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.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.