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The Blockean Proviso

From Mises Blog, Sept. 11, 2007; Archived comments below:

[See also Down With the Lockean Proviso (March 13, 2009)]

The Blockean Proviso

I was having an interesting discussion via email about one of Walter Block’s arguments. A quick summary. Block says that just as nature abhors a vacuum, libertarianism “abhors” unowned property; that the “whole purpose” of homesteading is to bring hitherto unowned virgin territory into private ownership.

Block imagines someone who homesteads a donut-shaped circle of land, and won’t let anyone use his land to get to the unowned property in the middle of his donut. He argues that libertarian homesteading theory “abhors” land which cannot be claimed nor owned because of the land ownership pattern of a “forestaller”–a person who has encircled the land. In other words, if your property is somehow “necessary” for others to use, to get to unowned property, they have a sort of easement over it.{C}(Block argues this in Libertarianism, Positive Obligations and Property Abandonment: Children’s Rights; “Roads, Bridges, Sunlight and Private Property: Reply to Gordon Tullock,” Journal des Economistes et des Etudes Humaines 8, no. 2/3 (June-September 1998): 315-26; and other publications, such as some of his articles on abortion: e.g. “Terri Schiavo: A Libertarian Analysis”; “Compromising the Uncompromisable: A Private Property Rights Approach to Resolving the Abortion Controversy“; “Stem Cell Research: The Libertarian Compromise“; “Abortion, Woman and Fetus: Rights in Conflict?”; “Toward a Libertarian Theory of Abortion.”)

Now his purpose in making this argument is to make an argument about the duty of parents to notify others that they are abandoning their kid and to let them come rescue the child, but we are talking here about his “forestalling” argument itself.

As best I can understand it, Block’s “forestalling” conclusion seems to be incorrect. It would imply a general easement right over everyone’s property on behalf of everyone else if they “need” that property to “get to” some other property they want to be on. I see no special status of the unowned property; it’s just property someone would like to go homestead. If they can’t reach it, it’s not the fault of those who have this resource surrounded.

In other words, after Rothbard, Hoppe (p. 246) and de Jasay (p. 91) have buried the Lockean proviso, Walter gives us a new one: the Blockean Proviso. The Lockean Proviso says that you may homestead an unowned good but only if “enough and as good” is left for others–that is, if you don’t harm them by your homesteading action by making it more difficult for them to have a similar opportunity to homestead some goods of that type. Both Block and I would reject this. But the Blockean Proviso would say that you can only homestead property that is a potential means of access to other unowned resource so long as enough and as good access to the unowned resource remains available!

We can generalize this Blockean Proviso: You can only homestead property that is located between two arbitrary external locations A and B, where some third might potentially want to travel over the property to travel from A to B.

From comments to me, Block also seems to believe that if you own a circle of property and some people live in the territory inside the circle, you are “trapping” them if you don’t let them use your property to “leave” the circle. This comment seems to confirm my concerns about his view and how it could be generalized to some kind of “necessity-easement” not limited to the homesteading case.

Let’s imagine a rectangular island with 3 people: A, B, and C. B owns the middle stripe, A and B own the pieces on the ends. Suppose A wants to visit C. He has to cross B’s property. He has a right to visit C, if C invites him, and if he has a means of getting there. But he has no means of getting there. So?

I assume Block would agree with me in this above example–that A has no easement over B’s property; that he can only visit C if B permits him to. But in Block’s theory, if C dies, all of a sudden this confers to A an easement-over-B’s-land! How can this be?

Let me close with a final quote from Hoppe, pointed out to me by Johan Ridenfeldt:

In fact, what strikes Conway as a counterintuitive implication of the homesteading ethic, and then leads him to reject it, can easily be interpreted quite differently. It is true, as Conway says, that this ethic would allow for the possibility of the entire world’s being homesteaded. What about newcomers in this situation, who own nothing but their physical bodies? Cannot the homesteaders restrict access to their property for these newcomers and would this not be intolerable? I fail to see why. (Empirically, of course, the problem does not exist: if it were not for governments’ restricting access to unowned land, there would still be plenty of empty land around!) These newcomers come into existence somewhere – normally one would think as children born to parents who are owners or renters of land (if they came from Mars, and no one wanted them here, so what?; they assumed a risk in coming, and if they now have to return, tough luck!). If the parents do not provide for the newcomers, they are free to search the world over for employers, sellers, or charitable contributors — and a society ruled by the homesteading ethic would be, as Conway admits, the most prosperous one possible! If they still could not find anyone willing to employ, support, or trade with them, why not ask “What’s wrong with them?” instead of Conway’s feeling sorry for them? Apparently they must be intolerably unpleasant fellows and had better shape up, or they deserve no other treatment. Such, in fact, would be my own intuitive reaction.

Hoppe, Four Critical Replies, last page.

Now, it’s interesting that Hoppe here criticizes the state for restricting access to unowned property — but Block is criticizing private actors who do it… In any event, as Johan noted, the “tough luck!” line is key here. It is not directly relevant, only tangential, but the view expressed here seems to be compatible with my view that there is not any special problem if a would-be homesteader is unable to arrange for the permissions he needs to reach the target unowned resource.

Thoughts?

 

Update: Is Fermilab’s Tevatron unlibertarian for encircling a plot of land (and presumably preventing access to it to minimize traffic vibrations interfering with the particle smasher’s operation).

Update: My comment below refers to Roderick Long’s post Easy Rider: my comments to that have the following updated link: http://aaeblog.com/2007/09/11/easy-rider/comment-page-1/#comment-30130.

Archived comments:

Franklin Harris September 11, 2007 at 6:09 pm

In Block’s example, I think he is creating a problem where one doesn’t exist. If someone homesteads all the way around “unowned” property, he would seem to me to be homesteading the property in the middle, too, simply by virtue of the fact that he is taking away the prospect of someone else homesteading it. The problem Brock describes could only arise if the property in the middle were homesteaded first, then someone else came along later and homesteaded around it, in which case the first property holder should have already secured (homesteaded or purchased) an outlet (easement) for himself in the first place.

Axel Riemer September 11, 2007 at 7:57 pm

exactly correct. I also reject the Blockean proviso. Out in the country, this situation arises more often than you would imagine, with foolish people buying land before they think of how to access it. My father, eternally wise, imparted this to me, “Grant an easement? Ha! My mother didn’t raise no fool!” Specifically, two examples, one textbook, and one extremely relevant.

The first: some person purchased a landlocked block of land adjoining ours, with no road access. He wished to build a log cabin style condo to rent out as a vacation home (you can imagine how welcome that would have been, right next to our property), and to do so, he wanted an easement so he could have a driveway over our land. Of course we said, Heck NO! And his land was then, largely worthless to him, as he didn’t want to live there himself. Whose fault is that?

Second example: a close relation of the family also owns a landlocked block of land where he lives. The driveway to the house enters into our property, but he has our permission (not an easement) to use the driveway. My family gets along fairly well. However, when he passes (as may come fairly soon), there being no easement, this land and the house won’t be of much value, since there is no direct access. The only likely people to buy the property are those within the family, or close friends with which we can come to an understanding.

I believe the situation in the second case was due to our beloved township government, which has a tendency to straighten roads whenever possible. They moved the road to the east, onto the corner of our land, and he lost his access to the road, unless we could be induced to sell.

So as you can see, this problem does occur in the real world, it can be attributed to people who buy before they think (why should I accommodate them?) and situations created by inattentive land developers and infrastructure agents.

ted September 11, 2007 at 8:14 pm

let us assume Kinsella appropriates a donut-shaped circle of land, and that he must allow others access to appropriate the unowned land in the middle. but if Block legitimately walks across Kinsella’s donut and works tirelessly to acquire title to that middle portion, on what basis must Kinsella allow Block to exit? not because there is unowned property to be homesteaded, that’s for sure.

Roderick T. Long September 11, 2007 at 8:23 pm

I’ve posted some preliminary thoughts here: http://praxeology.net/blog/2007/09/11/easy-rider.

Anthony September 11, 2007 at 9:32 pm

Intuitively I am against the Blockean proviso, but this is before reading Long’s article, so we’ll see. :P

BK Marcus September 11, 2007 at 10:34 pm

Franklin Harris, you seem to be assuming that one can legitimately homestead an arbitrarily large territory simply by restricting other people’s access to it.

But that’s not compatible with libertarian homesteading theory (or at least not with Rothbardian homesteading theory, which both Hoppe and Block would claim to follow).

According to Rothbard, the amount of property legitimately available for immediate homesteading is the smallest amount necessary for the purpose to which the homesteader is putting the new property. This is the Relevant Technological Unit (RTU) or just “technological unit,” and Rothbard discusses it in Man, Economy, and StateFor a New Liberty (part 5 and part 12) and most thoroughly in “Law, Property Rights, and Air Pollution.”

Especially in this last essay — which is really a presentation of general property theory as much or more than it is a policy paper on pollution — Rothbard makes clear that spatial or territorial conceptions of property are misguided. What we legitimately own is exclusive claim to particular uses of resources, not necessarily spatial boundaries, not even in land.

From a Rothbardian perspective, then, the idea that someone might homestead, one RTU at a time, what turns out to be a ring around unowned land, is not at all out of the question.

The issue then that Block and Kinsella disagree on is this: to what extent has this homesteader legitimately claimed a property right in excluding access to the unowned land?

In rejecting the Common Law ad coelum rule, Rothbard wrote, “If one homesteads and uses the soil, in what sense is he also using all the sky above him up into heaven? Clearly, he isn’t.”

Similarly, one might ask, “If one homesteads and uses a donut-shaped patch of soil, in what sense is he also using the undisturbed soil in the middle?”

“Clearly,” answers Walter Block, “he isn’t.”

Stephan Kinsella September 11, 2007 at 11:05 pm

BK:

Good points, but I don’t think you have it quite right. I agree that there are limits on how much you can homestead. I also think there are different ways to homestead. In both Thoughts on the Latecomer and Homesteading Ideas; or, why the very idea of “ownership” implies that only libertarian principles are justifiable and Thoughts on Intellectual Property, Scarcity, Labor-ownership, Metaphors, and Lockean Homesteading I note Hoppe’s emphasis on “embordering” as the primary means of homesteading:

Often the question is asked as to what types of acts constitute or are sufficient for homesteading (or “embordering” as Hoppe sometimes refers to it); what type of “labor” must be “mixed with” a thing; and to what property does the homesteading extend? What “counts” as “sufficient” homesteading? Etc. And we can see that in a way the answer to these questions is related to the issue of what is the thing in dispute. In other words, if B claims ownership of a thing possessed (or formerly possessed) by A, then the very framing of the dispute helps to identify what the thing is and what counts as possession of it. If B claims ownership of a given resource, he must want the right to control it according to its nature. Then the question becomes, did someone else previously control it (according to its nature); i.e., did someone else already homestead it, so that B is only a latecomer? This ties in with de Jasay’s “let exclusion stand” principle, which rests on the idea that if someone is actually able to control a resource such that others are excluded, then this exclusion should “stand.” Of course, the physical nature of a given scarce resource and the way in which humans use such resources will determine the nature of actions needed to “control” it and exclude others.
De Jasay, as a matter of fact, considers two basic types of appropriation: “finding and keeping” and “enclosure” (p. 174). The former applies primarily to movable objects that may be found, taken, and hidden or used exclusively. Since the thing has no other owner, prima facie no one is entitled to object to the first possessor claiming ownership.
For immovable property (land), possession is taken by “enclosing” the land and incurring exclusion costs, e.g., erecting a fence (again, similar to Hoppe’s “embordering”–establishing an objective, intersubjectively ascertainable border).

So what I think this means, BK, is that fencing is one way of establishing borders in what you own. Building a house on land, or plowing fields and planting crops might be another. They all emborder.

Just as a given use might be too ephemeral or trivial to “count”, the same might be said of a fence–the fence might not be sufficient to emborder; it may be too temporary or invisible. Or it may try to enclose too-big an area. If I build a fence around a few acres, where use of a few acres is a “relevant technological unit” (it’s typical to use this for crops and a yard and a house), then doing the fence alone may be enough, along with some ground work preparations or signs of use. Even if one left some patches of un-transformed, “virgin” forest alone inside this fence. While a 20,000 mile “fence” along the borders of the North American continent would not be enough to homestead it. (Block also goes into this in the paper:

There are of course questions about the precise meaning of “mixing your labor with the land”. How intensive does the farming have to be? One plant every square foot, yard, meter, acre, mile? How many crops must be planted before ownership obtains? The answer that emanates from this perspective is Whatever is the usual practice in land of that sort. For example, in the relatively irrigated land east of the Mississippi, the farming must be more intensive; in the more arid land west of this river, less intensive. As to how long the homesteading process must take before full property rights are vested, this, too, is a social and cultural matter.

So I think we are all of us on the same page here: Block, Hoppe, Rothbard, and we lesser mortals too.

So the upshot is that homesteading a circle of land might be sufficient to homestead the interior, just like fencing a small tract could be. But it also might not be, if the circle is too large. But in either case, the circle/donut is itself hometeaded. Yes yes, it’s the “use of” the circle as a RTU that matters, but we can assume the donut-tract owner wants to use it for some purpose that is contrary to others walking across it. Why, after all, would someone want such an odd shaped land? Maybe he wants to build a cyclotron. I don’t know. So he doesn’t give a damn about the interior–he doesn’t want it, doesn’t need it, doesn’t claim it. But he does own that cyclotron, and he doesn’t want trucks driving across it.

So, if it’s a small cyclotron–say, just 50M diameter–then he probably has homesteaded the interior whether he likes it or not. If it’s a huge one, like the 20-mile-diameter SSC that was going to be built in Texas, then the “fencing” is not sufficient to own the interior land. However, it is sufficient to effectively block access to the interior (arguendo).

So I disagree, BK, when you frame the argument this way:

The issue then that Block and Kinsella disagree on is this: to what extent has this homesteader legitimately claimed a property right in excluding access to the unowned land?
In rejecting the Common Law ad coelum rule, Rothbard wrote, “If one homesteads and uses the soil, in what sense is he also using all the sky above him up into heaven? Clearly, he isn’t.”
Similarly, one might ask, “If one homesteads and uses a donut-shaped patch of soil, in what sense is he also using the undisturbed soil in the middle?”
“Clearly,” answers Walter Block, “he isn’t.”

I can readily agree that the donut-tract owner does not literally own the interior–that is, he didn’t actually homestead it. Because the perimeter is too big; or he didn’t claim it. Fine. I also agree that Harris may be wrong in assuming *every* perimeter-homesteading homesteads the middle. Some would; others would not. But the question is: does failing to homestead the interior mean you grant an easement over the thing you do homestead? I still fail to see why it does.

Look. Most of the universe is now unowned. Most of it we can’t reach. Hell, most of our solar system is unowned and unreachable. Hell, most of our *planet* is unowned and unreachable (consider the interior; or the ocean floors). So what? There will always be locations or unowned resources that humans are either unable to reach, or it’s too expensive to reach. If there’s a patch of unowned land that is unreachable because it’s enclosed by owned tracts (picture an acre of woods in the middle of Wyoming, land-locked and surrounded by a crazy-quilt patchwork of thousands of other tracts), so what?

averros September 11, 2007 at 11:08 pm

Actually, the question of encircling someone else’s property can be resolved quite simply in accordance with the Lockean homesteading.

Habitual passage to and from property to other places (which is necessary to homestead that property in the first place!) does alter the unowned tracts of land – by creating paths, roads, etc. These must be considered homesteaded, so no further homesteading of the land prohibiting the travel along these paths is possible.

If someone encircled a completely unowned piece of land, then, well, someone else can still homestead it, by flying in and out on a helicopter.

(Note that traveling on land or water does not alter the space along the specific paths, thus air and water travel does not create homesteading – however erecting tall buildings or doing aerobatics in approach zones of airports will endanger safety of users of the airports, which is an aggression against their persons, so the airport owners (acting as proxies to the pilots and passengers) have a right to ask intruders to keep clear from the approach airspace – although they do not own it).

Stephan Kinsella September 11, 2007 at 11:28 pm

I noted this on Roderick’s blog too:

I had asked him:

Roderick, imagine a guy who owns an acre of land in Kansas. He’s surrounded by a patchwork of millions of tracts of land owned by other private owners. Say he wants to go to France. The only way to get there is to get permission to cross over the property of thousands of others. What if none of them grant it? Then does he have an easement over any property he selects, even though he doesn’t need it (he only needs a few). If he only has one easement-route, that seems arbitrary.
You can imagine the donut is owned by 100 people. Cross any of their tracts gets him in or out. Which one does he have an easement over?

Rockerick’s answer to “Which one does he have an easement over?”: “I’m inclined to think: whichever one he likes, unless the owners come to some other agreement. You have a right to defend yourself against a rights-violation, whether the rights-violator is an individual or a group.”

My reply:

Roderick, by your argument, if A lives 3000 miles from B, and B invites A, then you are implying that A has an easement across hundreds or thousands or tracts (assuming he has no road; that everyone in between refuses him entry).

Now I see a new way to build roads: let a bunch of people choose some easement-path from A to B. Over time, this path is used so much, it’s sort of a road. Then they sell their easement to Block’s Road and Provisions Company.

Hey Walter–a new twist on your road theorizing!

Stephan Kinsella September 11, 2007 at 11:33 pm

Averros: “If someone encircled a completely unowned piece of land, then, well, someone else can still homestead it, by flying in and out on a helicopter.”

That’s fighting the hypo. Walter assumes this is not possible.

Stephan Kinsella September 11, 2007 at 11:40 pm

Alex:

“The first: some person purchased a landlocked block of land adjoining ours, with no road access. He wished to build a log cabin style condo to rent out as a vacation home (you can imagine how welcome that would have been, right next to our property), and to do so, he wanted an easement so he could have a driveway over our land. Of course we said, Heck NO! And his land was then, largely worthless to him, as he didn’t want to live there himself. Whose fault is that?”

Re this, see the civil code articles I cited. They quite properly don’t give any relief to someone who allowed the state to be enclosed.

Second example: a close relation of the family also owns a landlocked block of land where he lives. The driveway to the house enters into our property, but he has our permission (not an easement) to use the driveway. My family gets along fairly well. However, when he passes (as may come fairly soon), there being no easement, this land and the house won’t be of much value, since there is no direct access. The only likely people to buy the property are those within the family, or close friends with which we can come to an understanding.

How do you konw he doesn’t have an easement? You gave him permission? Are you sure he doesn’t now have an easement by estoppel, or by acquisitive prescription? IF I were you I would be very careful not to establish some kind of claim on his estate’s part here–only allow him to use it per a written agreement that specifies that it’s not an easement, just a temporary thing personal to him, that you can withdraw whenever you want, etc.–it doesn’t “run with the land,” etc. (ask a lawyer who konws this area of law–not my specialty).

Franklin Harris September 12, 2007 at 2:48 am

BK Marcus,

OK, it’s far too late for me to try to go into too much detail, but my initial thought is that if “the smallest amount necessary for the purpose to which the homesteader is putting the new property” is the issue, then the situation where one could legitimately claim the “donut” while not laying claim to the “hole” stretches credulity. If the claim to the hole is suspect, then the claim to the entirety of the circumference would seem to be in doubt, too. The “smallest amount necessary” is problematic in and of itself, seeing as it is a subjective judgment.

Artisan September 12, 2007 at 3:10 am

Thanks for the insight from BK Marcus, also the individual answers from Dr. Kinsella and Franklin Harris make the problem more understandable.

Please can you tell what is the homesteading principle of a subterranean resource like an oil field thus, according to each of you?

Stephen Forde September 12, 2007 at 3:25 am

I think the problem of land lock is pretty easy to solve. If a person travels from their property, at point A, frequently to point B and back, no one has the right to homestead land between A and B which the person travels on without providing an easement. This is true regardless of whether the frequent traveler has left any physically recognizable impact in the form of dirt paths or some other mark.

If it is not true that a person appropriates the rights to same use of a scarce resource through frequent use, what argument can there be against erecting a smoke stack next to someone’s house when they are away? If they only have a right to the physical property they have brought under their control (as Hoppe defines it, see his Origin of Private Property and the Family pg.7), then they only own their land and house. Air is only brought under control the moment it is breathed into our bodies. Before that moment we do nothing to physically alter the air. How can we have a claim to it?

My argument is simply this. Frequent appropriation and abandonment of a scarce resource homesteads a claim to such continued use of the resource. A second comer can only then permanently bring the scarce resource under their control, but only if they provide an easement and cede control to the first comer when he wishes to use it again. But the first comer may only have exclusive control no more frequently than before. Any more and he would be infringing upon the property rights of the second comer.

Furthermore if a person lives on their property all their life and has never traveled outside of it, they have no right to an easement. With regard to the Blockean proviso, it implies that the new comer has a positive right over the homesteader, and therefore contradicts the nonaggression principle. Block contradicts himself by arguing a positive right.

Stephan Kinsella September 11, 2007 at 10:39 pm

I posted the following in reply to Roderick on his blog:Roderick, imagine a guy who owns an acre of land in Kansas. He’s surrounded by a patchwork of millions of tracts of land owned by other private owners. Say he wants to go to France. The only way to get there is to get permission to cross over the property of thousands of others. What if none of them grant it? Then does he have an easement over any property he selects, even though he doesn’t need it (he only needs a few). If he only has one easement-route, that seems arbitrary.You can imagine the donut is owned by 100 people. Cross any of their tracts gets him in or out. Which one does he have an easement over?Or how about this. Imagine a fully-owned planet. I want to fly to Jupiter. I can build a rocket, but I don’t own enough land to place it on. I need a 100 acre tract to use as a takeoff pad. No one will sell me their land. Do I have a “rocketpad” easement on — someone’s? — property? Otherwise, they’re “trapping” me here on earth.***BTW, Roderick, you may find of interest some of the following, drawn from a previous comment I made on a libertarian list–”the problem of enclosing others’ estates is not a new one that is the product of the imagination of libertarian theorists in their armchairs. It is a problem since antiquity and the law has found ways to deal with it. Maybe libertarian, maybe not, but one would think that one would want to be aware of and analyze these practical solutions which were found by people trying to find a just solution to an apparently conflict of property rights. Why we think we would be any better at it than them, I don’t know, assuming their attempt to solve the problem was not based on any non-libertarian premises or rationales. In short, maybe we can lean something from history? Maybe a study of continental civil codes, or the Roman law, or the common law, might prove fruitful? If a libertarian society were achieved, do we think judges faced with difficult decisions might not read up on what judges 500 years ago did in similar cases?Now: as an example: see articles 689 etc. of the Louisiana Civil Code — this contains codified legal principles roughly based on those developed over centuries in the Roman law (see arts. 693-94 especially)Art. 689. Enclosed estate; right of passage.The owner of an estate that has no access to a public road may claim a right of passage over neighboring property to the nearest public road. He is bound to indemnify his neighbor for the damage he may occasion.Art. 690. Extent of passage.The right of passage for the benefit of an enclosed estate shall be suitable for the kind of traffic that is reasonably necessary for the use of that estate.Art. 691. Constructions.The owner of the enclosed estate may construct on the right of way the type of road or railroad reasonably necessary for the exercise of the servitude [i.e., “easement“].Art. 692. Location of passage.The owner of the enclosed estate may not demand the right of passage anywhere he chooses. The passage generally shall be taken along the
shortest route from the enclosed estate to the public road at the location least injurious to the intervening lands.Art. 693. Enclosed estate; voluntary act.If an estate becomes enclosed as a result of a voluntary act or omission of its owner, the neighbors are not bound to furnish a passage to him or his successors.Art. 694. Enclosed estate; voluntary alienation or partition.When in the case of partition, or a voluntary alienation of an estate or of a part thereof, property alienated or partitioned becomes enclosed, passage shall be furnished gratuitously by the owner of the land on which the passage was previously exercised, even if it is not the shortest route to the public road, and even if the act of alienation or partition does not mention a servitude of passage.Art. 695. Relocation of servitude.The owner of the enclosed estate has no right to the relocation of this servitude after it is fixed. The owner of the servient estate has the right to demand relocation of the servitude to a more convenient place at his own expense, provided that it affords the same facility to the owner of the enclosed estate.***In addition to the Civil Code’s approach to enclosed estates being interesting and somewhat practical, I mentioned them for a couple of other reasons as well.One, notice that the logic seems to presuppose a state, in that enclosed estates have to have access to public roads. “The owner of an estate that has no access to a public road may claim a right of passage over neighboring property to the nearest public road.”I am not sure if this is necessary to this kind of reasoning–after all there isno right of passage to any other spot on earth in general–only to some public road. I guess the assumption is once you get to the road, you can go anywhere. If there are no “public” roads, would the free market right be easements (servitudes) to some private road… or would it be across as many tracts as needed to get to some other destination at which one has an invitation (or which is unowned)?Another thing to note here: notice the practical nature of the civil law’s approach to enclosed estates: First, Art. 689 says “The owner of an estate that has no access to a public road may claim a right of passage over neighboring property to the nearest public road.”But, “He is bound to indemnify his neighbor for the damage he may occasion.” Now, this seems only fair–but it reeks of the necessity exception in tort law; it seems to imply that you have no *right* to cross the other’s land–otherwise, why do you have to pay for it? In this, it seems akin to eminent domain–where the state takes property–but has to pay for it. It’s schizophrenic.Anyway, what is interesting is that Art. 693 says that “If an estate becomes enclosed as a result of a voluntary act or omission of its owner, the neighbors are not bound to furnish a passage to him or his successors.” In other words, even the (semi-statist) civil law does NOT grant any absolute escape- or access-easement–if it’s not someone else who “surrounds” you but rather you who surround yourself, you are out of luck.What this means is that merely having someone “trapped” does not mean you owe them an easement (servitude) unless you did it.Now notice, Roderick, how you argued: you said: “I’ve long argued that one property owner cannot legitimately buy up all the land around another’s property and thereby either keep the latter prisoner (if she was on the property at the time) or bar the latter from her own home (if she was away) – since one cannot legitimately use one’s own property to interfere with the liberty and property of others.”Here you imply that the surrounding owner is keeping the enclosed owner “prisoner,” if he does not allow access, by virtue of his having *actively enclosed* the interior owner. In this, your logic mirrors that of the civil code when it makes it clear that an enclosed estate “that has no access to a public road may claim a right of passage over neighboring property to the nearest public road”–that is, UNLESS the “estate becomes enclosed as a result of a voluntary act or omission of its owner,” in which case “the neighbors are not bound to furnish a passage to him or his successors.”So the effect of the Civil Code here is that if you enclose someone, you have to give them a way out. But not if they enclose themselves. So the easement is granted by the exterior owner by virtue of his having taken affirmative steps to enclose someone–not by virtue of their being in the interior.What this means is that if you enclose yourself–say, you are surrounded by a horseshoe shaped plot and you sell off a tract that sort of closes the circle, without negotiating an easement with the buyer of that part, then you have no easement against him, OR against the horseshoe-shaped piece. You may be imprisoned but you still get no easement. You only get the easement if someone else enclosed you–and they imprison you only when they deny you the easement.This is important because although you used similar narrow reasoning, you later on seemed to switch to the broader case: “Well, then, let A be a circular plot of land owned and resided within by you; let B be a doughnut-shaped plot of land owned by me and completely surrounding plot A; and let C be the rest of the planet, ex hypothesi unowned. I have no right to imprison you within A by denying you an easement across B allowing you to travel between A and C.”In this statement you do not assume that A’s owner enclosed B; only that B happens to be enclosed. If B became “enclosed as a result of a voluntary act or omission of its owner,” then he should have no easement. Yet your reasoning above, in omitting the “enclosing” history of how A came to enclose B, assumes now that merely being-enclosed is sufficient.My point here is that even if you grant that enclosing someone means you have to grant them an easement to exit (and re-enter? is losing property as bad as being-imprisoned?), this can be a narrow solution that does not entail any kind of *general* easement that you (and Walter) seem to want to argue for.One final comment here, and back to the issue of whether encosing an unowned tract means others have an easement to access it. In Walter’s piece he assumes that if you homestead a donut shaped tract, you do not homestead the interior. He says: “Suppose that a person does not homestead a stretch of land but instead places a fence around it In this scenario we stipulate that he “mixes his labor” only with that narrow strip of land upon which the fence rests, but to a sufficient degree in order to come to own it What he has done, then, is to take possession of a narrow perimeter of land, surrounding property which he does not own, nor claim. In other words, he homesteads a very thin donut shaped parcel of land, which encircles property he neither owns nor claims”Now note that Walter here emphasizes that the homesteader does not claim the interior. I think this is important, because fencing in property is in fact one way of homesteading it. If I put a circular fence down then usually I want to own not only the donut-shaped piece of land under the fence, but the land on the interior of the fence too. So in Walter’s hypo, presumably the donut-homesteader does not own the interior simply because he chooses not to–because he somehow communicates that he makes no claim to it; he countermands the general assumption that would otherwise prevail. To me, this means that (at least arguably) all he has to do to own the interior is to claim it–he’s already embordered it with his homesteading/marking/fencing of the circular perimeter.There are two curious things about this. First, Walter views this as virtually a crime. That is, if one could have homesteaded the middle by just making a claim (in addition to the embordering activity) then this would be preferable to not claiming it. This is compatible with his idea that libertarianism “abhors” unowned property. (This, it seems to me, could also be twisted into some kind of moral duty of people to be busy little homesteaders; if you stake a claim to a 1 acre trace in the wilderness, when you could have grabbed two, you have committed some kind of inchoate crime against libertarianism; it’s sort of a reverse Lockean-proviso: Locke wants you to leave enough and as good; Walter wants you to take it all, leave nothing–and if you do leave anything, leave access to others. It’s like it’s some big pac-man game, where the object is to gobble up all the unowned-dots.) But it does seem odd that the man’s only “crime” is failing-to-claim. I mean what if he had claimed it, and then just left it pristine?And this leads to the other curious thing: suppose you homestead a circle, but somehow fail to “claim” the interior. Now, some posse liberatus comes to demand that you let them mark an easement across it. Why can’t you just look at them and say, “Okay, I hereby claim the middle. Now, shoo.”??

Scott Kjar September 12, 2007 at 10:37 am

I recall Block arguing, in the case of murder and restitution, that if it were possible to invent a machine that sucks the life out of a murderer and gives it to the murder victim, then surely we would accept that this is restitution.

So let’s engage in a similar construction. Suppose that someone invest Star Trek-style technology that allows us to “beam” onto the isolated land. In such case, it would be incorrect to argue that one must traverse the surrounding land. Hence, if such technology existed, no Blockean easement would be necessary.

Surely, the state of technology does not affect the state of our rights. If such a right (the easement) does not exist in the presence of such advanced technology, then that right does not exist now, in the absence of such technology.

Beam me up.

Jordan September 12, 2007 at 11:19 am

On just a cursory reading of the blog post, I’d have to side with Stephan on this one.

One thing to keep in mind, though–a market would minimize these situations to begin with. If someone wanted access to the doughnut center, either they can put up the money to secure access from the doughnut-owner to the center, or it’s not worth it, or, even if it is, the doughnut-owner homesteads it himself and keeps or sells it with access.

Also, the proliferation of roads, charities, and entrepreneurial vision would tend to minimize, if not eliminate, people without land or places they are welcome, or people trapped from traveling from A to B (or C).

Stephan Kinsella September 12, 2007 at 11:24 am

Scott: “Suppose that someone invest Star Trek-style technology that allows us to “beam” onto the isolated land. In such case, it would be incorrect to argue that one must traverse the surrounding land. Hence, if such technology existed, no Blockean easement would be necessary. … Surely, the state of technology does not affect the state of our rights. If such a right (the easement) does not exist in the presence of such advanced technology, then that right does not exist now, in the absence of such technology.”

I agree with you; There is always some extra cost to finding another way into the property. I cannot conceive of how a circular strip of land can prevent access to the land–why can’t you fly a helicopter into it. However, in fn. 8 of his piece, Walter says: “We are assuming away the possibility of tunneling under, or building a bridge over, this donut shaped parcel of land in order to have access to it for homesteading purposes.”

I really cannot imagine how we can just “assume” no one can access it some other way, but that’s Walter’s hypo. Maybe the hypo itself is problematic, but I guess you could think of other cases: some rich billionaire builds a 10,000-mile-wide titanium sphere and surrounds the moon with it, to keep others from homesteading it. Or something….?

ted September 12, 2007 at 1:01 pm

i fail to see any possible justification for impinging upon legitimately homesteaded property, simply because of what happens to be next door. whether the owner of the donut can own the inside plot by merely staking a claim is an interesting question, though it doesnt seem to influence the assertion that we have a right to appropriate all unowned land, which is surely false. just as a cannot kill you on my way to mix my labour with some virgin soil, neither can i trespass on your property, right?

“under the donut configuration assumption, even though the owner has duly homesteaded every square inch of his holdings, he still cannot claim full ownership to it in its entirety, for him to be able to do so would imply that the land lying inside (or outside!) of this area can forever remain unowned.” (Block, 2004, p278)
what precisely is wrong with this implication?

Scott D September 12, 2007 at 1:22 pm

When I come across scenarios like this, I’m inclined to say: I’ll take my chances.

There’s the one where a single very wealthy person manages to buy up all the land in the world. How this could ever happen turns logic so far on its head that it’s ludicrous. The land baron could not buy all the land at once, and would have to transact with hundreds of millions of people. The more land the owner bought, the more expensive it would become as other landowners realized the demand and bid up their selling prices accordingly. The likelihood of millions of people ignoring these market signals is vanishingly small–probably on the level of all men on Earth spontaneously deciding to get sex changes at once. Yet, I’ve seen this example used as a critique of property rights.

What excercises such as this one strive to show is how property rights should handle irrationality (such as the landowner who perversely wants to keep land unowned–even by himself!). I think that it is completely justified to assume away the extremely irrational, where property rights cease to function as you want them to. I tend to agree that the point is moot anyway, and that the encircler owns the land by definition.

Anthony September 12, 2007 at 1:30 pm

“There’s the one where a single very wealthy person manages to buy up all the land in the world. How this could ever happen turns logic so far on its head that it’s ludicrous.”

This one comes up a lot. It is a reductio ad absurdum, although it shows to what absurd arguments one must go to to try and refute property rights (the Lockean proviso, if adhered to, would refute it offhand.) And funnily enough, it tends to be voiced by individuals who think verbally claiming property is a more valid method than homesteading it!

Jean Paul September 12, 2007 at 4:12 pm

Subjectivity in justice must be reduced to zero. The question of “how much is too much” is too subjective to allow in consideration of just versus unjust homesteading. The lingering effects of centuries of socialist brain damage can be felt when even the staunchest libertarians feel there ‘must be limits’ for the sake of limits.

If X is unowned, then it doesn’t matter the size; if you can establish a claim then it’s yours.

If a billion people can homestead one acre each, then freely give those acres to one man with a verbal declaration, then that one man justly owns a billion acres. No one will deny this. No one will apply standards of use or technology units or anything else to the one man’s billion acres.

So why must those standards apply should he attempt to homestead the billion himself?

The fence you build on unowned property may not be crossed, period. If you build a 2D fence around a 2D property, the fence may not be crossed, period, and the unowned interior is de-facto yours. Size is not an issue. Ditto the 3D case.

The fence you build on or surrounding previously-owned property (established trails, trade routes, flight lanes, easements, etc.) is a trespass, and may be breached by whatever means.

The bigger your fence, the more likely there is an infringement… but any fence you manage to build without infringing is a valid embordering of all that falls within. Questions of size or character a-la lockean proviso (ditto blockean) cannot invalidate your claim.

Gil Guillory September 12, 2007 at 4:18 pm

I want to take a moment to congratulate all of the participants to this blogpost and comments. This discussion is rich and wonderful — the sort of thing to which a blog like this aspires. The quality of these postings is as good as one would expect in a print journal that had a dedicated issue to the subject. Well done!

And of course, thanks go to the staff and supporters of the Mises Institute who make all this possible.

Jean Paul September 12, 2007 at 4:48 pm

“When I come across scenarios like this, I’m inclined to say: I’ll take my chances.”

AGREED!

You can look out your door today and see a thousand kinds of insanity in action. It’s a stellar endorsement of Liberty that only these most insanely ridiculous edge cases can be invoked in criticism.

On the other hand, consider the possible edge cases under the state. They are far more numerous, and each is more offensive than the last. Yet the socialists ignore it all and worry about the incredible man who somehow manages to buy the universe.

Franklin Harris September 12, 2007 at 9:08 pm

For me, a more problematic (if far out) issue regards resources that seem to me virtually impossible to homestead. Take the air above us, for example. This is why air pollution is such a thorny issue, i.e., because no one owns any part of the air, which, worse still, is always moving and carrying pollution from one place to the next.

Now, setting aside that classic argument, I’ll take up my “Spaceballs” scenario. This is named for the Mel Brooks movie in which the bad guys attempt to steal all of another planet’s air. Say I have a spaceship that is capable of sucking up all of the Earth’s atmosphere. Now, if the atmosphere is unowned (how does one homestead it apart from containing it in some way?), how can the people of Earth object (in libertarian terms) to my claiming ownership by containing all of the air inside my ship? Never mind the Blockean proviso, this seems to be the sort of instance that begs for Nozick’s Lockean proviso. Everyone on Earth is far better off with the air remaining an unowned commons than with my homesteading it all.

Anthony September 12, 2007 at 9:53 pm

Libertarians have dealt with this already, I believe, via the notion of easement rights to breathable air?

Franklin Harris September 12, 2007 at 11:04 pm

Easement rights to breathable air would seem to assume some sort of homesteading already exists, which is the point of contention, but I’m interested in any discussions of this anyone can link to.

RWW September 13, 2007 at 8:41 am

I’d say Stephan and others have undone this weird “proviso” pretty thoroughly.

Paul Edwards September 13, 2007 at 12:26 pm

Cool discussion. Now i’d like to mention that the BLockean proviso is used by Dr. Block to justify the notion of a positive parental obligation to notify the public that they are abandoning their child, should they decide to no longer care for it, and that they are obligated to not forestall -that is, they must provide access to the child, which is now the unowned “property” in the middle of the bagel of owned property. To fail to notify and provide access and to allow the child to die, according to Dr. Block would constitute murder.

My question was, From where does this obligation to officially abandon and publicly notify of this abandonment arise. It is my opinion that there absolutely is such an obligation, but rather than arising from some theory of forestalling, it arises from the act of procreation and the resultant placing of a person in need of someone’s help, for its survival.

The forestalling theory allows a parent to evict a fetus from the womb causing its death, while yet still disallowing a parent from letting their child starve to death even if there might be someone willing to take over the caring for the child.

It is my contention that if forestalling fails, then it is back to the drawing board for those who wish to deem abortion consistent with austrian law, and yet wish to deem allowing one’s child to die of starvation a serious crime according to austrian law.

What does the list have to say about them apples?

Jean Paul September 13, 2007 at 1:19 pm

Maybe the act of procreation establishes an obligation toward the new life. If so, I’ve not seen it defended on objective grounds – merely on the basis of cultural intuition.

Personally, I don’t trust my cultural intuition for justifying aggression. My cultural intuition serves me in my private, subjective valuations, and in running my own life within its boundaries.

That said, my cultural intuition would never have me abandoning a child to starve. I recognize this as a subjective preference of mine. Those others who share a similar preference will no doubt act in the interests of the child, and presumably no one would see any problem with that. I think it would be incredibly uncommon for the human animal, absent all the perverting socialist pressures, to behave so callously toward its offspring in the general case.

But since subjective values rest on so high an altar, let me pose this one: do you really want these callous, hateful people breeding anyway?

Finally: is the widespread abuse and neglect of children another of these extremely far-fetched edge cases, which demand that objective justice be sacrificed to appease the loudest, angriest, most paranoid subjective desires?

Scott D September 13, 2007 at 2:19 pm

Paul Edwards:

“The forestalling theory allows a parent to evict a fetus from the womb causing its death, while yet still disallowing a parent from letting their child starve to death even if there might be someone willing to take over the caring for the child.”

Block went into some detail on this in one of his lectures, “Radical Libertarianism” or somesuch. You have made an assumption in the above passage that Block disagrees with: “evict a fetus from the womb causing its death“. If a fetus is aborted at eight months, it is perfectly capable of living outside the womb with the same support that a full-term baby requires. If someone wishes to adopt that child, Block says that it is the parent’s duty to allow that person to claim the child rather than let it die.

On the other hand, a fetus aborted at one month cannot live, even with medical support, so parenting rights are irrelevant. However, Block offers the hope that technology may someday allow a fetus at any age of development to survive, eliminating the death of aborted children as long as there are parents who wish to adopt them. This would eliminate the presumption that abortion leads to the death of the fetus.

I’m not finished thinking it through, but I wanted to make sure that Block’s thoughts on this were presented in their entirety.

Jonathan Bostwick September 13, 2007 at 6:43 pm

Stephan Kinsella:

“I mean what if he had claimed it, and then just left it pristine?”

Exactly!

If property is nature mixed with labor how do you homestead a nature preserve? Building a (physical) fence might diminish the land’s use as a nature preserve. The only condition necessary to homestead must be denying easement.

Paul Edwards September 13, 2007 at 7:20 pm

Scott,

“Block went into some detail on this in one of his lectures, “Radical Libertarianism” or somesuch. You have made an assumption in the above passage that Block disagrees with: “evict a fetus from the womb causing its death”. If a fetus is aborted at eight months, it is perfectly capable of living outside the womb with the same support that a full-term baby requires. If someone wishes to adopt that child, Block says that it is the parent’s duty to allow that person to claim the child rather than let it die.”

If I follow you, what you are saying is that evicting the fetus at 2 months, doesn’t cause its death, but rather it must die on its own because it can’t survive on its own. It’s just nature at work. But my argument is that this is essentially the same as recognizing that not feeding a 1 month old baby also does not – in a similar sense – cause the baby’s death. Again it must die naturally because it can’t feed itself. So these situations are parallel in the extreme. So the question is this: If you have no obligation to do what you can to keep the fetus alive – by keeping it in the womb – from where does the obligation arise to keep the born child alive, to notify, and to allow someone else to care for this child? Both will die of natural causes once removed from the womb, or not fed. The source of the obligation to notify of abandonment is what I am looking for.

Jean Paul September 13, 2007 at 7:28 pm

The only reasonable source of obligation is ‘the act of procreation creates the obligation’.

This seems like a reasonable avenue to explore, but it’s by no means conclusive. It smells to me like wishful thinking on the part of people appalled at the idea of parents neglecting their offspring, who thus wish to use violence to compel the parents to care for the offspring that they themselves wish to see cared for, but that they themselves refuse to care for, rather than an objective truth.

Jean Paul September 13, 2007 at 7:29 pm

The above is awkwardly worded, and I apologize.
:(

Paul Edwards September 13, 2007 at 7:29 pm

Jean Paul,

“But since subjective values rest on so high an altar, let me pose this one: do you really want these callous, hateful people breeding anyway?”

What I personally want is justice. So I always like to ask, What position can be justified? Is there aggression, by who against who. If you can justify your action, I’m ok with it, if not, I’m agin’ it. In this case I find the baby innocent, and the parents who intentionally allow their child to starve as guilty of murder. The manner in which I arrive at this justification leads me to conclude and I think should force Dr. Block to conclude that even early term abortions cannot be justified.

“Finally: is the widespread abuse and neglect of children another of these extremely far-fetched edge cases, which demand that objective justice be sacrificed to appease the loudest, angriest, most paranoid subjective desires?”

Well, if we think we can justify claiming it to be murder to allow your baby to die of starvation, we better think hard of how we justify that it is not murder to eliminate a fetus from its mother’s womb. I think Dr. Block tries hard, but so far as I can see, he fails to do the latter.

Jean Paul September 13, 2007 at 7:38 pm

“…and the parents who intentionally allow their child to starve as guilty of murder.”

This is the contentious point I think. I’m not convinced.

PERSONALLY, I would certainly feel as if I’d committed an affront against nature if it was within my power to prevent a child of mine to starve, yet did nothing… but that’s my personal decision.

I wouldn’t know where to begin in demanding some other person provide the level of care that I demand from myself… and so I cannot endorse the use of force to compel that other person.

I guess I can’t really see the difference between the person who contracts some venereal disease through a sex act either. Having become the host of a venereal disease, as an unintended consequence of your willful sex act, are you now obligated to continue to provide safe haven for the disease, out of sheer obligation to preserve life in all its forms? Is it ‘murder’ to take antibiotics and wipe the critters out of your system?

I value human life, but I can’t see an objective difference between the SIGNIFICANCE of human life and the SIGNIFICANCE of other life. I mean there is an obvious difference in the character of those two life forms, but why is one to be objectively valued versus the other?

Paul Edwards September 13, 2007 at 7:41 pm

Jean Paul,

“The only reasonable source of obligation is ‘the act of procreation creates the obligation’.

“This seems like a reasonable avenue to explore, but it’s by no means conclusive. It smells to me like wishful thinking on the part of people appalled at the idea of parents neglecting their offspring, who thus wish to use violence to compel the parents to care for the offspring that they themselves wish to see cared for, but that they themselves refuse to care for, rather than an objective truth.”

Most people’s intuition suggests that intentionally allowing one’s baby to suffer, or suffer and die, is more than just immoral, it is criminal. I think people have to think of how their ethic cares for those who are weakest and least able to defend themselves. If we go with our intuition, we must work on a justification for our conclusions in the area of political philosophy. If we succeed in a justification, then we should be content. But further, we cannot then intentionally close our eyes to other implications of our justification. That would not be in keeping with justice. This is the basis of my line of attack.

Incidentally, I write this as a person who has in the past enthusiastically defended the Rothbard/Block position on abortion, until reading some of Stephan Kinsella’s work on the possible implications of the act of procreation to the parents.

Jean Paul September 13, 2007 at 7:51 pm

Ok, so you argue from the standpoint of consistency. If you demand from yourself a standard of care, then to be consistent you must demand that standard from others.

I think there is a question of reference point here, and there is a question of subjective values versus objective truths (values can only be subjective; truths can only be objective).

If I cannot defend my actions as rooted in objective truth, for example my preference for drinking dr. pepper versus milk, then I cannot demand others to abide by the rule. I don’t feel this is a contradiction, or an erosion of justice.

But if I hold it as an objective truth that aggression is wrong (and this may also just be a subjective value, I don’t think so but I don’t know) then I DO require all to abide by it.

So I guess my stance on abortion, or the positive OBLIGATION to care for one’s offspring, is that these are subjective values. I drink Dr. Pepper and care for my offspring because those are my values. I want others to respect my values and so I respect theirs. And if they choose to drink milk while their child starves, then who am I to compel them otherwise? They have not AGGRESSED agianst their child, and so their actions are consistent with my formulation of justice. And so I consider them scum, as is my right, and indeed I may punish them by my own non-aggressive means, but certainly I will never invoke aggression against them.

Paul Edwards September 13, 2007 at 7:56 pm

Jean Paul,

Me: “…and the parents who intentionally allow their child to starve as guilty of murder.”

“This is the contentious point I think. I’m not convinced.

PERSONALLY, I would certainly feel as if I’d committed an affront against nature if it was within my power to prevent a child of mine to starve, yet did nothing… but that’s my personal decision.”

But this is not Dr. Block’s position. You would not consider it a crime that a parent had intentionally allowed his child to suffer grave physical and emotional agony perhaps over extended periods of time, only to allow the child to finally die. Block and others see it quite differently. Those who see it our way, must also derive a libertarian justification for this position. I think it can be done, but I doubt it can be done via the theory of forestalling.

“I wouldn’t know where to begin in demanding some other person provide the level of care that I demand from myself… and so I cannot endorse the use of force to compel that other person.”

That isn’t quite the issue. The issue is regarding intentional infliction of pain and suffering and death by the abstention of fulfilling certain positive obligations to one’s child.

“I guess I can’t really see the difference between the person who contracts some venereal disease through a sex act either. Having become the host of a venereal disease, as an unintended consequence of your willful sex act, are you now obligated to continue to provide safe haven for the disease, out of sheer obligation to preserve life in all its forms? Is it ‘murder’ to take antibiotics and wipe the critters out of your system?”

You’re just playing with me on this one right?

“I value human life, but I can’t see an objective difference between the SIGNIFICANCE of human life and the SIGNIFICANCE of other life. I mean there is an obvious difference in the character of those two life forms, but why is one to be objectively valued versus the other?”

I’m not following you at all. Do you think plant life and viruses should be accorded equal treatment under the law as humans?

Jean Paul September 13, 2007 at 7:58 pm

“Well, if we think we can justify claiming it to be murder to allow your baby to die of starvation… how [do] we justify that it is not murder to eliminate a fetus from its mother’s womb[?]”

The logic is perfectly sound. Either they are both murder, or neither is. I Agree absolutely that these are the two possible outlooks.

Between these choices, I choose the stance that neither act is murder, for the reasons stated in prior comments. Revolting to me, depending on the circumstances, but not murder.

Jean Paul September 13, 2007 at 8:08 pm

“You’re just playing with me on this one right?”

Not playing at all. I strive to separate the subjective and the objective, which is always challenging, but especially so in these cases.

Thought experiments about viruses, plants, pets, aliens, etc., put the consistency of my views to the test. And when it comes down to it, what objective measure do you apply to DNA sequence X versus DNA sequence Y in ascertaining the value of the life that it provides a blueprint for?

I can justify eradication of a virus or other disease as a response to its aggression against me. But if that’s an OK stance, then the aggression of an unwanted fetus in parasiting itself upon a womans body is equally punishable.

You knew that your sex act could result in an organism appearing and feeding off the body; does knowledge of that possibility obligate you to care for the resultant organism or population of organisms?

I’m dead serious, I don’t know the answer, but I think we need a good answer before we start using aggression against people on this basis.

Paul Edwards September 13, 2007 at 10:05 pm

Jean Paul,

I think that you are asking important questions that are fundamental and do require an answer. Rather than me answering, I’ll just suggest some good sources of answers: For an advanced and highly rigorous justification of the libertarian ethic, I recommend any one of Hans Hoppe’s many explications of his “Argumentation Ethics” thesis, which in my opinion, gives the definitive answer to these questions.

http://www.hanshoppe.com/sel-topics.php

It’s controversial, but in my opinion unassailable. Well worth getting familiar with it.

Anthony September 13, 2007 at 10:15 pm

Franklin, re easements regarding air, I will have to see if I can find which libertarian publications deal with it. In the meantime, hopefully someone else will come up with something. I’ve heard the position outlined quite a few times, so I am sure it must be dealt with somewhere.

Scott D September 14, 2007 at 9:34 am

Paul Edwards

“If I follow you, what you are saying is that evicting the fetus at 2 months, doesn’t cause its death, but rather it must die on its own because it can’t survive on its own. It’s just nature at work. But my argument is that this is essentially the same as recognizing that not feeding a 1 month old baby also does not – in a similar sense – cause the baby’s death. Again it must die naturally because it can’t feed itself.”

There is a difference. An abandoned one-month-old baby can be fed by anyone with the resources to do so. An abandoned two-month-old fetus cannot survive without the mother’s support, no matter who should claim it. Block goes on to say that if there were no one willing to care for a child, then death would be the result, and that this is the only reasonable outcome, though this is probably unlikely on a per case basis.

Again, I’m not sure yet if I agree with the reasoning in full, but Block’s argument is a sincere attempt at solving the abortion/child abandonment dilemma. It does deserve further consideration (by myself included). Maybe there is a better solution to be gleaned from it.

Paul Edwards September 14, 2007 at 10:02 am

Scott,

“There is a difference. An abandoned one-month-old baby can be fed by anyone with the resources to do so. An abandoned two-month-old fetus cannot survive without the mother’s support, no matter who should claim it. Block goes on to say that if there were no one willing to care for a child, then death would be the result, and that this is the only reasonable outcome, though this is probably unlikely on a per case basis.”

I agree there is a physical difference, but the question remains, if there is no obligation to keep the fetus alive, by not expelling it from the womb, from where comes the obligation to hand a born baby over to someone to keep the born baby alive. As far as I can see, both imply a positive obligation on the part of the parent on behalf of an individual who as far as I can see, from the Blockean perspective, has no right to such treatment, being as it was before birth, and remains after birth, an uninvited parasite.

“Again, I’m not sure yet if I agree with the reasoning in full, but Block’s argument is a sincere attempt at solving the abortion/child abandonment dilemma. It does deserve further consideration (by myself included). Maybe there is a better solution to be gleaned from it.”

I agree with all of this. However, I don’t think I have missed a key point of Block’s argument, but rather, I think the argument itself is missing a key element: a real justification for a positive obligation of parents to notify others of intent to not care for their child. And again, I believe such a justification exists, just not the one Dr. Block hopes for.

Robert M. September 14, 2007 at 10:20 am

Jean Paul “I guess I can’t really see the difference between the person who contracts some venereal disease through a sex act either. Having become the host of a venereal disease, as an unintended consequence of your willful sex act, are you now obligated to continue to provide safe haven for the disease, out of sheer obligation to preserve life in all its forms? Is it ‘murder’ to take antibiotics and wipe the critters out of your system?”

The difference is that the virus forced it’s way from one person to another, while the fetus was created there, and therefore forced to be there. In this sense, abortion is the equivalent of building walls around a person and then (lets face it, the fetus isn’t neatly removed early on) scrambling their brains for being there. A virus is like a person kicking in your door and trying to kill you. There is quite a difference.

Taking objectivism to such an extreme is a dangerous thing. In a world where ALL life was considered equal, we’d all starve due to the fact that almost everything we eat was once alive.

Jean Paul September 14, 2007 at 2:46 pm

“Taking objectivism to such an extreme is a dangerous thing.”

I don’t think so. Truths are objective and values subjective, by definition. You can’t take objectivity to an extreme; you can either get it right, or you can get it wrong because it’s hard to get right, or you can get it wrong because you choose to let subjective values pollute your reasoning.

Of course life feeds on life. But that’s not an excuse to do whatever we want – such as BBQing up your neighbor for dinner. Being objective doesn’t mean putting ALL life on the same pedestal. It does mean finding objective criteria to decide whether or not it’s ok to eat carrots, veal, or politicians for dinner.

I will say that species-ism is every bit as misguided as nationalism, racism, and all other forms of bigotry.

As for whether a particular virus or bacteria FORCED its way in, consuming the resources it found to breed new individuals of the organism – versus the fertile male gamete – which did the same but presumably was welcomed with open arms, even if the sex partners insist otherwise? – I suspect this is NOT an objective distinction, but one rooted in a desire to put human DNA on its own super-pedestal.

Jean Paul September 14, 2007 at 3:01 pm

How about this. I will say that vaccuming out a fetus (which causes it to disintegrate into chunks) is clearly an aggressive act.

Whereas carefully removing the fetus with delicate surgery, and placing it in a chemical bath identical to the womb environment, where it is free to consume the resources it finds according to its means, is not aggressive, and is perhaps a ‘humane’ way to let the creature live or die on its own terms. To be on the safe side, I am sure the mother who chooses abortion would choose this method, to be absolutely certain the death of an organism that some hold to be sacred was not caused by her, but was merely an act of nature.

This does sound cold, cruel, and harsh – agreed – but keep in mind, those are your/my subjective values talking, and not the universal voice of objectivity. Objectivity does not know cold, cruel, or harsh. Such words are the language of subjective value. Subjective value is free to reign over your life and property – but cannot be used to justify violence / coercion against others.

Scott D September 14, 2007 at 3:37 pm

Paul Edwards,

Fair enough. I too feel compelled to find a rational way to avoid the possibility of death through willful neglect. On the one hand, I feel that it is wrong to compel one person to provide for another, on any level. Such reasoning lies at the heart of wealth redistribution.

On the other hand, children present us with many complications. If a father of a teenager tells his son, “I’m done with you. Go take care of yourself,” I think we can all agree that, so long as only proportional force is used to remove the boy, the father is within his rights to make and enforce that proclamation in a libertarian society. For those worried about his fate, he’ll likely just go get a job.

Reduce the child’s age to six in the same situation, and we instantly feel greater moral outrage towards the father, but I still can’t see any justification for forcing the father to continue to take care of the child. We can only hope that the child will make his way out of the house and that someone will choose to take over his guardianship. I don’t like it, but I can accept that the child at least has the physical and mental capacity to find help.

Put the child at six months and the problem becomes more severe yet. Does the father say this to the infant and then leave it to die? Intuitively, I know that there is something very wrong with this scenario, but how can it be resolved without placing some kind of legal obligation on the father? Is the obligation a special case of parents and children (admittedly unique among human relationships)?

I’m just not ready to answer those questions yet. I feel like there are a few pieces still missing.

Jean Paul September 14, 2007 at 4:43 pm

“Intuitively, I know that there is something very wrong with this scenario, but how can it be resolved without placing some kind of legal obligation on the father?”

It can’t be. Either the father is positively obligated or he isn’t.

Speaking in terms of the hypothetical ‘you’ (not referring to Scott D or anyone else specifically):

If you can establish a source of obligation – a signed contract is one possible example, but not the only example nor the best example – then you can forcibly coerce the father to meet his obligation.

But if you cannot establish an obligation, then you MUST refrain from coercive force to satisfy your intuitive desire that the child be cared for by his father. You are allowed to adopt the child; and if the child means so much to you when clearly the father does not care at all, then exercise your freedom while refraining from violating the father’s, and adopt the child yourself.

If you are unwilling or unable to adopt him yourself, whatever your list of excuses why not, the are as valid as the father’s. Violence remains NOT an option.

Jean Paul September 14, 2007 at 4:54 pm

Honestly, what makes you more warm and fuzzy inside:

“I love my parents, because they cared for me, because if they hadn’t, society would have threatened them with pain of death. My parents must really love me, and that’s why I love them so much.”

OR

“I love my parents, because at any time, they could have left me for dead to fend for myself, like a beached whale, or a bird with a broken wing. The life they provided for me is measured against a baseline of being left for dead in an alleyway. Every sacrifice they made was to put my life first, an end unto itself. My parents truly love me, and I love them.”

When you start talking about FORCING people to be good parents, the point has been so far missed, it may as well not even exist.

Scott D September 14, 2007 at 6:17 pm

Jean Paul,

I see that I did not explain the situation in enough detail. I completely oppose coercing the father to care for the child against his will. Instead, think of the case where the father is completely at liberty to give or sell his parenting rights, but he refuses to allow that and prefers to watch the child (who is too young to seek help alone) die instead.

Block says that this is wrong because the father did not advertise his abandonment of his parenting rights. Again, I feel that this is “almost” right, but that there is some element still missing.

Anthony September 14, 2007 at 6:31 pm

Robert, when Objectivism is spoken of, is it in reference to Rand’s system or the common definition of the word?

Anyway, JP, specieism is not in and of itself pernicious, if one can find a morally relevant discriminating factor that separates moral agents from all else.

Paul Edwards September 15, 2007 at 12:32 am

Scott,

“Fair enough. I too feel compelled to find a rational way to avoid the possibility of death through willful neglect.”

I think some compulsions are a virtue. This one in this context is one of them, in my opinion.

“On the one hand, I feel that it is wrong to compel one person to provide for another, on any level. Such reasoning lies at the heart of wealth redistribution.”

It gets easier when you realize that sometimes obligations to provide for another person can be voluntarily taken on or they can be incurred via some property violation.

“On the other hand, children present us with many complications. If a father of a teenager tells his son, “I’m done with you. Go take care of yourself,” I think we can all agree that, so long as only proportional force is used to remove the boy, the father is within his rights to make and enforce that proclamation in a libertarian society. For those worried about his fate, he’ll likely just go get a job.”

I really advocate Stephan’s “How We Come to Own Ourselves”. I think you’d find it interesting and worth-while. I should give it another read myself.

It’s here:

http://mises.org/daily/2291

“Reduce the child’s age to six in the same situation, and we instantly feel greater moral outrage towards the father, but I still can’t see any justification for forcing the father to continue to take care of the child. We can only hope that the child will make his way out of the house and that someone will choose to take over his guardianship. I don’t like it, but I can accept that the child at least has the physical and mental capacity to find help.

“Put the child at six months and the problem becomes more severe yet. Does the father say this to the infant and then leave it to die? Intuitively, I know that there is something very wrong with this scenario, but how can it be resolved without placing some kind of legal obligation on the father? Is the obligation a special case of parents and children (admittedly unique among human relationships)?”

———–
This is what Kinsella has to say on this:

“The idea here is that libertarianism does not oppose “positive rights”; it simply insists that they be voluntarily incurred. One way to do this is by contract; another is by trespassing against someone’s property. Now, if you pass by a drowning man in a lake you have no enforceable (legal) obligation to try to rescue him; but if you push someone in a lake you have a positive obligation to try to rescue him. If you don’t you could be liable for homicide. Likewise, if your voluntary actions bring into being an infant with natural needs for shelter, food, care, it is akin to throwing someone into a lake. In both cases you create a situation where another human is in dire need of help and without which he will die. By creating this situation of need you incur an obligation to provide for those needs. And surely this set of positive obligations would encompass the obligation to manumit the child at a certain point.”

———-

Paul Edwards September 15, 2007 at 12:45 am

JP,

“When you start talking about FORCING people to be good parents, the point has been so far missed, it may as well not even exist.”

I don’t think we are talking about being good parents. We are talking about fulfilling an ethical obligation to prevent an innocent defenseless human being who cannot take care of itself, from being allowed to suffer inhumanely and to die unnecessarily via neglect and starvation. This may entail finding someone who is willing to care for the child, or doing the job one’s self. Regulating the quality of the parenting job itself beyond that, does rather seem to be beyond the scope of the libertarian ethic.

Jean Paul September 15, 2007 at 11:16 am

To Scott D: hmm. NOW I see the problem. The inviolability of the father’s ‘property rights’ has become an invisible fortress – and cage – of ‘moral’ steel. Preventing access to the child is in some ways like imprisoning the child… and to the extent ‘imprisonment’ can be established, this opens the door for forceful intervention to preserve the wellbeing of the child.

I can’t see where the father is legally obligated to ever provide for the child – but perhaps the father can be justly made to stand aside while the ‘prisoner’ is ‘rescued’.

Jean Paul September 15, 2007 at 11:42 am

Let’s try THIS for a strange twist.

Scientists currently researching AI are ‘giving birth’ to an intelligence. At this point the process hasn’t gone far enough to recognize the created creature as anything but a pile of building blocks undergoing a slow evolution. But at some point, we will recognize what has been created is an intelligence.

If we cease research at this time, have we ABORTED, perhaps even MURDERED the nascent AI? Do the scientists have a positive obligation to keep providing for the machines’ power and cooling needs? At what point do the machines cease to be the scientists’ property (suppose they never trade away, nor give away, nor abandon this property), and the self ownership of the born AI take precedence?

At what point does any child (puppy, kitten, foal, etc) cease to be just a piece of meat, an outgrowth of the mother, PROPERTY of the mother – and instead become their own self-owning person?

Anticipating one possible answer, I think “when the umbilical cord is cut” is naive and incorrect… Likewise “when the umbilical cord COULD be cut” is not a satisfying answer.

Jean Paul September 15, 2007 at 12:05 pm

Here’s a mental image I just had.

I picture a blob of thick viscous ooze – primordial soup. The ooze is homogeneous and flowing, unthinking and unacting – its existence is purely inertial.

In the image now, we are observing from within the ooze, somewhere near the ‘surface’ of the blob. We see a fingered hand slowly break the surface from ‘outside’ the blob, slowly penetrating into the ooze. The deeper the fingers sink into the ooze, the more ‘present’ they are within the ooze, and the more their influence is exerted and felt throughout the ooze. Unlike the homogeneous and inertial ooze, the fingers are distinct; they have boundaries; they may collide with each other, may interfere with each other, may even damage each other. They are not inertial but act spontaneously. We give this non-inertial behavior a name; we call it WILL.

This mental picture is meant to be a metaphor for willful consciousness intruding into a deterministic, fatalistic universe of billard-ball particle physics (or wave harmonics or whatever the fabric of reality is). As the ooze – the stuff of reality – forms and flows, it allows the fingers – consciousness – to intrude into it. Consciousness may proceed to different extents before being stuck in the ooze and unable to go farther… so the evolution of a soup of proteins and nutrients into a conscious being is like the gradual intrusion of consciousness from some ‘other place’ where consciousness originates…

Wow. What the heck have I been smoking? I can’t even follow myself!

Nick Danger September 17, 2007 at 7:09 pm

“just as nature abhors a vacuum”

Does Walter know that Pascal proved this false about 300 years ago?

Stephan Kinsella September 20, 2007 at 11:11 am

Some scenarios I gave Walter by email; I have not seen his answers yet.

Walter, I’ve got some scenarios for you, to test your idea.

Scenario 1A: Let’s imagine there is a natural physical impediment to reaching and homesteading some interior resource. Imagine there is a huge, natural hemispherical dome over a huge patch of minerals, for example. Let’s posit that this dome’s existence makes reaching and homesteading the minerals beneath it impossible. Okay? I think you’d see no problem wtih this. Right? I am assuming a very large dome, so that even if it were owned, the owner would not necessarily own the territory beneath it.

Scenario 1B: I assume you could also envisage the same scenario, except that the dome can be penetrated, but at a cost greater than the expected value of the minerals on the inside. Again, no one homestead–but for economic, not impossibility, reasons. With me?

Question 1A: If A comes along and homesteads the impenetrable dome, he has done nothing wrong, right? No one could have homesteaded the interior resources anyway. Right?

Question 1B: If A homesteads the natural, penetrable dome, then does this mean others still have an easement to get to the middle? Even though they won’t use it? I am not sure why they do–A didn’t do anything except *claim* the dome that already existed. He can’t be blamed for not drilling thru it to homestead the interior, as it’s not economic to do so. So what do you say is the situation here re the easement?

Scenario 2: Now. Let’s assume the dome is not natural. Instead, it was built by A, as an artwork. He was not trying to forestall homesteading of the minerals beneath, but he did as a byproduct of his constrution of the dome. Right?

Scenario 2A: Assume the man-made artificial dome is penetrable but at great cost.

Question 2A1: In this case, I think you would say the owner has to grant an easement to anyone who wants one, right? It’s just that no one would use it. Correct? Does he owe anyone damages (like the increased cost of homesteading?)

Question 2A2: What if A abandons the dome. It’s similar then to case 1B above, no? Or is the A now to blame for placing this (now-abandoned) cost-to-homesteading? Does he owe anyone damages? Or is all fine? Your answer to this one interests me greatly.

Scenario 2B: Assume the man-made artificial dome is impenetrable and permanent (or its removal would totally destroy the interior).

Question 2B1: What happens then? It makes no sense to grant an easement, since it can’t be penetrated (by assumption). In this case, I think you’d have to say A has committed a “crime”, but if so, what happens next? An easement can’t be granted, and it can’t be removed. If you build a permanent, impenetrable barrier, is there an easement? (I don’t see how) Does he owe someone damages?

Question 2B2: What if A abandons it. If so, does he escape any liability that might have attached otherwise?

Scenario 3: A builds a huge dome and has it rigged so that the whole thing explodes if it’s penetrated, utterly destroying the minerals beneath it.

Question 3A: I suppose others have an easement, but they can’t use it. Does he owe any damages to anyone?

Question 3B: If A abandons it and leaves in place this huge structure, does he owe anyone damages?

***

Scenario 4: Say I build a donut-shaped centrifuge. It is very very tall. I have to grant easements to anyone who wants to cross it to try to homestead the forest in the center. Fine. But suppose it’s so tall that it would impose all sorts of costs on would-be homesteaders–they have to build a bridge over it (costing millions), or rig an elevator, which is costly and also limits the types of machinery that can easily be lifted over it; it adds delay of days or months or longer to reaching the center–before the homesteading, you could reach it in a day. Now, it takes more money, and months of delay.

I am not sure if you think this is okay or not. I think you are trapped no matter what you say. Here’s why. 4A: If you say he owes damages, then what this means is if you homestead and that imposes costs on others’ homesteading, you have to compensate them. But this would hold true of almost any homesteading–for example, I homestead a horseshoe shaped plot; I leave an opening to the middle, but this forces many people to travel the long way around now, which could cost a lot of money. But if merely making it more costly to homestead generates an obligation to compensate would-be or impeded homesteaders, then this applies not only to the donut-homesteader but to any homesteader; they are ALL “forestallers” in some sense, in the sense that they make it more *costly* to homestead certain unowned resources.

4B: So it seems to me you canNOT make any homesteader–a donut or whatever homestaeder–liable for damages merely because he has made it more difficult for others to homestaed, or even physically impossible. The only thing is you can say he has to let them try to cross, if they want to try (and maybe even pay him damages?).

But Walter, this would imply that all the donut-homesteader has to do, to avoid an involuntary easement, is to make it so costly to outsiders that they don’t WANT to use it. Hell, just line it with dynamite; or make a very very tall fence that is impratical (too costly) to cross (or to pay for repairs for). This seems an odd result of your theory–but there it is. That you are rewarde for making it too costly or too difficult to homestead.

And consider this: I homestead a donut shaped piece of land. The interior has a bunch of valuable virgin land, or minerals. Since I know that if I don’t homestead it, others now have an easement over my land–and I don’t want that–I’ll just nuke the interior, ruining it and making it valueless. If you nuke or destroy unowned land, you are doing nothing wrong–you are not takign anyone else’s property, as it’s unowned. Or maybe the bombing is a type of use, so you are homesteading it. I don’t konw. But the point is, if I did that, I’d again beoff the hook: as no one would even WANT to use any easement to reach the destroyed, valueless resource. So in your theory, which is allegedly based on the idea of promoting the (productive? peaceful?) homesteading of unowned property, you’ve established incentives for the first guy (the donut guy) to RUIN the resource. what a perverse incentive.

So it seems to me that you cannot say that the donut-forestaller dude owes damages; he only has to grant an easement. And you cannot say he does not owe damages, b/c this leads to perverse incentives and bizarre results.

Mark March 2, 2008 at 6:18 pm

Wow, I have just read the entire discussion and it really is something. Good comments all around. While I still haven’t made up my mind on the Blockean proviso, I think the last few posts helped me greatly come to an understanding regarding the abandonment and homesteading of child raising claims.

Paul said:

“This is what Kinsella has to say on this:

“The idea here is that libertarianism does not oppose “positive rights”; it simply insists that they be voluntarily incurred. One way to do this is by contract; another is by trespassing against someone’s property. Now, if you pass by a drowning man in a lake you have no enforceable (legal) obligation to try to rescue him; but if you push someone in a lake you have a positive obligation to try to rescue him. If you don’t you could be liable for homicide. Likewise, if your voluntary actions bring into being an infant with natural needs for shelter, food, care, it is akin to throwing someone into a lake. In both cases you create a situation where another human is in dire need of help and without which he will die. By creating this situation of need you incur an obligation to provide for those needs. And surely this set of positive obligations would encompass the obligation to manumit the child at a certain point.” ”

Doesn’t this solve the case of the father who watches his 3 month old baby starve in the kitchen? Picture a similar scenario along the lines of Stephan’s. A invites B onto his lakeside property, but while B is not looking A pushes B (who can’t swim) into the water, with intentions of watching him drown. A has now created a positive obligation.

C, standing on public land, or his own land or whoever’s land, that borders A’s land happens to see this and also sees that A is making no attempt to save B and is by that very fact trying to murder him. Now C runs onto A’s land uninvited, jumps into the water and saves B, using whatever force is necessary (but of course always minimal force) to prevent A from stopping him.

Is this not in tune with everything that has been said? Including Kinsella and Block?

jwg October 30, 2009 at 12:13 pm

Descending for a moment from the lofty heights of theory, we should consider the implications in the real world as the theory smashes up against the reality of human nature. Particularly the realities of what people do when they are suffering and feel (rightly or wrongly) like they cannot do anything because of what others (who are not suffering) are doing.

We have numerous real world examples of the resultant, good and bad, of easements and their ugly sister “eminent domain”.

We are coming closer and closer to a real world test of the “encirclement is okay” principle as Israel increasingly chooses to and succeeds in encircling “Palestine” and controlling/cutting off access from and to the region.

I am NOT arguing for or against the theory, nor for or against Israel or Palestine. However, I will argue that Libertarian theory really needs to address the “right” way to handle a situation where 1. a person is in the position of either committing evil or watching his children starve, and 2. has the means, and 3. the “community” does not have the means to pre-emptively take him out.

 

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