BOB:
Dear Mr. Kinsella,
You have made the point that technically speaking a property right is not the right to control a resource but the right to exclude others from using a resource. [See LFFS, ch. 2, Appendix I, the section “Property as a Right to Exclude” —SK] If you have the time I would like to ask 2 questions regarding how this applies to easements like a right of way.
Positive easements like a right of way are commonly looked at as the right to USE OR DO something to the land that is the subject of the easement.
How would one look at a right of way or other such easements from the perspective of the “right to exclude”? What do you have the right exclude the primary owner from doing with their land in this case?
KINSELLA:
Not sure what you mean by a positive easement. All property rights are rights to control, but what this means is the right to exclude (at least in my idiosyncratic view, not the view of the positive law). But there can be co-ownership. That is, two people can have a contract between each other as to how a resource is to be used. If I get a driveway easement over my neighbor’s property then it’s a coownership arrangement as between us as to how we can use the land. I don’t see what is confusing about this. This has been done for thousands of years with no problem. If you want to discuss it on the phone for 10 minutes I’m amenable but not sure what the real issue is that is concerning you. I suggest you think about what is really concerning you.
BOB:
Yeah honestly I was just confused, thank you for your response and sorry to bother you.
KINSELLA:
I don’t mind; if you just ask a clear question, I’ll be happy to try to answer. The problem is people have preconceived notions so they embed their ideas in their questions, ie. loaded questions, or even worse, compound questions. If you simplify try to formulate a single question, that is NOT LOADED, you’ll see this forces you to try to formulate your question and get to the root of what you are really asking.
But really, seriously, never ask compound questions (i.e. only ask ONE) and never make it loaded or question-begging. AS AN EXAMPLE: don’t hit me with 3 or 5 questions in a row (compound). As another, never say something like “but if you get rid of slavery who will pick the cotton?” That way of framing is dishonest because it presupposes WE NEED TO HAVE THE COTTON PICKED NO MATTER WHAT so if you propose to abolish slavery then YOU NEED TO TELL ME HOW THE SLAVERY IS GOING TO BE PICKED. OTHERWISE I’M STICKING WITH SLAVERY. (See KOL190 | On Life without Patents and Copyright: Or, But Who Would Pick the Cotton? (PFS 2015).)
This is implicit in many ways of asking questions. For example “Stephan you libertarians tell me that we don’t need welfare so please tell me WHO IS GOING TO TAKE CARE OF THE POOR IN YOUR SYSTEM.” The assumption here is we have a “system” and that we are going to give a guarantee. The other assumption is that THEIR system HAS a guarantee. It doesn’t. We all know the US welfare state is bankrupt and on its last legs. So their stupid social security is also—it has no guarantee. So stop asking me to give you a fucking guarantee. I’m not gonna do that. If you ask me “who will take care of the poor” or “how will creators make a living” in my society—you are asking me to guess. But the way it’s worded, you want a guarantee. You want me to say “well the private schools and private charities and free market mechanisms I forecast would happen would GUARANTEE x y x”. No. I won’t say that. I’m tired of having to say this.
The point is, when you ask a question, try to craft it so that you are not doing a LOADED question and above all, avoid COMPOUND questions. I.e., simply ask a simple, normal, sincere, non-loaded and non-rhetorical question if you are really curious about the answer. Most people don’t do this. They ask loaded questions which are not honest or sincere. Like ” WELL IF YOU OPPOSE IP WHO IS GOING GO INVENT BASKETBALLS” or some stupid bullshit. This is not a real question. It’s tendentious. You need to try to get better at learning how to formulate an ask a sincere question without it being loaded or tendentious like this.
This is just my random rambling unsolicited advice. TBH it’s not directed at you it’s just my frustration spilling out.
BOB:
Thank you for the advice. In your book “legal foundations of a free society” you make the point that as you say in page 32 “Technically speaking, a property right is not a right to control a resource but a right to exclude others from using the resource.”
A “right of way” is a property right one can have over another person’s land. The positive law says this means that the person who has the right of way may use the land in a certain way (cross it).
My question is how would one explain what a right of way is NOT from the perspective of the right to control (the way property rights are commonly used) but from the perspective of the right to exclude?
The way i see it is the person with the right of way can exclude the primary owner from using the land in a way that blocks the right of way owner from accessing and crossing the land (like building a barrier or physically blocking the entrance). I wanted to know whether this way of looking at it was correct or not.
I hope I did a better job at explaining my question, again I’m sorry if I didn’t.
KINSELLA:
That’s a good question actually. And I am glad you were able to soldier on and not take offense at my blunt and rambling advice. Good on you!
The problem is the law developed on foundations that are mostly pragmatic but not quite compatible with how I think libertarian principles would justify it. So quite often their concepts and principles and terminology are somewhat … “off” but then the courts have developed workarounds and limits that make it similar to the way it ought to be anyway, if it had been based on a more libertarian and conceptually sound foundation. As an example: the law (as I explain in my book) views contracdts as legally enforceable obligations arising from binding promises accompanied by certain formalities (e.g. consideration). This means that if I have a contract to do something then if i don’t do it I am in breach and thus the right remedy to the violated party would be forcing me to do it. But the courts don’t want to supervise performance so they are generally reluctant to order what they call specific performance so they simply say I have to pay money damages as a sort of substitute. So in the end, all contracts really devolve into questions of title transfer. But then the state fucks even this up, because they say that well in some cases we will order specific performance–that is, we will make you transfer a particular artwork or piece of real estate, since those are unique and not easily estimated in terms of dollars.
The problem is this. They view transferring title to land (say) as “specific performance” and thus they have to find an exception to their general reluctance to require specific performance. But that’s because they view transferring title to real estate as performance, as a “to do”, since it’s not “money”. This is their whole confusion.
If they had just started with the Rothbardian-libertarian title-transfer theory of contract, they never would have thought of contracts as binding obligations but as just transfers of title to owned resources. In that case the whole thing is easy. There are no obligations; there is no “to do”, but only “to give”; and the “to give” can apply to money OR to land, paintings, etc.!
So here’s how I would look at your particular issue. Yes, in common and legal terms you might say a right to own is a right to use. As I have explained — see ch. 11 of my book, also The Non-Aggression Principle as a Limit on Action, Not on Property Rights, StephanKinsella.com (Jan. 22, 2010); IP and Aggression as Limits on Property Rights: How They Differ, StephanKinsella.com (Jan. 22, 2010)—a property right is not a right to do something or to use it, but a right to stop others. It’s an exclusionary right. This amounts to the ability to “use” in most cases. For example if I have the right to exclude anyone in the world from using my home, then this gives me the ability to use it myself since no one has a right to complain about it! and I can stop others from using it. Framing it this way means that when I say I can’t use my property (say, my gun) to shoot you, it’s not a limitation on my property rights. In other words, other people’s property rights don’t limit my property rights, they limit my actions. All property rights are “compossible”. If you view property rights as only the right to exclude others from using the resource, then you see that someone else’s property right can never limit my own property rights, but only my actions.
As a simpler example, I don’t have a right to swim naked in my pool. However, I have the right to exclude others from my home and my pool and when I swim naked I am not engaging in any action that invades others’ property borders, therefore I have the “right” or at least ability to “swim naked in my pool.” but there is no general right to ‘swim naked in pools.” There are rights to pools–to exclude people from them, specifically!
The same goes for other rights, like free speech, and so on. There is no right to “free speech” it is simply that we recognize that in most cases, “saying words” or “printing words” does not trespass on others’ property–that is, it is not a use of someone else’s owned resource. But as I explain in my Causation chapter, in some cases speaking words does cause a violation of the physical integrity of someone’s property–that is, it causes an unconsented to use of their resource, e.g. if Truman uses words to order his subordinates to drop a nuclear bomb on Nagasaki, or of a firing squad captain says “ready aim FIRE” or if a state officer tells the doctor to inject a poison into a prisoner’s arm.
All that said. People can have these exclusionary property rights in material things, such as land. They can also have contracts among themselves by which they consent to others’ use of those things–this is them exercising their right to exclude, .. by not exercising it. A girl who is kissed without consent has her body used without consent and this is battery, aggression; if she consents, it is not. She as owner is deciding not to use her right to exclude. That is what contracts are.
So. Now we come to the idea of bundle of rights which I think can be explained simply by these primitive ideas of property and contract. Let’s take a simple case of A and B who decide to co-own a vacation home in Florida since they cannot afford one by themselves. So A and B pool their money and spend $500k to buy a vacation home. As to the rest of they world A&B “together” are the “owners” meaning no one else in the world has the right to use the home, since A&B can exclude them. But as between A&B they have a contract that specifies how they get to use it. Maybe the contract says A can use the home in even months and B can use it in odd months. Whatever. Maybe the contract says “and if A and B disagree, they will let arbitration agency C settle it.” Or maybe it says “if A and B cannot agree, then either one can sell it and split the proceeds with the other.”
Now. There are other contractual co-ownership arrangements. Negative servitudes, which are the basis of homeowners’ associations whereby neighbors have no right to use someone’s house but they can tell them not to use it in certain ways (painting it orange; having a pig farm).
A right of way is a type of easement. Let’s say A and B are neighbors and A has a nice long driveway abutting B’s land, and they agree that instead of B having to build a driveway on his own property, then A simply sells a right-of-way to B to let B use A’s driveway for limited purposes: to drive on it, on occasion, to access B’s garage. That’s it.
So basically in this case you have property owner A selling part of his property rights to B. This is all based on A’s right to exclude and in fact does not give B a literal “right to use” it BECAUSE B could not use this right to harm someone else, but we use that language because it’s good enough to describe the transfer of rights that has been accomplished by the contract.
In other words, A has contractually used his right to exclude, to forbear, that is, he chose not to exclude B from using the driveway. (In exchange, presumably B transferred ownership to something of value to A, to A, such as money.) This gives B the practical ability to use the driveway. Why? Because, (a) no one in the world has the right to stop him, since ONLY A OWNS IT (meaning only A has the right to exclude B!); and (b) A has already privately by contract agreed NOT to exclude B. Thus, there is no one on the planet who can prevent B from using the driveway. Third parties have no standing to object; and A has contractually agreed not to object. That means that in a sense A and B now are co-owners of the driveway, in a specified way.
That is why you can get what we now call a “right of way’ or “right to use” even if you understand property rights as being rights to exclude only.
Please let me know if this does not make sense or if you have any followup questions.
BOB:
Thank you so much for the thoughtful reply, it’s helped me tremendously. There’s nothing wrong with advice being blunt, it helped me immensely to better formulate my thoughts and improve. So again thank you. I have one clarifying question if that’s alright. You say:
This is all based on A’s right to exclude and in fact does not give B a literal “right to use” it BECAUSE B could not use this right to harm someone else,
What do you mean when you say “BECAUSE B could not use this right to harm someone else”?
KINSELLA:
This is all based on A’s right to exclude and in fact does not give B a literal “right to use” it BECAUSE B could not use this right to harm someone else,
What do you mean when you say ” BECAUSE B could not use this right to harm someone else”?
Well, you zero’d in on the right issue.
This is why I had just pointed you to: The Non-Aggression Principle as a Limit on Action, Not on Property Rights, StephanKinsella.com (Jan. 22, 2010); IP and Aggression as Limits on Property Rights: How They Differ, StephanKinsella.com (Jan. 22, 2010). I suggest you read them both.
What I mean is B doesn’t have a “right to use” as a general matter because we can imagine some uses that would be actions that would violate others’ property rights. It’s hard to think of good cases when use of a mere right of way would violate others. But let’s say I plan to bomb my neighbor C, so I drive a truck containing the bombs on that driveway. When I do that I am planning an attack on C, and I am using means at my disposal to do so. Some of those means I may own, some I may have the right to use by contract, some I may have stolen. The point is it is my actions that are the issue here, and actions always involve means, whether the means employed are owned resources or not. So if I am forbidden to use the driveway right-of-way to drive bombs over it, because this is part of an an attempt at aggression against neighbor C, this is not a limitation on my property rights. It is a limitation on my ACTIONS because of neighbor C’s property rights.
So what I am saying is this. When we say B has a “right to use” the driveway this is just shorthand for describing the fact that (a) he has a contract with A whereby A, who is the owner, who has the right to exclude B, has agreed not to exclude B, and (b) B, knowing this, has the practical ability to use the driveway (i.e. he doesn’t have to build his own, now). But (c) this does not mean B has a general “right ot use the driveway” so that, when we say “but he can’t use it to drive bombs across it to plan an attack on C” that this means that C’s property rights limit B’s (or A’s) property rights. The point I’m making is that C’s property rights do NOT limit B’s property rights, they limit his actions. That is exactly why I think it’s better to understand property rights as a right to exclude, not a right to use. If you think of it as a right to use, then you say “well property rights limit property rights, and so then all property rights are arbitrary because they all limit each other and thus you can’t object to IP on the grounds that it ‘limits’ others property rights, since that’s what all property rights do.” My point is that property rights do not limit other property rights, they limit actions; this is why they are properly viewed as rights to exclude.
Let me know if this helps. Feel free to send any followups. BTW I may post this later in edited form on my blog so others can learn from it.
BOB:
Thank you, I understand now. One more question if that’s alright, I’m sorry if this is tiring. You say:
(a) he has a contract with A whereby A, who is the owner, who has the right to exclude B, has agreed not to exclude B,
Contracts are title transfers as you and Rothbard and Evers have pointed out. When you say: “has agreed not to exclude B” this to me sounds like a “to do” or i guess a “not to do” contract in this case, but as you and these other authors have pointed out all contracts from a libertarian perspective are “to give” NOT “to do” or “not to do.” So my question is what exactly is being transferred in this case by the contract?
KINSELLA:
Contracts are title transfers as you and Rothbard and Evers have pointed out. When you say: “has agreed not to exclude B” this to me sounds like a “to do” or i guess a “not to do” contract in this case,
It’s not a “to do,” literally. It is just a way of describing how title transfers occur. I explain this in my contracts theory of LFFS but the basic reason you have the right to transfer title, to a thing you own, according to the Rothbardian title-transfer theory of contract is that (a) as owner, you have the right to exclude, to deny permission to use (OR to grant it! to consent!), and (b) you also have the power or ability to abandon the thing. Part (a) means you can lease or loan something to someone, on certain terms. this gives them temporary and/or partial usage rigghts for some time and under certain conditions. OR you can make it permanent and final, which is a sale or gift–and the reason you can do this is (b), your right to abandon or terminate your rights; you just do it in such a way as to abandon it “in favor of” someone else to that in a sense they instantly re-homestead it.
So when I say A agreed not to exclude B, what I mean is that A has by contract transferred title to the resource to B, either conditionally or unconditionally, either limited or complete (allodial), either temporary or permanent, and so on. That is what contract is: the grant of consent by an owner to someone else to use a resource he otherwise could exclude them from. How he structures this grant of permission is up to him; again, it can be simple, contemporaneous and unconditional; or it can be more complicated, as many are.
but as you and these other authors have pointed out all contracts from a libertarian perspective are “to give” NOT “to do” or “not to do.” So my question is what exactly is being transferred in this case by the contract?
Let me be clear. The reason I bring up to do and to give is to explain existing postiive law. Because the law and most people view contracts as binding obligations, arising from promises, they then classify obligations as “to do” or “to give.” But then because they resist really making obligations to do something enforceable–that is specific enforcemment, in their eyes–they translate them all to obligations “to give.” My point is that the Rothbardian version means all contracts are in a sense “to give.” They are just title transfers to owned resources—either complete, as in the case of a gift or sale, or partial, as in temporary or co-ownership arrangements.
So in my view all contracts are really of the “to give” type though in Kinsella Libertarianland we would not call them obligations “to give” since they are not obligations and there would be no obligations “to do” to contrast them with; we would simply recognize there are property rights, and that owners of these resources have the right to exclude others, and therefore we have the right to not exclude them, that is, to consent to them using the resource–again, either temporarily and on a limited basis and subject to certain conditions; or unconditionally, i.e. a final “sale” or gift. That is what contract is.
In short, nothing is actually being “transferred” by contract, it’s just that this is the language we use to describe the change in status of the parties effectuated by the owner’s manifested consent. As an example if I possess a bitcoin, which some call “own,” and I use the system’s protocols to transfer it to you, now you control that set of sats because of the cryptography. It’s just the way it works. We can describe it by saying I sold, or gave, or “transferred” “a bitcoin” to you, but really, what I did was give you information that allowed you to access this network and then control the change of control over that space on the ledger. We use language to explain things. It’s unavoidable. And a good thing.
So if I have the legal right to a tract of land, I’m the owner–it means no one can use it or violate its physical integrity without my permission, my consent. That’s why ownership is a right to exclude others. But it means that if i do grant consent, then the user of it can’t be charged with trespass–by me, the owner, since I consented. If I lease you my home for a year, you are not a trespasser. You have my consent. And because no one else is the owner, no one else can complain, so … you are free to use it. It doesn’t mean you have a “right to use it” such that if you use it to launch a missile at third party C and they complain that it means your property rights are limited; rather it is their own property rights rights that your missile would be violating (since they have a right to exclude your missille from invading their property!) that limits what actions you may take.
So if I “transfer” property rights to you, think of it this way. A owns a tract of land, Blackacre. This means A can prevent others from using Blackacre, that is, from invading its borders, or from manipulating its physical integrity. It also means A can in most cases “use” Blackacre, “so long as” he doesn’t use it to aggress against others. (but then he is not permitted to use any means, whether owned or not, whether Blackacre or not, to aggress against others-that is, to use their owned resource, their “property,” without their consent, precisely because that is what their ownership right is: a right to exclude me—and this is not a limitation on his property rights in Blackacre, since his ownership right was never a right to use but only a right to exclude, but a limit on his actions) And this means A can then “abandon” his rights in Blackacre, and he can do so in a way that lets B become the new owner. This means that what A is really ‘transferring” by his careful agreement with B and his act of abandonment, is that now B is the new owner of Blackacre and now B has the right to exclude anyone, including former owner A, and third parties C, from using it without new owner B’s consent.
Does that make sense?
BOB:
I think I understand now. Let me reformulate the argument and if it’s ok you can let me know if I have it right. Thank you for being so patient and explaining things so clearly.
A right of way can be looked at in the following way: A has agreed not to exclude B from using the driveway in certain ways. This means A allows B to use the driveway (they consent), the same way you can allow your friend for example to use your car, and you can make this permanent or temporary by fully abandoning title or not. In essence a “sale” is the original owner granting consent to another person to use some resource permanently by abandoning or terminating their title over the resource.
Is this correct?
KINSELLA:
bingo
BOB:
Great!!! Thank you so much for helping me come to a better understanding about these issues.
***
Followup interchange:
BOB:
Dear Mr. Kinsella,
I previously asked you about how one would frame contracts about easements from the perspective of the “right to exclude” and not the “right to use.” Your explanation was very clear and precise. You pointed out that a contract, and how title transfers occur, is really the grant of consent by an owner to someone else to use a resource he otherwise could exclude them from. This consent can be temporary, permanent etc.
If you have the time and it’s not too much trouble, I wanted to ask how this framing applies to “selling” someone a negative servitude. A negative servitude, from my understanding, doesn’t allow the negative easement holder to use a resource, so I don’t think you can say that the contract can be described as “the grant of consent by an owner to someone else to use a resource he otherwise could exclude them from.
I think that that selling someone a negative easement can be described as the main owner NOT EXCLUDING someone else from EXCLUDING them USING a resource. I’m not sure if this framing is correct so I wanted to ask for your input.
How would you frame a contract (how title transfers occur) about a negative easement from the perspective of the right to exclude?
KINSELLA:
Brown owns Brownacre. Green owns Greenacre. Let’s say they are adjacent parcels. Brown and Green enter into an agreement (contract) dividing up co-ownership rights in Brownacre. Let’s say that in exchange for Green paying $50k to Brown, Brown then transfers co-ownership rights to Green, where the respective usage-rights for Brownacre are specified. Brown has the right to “use” it but there are certain usages of Brownacre that Green may veto or object to; in other words, Brown must get Green’s permission to use Brownacre in certain ways.
As for how the contract would be drafted, well, old-fashioned ones would probably work but if the background law changed enough in a libertarian world, lawyers would have to draft accordingly. But I don’t see any serious difficulties. It’s basically a co-ownership arrangement.
As to the rest of the world, B and G are the owners of Brownacre. No one can use Brownacre without the consent of the owner or co-owenrs, B, or B&G. And as between B and G, how they may use Brownacre is determined by their contract.
Does this make sense, and answer the query?
BOB:
Let me be more specific, previously you explained that contracts are really just the the grant of consent from the owner to another person that allows them to use a resource. This is what a right of way is for example. Brown consents (decides not to exclude) to Green using his driveway in certain ways. Brown and Green co-own the driveway with Brown having most of the rights over the driveway and Green having a right of way. This all makes sense.
My question is about NEGATIVE servitudes which in my mind work differently. With a negative servitude you can’t say that Brown consents to Green using his land since a negative servitude doesn’t allow the holder to use the resource but allows them to, as you say, “veto” (exclude) certain uses. So Brown is clearly not consenting to Green using his property which is what you explained contracts to be previously.
So the question is when Brown gives a negative servitude to Green what is Brown doing specifically?
KINSELLA:
Brown is agreeing that B & G are co-owners defined by respective rights and roles, and one of them is that B cannot use the resource in a specified way without G’s consent. There are any number of ways to set this up in the contract. For example imagine a simple and extreme case. (I think there are more subtle and elegant ways to do this, but let’s take a simple case.)
B says to G: “if you pay me $50k then IF I use Brownacre in the following way without your permission, THEN I transfer half of Brownacre to you”. There are lots of ways you could structure it so that B in effect needs G’s permission. Or you could say “if you pay me $50k then IF I use Brownacre in the following way without your permission, THEN —
(a) we have to sell Brownacre and divide it up by the following percentages–
(b) I have to pay you back the $50k with interest–
At (B’s/G’s option).” Etc.
After all in today’s law when two or more people co-own a resource, such as husband and wife H &W, who own a home together or heirs A, B, C, who inherit their dad’s estate, then if they cannot agree on how to use it, the only solution is to sell it at fair market value and split the cash proceeds according to ownership percentages. So when people enter contractually into any kind of co-ownership arrangement, they are smart to provide a dispute resolution and dissolution mechanims. Whatever the contract specifies, that’s how you proceed.
But in more theoretical terms the way I would look at it is that B & G have divided up ownership rights so that G has the right to enjoy the property without anyone (including B) using it in XYZ way. If B does this, then he is in effect trespassing on G’s property rights.
In any case you have to remember lawyers can be clever and it’s easy to arrange things by using the clear rights you have.
BOB:
Thank you I understand now.
As a side note would you say it’s incorrect to frame it the way I framed it I’m my original message?
Specifically that Brown is in effect deciding NOT TO EXCLUDE Green from excluding him (Brown) using the resource in certain ways.
KINSELLA:
I am not sure. I think there are many ways to look at or classify it. I think we have to be wary that we are advancing a fairly radical change in the basis of the law, so that it’s hard to predict what new legal doctrines or practices would emerge, so we have to be cautious to predict too much–the perils of armchair theorizing. https://www.stephankinsella.com/2006/07/the-limits-of-armchair-theorizing-the-case-of-threats/.
So for example you could imagine it being structured thusly: B grants to G some of his property rights in Brownacre. Property rights are essentially exclusionary, so what B has done is grant to G the right to exclude B’s own use of Brownacre in certain ways. G can exercise this right as a property owner to prevent B from using Brownacre in certain ways.
One reason I am cautious about this in addition to the humility that comes from recognizing the limits of armchair theorizing, is that I know some legal systems categorize similar arrangements differently–say, leases to real property (say, an apartment, or a subsurface mineral rights)–some systems classify it as a contract right (which they classify as merely in personam) as versus a “real” right, a property right (in rem). The classification can make a difference in various situations. I am not so sure that the distinction makes a coherent difference under libertarian law or how it would be classified or treated under private libertarian law. It’s hard to say. I tend to think lots of the foundations would be changed, if you viewed it as I do, where contracts flow from the power of ownership and are seen as subsidiary thereto (likewise, some libertarians think all criminal law would collapse into private, civil, contract/property/restitution law; while I sometimes think maybe it would be the reverse: all law would ultimately be criminal (see ch. 5) but the end result might be similar, it would tend to be a restitution-based system. We have to be humble about predicting what would emerge, hence my caution about armchair theorizing).
I have certain guesses about what might happen but they are just educated predictions. I have had people try to urge me to, say, write a libertarian law code, or, say, to take the Restatements of the Law, or the Civil Code, and “mark it up” and “rewrite it.” I think this would be futile and premature and impossible. It is not time yet, nor would it do any good. But my point is I can see why the current systems, based on their mostly-good but somewhat confused legal principles, some classify contracts and leases as mere contracts, and some as real-property interests. My view as would be implicit in what I have said so far, is that as between the rest of the world, B & G are co-owners, or really “the owner”–that’s the “in rem” part; as between B & G, it may be viewed as “in personam,” or “merely contract” and not “in rem.” Yet as I have emphasized, contract is subsidiary to property and is just the exercise of dominion by the owner, so … how we would classify interpersonal rights between B & G, whether in personam (contract) or in rem (real) … I don’t know that this would make much sense in a libertarian private law world. But I cannot predict. Nor can I predict what the intermediate stages would look like. In any case however you look at it, from the point of view of the rest of the world, B & G are viewed as “the owner”. As between B & G their ownership rights, whether viewed as contractual or in -rem “co-ownership”, are in effect co-ownership and in any case, if B & G cannot decide or agree, then the outside world would not know who to take orders/consent/permission from, so B & G would have to just part ways, and presumably, if they were prudent, the contract and/or co-ownership arrangement would specify some dispute resolution or dissolution process and/or would rely on default/suppletive background presumptive law, either presumably pro-rata/50-50 or some other percentage, or maybe some more sophisticated dissolution mechanism going from an auction plus pro-rata division of cash proceeds to buyout provisions or “right-of-first-refusal” and so on. As a lawyer I find these things mildly interesting and have some ideas, but the details are not the point and to get mired in them at such an early stage before we are even transforming to a new mentality would be pointless and futile and indeed, as I said above, probably impossible.
In short, there are many ways B can find a way to contractually arrange it so that G has the legal ability to block some of B’s uses of Brownacre without G having the right to actually use Brownacre.
Let me contrast this with voluntary slavery, where I deny that wannabe master M and wannabe slave S can enter into an enforceable agreement whereby M has the right to use force against S to keep S from running away and reneging on his promise to be a slave. I cannot imagine a way to this since it would be aggression. By contrast, owners of owned resources have many legal tools at their disposal to arrange their affairs with others by a combination of contact and co-ownership arrangements. Whether the law in Kinsellaland would distinguish sharply between contractual interpersonal rights and co-ownership in rem rights as current legal systems do, I am not really sure.
SK
