure, powerful commercial forces used the press to extol the virtues of their products, services or schemes, and denigrate competitors, while the sphere of politics used the printed word to incite support and rebuke opposition. Those who could afford to print the most material got their story told the best, or at least most widely. Anything can be printed, whether true or not. During this period, kernels of truth might lie alongside fanciful speculations, intentional distortions, and outright falsehoods in the same tract or broadside. The attempt at content control was almost foreseeable.

Proponents and apologists for copyright law have been numerous over the centuries, with the usual jousting of vested interests to get the best legislative protection their money could buy. All do well to recall that state concern over publications did not begin with a concern for a creator's IP rights in her property, but in state interest in censorship. To the extent we can depend upon Wikipedia, it is there written, “As the ‘menace’ of printing spread, governments established centralized control mechanisms, and in 1557 the English Crown thought to stem the flow of seditious and heretical books by chartering the Stationers’ Company. The right to print was limited to the members of that guild, and thirty years later the Star Chamber was chartered to curtail the 'greate enormities and abuses' of ‘dyvers contentyous and disorderlye persons professinge the arte or mystere of pryntinge or selling of books.' The right to print was restricted to two universities and to the 21 existing printers in the city of London, which had 53 printing presses.” Clearly, pre-publication access to and critical control over writings benefit the State enormously, corking the information flow and bullying independent writers.

The property interests of creators took second place in the copyright scheme, subject to state control of publications. Protection of creators' IP interests is usually vaunted as justification of IP law and practice, with the typical barrage of excuses for monopoly.

Here is an older justification: “The foundation of all rights of this description is the natural dominion which every one has over his own ideas, the enjoyment of which, although they are embodied in visible forms or characters, he may, if he chooses, confine to himself or impart to others. But, as it would be impracticable in civil society to prevent others from copying such characters or forms without the intervention of positive law, and as such intervention is highly expedient, because it tends to the increase of human culture, knowledge, and convenience, it has been the practice of civilized nations in modern times to secure and regulate the otherwise insecure and imperfect right which, according to the principles of natural justice, belongs to the author of new ideas.” Baldwin's Century Edition of Bouvier's Law Dictionary, William Edward Baldwin.

Raising the natural justice principle provokes some thought, for typically when natural law and positive law interact, positive law prevails to the detriment of natural law. To illustrate that proposition, this: “In each case [of infringement of copyright law] half of the penalty to go to the proprietor of the copyright and the other half to the use of the United States;” (Baldwin). So much for the protection of the creator's IP interests, when the State gets half the damages!

In prior works, Shaffer sets forth the criteria for recognizing what may fall subject to ownership as property. Claim, boundary, and control are the watchwords. With IP issues, anyone can see a creator's claim, as originator, but boundary and control become diffuse in a quick hurry. Alfred Korzybski spent all of Manhood of Humanity and much of Science and Sanity propounding the view that all human progress ties directly to time-binding, where time-binding is understood as the accumulation or accretive process of incorporating all relevant prior knowledge and using it as the springboard for innovation and development, with time-binding also as the root of civilizing forces. Shaffer concurs fully in saying, “The notion that the anticipation of monopolistic rewards such as patents and copyrights is essential to the creative process, is negated by much of human history.”

Still, Statism's voice echoes from the corridors of power. “By allowing a creator to establish a limited monopoly over the invention, the sciences and useful arts are promoted. Society reaps the benefits of the invention during and after the grant of monopoly.” Mind Over Matter (Michael A. Shimokaji and Phillip L. Gahagan). As Korzybski and Shaffer so effectively note, most of the underpinnings of civilization sprang up without IP protection, while it is plain that monopoly pricing works to the detriment, not the benefit, of those consumers abstractly dubbed “society.”

“When the coercive powers of the state are invoked to benefit some and to restrain others, the creative processes will always suffer and, as a consequence, so will the vibrancy of a civilization…Creative behavior depends upon synthesis and cross-fertilization, by what Arthur Koestler referred to as ‘creative anarchy.” Shaffer closes, “Can one, consistent with a libertarian philosophy, respect any 'property' interest that is both created and enforced by the state, a system defined by its monopoly on the use of violence?” Well, of course not!

And what does Fr. Sirico say? In A Moral Basis for Liberty, 3d Ed., Foreword by Edmund Opitz, (2012, The Action Institute, Grand Rapids, MI), he acknowledges that Christianity has largely been ambivalent at best about understanding economic practice as an essential part of liberty. “[E]conomic liberty is far from having captured the high ground in public debate… [W]e are squeamish about asking…whether it is better to have property commandeered by political authority or put to voluntary use by market participants.”

Speaking of the evident bias on this issue by academics and ecclesiastics, he asks, “How can the institutions of liberty survive and flourish so long as the moral opinion-makers are so overwhelmingly sympathetic to only one side of the debate?”

“So long as economic liberty—and its requisite institutions of private property, free exchange, capital accumulation, and contract enforcement—is not backed by a generally held set of norms by which it can be defended, it cannot be sustained over the long term."

“A social and economic order dominated by a voluntary exchange matrix, the essence of the business economy, is a free social order. On the other end of the spectrum is the social order dominated by networks of regulators, revenuers, monetary managers, and state social workers.”

Sirico means us to recognize a strong link between morality and liberty. "Only human beings with volition can be said to be moral, and in order to act in a moral way one must have liberty. Liberty is not so much a virtue by definition as it is the essential social condition that makes virtue possible. It is widely understood that individual physical aggression against person or property is wrong. Difficulties arise when the same moral criterion is applied to society at large. Despite conventional wisdom, wrong does not become right when morally identical acts are committed at the political level by the state.” This is a statement with which Ayn Rand could be predicted to agree, one which should confound those critics of Christianity who think Christianity prefers to finance compassion for the less fortunate out of the wallets of the more fortunate.

Writing in England in 1842, where a State-supported Church undertook the systematic care of the poor by imposing rates, Herbert Spencer wrote: “Forced contributions rarely appeal to the kind feelings. The man who is called upon for a rate does not put his hand in his pocket out of pure sympathy for the poor; he looks upon the demand as another tax, and feels annoyance rather than pleasure in paying it. Nor does the effect end here: the poor man who is struggling hard with the world to maintain his independence, excites no pity; so long as there is a poor law he cannot starve, and it will be time enough to consider his case when he applies for relief; the beggar who knocks at his door, or the way-worn traveler who accosts him in his walk, is told to go to his parish; there is no need to inquire into his history, and to give him private assistance if found deserving, for there is already a public provision for him.” (The Proper Sphere of Government, Herbert Spencer.)

This coheres closely with A Moral Basis. “The defense of the right of property ownership should not be seen as the defense of detached material objects in themselves, but of the dignity, liberty, and very nature of the human person. The right to own and control justly acquired property is an extension and exercise of authentic human rights.” Any objection to this would be hard to base on libertarian grounds.

Being a minister of the Christian faith, Sirico points to natural law as the lodestone for liberty in society. Shaffer has distanced himself from an early stated interest in natural law, yet he recommends The Law of the Somalis: A Stable Foundation for Economic Development in the Horn of Africa (Michael van Notten & Spencer Heath MacCallum), to those interested in a stateless society. This review is the wrong place to show how The Law of the Somalis rebuts typical misconceptions about Somalia.

But it is worthy of notice how this book concludes by rebuking the United Nations for trying to sustain the unworkable political cultures imposed by force during colonialism. “The United Nations' biggest problem is that it doesn't understand that law and order can prevail without a central government, without a state.”

Nevertheless, “only those rules can be considered laws that conform to timeless criteria that have universal validity. The laws that governments enact do not meet that standard. The universal laws of human society pre-exist political government and continue to exist in its absence." These universal laws are, of course, natural law.

Yet another voice can be heard in support of natural law, one from a most unlikely background, that of the die-hard Marxist utopian, Ernest Bloch. In the translator's introduction to Natural Law and Human Dignity (Ernest Bloch), Dennis Schmidt notes “Bloch is aware that such a wedding of traditions requires a creative revision of their contents, but he also sees that without such a marriage between the traditions of social utopias and of natural law no full realization of the content of the unalienated society is possible.” Bloch recognized that attempts to reorganize societies along utopian lines tended to become lethally repressive, so he reasoned that natural law had to be invoked, even though many of his ilk saw natural law as a bourgeois construct. Bloch's endorsement should make natural law more difficult to disdain for those inclined to do so.

Sirico continues, “More importantly for the development of liberty and especially economic liberty, it [natural law] establishes the sanctity of the individual as a rational being who can interpret the relationship between the individual and the community in terms of free association and contract." Despite this, Sirico observes: “With few exceptions, the religious establishment views entrepreneurs (people whose profession requires risking scarce capital in markets to create future goods and services) as one of the least favored groups in society,” another point with which Rand would likely agree.

“A more proper economic analysis teaches that entrepreneurs are impressarios, visionaries who organize numerous factors, take risks, and bring resources into connection with each other to create something greater than the sum of the parts. They drive the economy forward by anticipating the wishes of the public and creating new ways of organizing resources.” Thus, those in “the vocation of enterprise” must “teach others to become independent and to produce wealth themselves.”

Sirico warns against complacency and delegation, saying, “Christians have a moral obligation to the poor, for what we do to the least of Christ's brethren, we do to Christ himself. Church leaders, however, have too often conflated Christian duty to help the poor with a supposed moral duty to support the Leviathan enterprise we call the welfare state.”

"Charity is supposed to represent obedience to the dictates of conscience; its character changes when it disintegrates into simple obedience to government agencies.” Indeed, there is some risk that “rendering unto Caesar that which is Caesar's” may degenerate into Caesar-worship. Most Christians may argue that they would never do that, but the adulation in which The United States as a political entity is held gives rise to some wonder, and likewise the unfathomable and whole-hearted support for a U.S. Military which has not defended on the ground against an incursion since the days young George Patton served with General Pershing along the Southwest border. Is there a Patriotism Exemption to the First Commandment?

Whatever the reply to that last question, we have here two books of tiny physical stature but abundant moral weight. Though starting from divergent premises, they both move in the direction of less state and more liberty, showing a convergence that is the more remarkable owing to their different starting points. Further, neither one is involved or intricate reading, while both can challenge the reader to reflect on and re-assess the sorry state of the positive law in America today, while perhaps stimulating renewed interest in natural law. Highly recommended, alone or in tandem.