1. Skip to navigation
  2. Skip to content
  3. Skip to sidebar
Source link: http://archive.mises.org/10933/freedom-and-property-where-they-conflict/

Freedom and Property: Where They Conflict

October 29, 2009 by

There may be cases where there is a conflict between claims on behalf of one person’s freedom and claims on behalf of another person’s private property. In such cases, the question arises, which claims should prevail? FULL ARTICLE by Frank van Dun


Cosmin October 29, 2009 at 7:56 pm

But if embordering is not sufficient for homesteading, then we are left with the vague concept of use.
Does someone use a mountain when skiing on it downhill? Or does he have to build something? And if he does, how far from his construction does his property extend to? And how far in time? If use is required for appropriation, then why isn’t it required for continued ownership? Except that’s the evil mutualists’ position…

T. Ralph Kays October 29, 2009 at 8:14 pm

Do you not have any knowledge of the history of common law establishment of “homesteading”? The question of use has been abundantly litigated and worked out to a very fine degree. It is not at all a vague concept. Interestingly ownership is not necessarily permanent, land that has been abandoned (not used) after a reasonable time becomes essentially unowned again. This also has been adjudicated under common law to a fine degree.

Cosmin October 29, 2009 at 8:29 pm

When you say litigated and worked out, you mean on a strictly philosophical level, right?
Because in real life, the mountain scenario I brought to attention earlier persists…
Still, I’m glad if libertarians realize that existing claims of private property are disproportionately greater than the area of land that has actually been put to use. Sadly, I’m not convinced that’s the case. Didn’t Rothbard say that all existing claims of property are legitimate insofar as they didn’t result from theft?
That fails to explain how a whole mountain can become someone’s property when it was unowned before.

T. Ralph Kays October 29, 2009 at 8:43 pm

No, I mean in real actual life, again don’t confuse the actions of free people with the actions of the agents of coercive political institutions. Certainly governments have granted people title to land unjustly and that continues. Common law in practise has historically solved these problems as I described, governments have upended these rules. I think you don’t understand what Rothbard meant by theft. His definition of theft was theft under libertarian rules, not governmental rules. Undoubtedly many claims to ownership now recognised by governments would be invalidated under the rules Rothbard proposed.

Cosmin October 29, 2009 at 9:05 pm

If I may refer to my earlier post, you seem to be stuck on questioning who owns something and if he acquired it justly, instead of questioning whether something CAN be owned. You simply assumed that question to be resolved in the positive.

T. Ralph Kays October 29, 2009 at 9:22 pm

You are completely right, if your position is that land can not be owned then the issue is of an entirely different nature. It is also not one that can be resolved in this limited form of exchange.

Ribald October 29, 2009 at 9:24 pm

I really enjoyed reading Dun’s piece. I mentioned the encirclement problem to my brother, but he, like many others commenting here, believed that without infringement on property, there is no injustice, and that his neighbors would provide easement at an appropriate price in any case.

The idea that libertarianism cares not a whit for freedom so long as property is respected is an interesting one. Why do libertarians hold fast to the doctrine of self-ownership? Self-ownership is pretty bizarre, if you think about it. No other thing owns itself except for a person (even animals lack it!). Isn’t this because without self-ownership, then people can be made into slaves without disturbing their property? Libertarianism rests its foundations upon an interpretation of property rights that guarantees the greatest freedom to individuals possible while restricting the freedom to do harm to the furthest extent possible. Dun highlights the possibility that an absolute respect for property may serve as a cage to limit another’s freedom. I would say that libertarianism should not abide by such a situation, but should seek out a way for both freedom and property to be respected equally.

What is also interesting about this subject is that encirclement does not happen only in spacial terms. As an example, in an area with only one source of a vital resource (say, water), a form of encirclement prevails when the owner of the source refuses to sell it, or provides it only to those who become willing slaves. In this case, however, many would say that there is no intrinsic right to that water (just as some say there is no intrinsic right to movement), and that no violation of freedom or liberty takes place. As one person told me, “You don’t have the right to live [in a libertarian world]. You only have the right to try to survive.”

In such a world that is devoid of the possibility of encirclement, all people are self-sufficient in every way that impacts their fundamental survival and freedoms. This is not a very efficient mode of living, as one can guess.

This represents the impact of risk inherent in human behavior. In order to alleviate this risk, we may either become self-sufficient and not depend on other people for basic necessities, we may stockpile necessities, or we may take a proactive role in reducing the possibility of harm (the function of states and security firms).

I think the choice between these three possibilities is entirely determined by population density and the level of interdependence in the economy. Highly interdependent economies tend to be more efficient, but also highly managed for this reason.

Autolykos October 29, 2009 at 9:31 pm

Why couldn’t a mountain be owned?

Autolykos October 29, 2009 at 9:55 pm

To Ribald:

As far as I’m concerned, animals do not have self-ownership because they are not moral agents (though they will certainly defend themselves if you (try to) kill them). This does not preclude the possibility of non-human moral agents, such as (humanesque?) AIs, extraterrestrials, etc.

With that said, I’m not sure if you come out for or against the libertarian concept of self-ownership in your post. Could you please clarify?

I think the concept of “proportionality of response” is relevant here. Just as shooting dead a trespasser constitutes murder, if he appears to be unarmed and fleeing, someone being blocked from leaving his land constitutes imprisonment, if done as a result of (for example) some social faux pas he committed. Likewise, using one’s own handcuffs on someone else may be permissible in certain situations (I will not mention which!), but impermissible when used to chain someone else to his or her desk at work.

You mention an example whereby one person excludes others from the only source of a vital resource (e.g. water) in “an area”, unless they agree to become his slaves. Of course, I consider trying to enslave people to be immoral regardless of how one tries to do it. But in any case, how big is this area that you’re conceiving? Are people free to leave this area in search of the vital resource elsewhere? I don’t see why not. Furthermore, what else is going on in this area besides the water-excluder? Surely that isn’t the only resident economic activity.

I think most (if not all) libertarians agree with the general idea of “[taking] a proactive role in reducing the possibility of harm”. The question is by what means. We consider a monopolist approach to be inherently dangerous, for reasons that Hans-Hermann Hoppe and others have pointed out.

Cosmin October 29, 2009 at 10:09 pm

I’m not saying land can’t be owned. But if use is necessary for appropriation than you are limited in how much you can own by how much you can use. (I haven’t seen anyone use a whole mountain).
When you claim to own more than you appropriated through use, that is just an artificial limit to the freedom others have to use said resource.
Plus, use is still a vague concept. If I claim to own an area because I use it for hunting once a year in autumn, does that mean I really own that area and can stop others from skiing in winter if I want to?

Mike October 29, 2009 at 10:26 pm

I suspect those who simply dismissed the article with a sentence or two were made uncomfortable on some level by it. It is without a doubt a challenging article.

However, the problems it presents can be made relative non-problems if you discard the ethical baggage of non-aggression. Ethical systems are always arbitrary, as evidenced by the hoops they inevitably have to jump through when presented with a sufficiently creative thought experiment.

So why don’t we just all admit that we don’t like the state and want to limit or remove it? Does it have to be more complicated than that? Even if the goal is to bring others into the cause, showing people how the state hurts them personally is always a better bet than trying to get them to buy into some principled argument, anyway.

And honestly, sometimes when a person says nasty enough things about your wife, he gets a broken nose, and this is all well and good.

And so for the article’s main thought experiment, here’s how I see it playing out: Encircled guy pisses off a whole bunch of people. The people around him decide to encircle him. Attempts to negotiate break down. At this point the guy decides he can’t trust his neighbors anyway and decides to ditch the land. He escapes in the middle of the night (with a gun just in case: if he gets killed for trespassing, fine, but he’ll shoot back), boards with a friend until he gets back on his feet, and sells the now-useless piece of land to somebody who isn’t under a vendetta from the neighbors.

Clearly, force may come into play in this scenario. Shit happens. Anybody who proposes a utopia is full of illusions.

The key difference here is the scale of the force. Chances are the guy just escapes unnoticed and nothing happens. Whereas, if you piss off the state, you’re simply done for. Also, these private conflicts are unlikely to escalate into a conflict that KILLS 60 MILLION PEOPLE (WWII).

Bala October 30, 2009 at 12:13 am

Excellent article.

The author raises an important point for which he has given a well-reasoned out argument. However, I think that the argument would be greatly strengthened if one goes beyond Libertarian principles and include a couple of very important concepts explained by Ayn Rand as part of the Objectivist concept of Individual Rights.

Very simply put, the Right to Life is the source of all Rights. The Right to Liberty is a logical corollary – the closest corollary too – of the Right to Life. The Right to Property is a consequence of the Right to Life but is understood best in terms of the Right to Liberty. That is property which is value in the possession of an individual, to take which away from an individual, there are only 2 ways – with his voluntary consent or by initiating force against him. The former implies no violation of the Right to Liberty while the latter does. This creates a very simple inequality.

Right to Life > Right to Liberty > Right to Property

However, given the importance of the concept of Property for the sustenance of the Right to Life, it would come a close 3rd in this inequality. It is therefore possible for the Right to Liberty of one individual and the Right to Property of another to appear to clash. There is only 1 way to resolve it – understand violation of which of the two constitutes a violation of an individual’s Right to Life.

The basis of this idea is that Life, Liberty and Property are all concepts of value to an individual. All value is subjective (as the author says). However, value always presupposes a “Standard” by which that value may be measured/evaluated. That Standard, for every individual, is his Life. Every other physical object or concept is of value only if he has his life. A dead man can have no values. Life, then becomes the “Objective” standard of value – true for every individual.

In this particular case, encirclement that prevents a person from leaving his property is necessarily a direct threat to the encircled individual’s life while a person walking through the property of another peacably and not initiating any other form of force against the owner of the property is not a threat to the property owner’s life.

Thus, on the Objective standard of Life, encirclement would be a violation of the victim’s Right to life while peacefull passing through of another’s property is not.

This understanding also completely justifies force initiated by an individual to resist encirclement that threatens his Right to Life.

The important point that needs to be understood is that no code of values is meaningful without a standard of value and for a man who has chosen to live, his life is the standard of value, an Objective one at that.

Adam Knott October 30, 2009 at 12:14 am

Great article Frank.

“Either way, there seems to be something wrong with equating libertarian law with the rigorous application of the nonaggression principle.”

“That should not come as a surprise. The principle does not refer to freedom, only to property; it would be adequate as the axiomatic law of freedom only if freedom and property were synonymous — but they are not. To paraphrase Anthony de Jasay,[4] we do not need a theory of “freedom as private property” any more than we need any other theory of “freedom as something else.”"

Wow !!

And all without reference to the concept of argumentation. Hmmm….

Gil October 30, 2009 at 1:09 am

I thought every landowner would have to duty to provide easements or right of passage to prevent encirclement. After all, most people live in homes that are encircled by roads therefore in roads were held in private ownership you would have encirclement right there. I believe everyone instead would have a piece of road that they themselves own and have a duty to maintain lest they get sued but it’s an easement and no one can ever be considered a trespasser.

pbergn October 30, 2009 at 1:12 am

Finally. A true voice of reason!

Well done! Now I do not feel so lonely anymore…

This article shows that you can have logical reasoning and still love the freedom, and be a Libertarian in one’s core…

Bravo for the courage to think out-of-the-box, without fear of being labeled as “Statist”!

We need more of this on this site – the logic, and practical, clear thinking…

Bala October 30, 2009 at 1:42 am

Reading some of the comments made me realise that easements are the precise point that I ended up trying to justify, except that my grounds were moral and not utilitarian (nothing to do with avoidance of conflict).

However, I have a small doubt which I hope someone more knowledgeable than me may help resolve.

Let’s take a hypothetical situation where 9 people own a 3 by 3 plot of land as given below


For simplicity, let’s assume that each plot of land is square in shape and is of area 1 acre. Clearly, E in in the unfortunate position of being encircled. He needs easement.

However, who is to provide easement? In other words, how will it be decided as to whose property from among A, B, C, D, F, G, H and I should the easement pass through? Since any easement has a cost in terms of loss of value of alternate use of the land identified for easement, who should bear the cost of the easement? To a simple mind like mine, it appears as though all 8 surrounding owners should share the cost, purely from a fairness point of view. How exactly should/does it work?

George J. Georganas October 30, 2009 at 2:53 am

Maybe the choice of land to illustrate the idea of hostile encirclement was an unfortunate one, both for the article author and for the authors of comments.
Land is too tangible. But suppose the relatively few people who have good ideas, that could benefit the rest of us, decided to keep them to themselves. Leaving the great unwashed outside comes as a natural inclination to those with a better intellectual endowment. Suppose such an elite kept its secrets well. Does that leave the freedom of the others unaffected ? Could we describe a society, such as the one of ancient Egypt, where the professional skills of scribes and priests in reassigning property rights to land after the annual Nile flood gave them a high social position, as free ? And what about this elite passing their secrets to their progeny ? Won’t such a society end up with a caste system ?
Hostile encirclement is, I think, a strong challenge to the idea of property as liberty and has proven itself as such not just in theory, but in actual historical experience.

Shay October 30, 2009 at 4:10 am

Bala, in your 3×3 encirclement example, surely the surrounding 8 owners would make offers to sell passage to the one in the center. One might have lots of things built and thus not be able to make a good offer, since offering a path would be expensive. Another might have lots of empty space on his, and not mind providing a small path at little cost. The potential problem is when there’s a single owner of all 8 surrounding plots; if he wants to play tough, what incentive does he have to make a reasonable offer?

Arend October 30, 2009 at 4:12 am

I think “freedom” in this article basically comes down to an utilitarian argument for an positive right. On both concepts many has been written and I think combined in above fashion they are besides the point and not a real problem for libertarian theory.

Van Dun starts with the libertarian axioms, and with logical reasoning proves one thing: he doesn’t accept these axioms as long as ‘freedom’ (whatever he means by that, mostly likely some positive right version of it) is not guaranteed… well yeah but in the negative sense of freedom it is, and in the positive sense while not violating the negative sense (the libertarian axioms) it’s pretty, pretty, pretty well almost always an indirect consequence of it.

Van Dun seems to need a complete blueprint of the libertarian society in order to see if positive freedom (which he doesn’t define, that’s the main tenet of his story: mysticism) is guaranteed. Well that can be a subjectively legitimate preference of Van Dun’s, but nothing general for libertarianism as a political philosophy follows from it as far as I can see.

David Roemer October 30, 2009 at 5:14 am

According to economics, the system that maximizes human welfare at each instant in time is the free market. Suppose you find yourself on an island with one other person. Should you cooperate with that person or make that person your slave? Slavery is indicated if there is a need for a beast of burden or someone to engage in hazardous work. The slave may grumble from time to time, but over a lifetime may be grateful to the master for following his conscience instead of the commandment “Thou shall not use force.”

Bala October 30, 2009 at 5:22 am


While it is possible that the 8 surrounding owners may have incentives to sell easement, how is it fair to E? Take the specific case where E takes land-ownership first whereas the others do it later. The outcome is that E could end-up paying a fairly heavy price for no error of judgement on his part. Sounds fairly vague to me.

Further, even if it is 8 different owners and not 1 as in the extreme case you have taken, the situation is one where there are only a limited number of suppliers. Laws of competition may not apply in a situation where there is this much assymetry. There are only 8 possible suppliers of the specific easement desired by E. What should E do if 7 of them flatly refuse for reasons of their own and the 8th sees an opportunity to hold E to ransom?

The alternative of staking claim on more land may just not be available to E if he has limitations on his means. It is also metaphysically possible for someone to deliberately lock E in and then hold him to ransom irrespective of what E does.

Gil October 30, 2009 at 5:43 am

Duh Bala – each of the nine landowners whose land is a square should each have a square bitumen road outline easement for everyone to travel through. For somone driving upwards through H-I to B-C it would look like a standard two-laned road. The interjoined H-E-B bitumen easements would the ‘left lane’ and the I-F-C bitumen easements would the ‘right lane’. Simple.

Bala October 30, 2009 at 7:54 am


It’s easy to “duh” a simple sounding question, but then you said

” each of the nine landowners whose land is a square should each have a square bitumen road ”

Why “should” they? Even if they “should”, what will ensure that they “would”?

Unless that is clarified, my question is still unanswered. Actually, your post got me thinking and I think I have some idea. However, your superior attitude tells me that it would be nice to read your answer.

gene October 30, 2009 at 11:45 am

the whole thing depends on where you get your idea of property from: common or collective.

if you believe that property rights originated in our “common” ownership of earth based on the fact that we all occupy space, then the landlocked owner has a “right” to access his land and also to access the world.

if you believe that property came from the domain of collective or group force as opposed to the equal rights of all, then it is certainly okay for the collective or group to deny the landlocked owner access based on their right of “collective” ownership of all the parcels surrounding his property.

it is true one owner could “sell” or give that right but that has no bearing. humans either have a right to “use” landlocked parcels that they own the “rights to use” or not. if they don’t, then none of us do. you can’t use that which is unusable.

property rights must pertain to all property, not just those with access.

T. Ralph Kays October 30, 2009 at 1:18 pm

The entire question of landlocked property is nonsense. For unowned land to become owned some person must have travelled to that spot, by travelling to that spot they necessarily have established an easement over the path they follow. The only way a property can be landlocked is if a person divides up land he already owns and sells such a piece to someone else. In that case the fact that it is landlocked would be known to all (unless fraud is committed by hiding that fact, in which case the fraud is the real concern) and if someone chooses to buy such a parcel that is their own business and no concern of ours.

gene October 30, 2009 at 1:55 pm

excellent point on prior access.

but, you are ignoring the fact that land, especially marginal land can be naturally landlocked. people choose the more productive surrounding land and leave a parcel enclosed that will eventually be needed.

if the homestead principle states that “all” land is open to use, then a provision has to be made for land landlocked due to prior choice of surrounding owners. if it is allowed to be landlocked and “ransomed”, then all land is not under the homestead theory or you are making a provision that those who landlock land by homestead will eventually obtain the landlocked portion by default, which has little to do with applying labor to the land.

T. Ralph Kays October 30, 2009 at 2:02 pm

I am not ignoring anything, unless you are from the Star Trek universe and can beam yourself directly to any spot you must necessarily have access to any piece of land to make it yours.

T. Ralph Kays October 30, 2009 at 2:03 pm

I am not ignoring anything, unless you are from the Star Trek universe and can beam yourself directly to any spot you must necessarily have access to any piece of land to make it yours.

1PoundHouse October 30, 2009 at 2:03 pm

Here’s The Quickest, Easiest Surest Way To Make Extraordinary Profits In The Perfect Property Storm For “Think Outside The Box” Investors http://1poundhouse.co.uk/MassiveCashflowToolsStudyPack.html

Larry N. Martin October 30, 2009 at 2:08 pm

…you must necessarily have access to any piece of land to make it yours.
Access isn’t really the issue–legal access is. Suppose someone trespasses over someone else’s land to get to the land they want to homestead?

Michael A. Clem October 30, 2009 at 2:16 pm

the whole thing depends on where you get your idea of property from: common or collective.
Neither. The initial acquisition of unowned resources is called homesteading, and everyone has the right to do it, but no one is guaranteed to be able to do so. Of course, once property is owned, it can be sold or gifted to someone else.

T. Ralph Kays October 30, 2009 at 3:17 pm

I am referring to legal access. There is no legal way in a free society to make unowned land owned if nobody can get to it. The situation described by Dun is an imaginary construct that does not in fact exist in the real world.

Thomas McGovern October 30, 2009 at 3:26 pm

Commenter T.Ralph Kays is the only commenter with a consistent and sensible libertarian analysis of this issue; thanks Ralph for taking the time to write and respond so many times on this issue. I suggest that everyone read his comments and learn from him.

Martin OB October 30, 2009 at 4:06 pm

I don’t see why you have to access a land before you can homestead it. What if you always lived there? More precisely, let’s assume that only moral agents can homestead a land, and that only humans are moral agents (with Peter Singer’s permission); then, the first human beings to be born from pre-human ancestors must have been born somewhere; then they could homestead this place without having to travel there. Or they may have roamed for a while before settling, but then they only granted to themselves a strictly limited number of easements, probably not too far from their homes, so they could still be blocked from most of the Earth. To deny this is to say that everyone literally filled the Earth with their footsteps. Besides being patently false, this scenario implies that every patch of land is an easement zone, which no-one is supposed to homestead, so homesteading becomes impossible.

Summing up, the doctrine that the easement zones are exactly those zones where each owner has walked before is either insufficient to prevent encirclement or incompatible with homesteading.

liberary October 30, 2009 at 4:46 pm

What is the deal with encirclement? What is so bad about it?


Scenario A: Someone is buying already encircled property.
If someone bought a flat in a house with no windows and access to the flat only over a door on the roof of that house, then so be it. Just imagine someone else is owning the surroundings of that house. Does the buyer have a right to use the property of that person? No. He was not forced to buy that flat.

Scenario B: Someone homesteads land. Then he automatically has a right to use the paths he has taken regularly over unowned land. His heirs inherit that rights (if he wants them to!). A potential buyer of his property could buy that right later too!

There is no (positive) right to use or build streets. There is only property based rights.

T. Ralph Kays October 30, 2009 at 5:58 pm

Martin OB
Even the very first humans probably moved around enough to establish easement rights leading away from their property. Of course people don’t have the right to wander anywhere on the earth that they want. We are talking about private property after all and one of the defining characteristics of private property is that the owner gets to decide who can walk on it. Where did these people come from that surround your first person, how did they get there? It is inescable that someone must have gotten to a piece of land in order to homestead it, to deny that is to deny reality. If they always lived there that just means that their parents homesteaded the property, and if their parents always lived there then it must have been the grandparents or some other ancestor. Eventually you get to the person who came upon a piece of unowned land and first used it. Otherwise you are claiming that the land was homesteaded by someone who wasn’t there.
I don’t even know what you mean by “easement zones”, but you clearly don’t understand what an easement is. Easements are an essential part of homesteading and an essential part of any system of private property. It is in fact the existence of easements that makes the problem Dun describes non-existant.

gene October 30, 2009 at 8:30 pm

denying access to encircled land removes that land from the homestead principle.

if land can’t be accessed, then it can’t be homesteaded or it can only be homesteaded by parties in an “advantaged” position, which means some land is not available to all.

all land is then no longer equally available and the homestead principle would have to be rewritten……………………excepting land that has been encirled by blah, blah, blah. pretty wierd stuff, sounds pretty status quo!!

author has a good point!

T. Ralph Kays October 30, 2009 at 11:11 pm

Who says the so called “homestead principle” requires that everyone have equal access to the unowned land available for homesteading? Simple physical reality will always give some people advantages over others. Not every human can be equidistant from every possible piece of unowned land for example, those that are closer have an advantage. If the land in question is across a body of water than people who own boats would obviously have an advantage. Complaining that nature isn’t “fair” in the opportunities it provides people is a pretty worthless pastime. Equality is a mathematical concept that has no meaning when applied to humans. No two people have ever been equal and they never will be equal no matter what you do.

Gil October 30, 2009 at 11:28 pm

Well Bala if you believe landowners have no right to provide easements in which everyone else can through but instead could indeed encircle someone else then hoping the landowners will follow the principles of ‘natural law’ is even less likely. The only solution for a trapped landowner is to build a helipad.

Bala October 31, 2009 at 12:52 am


” Well Bala if you believe landowners have no right to provide easements in which everyone else can through ”

Where did I speak of “not having a right”??? I only asked ‘Why “should” they?’ and ‘Even if they “should”, why “would” they?’.

Let me be clear that I am no expert on this matter (I am reading about it for the first time ever) and am just trying to understand the issue. It does not help to get smart with me on this.

” The only solution for a trapped landowner is to build a helipad. ”

Thanks for the clear answer. What if he does not have the resources to build a helipad? Should he die?

Gil October 31, 2009 at 2:44 am

Whoops! You’re right Bala – that was supposed to read ‘duty’ not ‘right’.

Lord Buzungulus, Bringer of the Purple Light October 31, 2009 at 6:54 am

T. Ralph Kays:

Great posts. Would you say that, by traversing previously unowned property to homestead (unowned) property, the homesteader thus establishes a right of return (an easement) across the (still unowned) land? I.e., he makes no claim to the unhomesteaded land as such, only to a particular path for a particular purpose (return to his prior, presumably legitiamately owned location)?

Martin OB October 31, 2009 at 12:21 pm

T. Ralph Kays:

Sorry, but I think it’s you who didn’t understand my rebuttal.

You said that “for unowned land to become owned some person must have travelled to that spot”. That’s incorrect; instead, someone has to BE in that spot. Now, for someone to be in that spot, either he must have traveled there, or he must have been born there. If he was born there, it means his mother was there, which implies that either his mother traveled there or she was born there, and so on. You see, you never reach a point where “being born there” is out of the question and “traveling there” is the only possibility. So, strictly speaking, your claim is incorrect. You even seem to admit as much, but you say that someone’s distant ancestors most likely have traveled for a while before settling in some spot. I say this does not prevent encirclement, because the only difference is that now this person has a right to this property, plus an easement along the paths his ancestors traveled, but he can be encircled by homesteading a sufficiently wide circle around him, and even every patch of land inside this circle except his ancestors’ paths themselves.

Not to speak of how difficult it is to determine which those paths actually were. How would you go about it? Let’s suppose that everyone in the village agrees that everyone’s ancestors may have walked anywhere withing a distance of 100 km of his current home. This would have two undesirable consequences; first, anyone could be encircled by homesteading a circle of more than 100 km around his house; second, no-one can homestead any patch of land inside this 100 km circle, because to homestead is to turn unowned land into property, and property implies the right to exclude, but you can’t exclude people from an easement zone. You admitted as much when you say “one of the defining characteristics of private property is that the owner gets to decide who can walk on it”. So, an easement zone is not really “private property”, at least not one of the same kind as your home, because you don’t have a right to exclude people from it.

Now, they might agree to let people homestead land inside the 100 km circle as long as “enough” easement zone is left, but then they have to decide how much is “enough”, and we are back to square one, where we have to decide what the limits of homesteading should be; The idea that ancestors may have wandered for a while before settling proves to be of no help. Moreover, the encircling problem remains, except if we make the “possible ancestor path” circle as wide as the Earth; this absurd assumption would be required to put us back in square one and not worse off.

T. Ralph Kays October 31, 2009 at 12:23 pm

Lord Buzungulus

Absolutely, that has been my main point all along. Easements are established much as title to unowned land is established, through use, and there is no need for some benevolent attitude on the part of others to provide for free movement. Respect for property rights is all that is required.

T. Ralph Kays October 31, 2009 at 1:09 pm

Martin OB

Of course you reach a point where someone must have traveled to any given point. Your argument on this point is frankly ridiculous. The only exception would be the direct descendants of the first people, and assuming that in all of history they had remained in the same location. You also missed my point about these theoretical first people moving about. I did not say they wandered before settling, I said that after settling they probably still occasionally travelled off of their homestead and established easements by doing so.
You keep mentioning “easement zones”, there is no such thing as an “easement zone”. Easements are property and a person who owns an easement can exclude others from using it, I do so regularly. My home is encircled, it has no frontage at all on any public roadway and I have no problem with access because I have an easement to cross my neighbors private property.
One more time, you have absolutely no idea what an easement is and that seems to be the source of your confusion.

Martin OB October 31, 2009 at 1:57 pm

T. Ralph Kays:

What seem ridiculous is your refusal to qualify your claim.

“The only exception would be the direct descendants of the first people, and assuming that in all of history they had remained in the same location.”

So, there IS an exception, so your claim is wrong. It’s that simple. How frequent the “exception” is depends on how broadly you define “same location”. If you take “same location” to be “same planet” then the exception becomes the rule. If you take it to mean “same continent” then at least all Africans are exceptions (according to current theories).

You seem to be confuse an easement (which is a right) with what I call the “easement zone”, which is a fixed place or route where you can exert this right.

Let’s see the Wikipedia definition of “easement”: “An easement is a non-possessory interest to use real property in possession of another person for a stated purpose. An easement is considered as a property right in itself at common law and is still treated as a type of property in most jurisdictions.”

So, an easement is a right to use someone else’s property in some ways. There are “floating easements”, where “there’s no fixed location, route, method or limit to the right of way”, and then there are non-floating easements, where there is.

The kind of easement we are talking about is a non-floating easement, and this particular “route” is what I call the “easement zone”. Is it clearer now?

Again, even if we take a very narrow notion of “same location”, this only means that everyone has a right to his homesteaded property, plus a few non-floating easements with their corresponding easement zones (the routes themselves), which solves nothing, as I described.

T. Ralph Kays October 31, 2009 at 2:24 pm

Wow, I am speechless.

Yannick Verdyck October 31, 2009 at 3:20 pm

I am Belgian, so forgive me my poor English.

Between reasonable and unreasonable : What real advantage such strategic games really have to offer…

I think that -in practice- there is a reasonable difference between “theory” and “practice”.

From a theoretical point of view, Van Dun ondoubtably is right, but from a practical point of view, such an approach -the way I see things- is nonsense. Personnaly -having had a mathematical education- I think that I have some affinity with the difference between the purely theoretical consequenses and the practical consequenses.

When somebody starts playing with a number of narrowly(logically consistend) defined definitions, axioms or postulates. Then it certainly is possible to -using the arts of reasoning and logic- come to a certain number of situations, where in individuals can come to certain (logicaly true) situations, in which “competing parties/individuals” can use their property rights in such a way that they can “destroy” (or encircle, isolate, eliminate, etcetera). As if human beings play somekind of juridical game of chess.

But even although such anarchistic wargames (I can not think of any other name for this kind of practics) are in theory perfectly feasable (and to be expected) in reality. This would totally neglect the nature of human kind and his nature. Ofcourse, I can get a “direct” advantage by “crushing” my fellow humas between my private property rights, but such an advantage would only be obtained in short term, because in the long run, such stupidities would cost me much more then the short term gain I ondoubtebly get.

Because an action like that would completely destroy any kind of confidence that could have existed between the “winner” and the “loser”. It is not unlikely that such an action would provoke a kind of vendetta. Furthermore this action would destroy all the goodwill I might had build up between myself and other members (which allways are potential partners for mutual beneficial interaction, cooperation) of the community.

So in theory in the short run, such a “tactic” might “pay off”, but in the long run, such tactics will ultimately be self defeating in every possible way.

No matter what kind of society you live in, such rotten characters would eventually always end up with the shorter end of the stick.

My excuses again for the bad level of English (English is badly spoken French anyway ;-)).

Verdyck October 31, 2009 at 3:40 pm

I would like to defend my point of view publicly. As a criticism on the criticism of Van Dun.

An old fashoned duel with words. Armed with arguments and reason to battle it out. I miss that in modern society, I would love such a thing.

T. Ralph Kays October 31, 2009 at 5:44 pm


There is a serious flaw in Duns argument. He assumes a starting position that cannot exist, namely that someone exists somewhere who never travelled to that location.

Comments on this entry are closed.

Previous post:

Next post: