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Left-Libertarians on Rothbardian Abandonment

In Chartier’s Conscience of an Anarchist I mention an interview law professor and libertarian Gary Chartier gave. In the interview, the left-libertarian host “Little Alex,” at around 59 minutes, characterizes the Rothbardian view of abandonment as follows: if you own a pencil, and drop it, you own it forever; so if someone else finds it, you can at any time in the future reclaim it. Chartier agrees with the host that this is a “silly” view. Now, admittedly, Chartier was put on the spot, but I think this is a mischaracterization of Rothbardian-libertarian views on abandonment. I discuss this a bit in A Critique of Mutualist Occupancy.

The mutualist view, as I understand it, is basically this: first, occupancy is a requirement of ownership–both initial, and continuing, ownership. And the occupancy has to be done by the owner himself, not his agent. So, if A homesteads a tract of land, Blackacre, and builds an apartment building or factory on it, if he stops using it for some time, then this is “abandonment” and the property can be re-homesteaded by a squatter or new user. Moreover, if A rents the building to tenants, or if he lets his employees operate the factory, he is still not occupying it–rather, the tenants or employees are. Thus, despite the contract between owner and current user (tenant or employees), the property becomes abandoned and then the new possessor instantly re-homesteads it. Now, I find both views utterly unlibertarian. Carson argues that the occupancy view is just at one end of the spectrum of views on default “abandonment” rules, that even Lockeans have. I disagree, as explained in greater detail in my post A Critique of Mutualist Occupancy: the occupancy rule amounts to a use or working requirement, not a default rule for abandonment.

As for title lapsing for unused property, Rothbard argues (correctly, in my view), in The Ethics of Liberty that

… we are not saying that, in order for property in land to be valid, it must be continually in use. The only requirement is that the land be once put into use, and thus become the property of the one who has mixed his labor with, who imprinted the stamp of his personal energy upon, the land. After that use, there is no more reason to disallow the land’s remaining idle than there is to disown someone for storing his watch in a desk drawer.[3][3]There are, as I have demonstrated elsewhere, excellent economic reasons why land, in particular, may remain unused; for above-subsistence living standards depend on the supply of labor being scarcer than the supply of land, and, when that happy situation obtains, considerable land will be “sub-marginal” and therefore idle.

Second, 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. (See also George Reisman’s Mutualism: A Philosophy for Thieves, making a similar point about mutualism’s lack of respect for the contract between owner and tenant.)

But as for abandonment itself: the libertarian view is of course that you have the right to abandon property, as Rothbard admits (interestingly, there are gaps in the ability to abandon property in some statutory civil law systems). I am not sure if or where Rothbard wrote on the need for default rules to make a determination of when abandonment has, in fact, happened, but I see no reason to think Rothbard thinks there should not be any. Thus, I think it’s ridiculous to charge Rothbard with the view that if you lose a pencil in the wild, that this can never be considered an abandonment. In my view, if you lose a pencil you do, at least after some time, abandon it. So the position Chartier agrees is silly is not Rothbard’s.

There are two related views of Rothbard that I think the host was confusing here. First, the Rothbardian view is that stolen property remains title of the original owner. So if B steals A’s watch, and B sells it to C, then A can later reclaim his watch from C (even if C is an innocent or “good faith”/”bona fide” purchaser). As Rothbard writes in The Ethics of Liberty,

Suppose, for example, that Jones possesses a watch, and that we can clearly show that Jones’s title is originally criminal, either because (1) his ancestor stole it, or (2) because he or his ancestor purchased it from a thief (whether wittingly or unwittingly is immaterial here). Now, if we can identify and find the victim or his heir, then it is clear that Jones’s title to the watch is totally invalid, and that it must promptly revert to its true and legitimate owner. Thus, if Jones inherited or purchased the watch from a man who stole it from Smith, and if Smith or the heir to his estate can be found, then the title to the watch properly reverts immediately back to Smith or his descendants, without compensation to the existing possessor of the criminally derived “title.” Thus, if a current title to property is criminal in origin, and the victim or his heir can be found, then the title should immediately revert to the latter.

Now, I actually have always thought this view is subject to criticism, but this is not what the mutualists are focusing on. In my view, it is possible that at least in some cases Jones might have a better claim than Smith. For example, suppose Smith was negligent in letting it be stolen; and Jones bought the watch in good faith from the thief. Assuming the thief is not to be found, then the loss has to fall on either Jones or Smith. It is not automatically obvious to me that it should always be Jones. In the law, if I recall, the loss of a forged check usually falls on the bank (who should not have cashed it with a forged signature), but in some cases, where the check was lost or stolen due to the negligence of the customer, it’s more his fault than the bank’s. Something like that could apply in a customary system of law; who knows. And second, consider that a thief has the practical ability in some cases to steal and destroy your property. It could be that many private societies would view the theft of a fungible movable good and its re-sale to a good-faith purchaser as a type of “destruction” of the property (title). But as a prima facie rule, and especially for land (unlike movables), I agree with Rothbard. In any event, the Rothbardian view on the sanctity of title to stolen property is not what the mutualists are critiquing in Rothbard.

The other view of Rothbard’s that the host may have been getting mixed up is his view that mere non-use of land does not amount to abandonment. I agree with Rothbard here, but the point is that this is not the same at all as the view that there should be no default rules to abandonment. In other words, Rothbard can maintain (a) that the owner never loses title to stolen property; and (b) the owner of land does not lose title by mere non-use; while he also maintains (c) you can abandon property in any number of ways, such as by losing a pencil.

[Mises cross-post]

Archived comments:

 

{ 16 comments… read them below or add one }

jc butte August 22, 2009 at 12:50 pm

Why is land different from an idea? If someone invents a machine, and can see every part in his imagination before it’s put on paper and from there into actuality, shouldn’t he own that design? What is the difference between thought and labor if each lead to a unique construction of some type?

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Slim934 August 22, 2009 at 1:52 pm

Basically, Ideas are not scarce.

If I vocalize an idea to you, you now have a new idea. However, nothing has changed with respect to my possession of the same idea. The concept does not change if we extend it to machine blueprints, or even software (since that is only a specific string of numbers and mathematical operators).

Hoppe discusses this concept at length in his works. He writes that rights in scarce goods are necessary because the use of them by one or some people necessarily means that others cannot have the same level of ownership over them, since there is only so much of the good. They exist, in simpler terms, to prevent conflict over scarce goods.

By creating rights in non-scarce goods, we are actually CREATING conflicts because we are adding ownership rights for people who are NOT the owners of scarce goods.

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 Alexander S. Peak August 22, 2009 at 2:28 pm

In the interview, the left-libertarian host “Little Alex,” at around 59 minutes, characterizes the Rothbardian view of abandonment as follows: if you own a pencil, and drop it, you own it forever; so if someone else finds it, you can at any time in the future reclaim it. Chartier agrees with the host that this is a “silly” view.

Why is this a “silly view”?

A has a pencil, and B says it belongs to B and not to A. B must then be able to prove beyond a reasonable doubt that B in fact did own the pencil, and if she cannot, the pencil remains the property of A. Let’s say that B actually can show documented evidence of owning the pencil, as unlikely as that is, since not many people keep records of such things. Then, the ownership of the pencil reverts to B.

Let’s say that A had found the pencil in the woods, and still believes that the pencil justly belongs to herself, A. It is then A’s job to prove beyond a reasonable doubt that B did not accidentally lose the pencil but had, instead, intentionally surrendered it to the state of nature.

Is this wrong?

The only reason this discussion appears petty and thus “silly” is that it indeed is petty. Most people do not greatly value their pencils as compared to other things, and thus will not expend the energy to insure ownership through registration of the pencil. One who has not registered her or his ownership of a pencil with whatever private firms provide whatever cirtification of ownership that may be provided on a free market will, by losing her or his pencil, have de facto yeilded said pencil to the state of nature, thus making the discussion vis-a-vis pencils rather pointless. One is much more likely to keep records of overship over her car than over her pencil, and thus be able to reclaim a lost vehicle no matter how many years have passed. And, of course, it is only right that she should be permitted to re-obtain her car (assuming she can prove ownership beyond reasonable doubt), considering that it was she who worked to purchase the car in the first place.

I believe this is the proper left-libertarian position.

[S]uppose Smith was negligent in letting it be stolen.

Theft is theft regardless of how careful an owner is in ensuring that her or his property is not usurped.

It could be that many private societies would view the theft of a fungible movable good and its re-sale to a good-faith purchaser as a type of “destruction” of the property (title).

I don’t think so. A asks B to watch his hat for him while he, A, goes to the bathroom. C enters, sees the hat, and says to B, “nice hat.” B says, “ten dollars, and it’s yours.” B is happy and makes the purchase. Then A returns, and sees his hat on C’s head. “Give me my hat,” he says to C. “No,” C says, “I bought it fair and square from B.”

Should A not be allowed to take his hat back simply because of B’s misdeed? No. B’s action constitutes fraud because he was claiming the ability to sell something he did not possess, namely title to A’s hat. Thus, his crime against C must be corrected through his returning to C the ten dollars, and to A should be returned the hat.

If this is rational and correct, why would it not also be correct if (A) B and C immediately left after B’s two crimes and (B) ten years have passed before A can acquire the restitution he deserves? C does not become the just owner of A’s hat merely by having possessed it for ten years and B does not become the just owner of C’s ten dollars merely by having possessed that for ten years. And if A can prove beyond a reasonable doubt that the hat in C’s possession is in fact A’s, then why would it not revert back to A?

In conclusion, it seems to me that ownership of alienable property can be surrendered only by (A) committing a crime (including the crime of statism), (B) trading or giving away voluntarily the good to another person or organisation, (C) purposely surrendering the good to the state of nature, or (D) losing the good without having the ability to prove beyond a reasonable doubt ownership to the good. This view would certainly allow workers to seize the property of the statist corporations for which they work (e.g.Halliburton), but not on the grounds of lack of occupancy; instead, on the grounds that Halliburton (and any other statist corporation) profits from statist aggression.

Sincerely,
Alex Peak

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 Floyd Looney August 22, 2009 at 4:18 pm

I still can’t fathom why anything on the “left” could ever be considered libertarian.

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jon August 22, 2009 at 6:51 pm

as for that pencil, on whose property was it dropped?

– your own
– a friend’s
– a stranger’s
– “public” property

it should be easy to see where that is going.

contrived examples are sometimes intentionally incomplete. other times, the person giving the example is incapable of “thinking in the long run.”

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 Josiah August 22, 2009 at 7:56 pm

It’s goofy attempts like this at re-dreaming up the Ten Commandments that helped me see the meaninglessness of notions like “natural rights” and “morality,” and swayed me to moral skepticism a la Ludwig von Mises and Anthony de Jasay.

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newson August 23, 2009 at 3:44 am

in italian law, occupancy can confer ownership after a twenty year period (usucapione), providing the occupant doesn’t pay rent, and pays state taxes as though he were the owner.

even in the event of a bona fide purchase from a non-owner, usucapione means that after ten years the transaction is rendered legitimate, and restitution is blocked.

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Abhilash Nambiar August 23, 2009 at 12:52 pm

There is a simple solution to the problem of dealing in stolen goods. The business man can himself declare (being a self-owner and all) how he would deal with stolen goods once it is established that he has come into possession of it during his normal trading activities.

Other people who are potentially interested in doing business with him can take a note of it and decide if they want to do business with him or not. Those that have the most appealing way of dealing with hot stuff, will out compete those that do not.
There is no need for Rothbard to decide it for them.

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 Troy Camplin August 23, 2009 at 6:51 pm

What do we mean by “use”? Suppose I buy a tract of land because I want it to remain unused? Suppose I’m a rich environmentalist who actually puts his money where his mouth is, and I buy up some land where an endangered flower is located. I have no intention of doing anything at all with that land — of “using” it — except to leave it as it is. By the logic of mixing one’s labor with the land as proper use and therefore proper ownership, it would seem to me that my buying the land for the aforementioned purpose would be illegitimate.

Now, I use the example I did, because I can tell you why I bought the land. One could argue that I am thus “using” the land for something. However, I don’t think that we should have to give in to a demand by someone that we explain what we are doing with the land we own in order to retain ownership. Who is to determine what is “use”? Whose definition of “use” shall we use? In the end, it’s none of your business what I am doing with my land, so long as what I am doing doesn’t harm anyone else. If it is not evident that I am using the land, I don’t think I should have to face a tribunal to explain that I am, in fact, using it.

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BioTube August 23, 2009 at 8:43 pm

I think we would do well to replace ‘use’ with ‘defend ownership of’ – for example, if somebody steals a pencil from my hand and I do nothing to stop it or reacquire it, I implicitly surrender ownership; by the same token, if I defend my patch of land against trespassers but otherwise do not do anything, I retain title(and if I don’t, usucapione(or other form of squatter’s rights) would apply). It’s the same with homesteading: if I take measures to keep people out of a place(before they start using it, of course), I have as much of a claim as somebody who built a house(although a house is a much more defensible claim than mere exclusion); this, incidentally, is the only way I can see parks(which, by definition, develop little of their land – unless it’s a Great Cavern of Winds[Congress]) working without arbitrary land divisions(ie, the way it works with a state).

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 P.M.Lawrence August 23, 2009 at 9:56 pm

“The mutualist view, as I understand it, is basically this: first, occupancy is a requirement of ownership–both initial, and continuing, ownership”.

That should be a red flag warning of a straw man.

No. There is no “the” mutualist view, any more than there is a “the” anarchist view or a “the” libertarian view. All you can do is say that mutualism is anarchism that allows voluntary mutual arrangements as well as individual ones – always remembering that, to be voluntary, they must rest on individuals (so avoiding inconsistency with anarchism). Of course, some particular mutualists may hold additional views, but if so they should be questioned on those as their views and those should not be held out as points for all mutualists, of the nature of mutualism.

There is nothing there that requires occupancy for ownership, whether initial or continuing. Rather, something deeper is involved, and it may be practical to apply an occupancy test to determine whether that is there – an outward sign of something inward. But occupancy is not “of the essence”.

‘So, if A homesteads a tract of land, Blackacre, and builds an apartment building or factory on it, if he stops using it for some time, then this is “abandonment” and the property can be re-homesteaded by a squatter or new user’ is an instance of applying this test. It is absolutely true that – in this particular case, provided for illustration – that there has been abandonment, precisely because using has stopped. There is a bait and switch going on. The author is blurring this with what happens when the owner (and user) goes off to deal with other things while leaving it going as he set it up. He wants the reader to think of that as “not in use”, even when it is being regularly monitored for (say) storm damage and the utilities are kept going, so that the reader will jump to the wrong conclusion. Of course, it may not be easy to assess whether use really is still going on – but that only means that the occupancy test is not the practical one to apply after all. If the author wishes to apply the “use” test, he should apply it properly.

On the factory question, the issue is, who has a claim to it if a full test has shown that the nominal owner really wasn’t involved after all? It suggests those on the premises (managers as well as other workers), because they are the only candidates left. But it in no sense establishes that the nominal owner wasn’t still involved. However, quite separately, it may well turn out that the nominal owner wasn’t still involved, e.g. when that nominal owner had no standing or even real existence, say from being the state or some emanation of the state like a corporation only created and maintained by the state. But this would hardly undercut the ownership of, say, a factory owned by a man – a “natural person” – who had gone on holiday.

There is a serious omission in the argument “So if B steals A’s watch, and B sells it to C, then A can later reclaim his watch from C (even if C is an innocent or “good faith”/”bona fide” purchaser)”. A may well have given up on looking for the watch or otherwise carrying out a “use” in relation to it, at some point after the theft. Another flaw is that A may not be entitled to require it of C; his only claim in the first instance is as against B. That is, he may require restitution of B, who is entitled to offer something else or to try to negotiate with C to get it back – but A is not entitled simply to require it of C and then leave it to C to seek restitution from B. A and C may of course agree to do that, but A may not wish that into being.

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Stephan Kinsella August 23, 2009 at 11:07 pm

P.M.Lawrence:

On the factory question, the issue is, who has a claim to it if a full test has shown that the nominal owner really wasn’t involved after all? It suggests those on the premises (managers as well as other workers), because they are the only candidates left. But it in no sense establishes that the nominal owner wasn’t still involved. However, quite separately, it may well turn out that the nominal owner wasn’t still involved, e.g. when that nominal owner had no standing or even real existence, say from being the state or some emanation of the state like a corporation only created and maintained by the state. But this would hardly undercut the ownership of, say, a factory owned by a man – a “natural person” – who had gone on holiday.

Of course, there would be corporations on a free market; and if somehow the anti-industrialist left were to somehow find a way to steal the property owned by corporations, successful businesspeople would just find a way around this by some fiction or shellgame.

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Gil August 24, 2009 at 1:01 am

I have pondered that problem too, T. Camplin. I believe that an environmental consortium that either buys up a government reserve or fences off unowned forest would NOT meet the requirements for homesteading. After all, the ‘homesteading’ concept was conceived to prevent people fencing off a large piece for no reason other than a cheap land grab and forcing others to become potential trespassers. ‘Homesteading’ is required as a trade-off that there be productive use of the land that outweighs the cost of everyone else no longer be able to traverse that land. After all, if you think of this situation: a eviro-consortium buys up a large reserve of land from a South American government and calls it a “nature reserve for ever more left to be in its natural pristine” is this not a travesty of justice if the land was about to be sold to local farmers who wanted to clear the land, farm it and feed their hungry masses? From the farmer’s point of view all they see is overgrown heath full of pests that well-fed Westerners for some reason enjoy but as far they are concerned that potentially good farming land is effectively vacant and should be all rights considered ‘abandoned’.

A similar incompatible concept is “preservation rights” on certain land or buildings – the ability to say a certain piece of land and/or a building can longer be changed, ever. Such a concept is impossible – sooner or later people are going to change all land and buildings for far more productive use.

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 P.M.Lawrence August 24, 2009 at 3:09 am

Stephan Kinsella wrote “Of course, there would be corporations on a free market”.

As he very well knows, this very thing has been disputed long and hard, even on this blog. Even if it happened to be true (which it would be, for certain kinds of corporation – he is going beyond what I actually asserted; see below), there’s no “of course” about it.

“…and if somehow the anti-industrialist left were to somehow find a way to steal the property owned by corporations [notice that this is begging the question, assuming the points at issue – here, that this is about ‘anti-industrialists’ and that the subject matter actually is ‘property owned by corporations’], successful businesspeople would just find a way around this by some fiction or shellgame”.

Ah, but, to the extent that they were cons of that sort, they would not endure because it would take more to prop them up than they could return; and, to the extent that they worked out as partnerships or as the sort of corporation that held together through an internal dynamic rather than through state assistance, they would be a non-problem because they would not be the sort of corporation I described that had no real existence with an ability to own anything – they would not be “…some emanation of the state like a corporation only created and maintained by the state”.

Perhaps it would clarify matters for me to comment on actual historical cases of absentee owners who were natural persons. Irish absentee landlords generally obtained their lands by inheritance from people who had seized them; Irish tenants, therefore, were the candidates with the best moral claim. But places like Pennsylvania and Prince Edward Island were settled largely as a result of efforts by their proprietors (in the former case) or by people driven there by the force of others (Loyalists unjustly dispossessed, expropriated and exiled by revolting Americans, in the latter case). In each case the proprietors did have a just and continuing claim, being unjustly expropriated by the settlers in the former case and justly bought out in the latter case – albeit with funds obtained through state efforts, and so unjustly (which makes a parallel with the watch example, for which I have already provided reasoning).

While there may be various presumptions of non-ownership from the fact of absentee ownership, in itself it does not cause a forfeit or create an abandonment, and other circumstances may overturn them. Note, however, that failure to make a reasonable challenge to these would itself constitute an omission tending to reinforce the conclusion that any actual ownership had been abandoned – and a continued such omission would be tantamount to abandonment.

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ktibuk August 24, 2009 at 4:13 am

“What do we mean by “use”? Suppose I buy a tract of land because I want it to remain unused? Suppose I’m a rich environmentalist who actually puts his money where his mouth is, and I buy up some land where an endangered flower is located. I have no intention of doing anything at all with that land — of “using” it — except to leave it as it is. By the logic of mixing one’s labor with the land as proper use and therefore proper ownership, it would seem to me that my buying the land for the aforementioned purpose would be illegitimate.

Now, I use the example I did, because I can tell you why I bought the land. One could argue that I am thus “using” the land for something. However, I don’t think that we should have to give in to a demand by someone that we explain what we are doing with the land we own in order to retain ownership. Who is to determine what is “use”? Whose definition of “use” shall we use? In the end, it’s none of your business what I am doing with my land, so long as what I am doing doesn’t harm anyone else. If it is not evident that I am using the land, I don’t think I should have to face a tribunal to explain that I am, in fact, using it.”

Exactly….

This simple fact, or the lack of understanding regarding this fact, is the reason why many libertarians get confused and advocate IP socialism.

They think property is about some undefinable action called “use” and they keep putting “scarcity”, which is a condition depending on use, in the middle of a theory that should encompass every thing.

Having a property right is having the right to exclude others from such property. There are no conditions on this right No condition of continued occupancy or no condition of scarcity.

Troy Camplin can exclude others from his untouched (or unused if sych a term can even be used) land, and an author can exclude others from his novel.

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Andy August 24, 2009 at 5:34 pm

ktibuk – “…an author can exclude others from his novel.”

Of course he can. He can either choose to not allow others to view his novel or he can engage in a restrictive agreement with those whom he does allow.

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{ 4 comments… add one }
  • Jayel Aheram August 24, 2009, 6:48 pm

    How about in cases where the original owner lays claim to a piece of land with the intention of “preserving” it or otherwise never to put it into any sort of use (which would be different from temporary non-use)?

    Has he abandoned it then?

  • peter November 10, 2014, 2:59 am

    the left libertarians are far more skeptical of rent seeking than right libertarians – and skepticism in my view is a good stance to have. it all depends on how you view ownership. i think all libertarians can agree that natural resources in a state of nature ought to be unowned, so i think the right libertarians and the rothbardians are not logical in claiming that once land is transformed out of a state of nature then it ought to be owned forever after, even if it returns to a state of nature.

    an example i like to use is that of a farmer. he might clear a patch of land – take away the grass and weeds and grow food on it. then say that after a season he leaves the land for several years and it returns to no longer being usable as farm land – weeds and grass grow back. at this point it would take him just as much effort to farm the land as it took originally. so it seems ludicrous to say that he ought to be the owner of this land, and be permitted to rent it out. that would be rent-seeking.

    however farmland is probably the only type of property that returns to a state of nature like this. houses and factories certainly don’t.

    another way of looking at it is to say that a person owns the product of their labor. but that the product is subject to the external forces of nature and can be eroded over time, to the point where all their labor product is gone.

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