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BrainPolice’s Critique of “What Libertarianism Is”

One “BrainPolice” provides a fairly thoughtful commentary on my article What Libertarianism Is in The Definition and Scope of Libertarianism [repixeled below from Wayback since the blog is now down] The main thrust of his post seems to be it’s unfair to call Mises and Nock non-libertarians; and that my paper is not a full-length treatise (it doesn’t deal with everything); and that well, I can’t say what libertarianism is or says, since libertarians disagree. Well. But let me reply to a few comments.

The first issue is that it is not at all clear that “capitalism” (or at least, the particular norms that tend to be associated with “capitalism”) inherently arises as the only economic system or forms of economic organization that can coherently be derived from libertarianism. Of course, this also depends on how “capitalism” is defined. If “capitalism” is merely being used to mean “whatever results from voluntary interaction”, then there is no reason why the norms of libertaran socialism couldn’t concievably arise as a particular manifestation of “capitalism” – which is confusing language. Presumably, these things (such as worker’s cooperatives and mutual aid organizations) are technically “permitted” in a libertarian society.

However, the use of the term “capitalism” among many libertarians tends to conceal the implicit assumption that a certain specific set of modes of economic organization are inherent to it (such as the corporation, traditional wage labor, and so on). This is a conflation of voluntary interaction in general with a particular type of organization or interaction. What’s more, various libertarians have put foreward a criticism of them on the grounds that their relative dominance is within the context of an already-existing non-libertarian social order or political system, and that there are certain reasons for postulating that people would have an incentive to choose alternatives to them in a libertarian social order.

Well. I specifically excluded “capitalism” as being the best way to define libertarianism, so this criticism seems wasted. And in context, I think it was clear what I meant: “Capitalism and the free market describe the catallactic conditions that arise or are permitted in a libertarian society“–meaning I’m referring to the market. “Capitalism” to refer to the common way of describing an advanced market economy in which capital is privately owned, instead of collectively owned. As the dictionary defines it, capitalism is “an economic system in which investment in and ownership of the means of production, distribution, and exchange of wealth is made and maintained chiefly by private individuals or corporations, esp. as contrasted to cooperatively or state-owned means of wealth.”I must say it drives me bonkers when pointless arguments about substantive matters are derailed by dwelling on (a) semantics, or (b) strategy (see my The Trouble with Libertarian Activism). (Re point (b): It also irks me when people derail substantive arguments and discussions by focusing on irrelevant issues such as whether it’s “fair” to have an opinion on what libertarianism is, or that it might imply that a Georgist is not a libertarian. For goodness sake, let’s get on with it, shall we?)

For this reason I reject the left-libertarians’ equation of capitalism with corporatism and socialism with … anything good (see my posts comment on Kevin Carson’s post “Socialism: A Perfectly Good Word Rehabilitated” and Wladimir Kraus: “Yes, Socialism is Collectivism and Capitalism is “Wage System”!”). But I will say that I have begun to use the term “anarcho-libertarian” in preference to “anarcho-capitalist,” despite the fact that I don’t see too much wrong with “capitalism” as a term and concept, other than, as noted in my article, it’s too narrow to equate to libertarianism itself.

If we don’t accept Kinsella’s particular formulation of libertarianism, we could concievably accuse it of condoning aggression.

So what? I suppose a Marxist views the libertarian property rights scheme as implying (what he implicitly views as) aggression. In other words, everyone who has a political opinion necessarily thinks others who disagree with him are… wrong. I don’t see a newsflash here.

As an additional note that may be worth considering, on the flip side of the matter, there is a sense in which would could say that property rights are dependant on the non-aggression principle, in that not aggressing against others is a norm with respect to the process of aquiring property. The very nature of trading and gift-giving is that of a non-aggressive process of action. One could therefore coherantly say that this works in both directions: there is a sense in which what constitutes aggression with respect to property is dependant on how property rights are defined to begin with, and there is a sense in which how property rights are defined to begin with is dependant on a question about aggression. This isn’t as simple as it may initially appear to be.

Well, it was a short Mises Daily article. Not a full length treatise.

Kinsella proceeds to talk about “self-ownership”:

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. 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.”

I highlighted the statement about any political theory having to assign ownership rights in bodies as well as in external things because I think part of the problem is that libertarians often do not make it clear that their notion of “self-ownership” does not function exactly the same as property rights in external objects. That is, when we think of ownership over external objects, we normally think of them as exchangable (or givable) commodities. However, this is not the same sense of “ownership” that most libertarians mean by “self-ownership” in that it is not concieving of one’s body as an exchangable commodity, it is inalienable. It is a claim of autonomy or individual sovereignty. The problem with murdering and assaulting people need not be concieved of in a propertarian manner or using propertarian language.

I am not clear on the point of this comment, or why it is supposed to be a criticism of me. Okay, so let’s grant that “libertarians often do not make it clear that their notion of “self-ownership” does not function exactly the same as property rights in external objects”. I was explicit as I could be about the distinction, and have been before in papers linked in the notes, e.g. “How We Come To Own Ourselves” and “A Libertarian Theory of Contract.”Download PDF I have also argued in excruciating detail about exactly why body-rights are inalienable and why ownership does not in and of itself imply the right to sell or exchange–but only happens to, in the case of homesteaded property, precisely because of the way that acquisition of rights in such unowned things differs from the basis for rights in one’s body. (See “A Libertarian Theory of Contract,”Download PDF pp. 26-30; Inalienability and Punishment, pp. 91-92.)

Kinsella goes on to talk about the relation between “self-ownership” and non-aggression.

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.)

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. 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.

The highlighted qualifier about defense and retaliation is not as cut and dry as it may initially seem. Libertarians have all sorts of internal disputes about precisely what constitutes defense, and most libertarians have a different view on “retaliation” than ARI Objectivists do. ARI Objectivists tend to justify many wars on the grounds of “retaliation” that most libertarians would object to as initiations of force. Furthermore, it is not at all clear that pacifists don’t qualify as libertarians. If a commitment to the non-initiation of force is a prequisite to being a libertarian, then pacifists not only qualify as libertarians, they exceed the qualification. I therefore think it makes sense to maintain that pacifists are actually defacto libertarians.

Libertarians, even those who are not absolute pacifists, also have internal disputes about violent punishment. Some libertarians take a “maximalist position” in which physical violence is supposed to be justified in response to minor property transgressions, some libertarians take a “proportionality” position in which “maximalism” is ruled out as an unproportionate response to the initial crime, and some libertarians categorically reject all violent punishment as an inherent violation of the non-aggression principle. Libertarians are also split on the death penalty. Rothbard restricted the death penalty to cases of murder, but some libertarians support either a broader death penalty or no death penalty at all.

My comment was simply recognizing that as we are against initiated force, this implies that there is some other type of force that we do not oppose as illegitimate. I refer to it as “responsive” force to distinguish from initiated force: there is force that is initiated, and then force in response to this initiated force. Sure, there is disagreement about what constitutes responsive force. But I have my own views about what libertarianism requires.

Considerations like this demonstrate that libertarianism cannot be so easily simplified and that the non-aggression principle cannot merely be stated as some sort of single-line maxim without begging a whole host of important questions with respect to how aggression is defined and the context that the non-aggression principle can be said to have. Libertarians don’t even all agree with eachother on whether or not the non-aggression principle genuinely can be said to have axoimatic status (indeed, while Kinsella quotes Rand, she did not consider it to be a contextless axoim) and there are endless disagreements about what its foundations and implications are.

She did not “consider” it to be contextless but it is stated by Galt as something that is easy to understand on its own terms, primary, and simple.

He quotes me as saying:

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.

His response:

There are two main issues with the implication of the part in italics. The first issue is that it seems unfair and oversimplistic to claim that minarchists are not libertarians.

Well, if it’s unfair to charge someone who advocates even partial slavery with being non-libertarian; if it’s “unfair” to charge someone who advocates the initiation of force against innocents with being a non-libertarian (at least to that extent), I stand, proudly, guilty as charged.

The very person who the site that this article was written for is named after was a minarchist: is Kinsella going to claim that Mises was not a libertarian?

Mises was about as close to anarchist as you can get without being one (see Was Mises an Anarchist?). But to the extent he advocated the state and the aggression it employs, to that extent he deviated from libertarian principle.

He quotes my:

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. 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.

His reply:

I must repeat that it is not at all fair for Kinsella to be defining non-proviso lockeanism as a rigid requirement for one to be a libertarian. Geolibertarians and proviso lockeans are not non-libertarians for not accepting the anarcho-capitalist hardline on land property – unless Kinsella wishes to denounce sacred cows such as Albert Jay Nock and Frank Chodorov for the sin of geoism.

“Fair”? Well, it’s my view, sorry. I’ve provided reasons for it (see Down with the Lockean Proviso). As for Georgists: yes, I believe this is an utterly ridiculous and completely unlibertarian view (see Egads, I hate Georgism).

Furthermore, even if we agree with the general notion of original appropriation, we do not necessarily have to agree that the original appropriator legitimately maintains ownership forever and ever from that point onwards (or until they die). Hence the notion of abandonment (and abandonment is not based on the mere “intent” to abandon), which is really what the “occupancy and use” qualification that some people have for property reduces to: a more stringent notion of abandonment than that which is commonly held by anarcho-capitalists and non-proviso lockeans. And both the notion of “occupancy and use” and property “returning to the commons” is not a quantative timeline that functions as some sort of arbitrary regulation, it is a qualatative matter.

I have explained in detail why it is inappropriate to consider mutualism’s occupancy requirement as a type of abandonment rule similar to those of Lockean systems. Instead, it is a use-requirement. (See A Critique of Mutualist Occupancy; Left-Libertarians on Rothbardian Abandonment.) Even worse, as noted in Left-Libertarians on Rothbardian Abandonment, is that even if you agree that leaving property unused means the owner gives up title, there is no justification whatsoever for the paternalistic, socialistic evisceration of the right to contract implied in the case where the owner uses another person as an agent (such as a tenant or employee). The mutualist project depends, as far as I can tell, on the right of “workers,” say, to seize the factories–after all the owner is “distant” and is not himself “occupying” or using the property. So he has abandoned it. This is ridiculous and unlibertarian, in my view.

What I would like for Kinsella to entertain is the possibility that the claim of the “latecomer” is not always wrong by definition, that there can be circumstances in which the “prior comer” has become so disconnected from the property and that the “latecomer” has established a significant connection to the property that the “prior comer’s” claim is actually the one that is nullified. There may be at least some cases in which the “first owner” actually doesn’t have a “better claim”, and is indeed nothing but a “possessor” without a legitimate claim to the property anymore.

Of course. The very idea of an act of crime upsetting the prima facie set of rules implies this. And the idea of some form of “acquisitive prescription” (which I specifically noted in “A Critique of Mutualist Occupancy,” linked in note 23 of my paper) does too. But I explained there why this idea cannot be stretched to get you a use or occupancy requirement, especially not one that would eviscerate the contract between owner and agent (e.g., employee or tenant).

I would also like to point out that if we adopt as an absolute rule that the “late comer” is always in the wrong and the prior possessor is always the legitimate owner, then this justifies the state, because the state is the defacto prior owner of the land in the societies that we are simply born into. In fact, this is a huge hole in anarcho-capitalism, in which the very arguent that anarcho-capitalists give in favor of land owners can just as easily be applied as a defense of any state and as an explaination for state formation.

Well, sure, the rule is a prima facie or ceteris paribus one. The state’s homesteading of property can be viewed any number of ways. Some view it as illegitimate and view the property “as unowned.” I find this fiction to be confusing and dishonest. It’s not unowned, and not un-homesteaded. In my view, the state can be viewed as the agent for its claimant-victims, or as holding their property since they have claims on it. So the second the state homesteads property, the owner is people who are owed restitution by the state.

Update: BrainPolice also says this in his comments: “The second issue is that it is not at all clear that all libertarians agree with Murray Rothbard that “all rights are property rights”, or that this view is a necessary component of being a libertarian.”

In response to this, I wanted merely, for now, to quote part of Hoppe’s withering retort to Loren Lomasky’s attack, which can be found at p. 411 of Economics and Ethics of Private Property:

Like most contemporary philosophers, Lomasky gives no indication that he has grasped the elementary yet fundamental point that any political philosophy which is not construed as a theory of property rights fails entirely in its own objective and thus must be discarded from the outset as praxeologically meaningless moonshine.

***

The Brainpolice post, and comments archived on wayback:

Saturday, August 22, 2009

The Definition and Scope of Libertarianism

Stephan Kinsella recently wrote a piece at mises.org that functions as a basic exposition of what he thinks libertarianism is by definition. I’d like to add some commentary and criticism in response to this article, because I think that it overlooks some fundamental issues and attempts to establish a definition for libertarianism that is too narrow in some ways. It seems like Kinsella is ultimately conflating a particular formulation of libertarianism with libertarianism as a whole.

Various formulations abound. It is said that libertarianism is about individual rights, property rights, 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. And justice is just giving someone his due, which depends on what his rights are.

There are two basic issues with this paragraph, which I’ve highlighted in italics.

The first issue is that it is not at all clear that “capitalism” (or at least, the particular norms that tend to be associated with “capitalism”) inherently arises as the only economic system or forms of economic organization that can coherently be derived from libertarianism. Of course, this also depends on how “capitalism” is defined. If “capitalism” is merely being used to mean “whatever results from voluntary interaction”, then there is no reason why the norms of libertaran socialism couldn’t concievably arise as a particular manifestation of “capitalism” – which is confusing language. Presumably, these things (such as worker’s cooperatives and mutual aid organizations) are technically “permitted” in a libertarian society.

However, the use of the term “capitalism” among many libertarians tends to conceal the implicit assumption that a certain specific set of modes of economic organization are inherent to it (such as the corporation, traditional wage labor, and so on). This is a conflation of voluntary interaction in general with a particular type of organization or interaction. What’s more, various libertarians have put foreward a criticism of them on the grounds that their relative dominance is within the context of an already-existing non-libertarian social order or political system, and that there are certain reasons for postulating that people would have an incentive to choose alternatives to them in a libertarian social order.

The second issue is that it is not at all clear that all libertarians agree with Murray Rothbard that “all rights are property rights”, or that this view is a necessary component of being a libertarian. Many libertarians with a neo-aristotilean temperment (and not just those with a left-libertarian temperment as well), for example, tend to have a view more along the lines that property rights are an entailment of a more general right of liberty. In this sense, liberty can be thought of as providing a context for property rights, and not the other way around. In fact, if we want to take the premise that liberty is defined by property rights quite literally, a reductio ad absurdum of immense proportions should immediately pop out at us: that one’s liberty is entirely dependant on whatever the will of a land owner is and completely goes away as soon as one is on someone else’s land.

In effect, this would mean that liberty is constrained by property and contracts, potentially to the point of beingcompletely nullified (I.E. “you’re on my land, therefore I can do whatever I want to you” or “you signed this contract, therefore you have to do whatever I tell you to do for the rest of your life”). This is precisely why liberty as a general principle is actually over and above property and contracts in a certain sense, and property and contracts are in fact not involiable. And, despite his insistance that all rights are property rights, Rothbard himself aknowledged this in the sense that he considered liberty inalienable (and, quite rightly, opposed all slavery contracts). This is basically an admission to a way in which all rights can be said to not be property rights in an alienable sense.

Kinsella goes on to remark about property in relation to aggression:

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.

The basic premise highlighted in italics is important. This is where I think that things start to get especially murky. If the non-aggression principle is dependant on how one defines property rights to begin with, which seems true enough, then this opens a huge philosophical can of worms. This, at least descriptively, relativizes non-aggression. We bump into the problem that when an act of physical violence can be considered either aggression or defense will vary widely depending on (1) what basis we have for property and (2) consequentially, how property titles are allocated. And it is therefore not at all clear that (1) libertarians in general are the only group that can claim to consistently favor non-aggression and (2) that Kinsella’s particular formulation of libertarianism is by definition the only one that can claim to consistently favor non-aggression.

If we don’t accept Kinsella’s particular formulation of libertarianism, we could concievably accuse it of condoning aggression. On the other hand and more generally speaking, if we assume a particular criteria for property ownershipand if we assume a particular allocation of property titles, we could concievably accuse anyone that doesn’t share our concept of property or anyone that doesn’t agree with the particular allocation of property titles that we favor of inherently condoning aggression. And this is, in fact, what some libertarians end up doing: accusing anyone that doesn’t share their property conventions (particularly, a non-proviso lockean conception of property) of condoning aggression by definition. It seems like this can be rather unfair; a conflation of one’s property conventions with non-aggression and a conflation of all alternative property conventions with aggression.

As an additional note that may be worth considering, on the flip side of the matter, there is a sense in which would could say that property rights are dependant on the non-aggression principle, in that not aggressing against others is a norm with respect to the process of aquiring property. The very nature of trading and gift-giving is that of a non-aggressive process of action. One could therefore coherantly say that this works in both directions: there is a sense in which what constitutes aggression with respect to property is dependant on how property rights are defined to begin with, and there is a sense in which how property rights are defined to begin with is dependant on a question about aggression. This isn’t as simple as it may initially appear to be.

Kinsella specifies what is meant by “property rights” a little more here:

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. 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.

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.

The parts that I highlighted in italics are of particular interest to me. Kinsella makes a valid point in that, if by “property rights” we generally mean the question of who controls what (at a minimum), then all political theories have some conception of property rights, even if they do not explicitly use the term “property” or “property rights”. In this sense, it doesn’t make sense to say that anyone is “against property” or “pro-property” in any absolute manner because this is rather vague. We should always keep in mind that we are dealing with specific conceptions of property and property rights.

But where I begin to disagree with Kinsella is that, in my understanding, it is not all the case that there is a single setof libertarian “property assignment rules”, other than a commitment to non-aggression that can sometimes be rather vague. Non-proviso lockeans, proviso lockeans, geoists and mutualists are all different types of libertarians, whether Kinsella wants to admit this or not. It is not the case that one has to be a non-proviso lockean to be a libertarian,there is no absolute consensus among libertarians about property and even non-proviso lockeans don’t completely agree with eachother with respect to what their property theory entails or is compatible with (for example, Roderick Long seems to think that non-proviso lockeanism can potentially be compatibalized with geoism and mutualism, while others take a much more rigid line about the matter).

Kinsella proceeds to talk about “self-ownership”:

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. 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.”

I highlighted the statement about any political theory having to assign ownership rights in bodies as well as in external things because I think part of the problem is that libertarians often do not make it clear that their notion of “self-ownership” does not function exactly the same as property rights in external objects. That is, when we think of ownership over external objects, we normally think of them as exchangable (or givable) commodities. However, this is not the same sense of “ownership” that most libertarians mean by “self-ownership” in that it is not concieving of one’s body as an exchangable commodity, it is inalienable. It is a claim of autonomy or individual sovereignty. The problem with murdering and assaulting people need not be concieved of in a propertarian manner or using propertarian language.

Kinsella goes on to talk about the relation between “self-ownership” and non-aggression.

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.)

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. 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.

The highlighted qualifier about defense and retaliation is not as cut and dry as it may initially seem. Libertarians haveall sorts of internal disputes about precisely what constitutes defense, and most libertarians have a different view on “retaliation” than ARI Objectivists do. ARI Objectivists tend to justify many wars on the grounds of “retaliation” that most libertarians would object to as initiations of force. Furthermore, it is not at all clear that pacifists don’t qualify as libertarians. If a commitment to the non-initiation of force is a prequisite to being a libertarian, then pacifists not only qualify as libertarians, they exceed the qualification. I therefore think it makes sense to maintain that pacifists are actually defacto libertarians.

Libertarians, even those who are not absolute pacifists, also have internal disputes about violent punishment. Some libertarians take a “maximalist position” in which physical violence is supposed to be justified in response to minor property transgressions, some libertarians take a “proportionality” position in which “maximalism” is ruled out as an unproportionate response to the initial crime, and some libertarians categorically reject all violent punishment as an inherent violation of the non-aggression principle. Libertarians are also split on the death penalty. Rothbard restricted the death penalty to cases of murder, but some libertarians support either a broader death penalty or no death penalty at all.

Considerations like this demonstrate that libertarianism cannot be so easily simplified and that the non-aggression principle cannot merely be stated as some sort of single-line maxim without begging a whole host of important questions with respect to how aggression is defined and the context that the non-aggression principle can be said to have. Libertarians don’t even all agree with eachother on whether or not the non-aggression principle genuinely can be said to have axoimatic status (indeed, while Kinsella quotes Rand, she did not consider it to be a contextless axoim) and there are endless disagreements about what its foundations and implications are.

The article continues with an explaination trying to distinguish libertarians from others:

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.

There are two main issues with the implication of the part in italics. The first issue is that it seems unfair and oversimplistic to claim that minarchists are not libertarians. The very person who the site that this article was written for is named after was a minarchist: is Kinsella going to claim that Mises was not a libertarian? While I’m a libertarian anarchist myself, as a matter of categorization I fully grant minarchists the status of “libertarian”. Generally, what distinguishes minarchists from libertarian anarchists is a matter of what one thinks the logical implications of libertarianism are. Minarchists tend to believe that the state is necessary to enforce the non-aggression principle. They may be wrong about this and there may be an internal contradiction within minarchism in which the state itself is dependant on aggression, but this doesn’t make them non-libertarians by definition. The libertarian vs. statist dichotomy seems oversimplified.

The second issue is that, even among self-proclaimed libertarian anarchists, there is no uniform opposition to slavery to be found. In fact, Walter Block and numerous individuals following in his footsteps or who take a similar view, think that slavery contracts can potentially be legitimate if they are initially voluntarily entered into. Consequentially, there have been “voluntary slavery” debates within libertarian discourse. One side maintains that such cases of slavery cannot be objected to because it’s an initially “voluntary contract”, while another side generally upholds the notion of inalienability of rights and considers such a contract to inherently be null and void – or at least, opt-outable at any time. There are also disputes over debt peonage or involuntary-servitude-as-punishment as a form of “voluntary slavery”.

Moving on to property in external things, Kinsella states:

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.

I’m going to try to make a clarification with respect to the part in italics in the sense that I find it to be necessary but not sufficient. I’ve expressed this viewpoint before. The problem is that what constitutes aggression is not merely dependant on the question of “who is the owner?”, it is also dependant on the question of “even assuming the legitimacy of a given person’s ownership, what type of scope of decision-making power does ownership legitimately allow for?”. And to this question, my answer is that the decision-making power is actually non-absolute precisely because it comes into conflict with people’s right to life and liberty if it is treated as absolute. For example, if I’m the legitimate owner of my home, this doesn’t mean that I can do whatever I want to whoever is in my home at a given time; I can’t just assault and murder people and then appeal to the fact that it’s my home and say “love it or leave it”. In this sense, what constitutes aggression is a much broader issue than property in external things.

Kinsella goes on to get into the neo-lockean conception of ownership:

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. 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.

I must repeat that it is not at all fair for Kinsella to be defining non-proviso lockeanism as a rigid requirement for one to be a libertarian. Geolibertarians and proviso lockeans are not non-libertarians for not accepting the anarcho-capitalist hardline on land property – unless Kinsella wishes to denounce sacred cows such as Albert Jay Nock and Frank Chodorov for the sin of geoism. I’d also like to point out that the question of “original appropriation”, at least in the context of modern industrial areas, has little to no relevance in the sense that we’re mostly dealing with property that has long since already been originally appropriated, and it largely reduces to a question of title-transfer of already-owned property and the issue of abandonment. The question of “homesteading” in the sense of original appropriation has no relevance with respect to the question of who owns the roads, the houses, the factories, the parks, the schools, city hall, and so on.

Furthermore, even if we agree with the general notion of original appropriation, we do not necessarily have to agree that the original appropriator legitimately maintains ownership forever and ever from that point onwards (or until they die). Hence the notion of abandonment (and abandonment is not based on the mere “intent” to abandon), which is really what the “occupancy and use” qualification that some people have for property reduces to: a more stringent notion of abandonment than that which is commonly held by anarcho-capitalists and non-proviso lockeans. And both the notion of “occupancy and use” and property “returning to the commons” is not a quantative timeline that functions as some sort of arbitrary regulation, it is a qualatative matter.

Kinsella goes into more depth about the property issue:

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, while possession is actual control — “the factual authority that a person exercises over a corporeal thing.” 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. Such a system, far from avoiding conflict, makes conflict inevitable.

It appears obvious to me that Kinsella is conflating the “occupancy and use” qualification for property with a Max Stirner amoralist style position. The “occupancy and use” qualification for property is not the claim that “whatever I can take and can maintain is mine”. If anything, it is the exact same thing as what Kinsella himself is trying to defendin a certain sense: that claims to ownership have to be traceable back to an objective criteria that demonstrates some sort of meaningful connection between the claimant and the property. The main difference is that the “occupancy and use” qualification is more open to the possibility that an “original appropriator” can become so disconnected from the property that they are claiming that their “ownership” become dubious. And a mere legal title to the property is not sufficient as an objective criteria connecting someone with the property; in fact, it can be completely arbitrary, and Rothbard himself actually went out of his way to make this point in “The Ethics of Liberty”.

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. 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. The crucial importance of the prior-later distinction to libertarian theory is why Professor Hoppe repeatedly emphasizes it in his writing.

What I would like for Kinsella to entertain is the possibility that the claim of the “latecomer” is not always wrong by definition, that there can be circumstances in which the “prior comer” has become so disconnected from the property and that the “latecomer” has established a significant connection to the property that the “prior comer’s” claim is actually the one that is nullified. There may be at least some cases in which the “first owner” actually doesn’t have a “better claim”, and is indeed nothing but a “possessor” without a legitimate claim to the property anymore. I would also like to point out that if we adopt as an absolute rule that the “late comer” is always in the wrong and the prior possessor is always the legitimate owner, then this justifies the state, because the state is the defacto prior owner of the land in the societies that we are simply born into. In fact, this is a huge hole in anarcho-capitalism, in which the very arguent that anarcho-capitalists give in favor of land owners can just as easily be applied as a defense of any state and as an explaination for state formation.

Posted by Brainpolice at 11:30 AM 

5 comments:

William said…

> “Kinsella makes a valid point in that, if by “property rights” we generally mean the question of who controls what (at a minimum), then all political theories have some conception of property rights, even if they do not explicitly use the term “property” or “property rights”.”This is a common misperception. While many social anarchist branches DO speak in terms of “who controls what” — and thus hold to a de facto theory of property titles — many DO NOT.It is perfectly reasonable to formulate a theory of interaction with material goods that speak only to solve WHAT USE they may be put to. In such a formulation the question is not WHO controls what, but WHAT controls what. And such theories of justice focus on the mediation between competing IDEAS/PROSPECTS for use — that completely ignores the concept of assigning veto rights to a body of individuals.
August 22, 2009 10:50 PM

Stephan Kinsella said…

William:
“While many social anarchist branches DO speak in terms of “who controls what” — and thus hold to a de facto theory of property titles — many DO NOT.”Such a rule still specifies, in the end, who can control the resource in a given situation.Blogger is too limiting as to length and formatting so I posted my longer reply here.
August 23, 2009 1:31 AM

William said…

> “Such a rule still specifies, in the end, who can control the resource in a given situation.”No. It would be absolutely ridiculous to impose that frame of reference over what’s going on. In such systems there would be absolutely no connection between any “who” and control of an object.I suppose an observer might look at who is in proximity of an object or who most heavily engages in discussion (or whatever their process might be to mediate between proposed uses) and describe them as controlling the resource. But such a ‘description’ would be absolutely unable to make predictions because that society would have no rules governing exclusion to those processes; any repeated correlation would be effective happenstance. Not a rule.
August 23, 2009 2:14 AM

Stephan Kinsella said…

“What I would like for Kinsella to entertain is the possibility that the claim of the “latecomer” is not always wrong by definition, that there can be circumstances in which the “prior comer” has become so disconnected from the property and that the “latecomer” has established a significant connection to the property that the “prior comer’s” claim is actually the one that is nullified. There may be at least some cases in which the “first owner” actually doesn’t have a “better claim”, and is indeed nothing but a “possessor” without a legitimate claim to the property anymore.”If he’s still a possessor then how has he become disconnected from it?In any case–sure, we recognize the concept of abandonment.I would also like to point out that if we adopt as an absolute rule that the “late comer” is always in the wrong and the prior possessor is always the legitimate owner, then this justifies the state, because the state is the defacto prior owner of the land in the societies that we are simply born into.”

May 28, 2010 8:56 AM

Stephan Kinsella said…

Hit “publish” too soon. re-trying:”What I would like for Kinsella to entertain is the possibility that the claim of the “latecomer” is not always wrong by definition, that there can be circumstances in which the “prior comer” has become so disconnected from the property and that the “latecomer” has established a significant connection to the property that the “prior comer’s” claim is actually the one that is nullified. There may be at least some cases in which the “first owner” actually doesn’t have a “better claim”, and is indeed nothing but a “possessor” without a legitimate claim to the property anymore.”If he’s still a possessor then how has he become disconnected from it?In any case–sure, we recognize the concept of abandonment. See http://www.stephankinsella.com/2009/08/02/a-critique-of-mutualist-occupancy/ , http://www.stephankinsella.com/2009/08/03/inability-to-abandon-property-in-the-civil-law/, and http://www.stephankinsella.com/2009/08/23/brainpolices-critique-of-what-libertarianism-is/ .

But saying a distant owner “has” abandoned something even if it’s still being used by his agents (employees or tenants) and even despite his explicit disavowal of abandonment is stretching the concept too far–and disingenuously. It’s equivocation.

“I would also like to point out that if we adopt as an absolute rule that the “late comer” is always in the wrong and the prior possessor is always the legitimate owner, then this justifies the state, because the state is the defacto prior owner of the land in the societies that we are simply born into.”

Of course not. The rules apply to innocent people of course. The rules imply the non-aggression principle, and implies that those who breach it have become outlaws in some sense. Etc.

May 28, 2010 9:00 AM
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  • Bob Kaercher August 24, 2009, 11:28 am

    Stephan, I think you’re pretty much spot on addressing BP’s critique. However…

    “So the second the state homesteads property, the owner is people who are owed restitution by the state.”

    I see what you’re saying here, but I think this begs the question of how such property should be used–according to a properly libertarian standard–until such time as restitution has taken place.

  • Stephan Kinsella August 24, 2009, 11:57 am

    Bob,

    “So the second the state homesteads property, the owner is people who are owed restitution by the state.”

    I see what you’re saying here, but I think this begs the question of how such property should be used–according to a properly libertarian standard–until such time as restitution has taken place.

    Do you mean question-begging, literally, as in circular argumentation, or do you mean “raises the question”? As for how the property shoudl be used, I am not sure there is a decisive libertarian answer to such second-bestisms; for a sketch of one approach along these lines see my A Simple Libertarian Argument Against Unrestricted Immigration and Open Borders.

  • Bob Kaercher August 24, 2009, 12:34 pm

    Yes, I suppose I meant “raises the question”, not “begging”. Thanks.

  • Olivier Janssens November 27, 2011, 5:35 pm

    “the state is the defacto prior owner of the land in the societies that we are simply born into.” I don’t agree. The people that aquired and own the property are. In a transition from a state to a free society, people would just keep all their property like it was before. Notaries hold all ownership documents to justify that, and are in my opinion a great tool for free societies.

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