Stephan Kinsella is an attorney in Houston, director of the Center for the Study of Innovative Freedom, and editor of Libertarian Papers. See his blog. Send him mail. See Stephan Kinsella’s article archives. This article is adapted from “What Libertarianism Is,” in Jörg Guido Hülsmann & Stephan Kinsella, eds., Property, Freedom, and Society: Essays in Honor of Hans-Hermann Hoppe.
Property, Rights, and Liberty
Libertarians tend to agree on a wide array of policies and principles. Nonetheless, it is not easy to find consensus on what libertarianism’s defining characteristic is, or on what distinguishes it from other political theories and systems.
Various formulations abound. It is said that libertarianism is about individual rights, property rights,[1] the free market, capitalism, justice, or the nonaggression principle. Not just any of these will do, however. Capitalism and the free market describe the catallactic conditions that arise or are permitted in a libertarian society, but do not encompass other aspects of libertarianism. And individual rights, justice, and aggression collapse into property rights. As Murray Rothbard explained, individual rights are property rights.[2] And justice is just giving someone his due, which depends on what his rights are.[3]
The nonaggression principle is also dependent on property rights, since what aggression is depends on what our (property) rights are. If you hit me, it is aggression because I have a property right in my body. If I take from you the apple you possess, this is trespass — aggression — only because you own the apple. One cannot identify an act of aggression without implicitly assigning a corresponding property right to the victim.
So capitalism and the free market are too narrow, and justice, individual rights, and aggression all boil down to, or are defined in terms of, property rights. What of property rights, then? Is this what differentiates libertarianism from other political philosophies — that we favor property rights, and all others do not? Surely such a claim is untenable.
After all, a property right is simply the exclusive right to control a scarce resource.[4] Property rights specify which persons own — that is, have the right to control — various scarce resources in a given region or jurisdiction. Yet everyone and every political theory advance some theory of property. None of the various forms of socialism deny property rights; each version will specify an owner for every scarce resource.[5] If the state nationalizes an industry, it is asserting ownership of these means of production. If the state taxes you, it is implicitly asserting ownership of the funds taken. If my land is transferred to a private developer by eminent domain statutes, the developer is now the owner. If the law allows a recipient of racial discrimination to sue his employer for a sum of money, he is the owner of the money.[6]
Protection of and respect for property rights is thus not unique to libertarianism. What is distinctive about libertarianism is its particular property assignment rules: its view concerning who is the owner of each contestable resource, and how to determine this.
Property in Bodies
A system of property rights assigns a particular owner to every scarce resource. These resources obviously include natural resources such as land, fruits of trees, and so on. Objects found in nature are not the only scarce resources, however. Each human actor has, controls, and is identified and associated with a unique human body, which is also a scarce resource.[7] Both human bodies and nonhuman, scarce resources are desired for use as means by actors in the pursuit of various goals.
Accordingly, any political theory or system must assign ownership rights in human bodies as well as in external things. Let us consider first the libertarian property assignment rules with respect to human bodies, and the corresponding notion of aggression as it pertains to bodies. Libertarians often vigorously assert the “nonaggression principle.” As Ayn Rand said, “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.”[8] Or, as Rothbard put it:
The libertarian creed rests upon one central axiom: that no man or group of men may aggress against the person or property of anyone else. This may be called the “nonaggression axiom.” “Aggression” is defined as the initiation of the use or threat of physical violence against the person or property of anyone else. Aggression is therefore synonymous with invasion.[9]
In other words, libertarians maintain that the only way to violate rights is by initiating force — that is, by committing aggression. (Libertarianism also holds that, while the initiation of force against another person’s body is impermissible, force used in response to aggression — such as defensive, restitutive, or retaliatory/punitive force — is justified.)[10]
Now in the case of the body, it is clear what aggression is: invading the borders of someone’s body, commonly called battery, or, more generally, using the body of another without his or her consent.[11] The very notion of interpersonal aggression presupposes property rights in bodies — more particularly, that each person is, at least prima facie, the owner of his own body.[12]
Nonlibertarian political philosophies have a different view. Each person has some limited rights in his own body, but not complete or exclusive rights. Society — or the state, purporting to be society’s agent — has certain rights in each citizen’s body, too. This partial slavery is implicit in state actions and laws such as taxation, conscription, and drug prohibitions.
The libertarian says that each person is the full owner of his body: he has the right to control his body, to decide whether or not he ingests narcotics, joins an army, and so on. Those various nonlibertarians who endorse any such state prohibitions, however, necessarily maintain that the state, or society, is at least a partial owner of the body of those subject to such laws — or even a complete owner in the case of conscriptees or nonaggressor “criminals” incarcerated for life. Libertarians believe in self-ownership. Nonlibertarians — statists — of all stripes advocate some form of slavery.
Self-ownership and Conflict-avoidance
Without property rights, there is always the possibility of conflict over contestable (scarce) resources. By assigning an owner to each resource, legal systems make possible conflict-free use of resources, by establishing visible boundaries that nonowners can avoid. Libertarianism does not endorse just any property assignment rule, however.[13] It favors self-ownership over other-ownership (slavery).
The libertarian seeks property assignment rules because he values or accepts various grundnorm ssuch as justice, peace, prosperity, cooperation, conflict-avoidance, and civilization.[14] The libertarian view is that self-ownership is the only property assignment rule compatible with these grundorms; it is implied by them.
As Professor Hoppe has shown, the assignment of ownership to a given resource must not be random, arbitrary, particularistic, or biased, if it is actually to be a property norm that can serve the function of conflict-avoidance.[15] Property title has to be assigned to one of competing claimants based on “the existence of an objective, intersubjectively ascertainable link between owner and the” resource claimed.[16] In the case of one’s own body, it is the unique relationship between a person and his body — his direct and immediate control over his body, and the fact that, at least in some sense, a body is a given person and vice versa — that constitutes the objective link sufficient to give that person a claim to his body superior to typical third party claimants.
Moreover, any outsider who claims another’s body cannot deny this objective link and its special status, since the outsider also necessarily presupposes this in his own case. This is so because, in seeking dominion over the other and in asserting ownership over the other’s body, he has to presuppose his own ownership of his body. In so doing, the outsider demonstrates that he does place a certain significance on this link, even as (at the same time) he disregards the significance of the other’s link to his own body.[17]
Libertarianism recognizes that only the self-ownership rule is universalizable and compatible with the goals of peace, cooperation, and conflict-avoidance. We recognize that each person is prima facie the owner of his own body because, by virtue of his unique link to and connection with his own body — his direct and immediate control over it — he has a better claim to it than anyone else.
Property in External Things
Libertarians apply similar reasoning in the case of other scarce resources — namely, external objects in the world that, unlike bodies, were at one point unowned. In the case of bodies, the idea of aggression being impermissible immediately implies self-ownership. In the case of external objects, however, we must identify who the owner is before we can determine what constitutes aggression.
As in the case with bodies, humans need to be able to use external objects as means to achieve various ends. Because these things are scarce, there is also the potential for conflict. And, as in the case with bodies, libertarians favor assigning property rights so as to permit the peaceful, conflict-free, productive use of such resources. Thus, as in the case with bodies, property is assigned to the person with the best claim or link to a given scarce resource — with the “best claim” standard based on the goals of permitting peaceful, conflict-free human interaction and use of resources.
Unlike human bodies, however, external objects are not parts of one’s identity, are not directly controlled by one’s will, and — significantly — they are initially unowned.[18] Here, the libertarian realizes that the relevant objective link is appropriation — the transformation or embordering of a previously unowned resource, Lockean homesteading, the first use or possession of the thing.[19]Under this approach, the first (prior) user of a previously unowned thing has a prima facie better claim than a second (later) claimant, solely by virtue of his being earlier.
Why is appropriation the relevant link for determination of ownership? First, keep in mind that the question with respect to such scarce resources is: who is the resource’s owner? Recall that ownership is the right to control, use, or possess,[20] while possession is actual control — “the factual authority that a person exercises over a corporeal thing.”[21] The question is not who has physical possession; it is who has ownership.
Thus, asking who is the owner of a resource presupposes a distinction between ownership and possession — between the right to control, and actual control. And the answer has to take into account the nature of previously unowned things — namely, that they must at some point become owned by a first owner.
The answer must also take into account the presupposed goals of those seeking this answer: rules that permit conflict-free use of resources. For this reason, the answer cannot be whoever has the resource or whoever is able to take it is its owner. To hold such a view is to adopt a might-makes-right system, where ownership collapses into possession for want of a distinction.[22] Such a system, far from avoiding conflict, makes conflict inevitable.[23]
Instead of a might-makes-right approach, from the insights noted above it is obvious that ownership presupposes the prior-later distinction: whoever any given system specifies as the owner of a resource, he has a better claim than latecomers.[24] If he does not, then he is not an owner, but merely the current user or possessor. If he is supposed an owner on the might-makes-right principle, in which there is no such thing as ownership, it contradicts the presuppositions of the inquiry itself. If the first owner does not have a better claim than latecomers, then he is not an owner, but merely a possessor, and there is no such thing as ownership.
More generally, latecomers’ claims are inferior to those of prior possessors or claimants, who either homesteaded the resource or who can trace their title back to the homesteader or earlier owner.[25] The crucial importance of the prior-later distinction to libertarian theory is why Professor Hoppe repeatedly emphasizes it in his writing.[26]
Thus, the libertarian position on property rights is that, in order to permit conflict-free, productive use of scarce resources, property titles to particular resources are assigned to particular owners. As noted above, however, the title assignment must not be random, arbitrary, or particularistic; instead, it has to be assigned based on “the existence of an objective, intersubjectively ascertainable link between owner” and the resource claimed.[27] As can be seen from the considerations presented above, the link is the physical transformation or embordering of the original homesteader, or a chain of title traceable by contract back to him.[28]
Consistency and Principle
Not only libertarians are civilized. Most people give some weight to some of the above considerations. In their eyes, a person is the owner of his own body — usually. A homesteader owns the resource he appropriates — unless the state takes it from him “by operation of law.”[29] This is the principal distinction between libertarians and nonlibertarians: Libertarians are consistently opposed to aggression, defined in terms of invasion of property borders, where property rights are understood to be assigned on the basis of self-ownership in the case of bodies. And in the case of other things, rights are understood on the basis of prior possession or homesteading and contractual transfer of title.
This framework for rights is motivated by the libertarian’s consistent and principled valuing of peaceful interaction and cooperation — in short, of civilized behavior. A parallel to the Misesian view of human action may be illuminating here. According to Mises, human action is aimed at alleviating some felt uneasiness.[30] Thus, means are employed, according to the actor’s understanding of causal laws, to achieve various ends — ultimately, the removal of uneasiness.
Civilized man feels uneasy at the prospect of violent struggles with others. On the one hand, he wants, for some practical reason, to control a given scarce resource and to use violence against another person, if necessary, to achieve this control. On the other hand, he also wants to avoid a wrongful use of force. Civilized man, for some reason, feels reluctance, uneasiness, at the prospect of violent interaction with his fellow man. Perhaps he has reluctance to violently clash with others over certain objects because he has empathy with them.[31] Perhaps the instinct to cooperate is a result of social evolution. As Mises noted,
There are people whose only aim is to improve the condition of their own ego. There are other people with whom awareness of the troubles of their fellow men causes as much uneasiness as or even more uneasiness than their own wants.[32]
Whatever the reason, because of this uneasiness, when there is the potential for violent conflict, the civilized man seeks justification for the forceful control of a scarce resource that he desires but which some other person opposes. Empathy — or whatever spurs man to adopt the libertarian grundnorms — gives rise to a certain form of uneasiness, which gives rise to ethical action.
Civilized man may be defined as he who seeks justification for the use of interpersonal violence. When the inevitable need to engage in violence arises — for defense of life or property — civilized man seeks justification. Naturally, since this justification-seeking is done by people who are inclined to reason and peace (justification is after all a peaceful activity that necessarily takes place during discourse),[33] what they seek are rules that are fair, potentially acceptable to all, grounded in the nature of things, and universalizable, and which permit conflict-free use of resources.
Libertarian property rights principles emerge as the only candidate that satisfies these criteria. Thus, if civilized man is he who seeks justification for the use of violence, the libertarian is he who is serious about this endeavor. He has a deep, principled, innate opposition to violence, and an equally deep commitment to peace and cooperation.
For the foregoing reasons, libertarianism may be said to be the political philosophy that consistently favors social rules aimed at promoting peace, prosperity, and cooperation.[34]It recognizes that the only rules that satisfy the civilized grundnorms are the self-ownership principle and the Lockean homesteading principle, applied as consistently as possible.
And as I have argued elsewhere, because the state necessarily commits aggression, the consistent libertarian, in opposing aggression, is also an anarchist.[35]
Notes
[1] The term “private” property rights is sometimes used by libertarians, which I have always found odd, since property rights are necessarily public, not private, in the sense that the borders or boundaries of property must be publicly visible so that nonowners can avoid trespass. For more on this aspect of property borders, see Hans-Hermann Hoppe, A Theory of Socialism and Capitalism: Economics, Politics, and Ethics (Boston: Kluwer Academic Publishers, 1989), pp. 140–41; Stephan Kinsella, “A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability,” Journal of Libertarian Studies 17, no. 2 (Spring 2003): n. 32 and accompanying text; idem, Against Intellectual Property (Auburn, Ala.: Ludwig von Mises Institute, 2008), pp. 30–31, 49; also Randy E. Barnett, “A Consent Theory of Contract,” Columbia Law Review 86 (1986): 303.
[2] Murray N. Rothbard, “‘Human Rights’ As Property Rights,” in The Ethics of Liberty (New York and London: New York University Press, 1998); idem, For A New Liberty: The Libertarian Manifesto (rev. ed.; New York: Libertarian Review Foundation, 1985), pp. 42 et pass.
[3] ”Justice is the constant and perpetual wish to render every one his due… The maxims of law are these: to live honestly, to hurt no one, to give every one his due.” The Institutes of Justinian: Text, Translation, and Commentary, trans. J.A.C. Thomas (Amsterdam: North-Holland, 1975).
[4] As Professor Yiannopoulos explains:
Property may be defined as an exclusive right to control an economic good …; it is the name of a concept that refers to the rights and obligations, privileges and restrictions that govern the relations of man with respect to things of value. People everywhere and at all times desire the possession of things that are necessary for survival or valuable by cultural definition and which, as a result of the demand placed upon them, become scarce. Laws enforced by organized society control the competition for, and guarantee the enjoyment of, these desired things. What is guaranteed to be one’s own is property… [Property rights] confer a direct and immediate authority over a thing.
A.N. Yiannopoulos, Louisiana Civil Law Treatise, Property (West Group, 4th ed. 2001), §§ 1, 2 (first emphasis in original; remaining emphasis added). See also Louisiana Civil Code, Art. 477 (“Ownership is the right that confers on a person direct, immediate, and exclusive authority over a thing. The owner of a thing may use, enjoy, and dispose of it within the limits and under the conditions established by law”).
[5] For a systematic analysis of various forms of socialism, from Socialism Russian-Style, Socialism Social-Democratic Style, the Socialism of Conservatism, the Socialism of Social Engineering, see Hoppe, A Theory of Socialism and Capitalism, chapters 3–6. Recognizing the common elements of various forms of socialism and their distinction from libertarianism (capitalism), Hoppe incisively defines socialism as “an institutionalized interference with or aggression against private property and private property claims.” Ibid., p. 2. See also the quote from Hoppe in note 9, below.
[6] Even the private thief, by taking your watch, is implicitly acting on the maxim that he has the right to control it — that he is its owner. He does not deny property rights — he simply differs from the libertarian as to who the owner is. In fact, as Adam Smith observed: “If there is any society among robbers and murderers, they must at least, according to the trite observation, abstain from robbing and murdering one another.” Adam Smith, The Theory of Moral Sentiments (Indianapolis: Liberty Fund, [1759] 1982), II.II.3.
[7] As Hoppe observes, even in a paradise with a superabundance of goods,
every person’s physical body would still be a scarce resource and thus the need for the establishment of property rules, i.e., rules regarding people’s bodies, would exist. One is not used to thinking of one’s own body in terms of a scarce good, but in imagining the most ideal situation one could ever hope for, the Garden of Eden, it becomes possible to realize that one’s body is indeed the prototype of a scarce good for the use of which property rights, i.e., rights of exclusive ownership, somehow have to be established, in order to avoid clashes.
Hoppe, A Theory of Socialism and Capitalism, pp. 8–9. See also Stephan Kinsella & Patrick Tinsley, “Causation and Aggression,” Quarterly Journal of Austrian Economics 7, no. 4 (Winter 2004): 111–12 (discussing the use of other humans’ bodies as means).
[8] Ayn Rand, “Galt’s Speech,” in For the New Intellectual, quoted in The Ayn Rand Lexicon, “Physical Force” entry. Ironically, Objectivists often excoriate libertarians for having a “context-less” concept of aggression — that is, that “aggression” or “rights” is meaningless unless these concepts are embedded in the larger philosophical framework of Objectivism — despite Galt’s straightforward definition of aggression as the initiation of physical force against others.
[9] Rothbard, For A New Liberty, p. 23. See also idem, The Ethics of Liberty: “The fundamental axiom of libertarian theory is that each person must be a self-owner, and that no one has the right to interfere with such self-ownership” (p. 60), and “What … aggressive violence means is that one man invades the property of another without the victim’s consent. The invasion may be against a man’s property in his person (as in the case of bodily assault), or against his property in tangible goods (as in robbery or trespass)” (p. 45). Hoppe writes:
If … an action is performed that uninvitedly invades or changes the physical integrity of another person’s body and puts this body to a use that is not to this very person’s own liking, this action … is calledaggression … Next to the concept of action, property is the most basic category in the social sciences. As a matter of fact, all other concepts to be introduced in this chapter — aggression, contract, capitalism and socialism — are definable in terms of property: aggression being aggression against property, contract being a nonaggressive relationship between property owners, socialism being an institutionalized policy of aggression against property, and capitalism being an institutionalized policy of the recognition of property and contractualism.
Hoppe, A Theory of Socialism and Capitalism, pp. 12, 7.
[10] See Stephan Kinsella, “A Libertarian Theory of Punishment and Rights,” Loyola of Los Angeles Law Review 30 (1997): 607–45; idem, “Punishment and Proportionality: The Estoppel Approach,” Journal of Libertarian Studies 12, no. 1 (Spring 1996): 51–73.
[11] The following terms and formulations may be considered as roughly synonymous, depending on context: aggression; initiation of force; trespass; invasion; unconsented to (or uninvited) change in the physical integrity (or use, control or possession) of another person’s body or property.
[12] ”Prima facie,” because some rights in one’s body are arguably forfeited or lost in certain circumstances, e.g., when one commits a crime, thus authorizing the victim to at least use defensive force against the body of the aggressor (implying the aggressor is to that extent not the owner of his body). For more on this see Kinsella, “A Libertarian Theory of Contract,” pp. 11–37; idem, “Inalienability and Punishment: A Reply to George Smith,” 14, no. 1 Journal of Libertarian Studies (Winter 1998–99): 79–93; and idem, “Knowledge, Calculation, Conflict, and Law,” Quarterly Journal of Austrian Economics 2, no. 4 (Winter 1999): n. 32.
[13] On the importance of the concept of scarcity and the possibility of conflict for the emergence of property rules, see Hoppe, A Theory of Socialism and Capitalism, p. 134; and the discussion thereof in Stephan Kinsella, “Thoughts on the Latecomer and Homesteading Ideas; or, Why the Very Idea of ‘Ownership’ Implies that only Libertarian Principles are Justifiable,” Mises Economics Blog (Aug. 15, 2007).
[14] ”Grundnorm” was legal philosopher Hans Kelsen’s term for the hypothetical basic norm or rule that serves as the basis or ultimate source for the legitimacy of a legal system. See Hans Kelsen, General Theory of Law and State, trans. Anders Wedberg (Cambridge, Mass.: Harvard University Press, 1949). I employ this term to refer to the fundamental norms presupposed by civilized people, e.g., in argumentative discourse, which in turn imply libertarian norms.
That the libertarian grundnorms are, in fact, necessarily presupposed by all civilized people to the extent they are civilized — during argumentative justification, that is — is shown by Hoppe in his argumentation-ethics defense of libertarian rights. On this, see Hoppe, A Theory of Socialism and Capitalism, chapter 7; Stephan Kinsella, “New Rationalist Directions in Libertarian Rights Theory,” Journal of Libertarian Studies12, no. 2 (Fall 1996): 313–26; idem, “Defending Argumentation Ethics,” Anti-state.com (Sept. 19, 2002).
For discussion of why people (to one extent or the other) do value these underlying norms, see Stephan Kinsella, “The Division of Labor as the Source of Grundnorms and Rights,” Mises Economics Blog (April 24, 2009), and idem, “Empathy and the Source of Rights,” Mises Economics Blog (Sept. 6, 2006). See also idem, “Punishment and Proportionality,” pp. 51 and 70:
People who are civilized are … concerned about justifying punishment. They want to punish, but they also want to know that such punishment is justified — they want to legitimately be able to punish … Theories of punishment are concerned with justifying punishment, with offering decent men who are reluctant to act immorally a reason why they may punish others. This is useful, of course, for offering moral men guidance and assurance that they may properly deal with those who seek to harm them.
[15] See Hoppe, A Theory of Socialism and Capitalism, pp. 131–38. See also Kinsella, “A Libertarian Theory of Punishment and Rights,” pp. 617–25; idem, “Defending Argumentation Ethics.”
[16] Hoppe, A Theory of Socialism and Capitalism, p. 12.
[17] For elaboration on this point, see Stephan Kinsella, “How We Come To Own Ourselves,” Mises Daily (Sept. 7, 2006); idem, “Defending Argumentation Ethics“; Hoppe, A Theory of Socialism and Capitalism, chapters 1, 2, and 7. See also Hoppe, “The Idea of a Private Law Society,” LewRockwell.com (August 1, 2006): “Outside of the Garden of Eden, in the realm of all-around scarcity, the solution [to the problem of social order—the need for rules to permit conflicts to be avoided] is provided by four interrelated rules. … First, every person is the proper owner of his own physical body. Who else, if not Crusoe, should be the owner of Crusoe’s body? Otherwise, would it not constitute a case of slavery, and is slavery not unjust as well as uneconomical?”
[18] For further discussion of the difference between bodies and things homesteaded for purposes of rights, see Kinsella, “A Libertarian Theory of Contract,” pp. 29 et seq.; and idem, “How We Come To Own Ourselves.”
[19] On the nature of appropriation of unowned scarce resources, see Hoppe’s and de Jasay’s ideas quoted and discussed in Kinsella, “Thoughts on the Latecomer and Homesteading Ideas,” and note 24, below. In particular, see Hoppe, A Theory of Socialism and Capitalism, pp. 13, 134–36, 142–44; and Anthony de Jasay,Against Politics: On Government, Anarchy, and Order (London & New York: Routledge, 1997), pp. 158 et seq., 171 et seq., et pass. De Jasay is also discussed extensively in my “Book Review of Anthony de Jasay, Against Politics: On Government, Anarchy, and Order,” Quarterly Journal of Austrian Economics 1, no. 3 (Fall 1998): 85–93. De Jasay’s argument presupposes the value of justice, efficiency, and order. Given these goals, he argues for three principles of politics: (1) if in doubt, abstain from political action (pp. 147 et seq.); (2) the feasible is presumed free (pp. 158 et seq.); and (3) let exclusion stand (pp. 171 et seq.). In connection with principle (3), “let exclusion stand,” de Jasay offers insightful comments about the nature of homesteading or appropriation of unowned goods. De Jasay equates property with its owner’s “excluding” others from using it, for example by enclosing or fencing in immovable property (land) or finding or creating (and keeping) movable property (corporeal, tangible objects). He concludes that since an appropriated thing has no other owner,prima facie no one is entitled to object to the first possessor claiming ownership. Thus, the principle means “let ownership stand,” i.e., that claims to ownership of property appropriated from the state of nature or acquired ultimately through a chain of title tracing back to such an appropriation should be respected. This is consistent with Hoppe’s defense of the “natural” theory of property. Hoppe, A Theory of Socialism and Capitalism , pp. 10–14 and chapter 7. For further discussion of the nature of appropriation, see Jörg Guido Hülsmann, “The A Priori Foundations of Property Economics,” Quarterly Journal of Austrian Economics 7, no. 4 (Winter 2004): 51–57.
[20] See note 4 and accompanying text, above.
[21] Yiannopoulos, Property, § 301 (emphasis added); see also Louisiana Civil Code, Art. 3421 (“Possession is thedetention or enjoyment of a corporeal thing, movable or immovable, that one holds or exercises by himself or by another who keeps or exercises it in his name.” [emphasis added])
[22] See, in this connection, the quote from Adam Smith in note 6, above.
[23] This is also, incidentally, the reason the mutualist “occupancy” position on land ownership is unlibertarian, as discussed in my post “A Critique of Mutualist Occupancy.”
[24] See Kinsella, “Thoughts on the Latecomer and Homesteading Ideas.”
[25] See Louisiana Code of Civil Procedure, Art. 3653, providing:
To obtain a judgment recognizing his ownership of immovable property … the plaintiff … shall:
- Prove that he has acquired ownership from a previous owner or by acquisitive prescription, if the court finds that the defendant is in possession thereof; or
- Prove a better title thereto than the defendant, if the court finds that the latter is not in possession thereof.
When the titles of the parties are traced to a common author, he is presumed to be the previous owner.
See also Louisiana Civil Code, Arts. 526, 531–32; Yiannopoulos, Property, §§ 255–79 and 347 et pass.
[26] See, e.g., Hoppe, A Theory of Socialism and Capitalism, pp. 141–44; idem, The Economics and Ethics of Private Property: Studies in Political Economy and Philosophy (Boston: Kluwer, 1993), pp. 191–93; see also discussion of these and related matters in in Kinsella, “Thoughts on the Latecomer and Homesteading Ideas“; idem, “Defending Argumentation Ethics“; and idem, “How We Come To Own Ourselves.” As Hoppe explains in “The Idea of a Private Law Society,” ”every person is the proper owner of all nature-given goods that he has perceived as scarce and put to use by means of his body, before any other person. Indeed, who else, if not the first user, should be their owner? The second or third one? Were this so, however, the first person would not perform his act of original appropriation, and so the second person would become the first, and so on and on. That is, no one would ever be permitted to perform an act of original appropriation and mankind would instantly die out. Alternatively, the first user together with all late-comers become part-owners of the goods in question. Then conflict will not be avoided, however, for what is one to do if the various part-owners have incompatible ideas about what to do with the goods in question? This solution would also be uneconomical because it would reduce the incentive to utilize goods perceived as scarce for the first time.” See also, in this connection, Anthony de Jasay, Against Politics, further discussed and quoted in Kinsella, “Thoughts on the Latecomer and Homesteading Ideas,” as well as in Kinsella, “Book Review of Anthony de Jasay, Against Politics.” See also de Jasay’s argument (note 19, above) that since an appropriated thing has no other owner, prima facie no one is entitled to object to the first possessor claiming ownership. De Jasay’s “let exclusion stand” idea, along with the Hoppean emphasis on the prior-later distinction, sheds light on the nature of homesteading itself. Often the question is asked as to what types of acts constitute or are sufficient for homesteading (or “embordering” as Hoppe sometimes refers to it); what type of “labor” must be “mixed with” a thing; and to what property does the homesteading extend? What “counts” as “sufficient” homesteading? We can see that the answer to these questions is related to the issue of what is the thing in dispute. In other words, if B claims ownership of a thing possessed (or formerly possessed) by A, then the very framing of the dispute helps to identify what the thing is in dispute, and what counts as possession of it. If B claims ownership of a given resource, he wants the right to control it, to a certain extent, and according to its nature. Then the question becomes, did someone else previously control it (whatever is in dispute), according to its nature; i.e., did someone else already homestead it, so that B is only a latecomer? This ties in with de Jasay’s “let exclusion stand” principle, which rests on the idea that if someone is actually able to control a resource such that others are excluded, then this exclusion should “stand.” Of course, the physical nature of a given scarce resource and the way in which humans use such resources will determine the nature of actions needed to “control” it and exclude others. See also on this Rothbard’s discussion of the “relevant technological unit” in Law, Property Rights, and Air Pollution; also B.K. Marcus, “The Spectrum Should Be Private Property: The Economics, History, and Future of Wireless Technology” and idem, “Radio Free Rothbard.”
[27] Hoppe, A Theory of Socialism and Capitalism, p. 12.
[28] On the title transfer theory of contract, see Williamson M. Evers, “Toward a Reformulation of the Law of Contracts,” Journal of Libertarian Studies1, no. 1 (Winter 1977): 3–13; Rothbard, “Property Rights and the Theory of Contracts,” chapter 19 in idem, The Ethics of Liberty; Kinsella, “A Libertarian Theory of Contract.”
[29] State laws and constitutional provisions often pay lip service to the existence of various personal and property rights, but then take it back by recognizing the right of the state to regulate or infringe the right so long as it is “by law” or “not arbitrary.” See, e.g., Constitution of Russia, Art. 25 (“The home shall be inviolable. No one shall have the right to get into a house against the will of those living there, except for the cases established by a federal law or by court decision”) and Art. 34 (“Everyone shall have the right to freely use his or her abilities and property for entrepreneurial or any other economic activity not prohibited by the law”); Constitution of Estonia, Art. 31 (“Estonian citizens shall have the right to engage in commercial activities and to form profit-making associations and leagues. The law may determine conditions and procedures for the exercise of this right”); Universal Declaration of Human Rights, Art. 17 (“Everyone has the right to own property alone as well as in association with others… No one shall be arbitrarily deprived of his property”); Art. 29(2) (“In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society”).
[30] Ludwig von Mises, Human Action, 4th ed. (Irvington-on-Hudson, N.Y.: Foundation for Economic Education, 1996), pp. 13–14, et pass.
[31] For further discussion of the role of empathy in the adoption of libertarian grundnorms, see note 14, above.
[32] Mises, Human Action, p. 14.
[33] As Hoppe explains, “Justification — proof, conjecture, refutation — is argumentative justification.” Hoppe, The Economics and Ethics of Private Property, p. 384; also ibid, p. 413, and also Hoppe, A Theory of Socialism and Capitalism, p. 130 et pass.
[34] For this reason Henry Hazlitt’s proposed name “cooperatism” for the freedom philosophy, has some appeal. See Henry Hazlitt, Foundations of Morality, p. xii.
[35] See Stephan Kinsella, “What It Means To Be an Anarcho-Capitalist,” LewRockwell.com (Jan. 20, 2004); also Jan Narveson, “The Anarchist’s Case,” in Respecting Persons in Theory and Practice (Lanham, Md.: Rowman & Littlefield, 2002).