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Mises, Rothbard, and Hoppe on the “Original Sin” in the Distribution of Property Rights

Modern libertarianism began in the 1960s, about 50 years ago, with the writing of Ayn Rand and Murray Rothbard, primarily, and others like Leonard Read, Milton Friedman, Hayek, Mises, etc. Over the years, certain canards or confusions keep appearing, some from insiders, some from our statist critics. There’s a continual need to debunk and counter some of these. As the theory of liberty continues to mature and advance, the mistakes that need to be addressed become more obvious, at the same time that we are more able to address them.

I’d like to discuss here a couple of paired confusions relating to property rights. One relates to the “Lockean” argument for homesteading, or original appropriation of property; the other concerns rectification for past injustices. Both are interrelated. You’ve probably heard both of these in various forms. For example, the opponent of libertarianism just assumes that our theory is based on the Lockean idea of original appropriation—then makes the “original sin” argument that all property rights are tainted by various acts of theft or statism, and therefore, since you can never trace your property title back to the original pristine owner, no current property title is really valid.

My instant reaction to such comments is always: they are (if they are statists) trying to justify taking my property. If they are libertarians, they are trying to justify not being anarchist. Basically, when I hear people talk like this, I brace myself for the inevitable theft that they are about to endorse or condone or advocate. Two favorite quotes of mine come to mind here:

“Run for your life from any man who tells you that money is evil. That sentence is the leper’s bell of an approaching looter.” —Ayn Rand, Francisco’s Money Speech

“Is there a need to reform taxes? Most certainly. Always and everywhere. You can always make a strong case against all forms of taxation and all tax codes and all mechanisms by which a privileged elite attempts to extract wealth from the population. And this is always the first step in any tax reform: get the public seething about the tax code, and do it by way of preparation for step two, which is the proposed replacement system.

“Of course, this is the stage at which you need to hold onto your wallet.” —Lew Rockwell

When I hear people saying the libertarian theory of property is flawed because it relies on theft, etc., I know this is just a precursor to some kind of advocated aggression. I hold onto my wallet. I keep an eye on these people.

These issues are related but somewhat different. Let me take them one at a time.

First. As Hans-Hermann Hoppe argues in A Realistic Libertarianism and many other pieces, property rights arise only because of the fundamental fact of scarcity: the fact that in the real world human actors can have conflict over the use of scarce, rivalrous, material goods and means. To permit the peaceful, cooperative, productive, conflict-free use of scarce resources, property rights allocate a unique owner for each and every resource. The rules are simple, common sense, and natural. They are rooted in Lockean homesteading, or original appropriation: whoever has and uses a resource first has a better claim to it than a latecomer. And this basic rule is augmented by two others: consent, or contract; and rectification. If an owner contractually assigns (by gift, sale, etc.) the thing to someone else, then the recipient now has a better claim than the original homesteader. Indeed, he has a claim better than anyone else in the world, since he in a sense “piggybacks” on the title of his seller (“ancestor in title” in legal jargon). With respect to any third party, he has a “better claim” because he stands in the shoes of (called “subrogation” in the law) his seller, but with respect to the seller, he has a better claim because of the contract between them. And a third rule is based on rectification: if a property owner harms some victim, he owes some form of compensation or restitution, which may be satisfied out of the assets of the owner-tortfeasor. So if there is a dispute over who should have ownership of a given resource by two or more competing claimants, the libertarian answer is that we answer the question by appeal to these principles: who had it first, what contracts were engaged in, what torts were committed. These principles can be used to determine the owner of any contested resource.

The libertarian approach summarized above is rarely stated so concisely or clearly, partly because our science is young and still developing, and partly because many libertarians or quasi-libertarians have a different approach as to how to explain their views or argue for them. But when it is stated clearly like this, or its essence or outlines begin to become clear by example and metaphor, etc.—the opponent of radical libertarian principle tries to attack it. Because he wants to be able to have institutionalized theft or, if he is a (non-anarchist/non-principled/non-radical/non-“labeler”) libertarian, he wants to justify his wishy-washy mealy-mouthed tentative, progressive, incremental, respectable libertarianism. The former wants to remove obstacles to widespread institutionalized theft and domination; the latter wants to assuage his nagging libertarian conscience, to forgive himself for being a quasi-statist sellout, who really knows that he should know better.

But what do they say—both insiders and outsiders? They will say “AHA! Your theory depends on title being pristinely established by a first owner in an ideal state, and then being traced unerringly to the current claimant; but this is almost never the case because historical records are shaky and because there is often some act of violence that every current title is really traced back to.” In other words, they set up a straw man of libertarian theory and say that if you can’t trace your property back to Adam, then it’s invalid. And guess what? The state can swoop in and take it and distribute it to the poor or use it for public/social purposes, and no one can complain, since the “owner” was not a real owner. He has no grounds to complain. Left unstated in these arguments is the implicit argument that the state itself is the real owner. Even though the state itself also never was the pristine Lockean original homesteader of the land (except in the case of national forests which … well, it still doesn’t use them, and, anyway, it did it using pilfered tax dollars, so nevermind). Notice that those who want to control or dominate (own) a resource, often denigrate the institution of private ownership, as their excuse to … own the resource? And thus we circle back to the Rand and Rockwell comments above. The castigation of natural ownership is motivated, if not by envy,1 then by naked greed, covetousness, and desire to dominate and control and steal and take that which is produced by others. The proponents of this view have to advocate a might-makes-right worldview, but to admit this is dangerous, so they cover it in various disingenuous and vague, metaphorical aphorisms. Notice also that those who object to the right of owners to first-appropriate unowned goods is incoherent. As I note in What Libertarianism Is (n.26):

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.

… [from n.19:] 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,”Download PDF Quarterly Journal of Austrian Economics 7, no. 4 (Winter 2004): 51–57.

One mistake made by those who attack Lockean-libertarian original appropriation on the grounds that most title is tainted or cannot be really traced back to an absolutely “proven” “owner” (the “original sin” approach to property title) is that they are unaware of the practicalities of legal solutions to this problem and also apparently unaware of the overall context in which this issue arises: a society of people who need objectively-determined rules of property ownership to specify a given owner. In such a social context, the dispute is always, necessarily, between two or more existing, living beings. They have to resort to the principles of original appropriation, contract/consent, and rectification/restitution to establish a “better claim” than the other competing disputant-claimants. But of course, in a real-world setting, one rarely needs to “trace his title” back to Adam. The issue is: among the claimants, who has the better claim? This is a practical question, and it involves issues of evidence and procedure, burdens and standards of proof, etc.  Suppose A and B both contest ownership of a given piece of land, Blackacre. Maybe it was owned in the past by other lines, and then control was transferred by conquest or some statist violence. So the origins of title are lost to the mists of time. But suppose A and B both claim title based on some holding of C, from 300 years ago. If they agree on this (a legal “stipulation”), then the only question is: from C’s ownership, which of A and B has the better claim? So we proceed from C’s ownership. We don’t need to trace it back to the formation of the state of Texas or France, or even to Adam. We proceed from a common ancestor. Because title is always a relative thing. Your legally recognized right to control the resource is sufficient, if and to the extent that it does or can “beat” the claims by other potential contestants or disputants. If they all have to trace back to C from 300 years ago, because records before that are hazy or lost, then that will be determinative and will give the “winner” effective title good as against the whole world (or any realistic possible contestant in this present world). As I noted in What Libertarianism Is, n.25 and accompanying text:

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]

[25] See Louisiana Code of Civil Procedure, Art. 3653, providing:

To obtain a judgment recognizing his ownership of immovable property … the plaintiff … shall:

  1. 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
  2. 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.

In other word: in a real-world dispute about who owns a given resource, it is irrelevant whether we can “trace it back to Adam” or the original appropriator. It is irrelevant that there might have been corruption or theft or “original sin” in the ancestry of title. If B cannot show better title or claim than the current possessor and apparent owner A, then B loses. Period. It does not matter that A cannot “trace his title back” to the original homesteader. A does not need to show title good against the world; only against all potential contestants. If A has a better title than B, to a common ancestor [author] in title, then A wins vis-à-vis B. And if no one else in the world is in a better position than B, that is, cannot trace the title back to an earlier ancestor in title than A or B could, then A’s title is in effect in rem, i.e., good against the world, i.e. “real” property (real meaning “in rem”, as opposed to personal property; the more coherent civil law analogues are immovable and movable corporeals, as opposed to real or personal “tangibles”).

The point is: in a given real-world dispute—which is what disputes always are—we can solve the issue by resort to the main principles, and without having to “trace title back” to some hypothetical propertarian homesteader “Adam.” People who insist on such a pristine standard are just using this as a way to take others’ property. In other words, they impugn the sanctity of private property claims as a cover for their own property claims. But once you make property claims, you need to “enter the cathedral” of libertarian rights theory even to discuss these matters or try to challenge it. As I wrote in the conclusion to my article New Rationalist Directions in Libertarian Rights Theory:

Under the three theories outlined above—argumentation ethics, estoppel theory, and the self-contradictions of rights-skeptics—we can see that the relevant participant in discourse cannot deny the validity of individual rights. These rationalist-oriented theories offer, in my opinion, very good defenses of individual rights, defenses that are more powerful, in a sense, than many other approaches, because they show that the opponent of individual rights, whether criminal, skeptic, or socialist, presupposes that they are true. Critics must enter the cathedral of libertarianism even to deny that it exists. This makes criticism of libertarian beliefs hollow: for if someone asks why we believe in individual rights, we can tell them to look in the mirror, and find the answer there.

[See also my post Thoughts on the Latecomer and Homesteading Ideas; or, Why the Very Idea of ‘Ownership’ Implies that only Libertarian Principles are Justifiable.]

And second. There is the related notion that if you favor the libertarian view of aggression and the related libertarian-Lockean notion of property ownership, you must be in favor of “everything is game”—that the existing order is so corrupt and so influenced by capitalist-corporatist-feudalist “original sin” that the existing “pattern of ownership” cannot be “valid” (how dare those rich people have Mercedes and jobs and houses! How dare they! How dare they be able to afford to send their kids to private colleges?). So, natch, if the “existing pattern of ownership” is not “valid,” this opens the door to wholesale redistribution and Mad Max world chaos, beloved of the economically ignorant left only because they pretend to think that this would result in some bucolic utopia of peace, harmony, Woodstock Festival reenactments, and primitivist self-sufficiency and freedom from the shackles of the “alienation of labor” the capitalist system would otherwise “impose” on them (after it provided them the chemicals for delousing).

This notion has already been addressed, by thinkers such as Mises, Rothbard, and Hoppe. I’ll quote them here, on this particular issue:

Mises, in Socialism:

All violence is aimed at the property of others. The person—life and health—is the object of attack only in so far as it hinders the acquisition of property. (Sadistic excesses, bloody deeds which are committed for the sake of cruelty and nothing else, are exceptional occurrences. To prevent them one does not require a whole legal system. Today the doctor, not the judge, is regarded as their appropriate antagonist.) Thus it is no accident that it is precisely in the defence of property that Law reveals most clearly its character of peacemaker. In the two-fold system of protection according to having, in the distinction between ownership and possession, is seen most vividly the essence of the law as peacemaker—yes, peacemaker at any price. Possession is protected even though it is, as the jurists say, no title. Not only honest but dishonest possessors, even robbers and thieves, may claim protection for their possession.[6]

Some believe that ownership as it shows itself in the distribution of property at a given time may be attacked by pointing out that it has sprung illegally from arbitrary acquisition and violent robbery. According to this view all legal rights are nothing but time-honoured illegality. So, since it conflicts with the eternal, immutable idea of justice, the existing legal order must be abolished and in its place a new one set which shall conform to that idea of justice. It should not be the task of the State “to consider only the condition of possession in which it finds its citizens, without inquiring into the legal grounds of acquisition.” Rather it is “the mission of the State first to give everyone his own, first to put him into his property, and only then to protect him in it.”[7] In this case one either postulates an eternally valid idea of justice which it is the duty of the State to recognize and realize; or else one finds the origin of true Law, quite in the sense of the contract theory, in the social contract, which contract can only arise through the unanimous agreement of all individuals who in it divest themselves of a part of their natural rights. At the basis of both hypotheses lies the natural law view of the “right that is born with us.” We must conduct ourselves in accordance with it, says the former; by divesting ourselves of it according to the conditions of the contract the existing legal system arises, says the latter. As to the source of absolute justice, that is explained in different ways. According to one view, it was the gift of Providence to Humanity. According to another, Man created it with his Reason. But both agree that Man’s ability to distinguish between justice and injustice is precisely what marks him from the animal; that this is his “moral nature.”

Today we can no longer accept these views, for the assumptions with which we approach the problem have changed. To us the idea of a human nature which differs fundamentally from the nature of all other living creatures seems strange indeed; we no longer think of man as a being who has harboured an idea of justice from the beginning. But if, perhaps, we offer no answer to the question how Law arose, we must still make it clear that it could not have arisen legally. Law cannot have begot itself of itself. Its origin lies beyond the legal sphere. In complaining that Law is nothing more or less than legalized injustice, one fails to perceive that it could only be otherwise if it had existed from the very beginning. If it is supposed to have arisen once, then that which at that moment became Law could not have been Law before. To demand that Law should have arisen legally is to demand the impossible. Whoever does so applies to something standing outside the legal order a concept valid only within the order.

We who only see the effect of Law—which is to make peace—must realize that it could not have originated except through a recognition of the existing state of affairs, however that has arisen. Attempts to do otherwise would have renewed and perpetuated the struggle. Peace can come about only when we secure a momentary state of affairs from violent disturbance and make every future change depend upon the consent of the person involved. This is the real significance of the protection of existing rights, which constitutes the kernel of all Law.

Rothbard, as discussed in my post Justice and Property Rights: Rothbard on Scarcity, Property, Contracts…,, in 1974:

It might be charged that our theory of justice in property titles is deficient because in the real world most landed (and even other) property has a past history so tangled that it becomesimpossible to identify who or what has committed coercion and therefore who the current just owner may be. But the point of the “homestead principle” is that if we don’t know what crimes have been committed in acquiring the property in the past, or if we don’t know the victims or their heirs, then the current owner becomes the legitimate and just owner on homestead grounds. In short, if Jones owns a piece of land at the present time, and we don’t know what crimes were committed to arrive at the current title, then Jones, as the current owner, becomes as fully legitimate a property owner of this land as he does over his own person. Overthrow of existing property title only becomes legitimate if the victims or their heirs can present an authenticated, demonstrable, and specific claim to the property. Failing such conditions, existing landowners possess a fully moral right to their property.

And, more recently, Hoppe, from A Realistic Libertarianism, September 30, 2014

The State in its long history has made some people richer and others poorer than they would have been otherwise. It killed some people and let others survive. It moved people around from one place to another. It promoted some professions, industries or regions and prevented or delayed and changed the development of others. It awarded some people with privileges and monopolies and legally discriminated against and disadvantaged others, and on and on. The list of past injustices, of winners and losers, perpetrators and victims, is endless.

But from this indisputable fact it does not follow that all or most current property holdings are morally suspect and in need of rectification. To be sure, State-property must be restituted, because it has been unjustly acquired. It should be returned to its natural owners, i.e., the people (or their heirs) who were coerced to ‘fund’ such ‘public’ property by surrendering parts of their own private property to the State. However, I will not concern myself with this particular “privatization” issue here.[5]Rather, it is the further-reaching claim that past injustices also render all current private property holdings morally suspect, which does not follow and which is certainly not true. As a matter of fact, most private holdings are likely just, irrespective of their history – unless and except in such cases in which a specific claimant can prove that they are not. The burden of proof, however, is on whoever challenges the current property holdings and distribution. He must show that he is in possession of an older title to the property in question than its current owner. Otherwise, if a claimant cannot prove this, everything is to remain as it currently is.

The left-libertarians, and other internal and external critics of propertarian libertarianism, are wrong. Property title need not be traced back to “Adam” to be valid; better title is sufficient.2  And if we were ever to succeed in dismantling the state, libertarian ethics certainly do not call for taking property from current possessors simply because of some original sin in the misty and messy history of property title. Property may be taken from a current possessor only if there is an identifiable victim and victimizer. Otherwise, as Hoppe summarizes, and as is supported by common sense and the insights of Mises and Rothbard, “everything is to remain as it currently is”. This is anathema to the egalitarian-minded redistributionist and modernist-capitalist-hating left, but so be it.

 

  1. See Robert Sheaffer, Resentment Against Achievement. []
  2. For more on this see my post The Essence of Libertarianism?. []
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{ 14 comments… add one }
  • Andy Cleary October 7, 2014, 1:46 pm

    “The rules are simple, common sense, and natural. ”

    All wonderful, but not a “proof”, and therefore not supportive of initiating violence to exert the supremacy of your preferred rules over those who think that some other set of rules are simple, common sense, natural, or any other metric that they deem the most important when choosing rules.

    Because of this, we should advocate the use of libertarian property rules *peacefully*, and in particular stop sabre-rattling at those that disagree with us with our intent to defend our preferred rules of property with violence (“trespassers will be shot/jailed”, etc).

    • Jan Masek October 8, 2014, 3:07 pm

      I think this confused thinking. For those people that want to avoid conflict, these are the only rules. They are arrived at via rational, logical discourse. IF you want to live in peace, you must follow these rules.
      Any other rules always lead to conflicts. Nobody else can say “well I just like my rules better” and at the same time claim his rules guarantee peace. (of course, it’s possible that Rothbard/Kinsella/Hoppe made a mistake in the logical reasoning but then the remedy is to find and correct the mistake using logic. You do not “win” just by saying “I have a different opinion”.)
      Shooting trespassers is not libertarian (clearly excessive punishment). But even when libertarians believe they are justified in using force (e.g. against a cop busting you for marijuana posession), many of them advice not to use it. Either way, it is a matter of strategy, not principle.

  • Andy Cleary October 8, 2014, 7:06 pm

    “For those people that want to avoid conflict, these are the only rules. ” I don’t think either of these clauses is tenable. First of all, unless you define “conflict” precisely in terms of this particular set of property rules – which would be circular reasoning – conflict still exists. This is what courts are for: to resolve “conflicts” between various parties who both believe they have a claim or a tort or whatever. Every appearance in court of before a mediator or a negotiator *is* a conflict, and of course, there are many other “free market” conflicts, e.g. one company tries to price another out of business (perfectly allowable according to libertarian law). I suppose the bottom line there is that until and if you define “conflict” precisely, it’s a “muddled” statement. [I often *suspect* that what you is really meant in these types of statements is “violence”, but I’m not going to put words into your mouth.]

    You repeat the second clause with “Any other rules always lead to conflicts.” But this is demonstrably false. It might be tenable to say that *some* set of rules is needed to “break the tie” when there is a disagreement, but all that is required is that the rules are unambiguous, not that they are the particular set of rules that Stephan talks about. In my home, the tie-breaker between my child and me is “I will listen to your opinion and then I will rule”, and as this is unambiguous, it has yet to lead to a violent conflict. For mutualists, say, they very much believe in “property”, but they have a preference for different rules of property transference (basically: use/occupation transfers ownership). Stephan is fond of saying things like “whoever has and uses a resource first has a better claim to it than a latecomer”: like I said, that’s not laughable, but it’s clearly *not* the only interpretation. Mutualists are well aware of this potential rule, and they simply *prefer* a rule that says in contrast “who ever is using or occupies a resource currently has a better claim than someone who once used/occupied it but no longer does.” I personally don’t like the mutualists’ rules – I prefer the libertarian rules – but waving anything other than libertarian rules away with some sort of “this is more natural” simply doesn’t work. What is “natural” to one is not necessarily so to another.

    “They are arrived at via rational, logical discourse.” I honestly don’t know why this matters – any more than how I arrived at my preference for chocolate ice cream over vanilla: all you need to know is that I prefer one, not why – but as a libertarian I find it embarrassing that we collectively tend to have such arrogance as to assume that anyone who isn’t a libertarian must not have applied “rational, logical discourse” to deriving their preferences. The thing about any logical argument is that it is only as good as its starting assumptions: false implies false. All of the other “isms” out there have just as long – if not longer – academic/intellectual histories of their own reasoning, and they are smart people who have made very smart inferences to lead them to what they advocate. The only difference is that they started from different assumptions. The condescension that libertarian thinkers can have for others’ process does not flatter us. This is why I think starting from a *subjective* position is the only tenable intellectual position: each of us has our own preferences for the rules that we’d like to live under, and it doesn’t really matter how you got there, what matters is how you resolve the disputes that arise. Like it or not, libertarians openly advertise that we will resolve those disputes with guns, and in the process, we alienate a whole host of people who are against the State and thus should largely be our allies. Surely it has to give us as a community pause to contemplate the fact that if we were to achieve our goal and eliminate Statism, we would quickly find ourselves at war with the other camps of anarchy, since they see our insistence on asserting our property rules over everyone else as an act as aggressive as Statism itself (to some, even more aggressive). We need a kinder, gentler libertarianism.

    “Shooting trespassers is not libertarian (clearly excessive punishment).” I think this is incorrect. Libertarianism does not fully specify what is or is not allowed, it only specifies that certain things aren’t allowed, namely, aggression. It’s a much “weaker” statement than I think many libertarians think it is. Not only does it not specify what is allowed in response to aggression, it also does not specify that all things that are not aggression should be condoned or allowed either, only that responding to non-aggressive actions must be done non-aggressively (e.g. it’s perfectly libertarian to say that you hate prejudice and discrimination and you are going to do all that you can to punish those that perform those actions, short of aggression, since prejudice and discrimination are not themselves aggressive acts). This is why there are as many ad-hoc attempts to specify what the “rules of punishment” in a libertarian society are, but they fall into the bucket of “thick libertarianism” if you’re familiar with the term (and yes this includes Stephan’s estoppel, which is cute but is “extra-libertarian”).

    For these reasons (and others), I advocate a modified libertarianism in which we advocate that no initiation of personal violence (NIVP) should ever be considered legitimate, effectively replacing the “NAP” with a “NIVP”. It is a more general statement than libertarianism because it does not invoke “property” at all: it allows the rules of property to emerge as a market phenomenon, just like, oh, libertarians expect private “regulation” to emerge in a classic libertarian free market. This corrects many of the “flaws” of property-based libertarianism: 1) instead of implicitly trying to stop violence by reducing “conflict”, it explicitly and directly addresses violence; 2) it puts clear limits on the use of violence as an enforcement mechanism for property crime (no matter how you define “property”); 3) it resolves the worst of the complaints between the various anti-State “isms”, no longer setting us up for violent conflict with them in a Stateless society; 4) it makes us a lot less condescending and thus makes us much more palatable to a wider audience, something necessary if we’re ever actually going to live something approaching a libertarian life; and several others I’m forgetting now. The downside for most traditional “libertarians” is that it requires us to resolve property disputes non-violently, which in particular means no jail for non-violent theft or fraud, which kind of freaks people out in the same way Statists get freaked out when we libertarians try to tell them that jail isn’t the only way to influence people to not, say, use harmful intoxicants.

    • Jan Masek October 11, 2014, 4:58 pm

      Thanks Andy, good debate. Apologies if I word things clumsily, English is not my first language.
      I don’t think conflict is a muddled concept and its definition does not require circular reasoning.
      First comes the observable fact that things are scarce, i.e. one thing cannot be controlled by more than one person at a time. If two people try, there is a conflict over who gets to use it – who has the property right in it. So first comes conflict, second come property rights as a result and way to deal with the conflict. Nothing circular about it.
      All legal systems have some way of assigning property rights. But only libertarian rules prevent conflict. It’s simple: the first user is the first and so far the only person ever to have claimed the thing and therefore there is nobody else with whom he could be in conflict. All other systems advocate some sort of latecomer rights – which will always lead to conflict with the first comer.
      Mutualists may say that the first comer is not using his resource but that’s not true. Just because I don’t spend every minute physically in my house does not mean I am not using it. The best way is to ask him: do you still mean to own it or are you abandoning it? If he says “it’s still mine” then you’d have conflict if you want to take it.
      I don’t know any libertarians who want to resolve conflicts with guns. Maybe the situation in the US is different. Maybe these people are only self-proclaimed libertarians, I don’t know. But to whack a guy for trespassing is certainly not libertarian legitimate. That would be aggression in and of itself. NAP still stands.
      Logic does matter because that’s all we have when trying to make sense of something. It’s either that or guns. Of course some people may prefer property rights that assign everything to themselves – logic then tells us that that will lead to conflicts. It’s not any more arrogant than saying 2+2 = 4 and if you don’t believe that you are a fool. It may not be polite to call such a confused person a fool but that’s a different matter.
      Besides, are you saying logic doesn’t matter or it does but non-libertarians follow logic too?
      Agree on assumptions being crucial: ours are fine. Scarcity is undeniable and conflict-free is our choice. Other people may not adopt the conflict-free assumption, but then they are only left with guns and they almost never admit that. You cannot have it both ways. So it’s not a case of different assumptions. In the rare cases when it is and the opponent admits he wants to fight me, he becomes my enemy, a technical problem, and I have to pray my muscles are bigger. No argument is possible.
      Finally, you seem to be in favor of logical reasoning yourself as you demonstrated by damning the concept of conflict because of circular reasoning (type of logical fallacy) – if logic didn’t matter, circular reasoning wouldn’t be a problem either.

      Yes, we need a gentle, kind movement. But we cannot sacrifice the truth. Doctors Kinsella, Murphy, Rockwell, Paul or Mr. Tucker are perfect examples that there is no trade-off here.

  • Jano Szabo October 8, 2014, 8:41 pm

    Original sin in the distant past of some chain of title was absolved ago by the common sense of common law.

    See http://www.law.cornell.edu/wex/adverse_possession

    and

    http://definitions.uslegal.com/t/title-by-prescription/

  • Andy Cleary October 13, 2014, 6:40 pm

    “Thanks Andy, good debate. Apologies if I word things clumsily, English is not my first language.”

    Understood, I realized these subjects are difficult to discuss clearly even amongst people with the same native language. If it’s any comfort, while you take a very “Kinsellian” approach to these topics, you’re far less rude than Stephan is, and that makes one more tempted to continue.

    “I don’t think conflict is a muddled concept and its definition does not require circular reasoning.
    First comes the observable fact that things are scarce, i.e. one thing cannot be controlled by more than one person at a time. If two people try, there is a conflict over who gets to use it – who has the property right in it. So first comes conflict, second come property rights as a result and way to deal with the conflict. Nothing circular about it.”

    I am not sold. You say at the end “first comes one, then comes the other”, but the fact is, your sentence that starts with “if two people” specifically refers to “property right” when it is supposedly defining “conflict”. I fear that these have become so ingrained in your thinking – or in general, in “propertarian” thinking – that you may actually be defining conflict in terms property rights without really realizing that you are.

    Take a step back and try to define “conflict” in some way that is as far as “property rights” as possible since, as you’ve said, property rights assignment is an attempt to “deal with the conflict” [even here I’m unclear: do you mean that the rights help prevent the conflict? *Do* prevent the conflict? Help deal with the conflict after it has occurred, in which case, what does “deal with it” mean?]. If you were explaining it to a Martian who had no idea what you were talking about, how would you tell them to recognize or measure “conflict”?

    I can think of a couple of candidates, but I don’t want to go down a strawman path.

    You’ve written lots of other interesting things here but these threads can get unwieldy if I respond to all of them. Mostly I just wanted to hit the above as it serves as the foundation from which I can understand the rest of what you wrote. That said, I’ll make one clarification:

    “I don’t know any libertarians who want to resolve conflicts with guns. ” The set of cases that are particularly relevant – and to me, disturbing – here are the conflicts we have with other “anarchists” who are not “propertarians”. Consider the case of a propertarian landlord and a mutualist renter: if the landlord does not live locally, in a mutualist’s preferred rules of property transfer, they now “own” the rented home, but to the propertarian, they still own it, so the mutualist would think he was perfectly in his right to refuse entry to the “landlord”, to resell the property, etc. Do you know a libertarian/propertarian alive who would not categorically and unilaterally state that the mutualist has stolen his home and that therefore a violent response is fully justified and appropriate? That wouldn’t hire men with guns to kick the “squatters” out of their home and to then further use violence against them to extract compensatory damages? And while not all would choose this, is there anything in propertarian libertarianism that would keep the propertarian from calling for jail time for this “thief”? [“Guns” is really just a casual way to say “violence against a human being”, and jail, since it is just an act of kidnapping, is most certainly a violent act.]

    • Dennis New November 1, 2016, 9:33 pm

      Re: your example of the propertarian landlord and mutualist renter … there was a breach of contract, which surely even mutualists respect? You seem to think that the mutualist and propertarian have an equal claim on the property? And you seem to think that thieves shouldn’t be punished (beyond, I guess, ostracism)? Or that theft wouldn’t even exist in a mutualist society, since the so-called “thief” is merely becoming the current user-owner of whatever he feels like taking/using?

  • Dennis New October 19, 2014, 9:30 pm

    The focus with this article only deals with cases where, as Rothbard wrote, “we don’t know what crimes were committed to arrive at the current title.” Okay. But we do know MANY of those crimes. For example, the names of police officers (and even their victims) are written down somewhere — most-or-all of their property (either in land or money or something) can be considered illegally-gotten and open to homesteading, or given to their victims as compensation, correct? Currently, some large percentage of the population, say 50%, “works for the state” — ie. acquires property illegitimately. Their incomes (and tax contributions) are all hopefully written down somewhere, and can be referenced in the future Libertopian Nuremberg Trials.

    I think the vast majority of current property/wealth holdings fall into this other case, *where we do know the crimes that were committed to arrive at the current titles*. So, far from Mises’ (et al’s) desire for pacification (where “peace can come about only when we secure a momentary state of affairs”), the momentary state of affairs will hardly remain as they are.

    But yea, that doesn’t mean that EVERYTHING is up for grabs, as you explain well in your article. Your holdings, as a defensive IP lawyer, are probably safe? 😛

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