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How To Think About Property (2019)

As noted in my podcast episode KOL259 | “How To Think About Property”, New Hampshire Liberty Forum 2019, I gave a presentation at the New Hampshire Liberty Forum, Feb. 8, 2019. A lightly-edited transcript is below.

Background:

How To Think About Property

by Stephan Kinsella

(Transcript of a speech delivered at the New Hampshire Liberty Forum, Feb. 8, 2019)

M: If you are in the assembly area, you should come in here for the next talk.  The next thing that we’re going to do is How to Think About Property.  Our speaker is going to be Stephan Kinsella.  He is a private – I’m sorry.  He is a patent attorney and a leading libertarian legal theorist, the founder and director of the Center of the Study of Innovative Freedom and the Libertarian Papers.  A former adjunct professor at the South Texas College of Law, he has published numerous articles and books on IP law, international law, and the application of libertarian principles to legal topics.  Please welcome attorney of Kinsella Law Group – sorry, Kinsella Law Group, Stephan Kinsella.

00:00:42

00:00:56

STEPHAN KINSELLA: Okay.  All right, yes.  That’s good.  Thank you.  Thank you very much, really glad to be here.  This is my second appearance at a Free State event.  I was at PorcFest a few years ago, which was fun.

00:01:21

00:01:24

I’d like to – every week – or every Sunday morning, you guys probably know Joel Osteen, this big minister, and he’s in Houston.  He – his church is right down the road from where I live, and every week my son and my wife and I watch the first five minutes because he always tells a stupid joke.  We don’t watch the rest of it, but he’ll say, well, God bless you, welcome me into our homes.  We’ll make you feel right at home, and I’d like to start with something funny.  And then he tells a corny joke that you can tell in front of kids and grandparents.  And so in that light, I’d like to start with something funny.  I don’t usually tell a joke, but this one seemed appropriate to this crowd.  So the joke is – some of you may have heard it, so you can groan if you like.  Why do anarchists drink herbal tea?

00:02:15

M: Am I being detained?

00:02:16

00:02:18

STEPHAN KINSELLA: That’s one answer.  That’s not funny.  That’s really not funny.  No, because proper tea is theft.  There is a lady in my – in the gym near my house where I sometimes work out, not too much as you can tell.  But – and she said I looked you up on the internet because I’m always talking about libertarians around the ladies that work out with me.  She says you’re all over the internet, and I listened to one of your podcasts, and something about corporations.  I didn’t really understand.  It was kind of boring.  I said – she said send me one of your better talks.  And I thought about it and I said I don’t really have any good talks to be honest, not for normal people.  I don’t really like to talk.  I’m not a good speaker, and everything I talk about is something that no normal people are interested in.  So – but I do like to teach, and I like to think.  That’s why I speak because that’s the only way to do it sometimes.

00:03:22

So I am a patent lawyer, which is one of the most boring fields of law, and when BJ called me and wanted me to speak, he – I said please not IP again because I’ve done that 200 times.  And he said, well, think of something with a really boring title since you’re a boring patent lawyer, and so I thought of this title, “How to Think About Property.”  That’s – Nathanial – Barbara Branden’s course “Principles of Efficient Thinking” was already taken, so I had to come up with a different boring title.

00:03:56

00:04:01

There we go.  Okay, I’m going to start out with a quote that you’ve all heard.  “We hold these truths to be self-evident, that all men are created equal, that they’re endowed by their creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness.”  And that’s – that was by – written by Thomas Jefferson, or as the young kids now say wri’en.  They don’t like Ts for some reason.  Hillary Cli’on.

00:04:30

Anyway, or Galambos who is another libertarian thinks that Thomas Paine wrote it, but he also thinks intellectual property should last forever, so that discounts a lot of things Galambos says.  So one question is why doesn’t it say life, liberty, and property?  There’s lots of theories about this.  One theory is that property is alienable unlike the other rights like the right to life and liberty.  They’re unalienable, and Jefferson was listing unalienable rights.  But as some law professors have pointed out that that really doesn’t make any sense because the right to property is not unalienable, particular things that you own you can sell, but that doesn’t mean your right to property is unalienable.

00:05:20

There are other theories that maybe the pursuit of happiness sounded better, or maybe property would sink lower, or maybe it included it.  Jefferson used that before.  Some theorize Jefferson was becoming socialist, and so he left property out because he was becoming socialist, which is I think pretty much nonsensical because he did use that phrase in other writings later and before.  It was used by Locke.  It was used in the Virginia Declaration of Rights and lots of other places, but property is not in there, and that’s a little uncomfortable for some libertarians because we emphasize property all the time.

00:05:55

00:05:59

In fact, some people have – we’ve wrestled over what name we should call ourselves—libertarians, some of us go by voluntarists.  Some of us say anarchist.  I think some say we’re liberals or classical liberals.  Henry Hazlett proposed the term cooperationist, which I’ve always kind of liked, but it never took off.  Propertarian would work, but it’s sort of been hijacked by these alt-right types, a guy named Curt Doolittle, an odd man I met several years ago.  And anyway it’s not exactly correct.  We’re not propertarians.  What makes libertarians unique is not that we believe in property rights.

00:06:38

If you think about it, every political system believes in property rights, that is, the right to control resources as assigned by their legal system to some owners.  The question is who are the owners and how are the rights assigned?  I mean in a totally – in North Korea or in communist Russia, in a sense, the state is the owner or the collective.  So there’s always property rights.  The question is who’s the owner?

00:07:04

Anyway, what’s – why would you say life, liberty, and property as if these are separate things?  Why would you – why would libertarians obsess about property if we believe in liberty, which is part of the name that we use for ourselves, liberty?  These things are all inextricably linked.  You can’t have liberty without property, and as we’ll get to later, property is the way of implementing liberty.

00:07:28

Okay, now like as Ayn Rand had pointed out, as Ayn Rand pointed out, all human rights – all rights are human rights.  They’re individual human rights.  And as Murray Rothbard himself emphasized, all human rights are property rights.  That’s the right to control some scarce resource in the world.  And of course we get the silly complaints from socialists that we believe in – that property has rights, which of course is not what we mean.  We don’t think that our chairs or our cars have rights.  Just like when we believe states rights as a decentralizing principle to limit federal power it doesn’t mean we believe states actually have rights.  It’s a silly argument.

00:08:11

One of my favorite legal scholars, recently deceased, was a very prominent Greek scholar from Louisiana, a Louisiana scholar from Greece named Antony Yiannopoulos, not the blond-haired Yiannopoulos who’s fallen out of favor with the world.  He wrote a great legal treatise.  It’s called Property, and it’s about the civil law of property.  Louisiana is a civil law state.  But he pointed out that if you’re speaking precisely and technically – I’m going to quote him quickly here.  Accurate analysis should reserve the use of the word property for the designation of rights that persons have with respect to things.  In other words, what he means is that technically speaking we’ll say that this watch is my property.

00:08:59

What we mean by that is I have a property right in the watch.  Technically speaking, the thing that is owned is not property.  I have a property right in the watch.  The reason the word came about is just the Latin, proprietas, something that’s your own, or you can think of the word property as a property of something like a balloon has a certain property.  A car has a certain property.  The sun has certain properties or attributes or features, and property helps us extend our influence into the world.  Things help us extend our influence into the world, so they become properties of us, and so we tend to say property.

00:09:33

So I slip up from time to time.  Everyone does this in natural language, but it is important to keep that in mind in certain cases when disingenuous arguments are used, especially for intellectual property, which I’ll get to if I have time.  So property really means the property rights, so the right way to say it if you’re thinking precisely would be I’m a human being.  I’m an actor.  I have an ownership right in a thing.  I have a property right in a thing.  I’m the owner of that thing.  The thing is the thing that is owned that I have a property right in even though we casually sometimes say that thing is my property or it is property.

00:10:08

00:10:11

So in addition to the clarifying idea of Rothbard that all human rights are property rights, another thing that we need to keep in mind is the importance of the concept of scarcity because it helps explain the nature and function of property rights and how they arose.  This was emphasized even by David Hume and Hans-Hermann Hoppe, a recent and current Austro-anarchist, Rothbardian, Misesian scholar, has emphasized scarcity as well in his treatise, A Theory of Socialism and Capitalism especially in the very first two very short chapters one and two, points out that the purpose of property rights is a solution to the problem with scarcity, which leads to the problem of interpersonal conflict.

00:10:54

This is also recognized just by the sort of common sense aspect of Mises’ Austrian economics view of the world, his theory of praxeology, which I won’t get into in too much detail, but that’s his logic of human action.  Basically Mises points out that if you look at the structure of action, that is, what we do, we basically employ scarce resources or means—he called them means of action, things in the world outside of our bodies, and we use them to achieve ends in the future.  This is what humans do in every moment of their lives, every action.

00:11:28

We also employ knowledge that guides what we do.  If we didn’t have any knowledge, we wouldn’t act.  We wouldn’t be sentient humans.  We wouldn’t be aware of a problem in the future that we want to change.  We wouldn’t be aware of the causal properties of the world and know how to change things.  We wouldn’t be aware of what means were available or scarce resources that we could use as tools to interfere.

00:11:49

So all human action, all successful human action, is aimed at changing something in the future, something that you would prefer to happen that is not going to happen unless you interfere.  And you do that by using a means or using a resource, that is, employing a resource, using a tool, and using your knowledge to decide what to do, very simple.  And of course, in economics, if you achieve what you wanted to achieve, that’s called a profit.  It doesn’t have to be a monetary profit.  It could what we call psychic profit.  Otherwise you have a loss.

00:12:17

Okay, so the goal of human life is to have successful action.  That is to achieve our ends, and we do this by using resources.  I’m not going to call it property.  Now, this is true of people by themselves like Robinson Crusoe alone on his island, alone in the world.  He acts.  He still has to use knowledge about the way things are.  He has to interfere in reality, and he has to employ things, employ resources to get things done, make a fishing net to catch fish, etc.  But we don’t live alone.  We live with other humans, and this gives us an immense advantage, two advantages.  Number one, we get to live with other people and we’re social animals, and that allows us to trade.  And over time, that allows us to have a division of labor and the specialization of labor, which makes all of our actions more efficient.

00:13:02

It also alienates us from our labor and makes us hate the world according to Marx, but some of us actually like our jobs.  Actually, I don’t like patent law, so skip that, but that’s a political issue.  It also gives us the transmission of knowledge from the generations, and that knowledge accumulates over time.  It’s like a fund.  I think Hayek called it a wealth or a fund, which is, I think, the reason the world keeps getting wealthier, not only because there’s more people all the time, which helps us with the division of labor, but because we accumulate in scientific, technical, engineering, and causal knowledge with every generation.

00:13:39

And that gives us more recipes, more knowledge, so you see human action as two parts: using these scarce things in the world as means of action and using knowledge about what to do with it.  And the knowledge is always increasing.  This is why knowledge is so important.  This is one of the reasons I hate intellectual property because it impedes the spread of knowledge.

00:13:59

00:14:01

So you could say heaven is other people.  It’s good that we live in society.  It makes us all richer, but it comes with a risk, and the risk is conflict.  Crusoe on the island can build his little hut and make his nets and no one is going to steal it.  He had to deal with the risks of the world and natural elements, but there’s no criminals around.  There’s no one to trade with, but there’s also no criminals.  So we have the possibility – sorry.  We have the possibility of trading with other people and benefiting from that and living in society, but we have the risk of conflict.  And the risk – and the reason we have the risk of conflict is because there’s scarcity in the world.  That means there are certain resources that are the type of things that can only be used by one person at a time.

00:14:48

Only Crusoe can use that fishing net to catch the fish.  If someone takes it from him, he doesn’t have it anymore.  So – and these are the types of things.  This is why they’re called scarce.  They’re scarce, so scarcity, which is the natural world that we live in, combined with society gives rise to the possibility of conflict.  So the fact that we need to use these resources to have successful action and the possibility of conflict, which comes about when we live in society, this gives rise to the need for property rights.  This is why property rights arise.  This is why we have rights at all.

00:15:21

So the whole function of property rights is to permit, not to guarantee but to permit, to make it at least possible, the conflict-free use of resources in a social context.  And liberty – we can think of liberty, the liberty we libertarians believe in as the freedom to use resources without interference from other people.  So that’s why property rights are linked with liberty.

00:15:46

00:15:51

So how do we do this?  How do we do this successfully?  What makes libertarians unique by the way?  So I’m going to kind of summarize the structure of property rights, how they arise.  This is actually roughly consistent with the way the common law and the civil law and customary law throughout time has done it because there’s really no other way to do it successfully.  They haven’t done it fully consistently, and you can think of libertarians as being the group that is the most consistent about this kind of approach.

00:16:18

Okay, so to do – to successfully come up with a system of property rights that are just and they work, to perform their function, permitting conflict-free use of resources, they have to be assigned or allocated.  We have to determine who owners are in a natural and a fair way.  So the first thing is we’re trying to come up with rules that allows everyone to live their lives.  So the baseline thing is it has to recognize the independence of every person, so that’s where self-ownership comes from, and I’ll get to that in a minute.  And it also has to permit people to use resources.  We have to be free to go into the world and use things, and a lot of things were never used before.  They were unowned in the state of nature.  Someone has got to be the first one to use a resource.  So there has to be – these property rules have to recognize the right of people to use things first.

00:17:10

Now, that’s where homesteading or original appropriation comes from, which I’ll get to again in a second.  And it also has to have a permanence about it.  When someone is recognized as the owner of a resource, they have to remain the owner.  You can’t change it from one moment to the other.  If someone steals my property and then it becomes theirs, then that means we don’t have property rights at all.  So we’re back to the pre-law world of violence and interpersonal violence or conflict as the norm instead of having a system of rules that permit the conflict-free use of resources.  If resources can be taken, there are no property rights, so it has to allow resources to be kept by the owner until they give it away consensually or voluntarily, and this is where contract comes from.

00:18:03

All right, so this results in a few basic property rules, and again, this is basically the structure of the common law.  But this is a more consistent and a simplified version of it, so the rules of libertarianism you could say.  First of all, we treat human bodies differently than other resources, and the reason is because we are our bodies, and you can’t imagine a human actor without a body.  We don’t homestead our bodies.  We are our bodies whether we have a soul or not.  You don’t have to get metaphysical.  You don’t have to dismiss religion or adopt religion to believe in this.  We’re just talking about, for this physical body, who is the owner?  Which means who has the legally recognized or the socially recognized right to control it?

00:18:44

And the answer is the person himself or at least that’s the default rule, which means there can be no slavery.  In other words, people don’t own other people.  They own themselves.  So the first property rule is just self – you can call it self-ownership.  It’s more precise to call it body ownership because I don’t really know what the self is or how much it weighs or where its limits are, but I do know what the body is.

00:19:06

Now, for external resources—these are other things that humans acquire in the world—they pluck from nature to use as tools.  We can determine the owner of a resource whenever there’s a dispute, and that’s the only time we ever need to determine ownership in the first place is in the case of a dispute by three simple principles.  The first is original appropriate or homesteading.  That’s who had it first.  We ask that question.  And again, remember earlier.  We have to have that rule because otherwise we wouldn’t be able to use things in the first place.  Someone has to be able to use it first.

00:19:41

Contractual exchange—that is did the owner of it give it to someone else by gift or by sale?  In which case it’s owned now by the other person, not the original homesteader.  And then you can think of a third category of rectification, which means we can determine who owns a resource in the case of the necessity of restitution if one person acts so as to harm another person, trespasses against them, commits a crime.  Then they own compensation to that person.  So to compensate the victim, some of his resources may need to be taken, so that would be another kind of exchange.  And then of course I have abandonment listed here.  If you own a resource and then you abandon it somehow, then the resource sort of rejoins the commons and can be re-homesteaded by someone new.

00:20:33

So those principles – all you really need to do is ask those questions to determine who owns a resource.  And what law is, is law is just a detailed working out over time of practical rules to implement these principles, to apply them.  As Frédéric Bastiat, the famous libertarian, French economist and writer, said, property does not exist because there are laws, but laws exist because there is property.  And I think what he meant by that was laws are really just the embodiment of property rights.  Laws really are just property rights.  So without scarcity in the world and the possibility of conflict, there would be no need for property rules or laws.

00:21:18

00:21:23

Now, I want you to notice something.  The typical argument used by libertarians is really the Lockian argument.  Now, that argument goes like this, and remember, Locke was responding to a guy named Filmer.  Locke was trying to avoid the divine right of kings.  He was trying to show why humans can own property – have property rights that is, not as a gift from the kings but a sovereign people.  So he had an argument sort of like this.  He had to rest it upon the religious views of the time, and maybe he even held them.  I don’t know.  But the argument is that God created the universe including the Earth, and he gave the Earth to man by giving it to Adam and Eve.

00:22:11

00:22:14

And of course the divine-right-of-kings idea is that Adam was the owner of the whole world and that everyone descended from him, and so the monarchs and the kings that came after him sort of have this title, this divine right to everything.  So everyone else is in a feudal position that’s right to them.  But Locke said, no.  God gave the right to the world to people in commons, which really means it was sort of unowned, a big resource waiting for people to use.  And he gave every person ownership of themself, so the self-ownership idea, which is pretty unobjectionable as far as it goes.

00:22:45

But then he started using this more metaphorical language, more common in older – ye older times like the idea that if you own yourself, you own your labor, which you’ll hear libertarians say this all the time.  Probably a lot of you think you believe this.  And if you own your labor, then you own things you mix with it, and that’s how he made his homesteading argument, which I made earlier.  And if you notice the way I described it, I never once mentioned labor or the right to own your labor.  It’s one reason I steered clear of the right to own yourself.  All we need to say is you own your body, and there are different rules for acquiring these things.

00:23:26

Now, it is true that the act of homesteading – we said that you have to have the right to initially appropriate things that have not been used by other people.  You could view that as a type of a mixing of labor because what you’re doing is you’re plucking this thing out from the world, and you’re using it in such a way that people can see that.  There’s – what the Kantians like Hoppe would say an inter-subjectively ascertainable link, or what we would say is an objective link, a visible link.  This is where the idea of property borders or boundaries comes in.  I shouldn’t say borders.  It can upset some people—boundaries.  It’s a sign basically telling people I have now used this.  There’s basically a link between me and this resource, and if there’s a dispute over that resource later, we can point to that link to determine who the owner is.

00:24:16

That’s how we do it.  So it is true that by mixing your labor so to speak with a resource, that’s one way of ordering or putting a boundary up around the resource, and thereby establishing a publicly visible connection between you and that resource.  It’s not an unowned thing right for homesteading by others.  Now it’s been plucked out of the state of nature and is now a thing owned by a human.  Now it’s subject to his control, and he or she can sell it or give it to others or trade or loan it to others, but it’s his now.  But you don’t need to say you own your labor to do that.  In fact, you don’t own your labor.

00:24:54

Economically, the concept of labor arose as distinct from leisure, so the idea is that – the general idea is action.  We act.  We do things.  You can think of labor and leisure as two ways of conceptually describing action.  Action can either be labor or it can be leisure.  All that means is the purpose of your action is to achieve some other end down the road and you do something you don’t really particularly like right now.  It’s called labor, something that has so-called dis-utility.  Or you can do something for its own sake, something for its own consumption or enjoyment.  That’s called leisure.

00:25:33

They’re basically both just actions, so you might as well say that you own your actions, which would be nonsensical, which is why people say you own your labor because it doesn’t sound as obviously false.  Economically, Adam Smith and these guys – they started to understand that when you labor upon something, you put your mental effort and your physical effort into transforming resources, this creates wealth in the world.  It creates value, and so people see economically a connection between why people prosper in their wealth or their – I’m sorry, their labor, which is true, and so they start thinking that your labor kind of goes into these things.  Sound familiar?  Ever heard of Marx?  Like Occasional Cortex has, right?  In case someone listens to this speech in 30 years, I’m talking about the ditzy Congresswoman from New York.  Something – I can’t remember her first – something Ocasio-Cortez.

00:26:40

Anyway, so this has been a big mistake.  It has led to intellectual property views I believe.  It’s derailed all of political philosophy.  I think Locke made a huge, huge mistake, and everyone repeats it now including people like Galambos.  Lysander Spooner, by the way, was absolutely horrible on intellectual property because of this.  So was Ayn Rand.  They all have this view that, hey, if you create something, you own it.  So they’ve totally – you notice I didn’t mention labor earlier.  I also didn’t mention creation because creation is actually not a source of ownership.  This is one mistake even libertarians make.  Creation is a source of wealth.

00:27:19

It’s not a source of ownership.  Let me explain why.  Ownership of a resource, remember the only time we have to ask ownership is when there’s an actual dispute between two real people.  They both claim a thing.  They claim the right to control that thing, and we apply those basic principles.  Who had it first?  Did someone sell it by contract?  Does someone owe someone some recompense for some kind of crime they committed?  You ask those questions, and that will answer the question of who owns the resource.  So basically the way to get title to a thing is either to be the first one to use it—that’s homesteading—or to get it by contract from someone else.  That’s basically it.  There’s no creation about it.

00:28:02

What creation means is transforming an existing physical thing into another physical shape or rearrangement with your labor, with your effort, with your intelligence.  Yes.  If I take some wood – let’s take a – if I take a hunk of marble and I carve it into a statue, that’s a nice statute.  Now I have increased my wealth and the sum total of wealth in the world.

00:28:27

00:28:36

But I did it because I own the marble already.  I’m just transforming the marble, and if I’m working on a statue that someone else owns at their request, I don’t own it.  So my labor doesn’t give rise to property rights.  If I already own the marble, I own it after I reshape it.  If I didn’t own the marble, I don’t own it even though I labored upon it.  So labor is a source of wealth.  That is true.  That means it makes the things you own more valuable, but it doesn’t give rise to property rights.

00:29:05

00:29:09

And finally, let me say this.  I’m going to stop shortly to have time for Q&A, but I’m going to point a couple things out.  You’ll notice when people talk about intellectual property and they’re kind of confused when you say that there’s no intellectual property rights.  They’ll say, but, well, I came up with that idea.  I created it.  Well, it’s irrelevant.  Creation is not a source of property.  And then they’ll say, are you saying ideas aren’t property?  You see, that’s not the question.  That’s why I clarified property.  The question is never is that chair property.  The question is always when two people want that same chair, who owns it?  Who has a property right in it?

00:29:46

The question is not, is the chair property?  We know the chair is a thing that exists and that people can dispute because they’re actually having a dispute over it.  Ideas are not the same thing.  We can both have the scheme for making a chair in our heads and use that as the same time to make our own chairs with our own wood.  So ideas are simply not rivalrous or scarce things.  This is why they’re not the types of things that can be owned.

00:30:06

Okay, so I’m going to – I said I wasn’t going to talk about intellectual property, but I can’t help it.  They keep pulling me back in.  I’ll just mention one thing.  I can’t – don’t have time to go through all this.  I’ve talked about this in some of my writings and some other podcasts.  But this clarified way of looking at property helps to answer and clarify lots of other issues that libertarians also mess up, not on purpose but just because it’s confusing.  It helps clarify the nature of contract as simply the transfer of ownership of a thing by someone to someone else.

00:30:40

Also fraud—you know a lot of times people will say, well, that should be illegal because it was fraudulent.  And they just mean it was dishonest like if you plagiarize a paper at a school, or if you lie about the fact that you have breast surgery or something on a profile.  Fraud can now be seen as the theft of an owned object without the permission of the owner because deception was involved, which makes his consent not informed consent in a sense.  It’s a taking by trick it’s actually called in the common law, so that’s what fraud is.  Fraud is not just being dishonest.  It also explains the inalienability argument about whether we can sell ourselves into slavery.

00:31:21

If you understand that rights in our bodies do not come about because of contract or even because of homesteading, then there’s no argument that you can sell yourself into slavery because selling a thing is for these external things that we acquire.  The reason I mentioned abandonment is you can think of a sale as the type of undoing of an acquisition.  I acquire an object by homesteading it or by contract, and then I basically give it to someone else and I abandon it in their favor.  So now they re-homestead it and they have it, so you can do these little tricks and end up with contract, the right to sell things.  The right to sell is not a natural right.  It’s just an implication of owning things that you acquired.  You can just un-acquire them, but you never acquired your body.  Your body goes along with you inextricably, so that solves the inalienability.  You – a slavery contract would be invalid according to this, and I’ve written on this.

00:32:13

A few other issues that you can solve I think with this view of property rights—a concept called allodialism, which you’ll hear a lot of libertarian – some cranks bring up, and the idea of easements and an explanation of how restrictive covenants work and why they work.  So I’ll pause here, and I welcome any questions.  Thank you.

00:32:37

00:32:49

W: Hi.  So everything you say sounds great if we were starting a new society from scratch on an uninhabited planet that had no history.  But here on Earth in which the current distribution of property is not determined by a natural and fair acquisition or a series of unbroken bonds or exchanges throughout time, what do you do with the current system?

00:33:12

STEPHAN KINSELLA: Right.  And I’ve got some blog posts on this too.  I’ll put this in – I’m going to podcast this later on my website.  So I’ll put some links to some writings I’ve done on this topic before.  The basic answer is you don’t have to trace title all the way back to Adam to prove your ownership of it, which is not implied by anything I said.  You just look at these three principles.

00:33:34

What the law has done and which I think is what libertarian law would do too is the law traces title between – remember, every property right arises when we think about who and when a dispute between people that can dispute the thing.  So when you have two or more disputants or contestants, what you do is you trace their title back to a common ancestor.  So if we know – if they all agree that the land was owned by Farmer Jones 175 years ago, we don’t care whether Farmer Jones himself stole the land or got it from someone else because they all are saying that’s where the property comes from.  So we look at, well, what did Farmer Jones do with it?  Which one has a better title going back to the common ancestor?  So – and Rothbard writes about this too.  The basic idea is that anyone who currently possesses a resource and they’re using it peacefully and that themselves didn’t steal it from someone else, we would just recognize that they have the title going forward.

00:34:28

W: Well, it seems that that’s a very convenient and arbitrary place to draw a line that benefits the current owners of property and completely ignores indigenous populations or the descendants of people who were enslaved and who were forced to create wealth for other people and have never been compensated for any of that.

00:34:47

STEPHAN KINSELLA: I actually believe that if a given living person can trace title better than the current owner or legal owner of a resource they should get it back.  It’s just very difficult to do.  This is one of the reasons statutes of limitations arise partly because, as we go further back in time, evidence gets shakier.  There’s no witnesses around anymore.

00:35:07

But I think in some cases if a given person, a slave or indigenous person can show that that particular piece of land was taken from their ancestor, I do think they should get it back.  And I’ve written that too.  I just – I think it’s really hard.  And by the way, in other cases, quite often the owner – the previous owner who the property was taken from was already compensated.  So when the US government or states take property from people based on imminent domain, they pay them for that using tax dollars.  So I would say that in those cases, the “real owner” is not the original person who had it taken because they’ve already been compensated.  It’s the taxpayers.

00:35:45

So you could say the roads ought to be owned by the – I think the roads, the natural owners of the roads are the taxpayers, the current citizens who had to be extorted to pay for it, not the person whose land was taken to make the road because they were already compensated.  But making the world is whole is difficult.  All right, sure.

00:36:04

M: So you talked a little bit about how you don’t believe that anyone can rightly sell themselves into slavery.  So I wanted to explore that a little bit more.  Very quickly, are you familiar with Robert Nozick’s A Tale of a Slave?

00:36:20

STEPHAN KINSELLA: I probably have read it but I don’t…

00:36:22

M: Great.  He does prove several steps.  If you are a slave, the slave owner decides to let you have a couple days on your own.  And then you get to vote on certain steps, and then at the end he says at what point did this become anything other than the tale of a slave?  So on that sort of thought, at what point after you contract your labor to someone are you three-sevenths of a slave?  Are you a full slave?  Are you not a slave if you are contracting your labor to someone else but you are not selling yourself into slavery?

00:36:58

STEPHAN KINSELLA: And I’ve dealt with this too.  I think that’s another confusion.  To understand – to answer this question you have to have a theory of contract, and I’ve written a theory of contract in ’96 based in part on Rothbard and Williamson Evers’ work.  But you view contract – as I said a contract is just the sale or the transfer of ownership of an owned thing by the owner to someone else.  Labor is not an owned thing, so labor contracts are not the sale of labor technically speaking.

00:37:29

In economic terms, you can view them that way, but legally it’s not.  The way to view that I believe is simply if I’m an employee of someone we have a contract for the money owned by the employer.  And the contract is a conditional contract that simply says if I perform certain actions that you want me to perform, then some of your property becomes mine.  So the contract is really a one-way contract for the alienable property owned by the employer.  It’s not really a sale of yourself.  It’s just an action you’re performing.

00:37:59

So I think that – you have to have a theory of contract.  And one more point: contracts should not be viewed as binding promises.  Again, you’ll notice I used a Rothbard idea that a contract is the transfer of ownership of a resource to someone else.  That’s all they are.  They’re a thought in the law and conventionally as a binding promise.  And if you believe they’re binding promises, then the next thing is, well, if I promise to be a slave, why isn’t that binding?  And then you get into all these difficulties.  If you view them as just the transfer of ownership to a resource that you own, then you never even get to that question.  So if I promise to be your slave, promises are not legally binding.  I can’t sell myself to you because I don’t own myself in the sense that I acquired myself; I can abandon myself.  Anyway, I deal with that at length in my ’96 article.

00:38:51

M: Can you talk a little bit more about the concept of abandonment and I guess the perpetuity of ownership?  So if use is so important in establishing an ownership claim, how is it that someone can just – let’s say a piece of land.  They farm it once, and then they let it get regrown and never touch it again.  Why shouldn’t that at some point become available again for a homestead?

00:39:16

STEPHAN KINSELLA: In the law, the law deals with this with what’s called liberative prescription or acquisitive prescription, which in the common law is the statute of limitations.  I don’t believe in the law – I don’t believe in the government or legislators, so I don’t believe in the statutes per se.  But the principle behind that makes sense.  I do believe that there’s something in Roman law called – or in international law called desuetude.

00:39:36

When you don’t – basically if you try to homestead a huge tract of land and you keep it productively in use, you’re going to have resources that allow you to police it.  And if someone squats on it, you’re going to evict them, and you would have resources to do that.  But if you have a million acres and you just don’t even police it, you’re just letting it lie fallow and some people start living on it, over time you could be held to have abandoned it in favor of them because you just took no action to stop them.  So – and if you’re not using it, you’re not going to have the resources to police it anyway.  So I think there are natural limits to how much you can – I don’t think that means that if you’re not using the resource that you lose the rights to it like a lot of mutualists believe.

00:40:14

I think the mutualists are wrong about that.  That said, if you don’t use your property for too long and you don’t police it and you don’t have enough ability or wherewithal to prevent people from using it, over time they will be seen as the new owners.  You will be seen as having abandoned it and they had re-homesteaded it.  Okay, thank you very much.

00:40:33

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