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Libertarian Answer Man: Self-ownership for slaves and Crusoe; and Yiannopoulos on Accurate Analysis and the term “Property”; Mises distinguishing between juristic and economic categories of “ownership”

From X:

Libertarian Answer Man, What Sayest Thou?

“Crusoe owns nothing on his island, as there is no legal order. Does this include his body?

He can control and use his body, but he doesn’t own it. Ownership is a legal relationship between an actor and a resource, that is recognized and respected by others in society. If there is no society or legal system, there are no norms or rules or rights.

Also: Does a slave, in a legal order that supports slavery, no longer own his body?

The master is the legal owner, but the slave is the natural or rightful owner. We have to distinguish possession or control, from ownership. And we have to distinguish positive law from just law. As Mises wrote:

Mises on property:

“Ownership means full control of the services that can be derived from a good. This catallactic notion of ownership and property rights is not to be confused with the legal definition of ownership and property rights as stated in the laws of various countries. It was the idea of legislators and courts to define the legal concept of property in such a way as to give to the proprietor full protection by the governmental apparatus of coercion and compulsion, and to prevent anybody from encroaching upon his rights. As far as this purpose was adequately realized, the legal concept of property rights corresponded to the catallactic concept.” —Human Action, Ch. XXIV, sec. 4.

Mises elaborates in Socialism:

“Regarded as a sociological category ownership appears as the power to use economic goods. An owner is he who disposes of an economic good. … Thus the sociological and juristic concepts of ownership are different. This, of course, is natural, and one can only be surprised that the fact is still sometimes overlooked. From the sociological and economic point of view, ownership is the having of the goods which the economic aims of men require. This having may be called the natural or original ownership, as it is purely a physical relationship of man to the goods, independent of social relations between men or of a legal order. The significance of the legal concept of property lies just in this — that it differentiates between the physical has and the legal should have. The Law recognizes owners and possessors who lack this natural having, owners who do not have, but ought to have. In the eyes of the Law ‘he from whom has been stolen’ remains owner, while the thief can never acquire ownership. “Economically, however, the natural having alone is relevant, and the economic significance of the legal should have lies only in the support it lends to the acquisition, the maintenance, and the regaining of the natural having.

See also Professor Yiannopoulos’s explanation:

Property may be defined as an exclusive right to control an economic good …; it is the name of a concept that refers to the rights and obligations, privileges and restrictions that govern the relations of man with respect to things of value. People everywhere and at all tmes desire the possession of things that are necessary for survival or valuable by cultural definition and which, as a result of the demand placed upon them, become scarce. Laws enforced by organized society control the competition for, and guarantee the enjoyment of, these desired things. What is guaranteed to be one’s own is property … [Property rights] confer a direct and immediate authority over a thing.

—A.N. Yiannopoulos, Louisiana Civil Law Treatise, Property (West Group, 4th ed. 2001), §§ 1, 2

[Update: See also related discussion in “What Libertarianism Is” (ch. 2 of LFFS), n.29 and n.45, in “Selling Does Not Imply Ownership, and Vice-Versa: A Dissection” (ch. 11 of LFFS), at n.35 et pass., and similar distinctions made in Eugen von Böhm-Bawerk, “Whether Legal Rights and Relationships Are Economic Goods,” George D. Huncke, trans., in Eugen von Böhm-Bawerk, Shorter Classics of Eugen von Böhm-Bawerk (South Holland, Ill.: Libertarian Press, 1962 [1881]), p. 57 et pass., discussed in Gael J. Campan, “Does Justice Qualify as an Economic Good?: A Böhm-Bawerkian Perspective,” Q. J. Austrian Econ. 2, no. 1 (Spring 1999): 21–33, p. 24.]

X continues:

I ask because self-ownership is often treated by libertarians as ontologically basic, as if it were sort of immune from social construction.

That is because they are unsophisticated about legal theory and law. There is a distinction between possession and ownership, but they conflate the two. See e.g. La. Civ. Code arts. 481, 3421:

Art. 481. Ownership and possession distinguished.

The ownership and the possession of a thing are distinct.

Ownership exists independently of any exercise of it and may not be lost by nonuse. Ownership is lost when acquisitive prescription accrues in favor of an adverse possessor.

Art. 3421. Possession

Possession is the detention or enjoyment of a corporeal thing, movable or immovable, that one holds or exercises by himself or by another who keeps or exercises it in his name.

The exercise of a real right, such as a servitude, with the intent to have it as one’s own is quasi-possession. The rules governing possession apply by analogy to the quasi-possession of incorporeals.

Art. 3422. Nature of possession; right to possess

Possession is a matter of fact; nevertheless, one who has possessed a thing for over a year acquires the right to possess it.

See also La. Code Civ. Proc. Art. 3655:

Art. 3655. Possessory action

The possessory action is one brought by the possessor of immovable property or of a real right therein to be maintained in his possession of the property or enjoyment of the right when he has been disturbed, or to be restored to the possession or enjoyment thereof when he has been evicted.

As I explain here,

possession is actual control—“the factual authority that a person exercises over a corporeal thing.” [1]
[1]Yiannopoulos, Property, supra note 8, § 301 (emphasis added); see also Louisiana Civil Code, Art. 3421 (“Possession is the detention or enjoyment of a corporeal thing, movable or immovable, that one holds or exercises by himself or by another who keeps or exercises it in his name.” [emphasis added])

Property is a word with high emotional overtones and so many meanings that it has defied attempts at accurate all-inclusive definition. The English word property derives from the Latin proprietas, a noun form of proprius, which means one’s own. In the United States, the word property is frequently used to denote indiscriminately either the objects of rights … or the rights that persons have with respect to things. Thus, lands, automobiles, and jewels are said to be property; and rights, such as ownership, servitudes, and leases, are likewise said to be property. This latent confusion between rights and their objects has its roots in texts of Roman law and is also encountered in other legal systems of the western world. Accurate analysis should reserve the use of the word property for the designation of rights that persons have with respect to things.” A.N. Yiannopoulos, Louisiana Civil Law Treatise, Property (West Group, 4th ed. 2001), §§ 1, 2

Possession is an economic category; it means the ability to employ (use, control) some scarce means (a causally efficacious tool) to achieve ends. (There is in the law a “right to possess” which is also juristic, and distinct from factual possession, and from the ownership right, but that is neither here nor there and in libertarian theory, I would classify the “possession right” as a type of ownership right. See e.g. La. Civ. Code arts. 3421–3423, e.g.:

Art. 3422. Nature of possession; right to possess

Possession is a matter of fact; nevertheless, one who has possessed a thing for over a year acquires the right to possess it.

(See also KOL395 | Selling Does Not Imply Ownership, and Vice-Versa: A Dissection (PFS 2022).)

But ownership is a juristic or legal category. It is useful in life to have the ability to control (possess) and employ scarce resources. This applies to Crusoe as well as to people in society. In society we benefit from others’ company and from trade and the division and specialization of labor, but we also face the danger that another actor might desire or attempt to use resources we want to use or possess; this gives rise to the possibility of conflict. So property rights emerge as a way to permit resources to be used peacefully and cooperatively, and thus more efficiently. So possession results from the fact of scarcity; while ownership results from the need to possess in the face of the possibility of conflict, which itself results from the fact of scarcity combined with the existence of multiple actors (society). Possession gives you the factual ability to control resources; ownership shores up this ability in the face of threats by others. So it’s natural for simpletons and laymen to equate ownership with possession, since both help ensure you can achieve your ends. But technically speaking, they are distinct. But loose talk lets people start referring to things you possess as “ownership” even where this makes no sense, e.g. in the case of bitcoin (see KOL275 | Did You Know Crypto Podcast, Ep. 54: You Don’t Own Your Bitcoin and KOL274 | Nobody Owns Bitcoin (PFS 2019) ), or in metaphorical, sloppy language like you own “yourself” (as opposed to your body).

This tendency to slide from one realm to another, giving rise to errors, confusion, and equivocation, is common. For example libertarians say that if you sell something you must own it, e.g. labor or ideas. This is an error because concepts like exchange and sale are employed in the economic sense (sale has both meanings: in the economic sense, calling an action a “sale” is just a way of identifying the actor’s end goals, to characterize or explain his action; in the legal sense, it means alienating title to an owned resource) but “own” is employed in the legal sense. It is simply not true that “selling” something (in the economic sense) implies ownership (in the legal sense), as I explain here: The “If you own something, that implies that you can sell it; if you sell something, that implies you must own it first” Fallacies.

Are there perhaps distinct economic and ethical senses, or descriptive or prescriptive sense, of self-ownership? If so, how do they relate?”

I would say body ownership. You can’t own your “self.” You possess and directly control your body (this is in fact why you own it; you have the better claim to that resource because of your direct control: see How We Come To Own Ourselves). And in a societal setting, you have a legal right to do so; i.e., you own your body.

Extra Q: Does Crusoe have a gender, as opposed to a sex, even if he thinks he does?

I don’t quite grok the gender theories. I’d say yes because he would probably be masculine (or maybe feminine). I don’t buy into the social construct crap, but I don’t hold myself out as an expert (no offense, too many libertarians who do this regularly–pontificate on things they are not experts on, as if they are; I try to know my limits and speak authoritatively on things I have studied in depth, so that when I do, people assume I’m not just spouting off some half-baked opinion).


Update: For another gloss on the concept of property rights, see “Against Intellectual Property After Twenty Years: Looking Back and Looking Forward,” note 57:

To be even more precise, I would say that a property right is not a right to use a resource, but a right to exclude others from using a resource. In practical terms this gives the owner the ability to use it as he sees fit so long as he is not using trespassing on others’ property rights. This follows from the analysis in Kinsella, “The Non-Aggression Principle as a Limit on Action, Not on Property Rights,” StephanKinsella.com (Jan. 22, 2010) and “IP and Aggression as Limits on Property Rights: How They Differ,” StephanKinsella.com (Jan. 22, 2010). However, we need not delve into this nuance here.

{ 4 comments… add one }
  • Chris Orton April 3, 2021, 4:43 pm

    Wow. This has been so illuminating. I always had a nagging in the back of my mind about the nuanced difference between the legal ownership of something and the natural right to possess it. This outlines it very well. Thank you!

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