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Source link: http://archive.mises.org/16855/state-or-private-law-society/

State or Private-Law Society

May 9, 2011 by

In the history of social and political thought, myriad proposals have been offered as solutions to the problem of social order. Many believe that the search for a single “correct” solution is futile and illusory. Yet a correct solution does exist. The solution is the idea of private property.

FULL ARTICLE by Hans-Hermann Hoppe

{ 97 comments }

Freedom Fighter May 9, 2011 at 9:39 am

State laws, but reduce those laws to bare minimum and criminalize only behaviors which create victims. In my world, there would be only three punishable crimes: theft, battery and murder. For all the rest, use civil lawsuits and money claims, restitution etc.

Private laws in the sense of private roads where the road owners decide if there are speed limits or any other rules and you agree to abide by them to use their private roads or if not then you are directed to other roads with no rules etc.

But when it comes to theft, battery and murder, this should be the same laws for everybody and run by the state. There should be no possibility of private laws that would allow battery on one’s own property. Anything that attacks property or the physical integrity of individuals should be prosecuted by law, even if the victim is consensual and agreed.

Daniel May 9, 2011 at 9:54 am

even if the victim is consensual and agreed.

That’s not really a victim, is it?

In fact, you’d be outlawing boxing, football, MMA, parachuting, S&M sex and other activities in which the parties involved are aware of risk and consent to the risk to bodily harm

Freedom Fighter May 9, 2011 at 6:09 pm

So you acknowledge that in order to be considered a victim, you have to manifest disagreement towards what is being done to you ?

Daniel May 9, 2011 at 7:05 pm

I never said that. Why are you suggesting that I am?

However, a “victim” that demonstrates agreement and consent is not a victim.

Roberto Chiocca May 9, 2011 at 10:57 am

If these state laws you defend will punish theft, how would this state be sustained?

Sione May 9, 2011 at 2:42 pm

FF

“But when it comes to theft, battery and murder, this should be the same laws for everybody and run by the state.”

And run by the state? You have failed to comprehend one of the main (and obvious) points raised in Prof Hoppe’s essay. Read the essay again.

Sione

JT May 9, 2011 at 12:48 pm

Why should I trust a private security agency any more than a state security agency?

Drigan May 9, 2011 at 1:13 pm

Because you can fire them and turn to another security agent, who might give a discount to people fleeing one of their competitors.

George May 11, 2011 at 2:45 pm

Why would they allow you to fire them when they can simply exploit you?

Gerald May 11, 2011 at 3:04 pm

I don’t know, George. When Brinks or ADT or G4S or a personal bodyguard starts exploiting its clients/employers, we’ll see whether it would be able to stay in business once that bad publicity goes viral on YouTube.

George May 11, 2011 at 3:10 pm

And who ultimately keeps Brinks or ADT or G4S in check? Power is only checked by power, and arguing that the “customer can switch” fails because it presupposes that there is a greater power preserving the customer’s right to switch. What do these poor customers do when there is no such greater power, as has explained the success of a territorial monopoly holder in holding onto power throughout most of history?

Gerald May 11, 2011 at 3:14 pm

Who keeps the police in check? What do we tax payers do when there is no check on the police?

Ethan May 11, 2011 at 3:34 pm

Our independent judiciary is designed to safe guard us from heavy-handed, rogue law enforcers, and wherever possible just restitution is awarded when civilians are demonstrably harmed.

Gerald May 11, 2011 at 3:47 pm

@Ethan I think the point that George and others are always going to bring up the “who has the bigger gun, wins” argument. And while the independent judiciary is supposed to help the victim with restitution, it can’t wrest power from those who hold the guns. There’s still the bit about enforcement of whatever was decided by the courts. Who, if not for government (apparently), will enforce and is presumed “neutral” enough to enforce the judgment of the courts? Frankly, that is probably the better discussion to have than whether a private security firm is going to be a better choice than a public police force to protect your life and property from bad guys.

Shay May 9, 2011 at 4:31 pm

This was addressed in this very article, in The Solution: Private-Law Society instead of State. In particular,

If one wanted to summarize in one word the decisive difference and advantage of a competitive security industry as compared to the current statist practice, it would be this: contract. The state, as ultimate decision maker and judge, operates in a contractless legal vacuum. There exists no contract between the state and its citizens. It is not contractually fixed, what is actually owned by whom, and what, accordingly, is to be protected. It is not fixed, what service the state is to provide, what is to happen if the state fails in its duty, nor what the price is that the “customer” of such “service” must pay.

nate-m May 9, 2011 at 10:46 pm

Why should I trust a private security agency any more than a state security agency?

Because they work for you instead of having authority over you.

Same sort of people, different relationship.

Gil May 9, 2011 at 10:59 pm

When a powerful PDA has gone rogue then they’re hardly doing your bidding are they?

Shay May 10, 2011 at 11:11 am

Yes, but they can be stopped by anyone with enough force to, without legal repercussions as when the rogue is a member of the state and is therefore above the law.

George May 11, 2011 at 2:45 pm

Why hasn’t this logic prevented the rise of the state?

Drigan May 9, 2011 at 1:29 pm

Very interesting set of articles today. Clearly we can’t expect that any government would completely abdicate power cold turkey, so how do we get from where we are, to something that’s a bit more philosophically consistent?

I’ve mentioned before that something like “The Point” (A website that allows people to sign up for something if a sufficiently large group of people also sign up for that same thing) could be a reasonable route to shrink the government by contracting out current government services via “The Point.” We would just need *some* town *somewhere* to get it started. Does anyone have any thoughts on that idea? Or am I being completely incoherent?

Peace,
Drigan

Ethan May 9, 2011 at 3:31 pm

I’ve though a bunch about how do we get there, I see it happening in one of several ways. There will be no ideological shift to abandon the existing order and embrace this new paradigm unless there is a major shock to the system: a hyper-inflationary collapse might provide this opportunity. Another way of thinking about this is that large groups of people as a general rule don’t stick their neck out for purely ideological theoretical reasons, they do it because they have become more hungry, hurt or desperate than they used to be, and their fear of the unknown is eclipsed. Something pretty big might need to happen for this to take place on a large scale.
Assuming a change is in our future, how can we hope to get this Hoppean system over some other less desirable alternative? Here is what can be done, some are really good at selling ideas, getting the word out and educating people, other people are practical business men. Each is a type of entrepreneur, and each has a specific role to play. The educator has an obvious role, but many people will be unreachable, they will be too comfortable or fearful to choose a future of theoretical freedom over a system of familiar, calculable servitude. This is where the business entrepreneur shines, today he can begin providing services as the state fails in little ways, stepping in to take up the slack by providing security, insurance, social services etc. He may well be deemed a partner and not a threatening competitor as the state will appear to be failing less due these services being provided. It will probably not serve this business man well to sell his product on ideological grounds or to try and compete with well established government programs and agencies that are highly resistant. Opportunities will not be lacking, and government partnerships i.e. dovetailing with existing law enforcement, will increase visibility and reach in this interim period. As the state crumbles further these companies can step into the vacuum increasingly.

This will all serve as visible example for those worried and uncertain about how things will be taken care of in a new system of market order. To some extent this is already taking place, but the Liberty minded person really shouldn’t concern themselves with waiting until the market is free and unregulated enough to make their move, they can get started filling in the service gaps today; this private provision of state services is already being tried on an increasingly large scale.

Another word, I really don’t think there is much to gain by devoting your life to tearing down the existing order, and you have a great deal to lose spiritually as well as in a physical sense. People can focus on the martyred hero, they make a big splash, but think of what is necessarily lost. There will be a natural deterioration, destruction will be pushed forward by all sorts of forces that are no friends of liberty and freedom, maintain the high moral ground, and focus your efforts on creating something to emerge from the ashes, those will be the rarest efforts of all, and in my opinion the ones who provide this long term planning and make these preparations will be the greatest heroes of our future.

Shay May 9, 2011 at 4:33 pm

I’d say that the first step is to find ways of allowing more people to consider liberty as a real alternative to the current way of doing things. If people can’t even think about anything substantially different than things are now, they sure aren’t going to tolerate things actually changing in such ways.

RS May 9, 2011 at 2:54 pm

Clearly the premise to this article is ludicrious.

Any “private law” group hired to seek redress of a grievance, without a monopoly on the use of force to implement its decision, is either a useless pretense (a paper tiger like the UN) or no different than a bunch of vigilante gangs fighting for the right to be the leader in a defacto dictatorship, whether its a formalized “state” or just plain rule by whomever has the biggest gun and is wiling to use it on the most number of people, which is exactly the opposite of what this pie in the sky author claims to want.

Ethan May 9, 2011 at 4:00 pm

I used to fear this would invariably be the case, but utterly ignores human ingenuity and the wonderfully nuanced creativity and cooperation that emerges to surprise us all, when people are free. Everyman is NOT another man’s wolf. The ‘evidence’ to the contrary; that businesses seek monopoly power, collude with each other to gain advantage, lobby for state privilege or violent repression of competition is by in large effected with the essential help of the state itself. Re-read this carefully and well argued presentation by Hoppe and you will find the answers to many of your concerns: competition and concern over alienated future customers (well understood market forces in other areas of service provision) can be seen as an effective check on the concerns you refer to. It may help you to think about the free market for anything as it develops organically over a period of time (it doesn’t actually have to be very long either) may concerns will be resolved when you frame the thought experiment along the time dimension as well.

RS May 9, 2011 at 4:38 pm

Even if every citizen were as well meaning as you would project it still would not work. why? take a look around you, people believe a lot of different things both rational and irrational and they have their own reasons for doing so, even in the face of well meaning and well intentioned and well reasoned arguments, a person may still believe that he or she is in the right and will not budge no matter what is said in good faith. People are stubborn and do not change unless they absolutely have to. THAT is why force is necessary. Human nature is such that man is fallible and reason is a matter of choice and so there is always the possibility that there will be those who are wrong and/or choose to not listen or act no matter what is said or who is right and in order to ensure that those who were wronged receive just compesation and those who did wrong receive just punishment force will always be necessary. This will always be true as long as humans are human.Hoppe is projecting a fantasy land fit to populate with beings that are not found here on earth and never will be.

Perry May 9, 2011 at 5:38 pm

He’s not projecting a fantasy land here. He’s just saying that anything the state can do the market can do better. So the real question is whether you believe it’s possible that our society can achieve and champion individual liberty. What do you think?

RS May 10, 2011 at 12:24 pm

A state sets the laws that establish what people can and cannot do. A “market” where entities “compete” to establish what people can and cannot do is called civil war.

Perry May 10, 2011 at 1:07 pm

You’re hilarious! So what you’re saying is that free market = civil war and the state = peace? You’ll have describe the logic you used to arrive at this conclusion, because the history of man tells a very different story.

RS May 10, 2011 at 1:10 pm

no, I said a market in law en”force”ment = civil war. a “free” market is something that only exists when the peace is enforced through law. “free” market for “law enforcement” is a contradiction in terms. one is a direct consequence of the other.

Perry May 11, 2011 at 5:34 pm

Yes, but does “law” originate or need to be enforced by the state? If it does then you are right that the state is needed, and the author is also right that the state can create law to their heart’s content. If “law” originates as an outgrowth of humans interacting with other humans and an understanding of standards which should guide behavior (the market) then it only makes sense the the market would be the best place to enforce the standards which were created in it. It’s not contradictory at all to think of personal protection as a good and that individuals can and should freely exchange other goods for personal protection.

Inquisitor May 9, 2011 at 7:52 pm

“Hoppe is projecting a fantasy land fit to populate with beings that are not found here on earth and never will be.”

Um. No. The fantasy land would be the one in which a monopoly on force, with no real clearly defined terms of service and no ability to change service providers and thus terminate the contract, actually does much protecting. :)

Ein Kunsthausmann May 9, 2011 at 8:47 pm

“People are stubborn and do not change unless they absolutely have to. THAT is why force is necessary.”

Your comment is ironic, don’t you think?

Human nature is such that man is fallible and reason is a matter of choice and so there is always the possibility that there will be those who are wrong and/or choose to not listen or act no matter what is said or who is right…

Another ironic comment. Perhaps you suppose yourself to be an exception to your sweeping generalization about human nature.

So what do you intend to do about the stubborn, aggressive thugs who enjoy not only a monopoly on basic protection services and dispute resolution but also the widespread sympathy of pushers and shovers who are eager to use the monopoly to their own advantage and at the expense of others? You don’t think that you are paying the lowest possible price for the monopoly’s services, do you? And how do you intend to persuade, say, attorneys and doctors to give up the violent cartels that were established for their benefit by government? Gonna menace them with a gun? Perhaps you are one of those pushers and shovers; you harbor the hope that one day you will benefit from the monopolistic racket more than the racket costs you.

force will always be necessary

Hmmm. Maybe you think that you already do benefit more from the monopolistic racket than the racket costs you. I suspect that if you submitted to the governmental old age pension scheme in your area, you did so based upon the same sort of calculation. Is that not so, stubborn RS?

Btw, how would you characterize your upbringing in terms of religion, of wealth, and of education, including non-institutional education? Have you traveled much? Studied a foreign language enough to be come conversant in it or to read it? Learned the names of the forty-nine most common logical fallacies and maybe even learned to avoid committing some of them? It would be interesting and instructive to learn more about your background. I hope that you won’t mind sharing a few details.

Gil May 9, 2011 at 10:58 pm

What monopoly? If there’s enough force then the “monopoly” can be brought down. On the other hand, when the “monopoly” of the U.S.S.R. dissolved min-”monopolies” sprung up in its place. Thus in a sense nothing had been achieved.

Gerald May 10, 2011 at 1:23 pm

@Gil: I believe Ein Kunsthausmann is saying the monopoly is the government. You only get one Police method, one Fire fighting method (generally) by default. These you *have* to pay for, no choice, and because no competition is allowed, they are by default monopolies.

RS May 10, 2011 at 12:45 pm

what does any of this ad hominem have to do with the premise to the article? you know nothing about me so why bother speculating all this nonsense? it does not help the discussion, if that is what was intented.

Inquisitor May 9, 2011 at 7:51 pm

“Clearly the premise to this article is ludicrious.”

No, it isn’t.

“Any “private law” group hired to seek redress of a grievance, without a monopoly on the use of force to implement its decision, is either a useless pretense”

Which follows whence? The rest belies massive ignorance on the topic, of how private law would function. In fact, did you even read the whole thing?!

RS May 10, 2011 at 12:48 pm

a “law” is by definition something that cannot be disobeyed without consequences. “private” law would mean that one gets to pick and choose which laws to obey and which to not so any “disagreement” between people will necessarily devolve into gang warfare. plain and simple, no complex or convoluted reasoning needed.

Gerald May 10, 2011 at 1:48 pm

RS:
If the law is private, that is one issue. If the defender of the law is private, that is a different issue. Most of us would simply like our own life and property to be protected. If we chose to use our own providers of that protection, like businesses hire armored trucks, and individuals hire bodyguards, we’d be ok…

But gang warfare exists anyway, and that is because of what reason? I’d posit it’s because what is illegal is profitable, not because private security is used.

Ethan May 10, 2011 at 2:58 pm

Very succinct. Nicely put.

RS May 10, 2011 at 3:28 pm

My private defender does not recognize your private law against me confiscating all your property so our two private defenders do what exactly….? play nice and sit down to work out a “compromise”? dont like the compromise, hire another defender right? eventually there will be defenders who start to negotiate their “compromises” by walking tall and carrying big sticks, after that its who has the biggest gun and is willing to use it first. you can take it from there.

Gerald May 10, 2011 at 3:49 pm

I have no idea what you’re talking about.My private law enforcement firm protects my rights from you taking my property. Leave my property alone or deal with the consequences. Whether I hire my own law enforcement or carry my own weapon, what is your point?I am not protecting my private *law*. I’m protecting my private property. If your private law says that you’re entitled to my property, you’ll have to face my private defender/defense.But your private defender is/should be a defender, not an offender. Why would your or my private defender have anything to do with anyone else’s *property*? What are you doing on my land? When your private defender encroaches on my property, he is now a trespasser. If you have a private law that entitles you to have my stuff, my life, you’re going to have to deal with the consequences when you try to enforce that law. But that’s the difference between a security firm and a militia. At least, *I* can see that difference. But you are still mingling laws versus law enforcement. The public law is that you aren’t allowed to steal from me. The public law is that I’m allowed (most places) to use deadly force to protect my property. I don’t have to rely on the police to enforce that law. And *my* ownership of weapons, bodyguard, security firm, door locks, passwords, razor wire, is my business. Gang warfare is when you want my life or property and I won’t compromise to give it to you. My private defender of a public law shouldn’t need a bigger gun than you, as long as he can prevent you from trespassing. But, since these legal private security firms already do exist and are in use, they are directly responsible for the gang warfare that also exists, right?I have yet to see Brinks vs ADT go toe to toe over protecting their employers, but yes, let’s go with it can only lead to gang warfare.

RS May 10, 2011 at 4:56 pm

“Leave my property alone or deal with the consequences”

My private laws states that your property is mine as you are an agressor who is selfishly holding my rightful property illegally ergo my law enforcement attempts to “recover” my “stolen” property from you, which is rightfully mine. My law enforcement firm is very competitve and is very eager and happy to earn big profits from my great laws therefore it hires as many large mean scary people it can find to bring justice to those who have dared to infringe on my property rights by illegally holding excess wealth.

As long as there is no final arbiter or standard of objective law, the “law” is whatever I say it is and my “private” law enforcement, acting as my agent, is obligated to do what is necessary to bring about its enforcement.

Now how is my “law” entiteling me to your property any less valid that your private “law” entiteling you to it?The only practical difference between the two competing claims to the property is the size and aggression of our respective private defense firms.

get it now?

Gerald May 10, 2011 at 5:28 pm

My private law enforcement is enforcing a public law. As you state, your private laws don’t matter. So, if you want to get into a war because you want to be an aggressor, and not obey the public law, well, fine… let’s go there. But you probably will have taken my life or property by force because of your private law anyway. So, yeah, that public law enforcement did me a lot of protective good after I’m dead. Meanwhile, you’re still an aggressor whether I had private protection or public. It’s not like your private law is going to matter in this case, so it doesn’t matter for your case how I protect myself. All you need is an idea you want my stuff and a bigger gun than I do to get it from me. The police can do forensics of the crime scene after the fact, but at least I’ve been taxed enough to pay them well enough to prevent you from being an enforcer of your own private laws, except I’m dead and you got your stuff.

Your premise: private security leads to gang warfare fails on two counts: 1) Official public law abiding private security firms don’t go to war against each other. 2) Gang warfare coexists with public law enforcement.

RS May 11, 2011 at 4:37 pm

@ Gerald,

This is the best refutation of private law anarchy that I have read thus far.

Everyone on this thread should take a good long hard read and really think about what they are advocating.

http://www.hblist.com/anarchy.htm

Gerald May 11, 2011 at 5:11 pm

@RS:

“Similarly, the government does not ban private guards; but it does, properly, bring private guards under its supervision by licensing them, and does not grant them any special rights or immunities: they remain subject to the government’s authority and legal procedures.”

(My point)

“No political or moral principle could require the police to stand by helplessly while others use force arbitrarily—i.e., according to whatever private notions of justice they happen to hold.”

But the police do let those fights go unstopped on occasion. It happens, but they decide not to be involved while that fight goes down…

” But it does not occur to the anarchists that when one of their private “defense agencies” uses force, it is acting as a “monopolist” over whomever it coerces. It does not occur to them that private, anarchistic force is still force—i.e., the “monopolistic” subjection of another’s will to one’s own.”

(your point, but force would be required for some types of defense, so how does that apply here? One’s use of defensive force to stop aggression is bad? )

The author’s point:

In any irreconcilable dispute, at least one party will find that its view of justice is stymied. Even under anarchy, only one side will be able to enforce its ideas of where the right lies. But it does not occur to the anarchists that when one of their private “defense agencies” uses force, it is acting as a “monopolist” over whomever it coerces. It does not occur to them that private, anarchistic force is still force—i.e., the “monopolistic” subjection of another’s will to one’s own. They are aware of and object to the forcible negation of “competing” viewpoints only when it is done by a government.Thus, their actual objection to government is not to its “monopolistic” character, but to the fact that “A government is the means of placing the retaliatory use of physical force under objective control—i.e., under objectively defined laws.” (“The Nature of Government”)

I am missing something here. Where does the idea arrive that a defensive agency is going to use force in an offensive manner? Isn’t that what your concern is? Why is that a concern for Libertarians, in particular? Most of them don’t really want anything but what’s their’s, anyway, so they won’t tend to be the aggressors for other people’s stuff. That’d be contrary to what they’re trying to do …

RS May 11, 2011 at 6:03 pm

@ Gerald,”But the police do let those fights go unstopped on occasion”

Yes, it happens but thats besides the point. No political principle could require them to do so, their job should be to keep the peace even though they may fail to in practice.

“but force would be required for some types of defense, so how does that apply here?”

and”

Where does the idea arrive that a defensive agency is going to use force in an offensive manner?”

His point here is that who is to determine whether such force was defensive or not? The determination itself is not subject to any objective standard or procedure as it is dependant on the subjective whim of the private defense agent. Under a proper government, only emergency self defense is justified and it needs to be proven in a court via set procedures that apply to all cases. vigilante self defense is an indirect threat to everyone.

Gerald May 11, 2011 at 6:23 pm

RS:

His point here is that who is to determine whether such force was defensive or not? The determination itself is not subject to any objective standard or procedure as it is dependant on the subjective whim of the private defense agent. Under a proper government, only emergency self defense is justified and it needs to be proven in a court via set procedures that apply to all cases. vigilante self defense is an indirect threat to everyone.

See, this is where we’re just going to have to part. I completely miss the part where Libertarians are in any way going to be part of vigilante self defense. It’s part of their own code against being an aggressor. If you’re going to say the mere use of force to protect oneself from an attack is vigilante self defense, and that can’t be reasonably an objectively determined outside of law, I guess there’s a level of philosophy I’m completely missing. More power to you for making vigilante self defense a subjective case, and especially one that needs to be applied to a group of people that just don’t want people to violate their own property rights.

The moment that a private defense (I mean, really, how subjective is the term defense?) firm encroaches another person’s property with force, it ceases to be a defense force. If an attacker trespasses and gets shot on the property he’s trespassing, is that vigilante justice? Why? The trespasser had no business being on the property. Arguably, communication and “please leave the premises” would be recommended as the first level of response, but … why are we talking about this? You introduced a new word: vigilante, and are bringing up situations that aren’t relevant in a Libertarian viewpoint.

I don’t know what point you’re trying to argue. The bad guys already have their private vigilante unlicensed security firm, and I know they don’t call it defense only. Libertarians want competition in protection from the bad guys, not CSI/forensics after the fact.

Stan Warford May 9, 2011 at 8:16 pm

The counterexample to your concern is the existence of world trade in the absence of one-world government. Think of it. We traded with the Soviet Union and with communist China without a central force above these nations imposing monopoly force to guarantee contracts. This is a huge demonstration of the power of free markets. The existence of global trade is proof that anarchy (i.e., no government above cooperating organizations to enforce contracts) works in practice. Every argument you advance about why anarchy should not work applies in spades to world trade in the absence of one-world government. Yet world trade exists. Can you explain why?

RS May 10, 2011 at 12:56 pm

@ Stan Warford,

This view ignores history. World trade exists so long as one nation respects the rights of others and the US and other large military powers keep the peace, which have a similar effect as would a one world government if not in actual fact. Abscent that, what you have is one nation invading another, the last time this happened it was called WWII.

Ethan May 10, 2011 at 3:02 pm

I must interject here. I wouldn’t call what the US has done during the last 100 years, ‘keeping the peace’ changing the name of the Department of War to the Department of De fence hasn’t made much of a practical difference.

Stan Warford May 10, 2011 at 5:51 pm

So, now your argument is is that “US and other large military powers keep the peace, which have a similar effect as would a one world government if not in actual fact.” But isn’t this a capitulation from your previous argument? Are you not saying that it is possible to have peaceful trade in an anarchic system because it is in the best interests of independent economic actors to trade, even without a single monopoly of force over them to resolve disputes?

Gerald May 10, 2011 at 6:04 pm

World trade has little to do with respecting the rights of other countries. It exists because company X is allowed to sell in country Y. Now, company X should understand country Y’s laws, and follow them, but the rights of countries? Not at all. Trade benefits by protection from pirates and thieves but military powers to keep the peace? It could be full on war and trade will still happen. But you get a country to impose an embargo (US/Cuba, for instance) and you’ll see how military keeping the peace and respecting the rights of others is unimportant to enhancing trade.

billwald May 9, 2011 at 9:02 pm

Before the state existed most people were slaves or “owned” by their tribal or family chief. There never was a time in human history when most people “owned themselves.”

Stan Warford May 9, 2011 at 10:27 pm

@billwald

But, the concept of self ownership is a philosophic and ethical one, not necessarily a historically verifiable one. I would argue that all humans throughout history owned themselves, but that ownership was not respected, for example, by the tribal or family chief in ancient history to which you refer. Furthermore, the violation of self-ownership in history cannot be an argument in favor its practice. The fact that slave owners violated the self-ownership of slaves throughout much of history cannot justify that unethical practice.

Daniel May 9, 2011 at 10:37 pm

Considering you’re cheerleading for an anti-social monopoly on coercive violence which intentionally creates adversarial relations, divisions and clashes between groups of people that could be otherwise cooperating, I’d say it is you that is “the tribal”

Ein Kunsthausmann May 10, 2011 at 12:52 pm

1. Every person is the private (exclusive) owner of his own physical body.

It’s significant that Hoppe did not state “…owner of his own self”. A lot of people, esp. physicalists and secularists, may not think that it matters, but the distinction is important. If he invokes a principle of “self-ownership”, he needs to untangle a knot of problems that begin with the question, “what’s a self?” The term, self, may refer to a body, but not necessarily only a body. In fact, it’s vague to the extent that we don’t have a precise theory of consciousness, will, mind, and soul. But are these basic concepts even the correct ones? Is the set of correct concepts different?

Further still, woud mind and soul actually be in the same class of property as a body, assuming that they really are property? I can cut off a lock of hair and sell it. I can have my wisdom teeth pulled by a dentist and demand that he hand them over as agreed to beforehand. I can bequeath my body, although government might thwart that by demanding that it be handled in certain ways after death. But what about mind or soul? How are we to make sense of these as property? Can one sell his mind but keep his body? (Of course, I don’t mean in the flippant, colloquial sense of selling out like a prostitute to whomever will pay the most for saying what an employer wants.) How could one bequeath a soul?

When libertarians invoke a principle of self-ownership, they are thinking sloppily. Perhaps also they are confessing that they are physicalists. When Hoppe invokes a principle of body ownership, however, he sidesteps the problems just mentioned. Good move.

2.The production of law and order, i.e., of security, is the primary function of the state

It would be interesting to learn what percentage of the philosophers and economists mentioned by Hoppe believe also that there cannot be law and order without statism. Surely a government, whether a monopoly or one in oligopolistic conditions, is not a given fact, as are the Earth and Sun and moon. It requires human action to establish. Since it’s not a given, a person who denies the possibility of law and order without statism must also concede that government is not based upon law and order; it is not established with law and order as its foundation. Makes me wonder how those philosophers and economists get their degrees and why they don’t demand refunds.

It’s pleasant to imagine a world of private law in which those jokers can be sued for fraud if they teach anything false and in which those teachers who refuse to accept such terms are at a severe competitive disadvantage if they don’t offer discounted pricing.

Just imagine a security producer who demanded of its prospective clients that they would first have to completely disarm themselves before it would be willing to defend the clients’ life and property. Correctly, everyone would think of this as a bad joke and refuse such on offer.

I can. It’s called government, and although its agents do not always demand disarmament of, ahem, We the Clients, the agents demand that their clients act as if they are or will become subjects and, furthermore, as if they were disarmed and unwilling to fight back, esp. when there are obligatory price increases. Worse still, the agents, and their apologists, tell you that if you want to change the terms and conditions of the abusive, monopolistic relationship, you must persaude a majority of other clients to agree with you and to follow a rigid procedure that the monopolists have arranged and of which they are in control.

Unfortunately, not every client of government thinks that the protection agency’s demands are a sick joke, and most people do not refuse the offer. Instead almost everyone accepts it and reacts defensively when told that they ought to reconsider the alleged merits of the abusive relationship. Perhaps these conservatives are collecting kickbacks or they expect to do so in the future.

If now the monopolists object that a majority of 50% +1 has approved of the monpoly, there are two rebuttals. First, popularity of an idea is sufficient to justify nothing except for the belief that the idea is popular. But even this belief requires empirical support, to show that there really is popularity as alleged. Second, if a majority approve of the monopoly, why should the monopolists be afraid of competition? They’ve already got a hammerlock on the majority.

Stephan Kinsella May 10, 2011 at 3:02 pm

Agreed, that body-ownership is what self-ownership really means, and those objecting to this form of self-ownership are basically saying that someone other than the person is the owner of his body.

Kid Salami May 10, 2011 at 3:36 pm

Stephan Kinsella

We all seem to agree that you own your own physical body. In “Causation and Aggression” you say:

“For libertarians, the purpose of a legal system is to establish and enforce rules that facilitate and support peaceful, conf lict-free interaction between individuals. In short, the law should prohibit aggression.”

This part “For libertarians, the purpose of a legal system is to establish and enforce rules that facilitate and support peaceful, conf lict-free interaction between individuals.” I’m with you.

Then you say “In short, the law should prohibit aggression.”

You’ve lost me. Wasn’t that a bit of a leap? Did we just miss out a few paragraphs? Or monographs? If I request an extra bit of text to lie between the two above to clarify things for me, do you have a suggestions? Why exactly can we assume that those two things are the same?

For example, I understand that there were Red Indian tribes that had no notion of the ownership of land – to them, the notion of “owning” land was absurd. This is perfectly reasonable – owning your body is hard to argue with, but owning land (which must stay in the same place when you move around) is certainly not something “given” in the same sense. Let’s say I am such a person in such a community, but I’m told by a settler that he now “owns” the land I walk on and I must leave. If he says he “homesteaded” it, I say

Me: “this makes no sense. There is no right to this thing you call homesteading, all you have a right to is your own body and what is on your person or otherwise guarded – otherwise its finders-keepers. The right to homesteading must contradict the ownership of your physical body in that I’m now suddenly not free to go for a walk whenever and wherever i feel like, I have to work out where I can and can’t go.”

He replies: “When we’re not there to guard it, we use fences to indicate the land is ‘owned’ and that we are using it for farming.”

Me: “Fences? Are you kidding me? You’ve just got the wrong business model, one that rests on your assumption that you can do this thing called “homesteading” on land, which is absurd because you can’t “own” land, obviously. We all own our bodies of course but land? What are you smoking? You need a business model that only relies on you “owning” your own body and what you have in your possession.”

What exactly would you say to such an argument? As I see it, the “no homesteading” framework is perfectly fine and will “facilitate and support peaceful, conf lict-free interaction between individuals”. The addition of “homesteading” to the mix must conflict with this entirely consistent and freedom-compatible system of rights. So do you agree that anyone advocating “homesteading” to the Indian can legitimately be called an “aggressor” (in the Indian’s framework)? If not, why not?

Gerald May 10, 2011 at 4:08 pm

Because the Native Americans had nothing of value beyond what they made, farmed, or bartered for, they didn’t need anywhere to store their stuff. Once you got into collecting stuff, the next part of that is to determine where to store it, if you were allowed to keep it by the government that you’ve established. Outside of the communal existence of the Native Americans, the ability to sell food became a source of wealth. Well, once you realize that it’s possible to make much more food than your family can use, you want to sell that food, to pay or trade for things you want or need, like clothes and better farming equipment to grow more food.

This leads to two situations: The government “owns” the land and determines what and how much food you can grow, what you can sell it for, etc., OR you do, but you need some way to make sure that the neighbor next to you isn’t going to steal your harvest and sell it for his purposes. To know you own your land, and to verify that the land isn’t encroached upon by poachers, you would put a fence. This is the boundary.

The aggressor is certainly the one who homesteaded, but only if you consider who the aggrieved party is. On the one hand, the Native Americans were removed from “their” land, but on the other they were removed from “everyone’s” land. If “Everyone” had a right to the land, why have any wars over it? But there were wars over property, territory, and possessions between Native Americans. It’s possible that instead of fences, they had rivers, mesas, and mountain ranges. They probably just thought the Europeans were thinking too small in their homesteading.

Kid Salami May 11, 2011 at 3:47 am

Gerald said:

Because the Native Americans had nothing of value beyond what they made, farmed, or bartered for, they didn’t need anywhere to store their stuff. Once you got into collecting stuff, the next part of that is to determine where to store it, if you were allowed to keep it by the government that you’ve established. Outside of the communal existence of the Native Americans, the ability to sell food became a source of wealth. Well, once you realize that it’s possible to make much more food than your family can use, you want to sell that food, to pay or trade for things you want or need, like clothes and better farming equipment to grow more food.

So you essentially just said that: the property rights of a community are not an a priori logic puzzle that can be set in stone on blog forums, or a set of cast iron rules derived from one single super-axiom, but they are in fact a human device that adapt to circumstances? Is this what you think? If it is then we agree on this and you should note that this puts you at odds with many others on this site. The rest of your post is not pertinent to the point I’m making.

Gerald May 11, 2011 at 6:36 am

Sure, property rights to *land* are not inherent, but as discussed elsewhere (see Haiti), in order for wealth to grow, property rights to land must be established and enforced before the rest of wealth growth can happen effectively. But land has to be seized/claimed before it is distributed. This makes clear an aggressor, but only if the land has been seized from a bona fide owner/claimant.

Kid Salami May 11, 2011 at 7:15 am

“..in order for wealth to grow, property rights to land must be established and enforced before the rest of wealth growth can happen effectively.”

Of course – maybe we don’t disagree, i don’t know yet. But my point is that the growth of wealth of the society/community in question is of secondary concern (or in fact zero concern directly) to Kinsella and many of his followers – the primary consideration is not being “aggressed” against and being able to do as you please with your own body and property. Everything else comes after this on the list – i could find about 10 million quotes from as many people as you like to substantiate this if you like, but here for example is one at random:

“Stephan Kinsella April 11, 2011 at 3:34 pm

Exactly–you view us as living by permission, not by right. We have to get permission for every thing we do with our property. Horrible. Totalitarian. I don’t need to “own” something to copy it. If I have heard of the idea of an airplane and can construct one with my own materials, I only need own them, not “the idea of an airplane”. Where do you get this? This is insane.”

There is no “unless this restriction serves to increase the wealth of society” included in this categorical statement – if something is aggression in that is limits what someone else is allowed to do with their own bodies, then this is simply wrong, period, no discussion of wealth or anything required.

Yet, applying the same logic to the Indian whose liberty is now restricted, we have a problem. And the reason the framework of the Indian is worthy of consideration is that it satisfies the criteria that Kinsella stated, in that the Indian’s framework will “facilitate and support peaceful, conf lict-free interaction between individuals”. So, when Kinsella says that this statement is equivalent to prohibiting “aggression” (in his sense) then I say this statement is false without further qualifications, and I’m asking what they are (I’ve actually been asking this for some time and got a grand total of zero responses, I’m just asking in a different way now).

“But land has to be seized/claimed before it is distributed. This makes clear an aggressor, but only if the land has been seized from a bona fide owner/claimant.”

If an indian mines some iron and makes an axe and carries it on his person, then he is a bona fide owner of this axe and any seizure of it, for any purpose, would be aggression. But this does not apply to land – land is simply unownable in his society, it is a shared resource. When you are standing on it at that moment then it and a reasonable boundary around you (depending on what you’re doing) is temporarily yours and any invasion into the space would be considered aggression, but once you leave you leave and that’s it, its up for grabs. So I suppose you’re saying that there should be no such thing as a “shared resource”, that everything should be homesteadable. Is this what you are saying?

Gerald May 11, 2011 at 8:28 am

Mr Kinsella says: “I define aggression in terms of property rights”

That’s enough of a definition for me. First define what is owned as property, then determine what the rights are with respect to that property, then violations of those rights are considered aggression.

Gerald May 11, 2011 at 8:02 am

Kid Salami:

So I suppose you’re saying that there should be no such thing as a “shared resource”, that everything should be homesteadable. Is this what you are saying?

Well, you’ve brought up 4-5 different items and each important in its own way that I can’t blanket statement all of them.

1) Land. (See Haiti). If the land isn’t owned by the people, wealth cannot accrue for the society. It must be claimed and it must be available for individuals to own in order for wealth to grow. If growing wealth is not a concern, then the land ownership by public or government will keep society at a basic level: as poor as the government can keep them. Should land be homesteadable? It depends if wealth creation (and a better social society because of the wealth generation) is a goal. If so, yes. If not, no.

2) Other property (Pickaxe): built/owned/claimed. Yes. Homesteadable? The creator is generally considered the owner, except if you consider the worker who works for an owner of a company, then the pickaxe belongs to the company or owner. But ownership begins at inception in this case. “Homesteading” is stealing otherwise(?) Share it? sure, but make more is better.

3) Resources (water): It needs to be claimed before it can be effectively distributed in large amounts (in my opinion). There’s enough in this entry to have an effective dialog on its own.

4) Body/Self: I can’t offer a valid enough statement. Do you own your own body? Can it be homesteaded? Should it be homesteaded? I can’t answer this question, because the selling/renting of the body as labor is important, but the implications I have yet to fully grasp.

5) Intellectual Property/Ideas (how to build an airplane): Another long discussion. The homesteading of an idea (patent) enables an inventor to potentially regain capital expended on the creation of the idea while presumably preventing another from “stealing” the idea. This is the idea behind the patent, anyway. Its implementation… ? Necessary to homestead? I don’t know. Open ideas are nice, but they don’t always happen in as cost-free an environment as it takes to copy them.

6) (not discussed, but worth talking about) Art/Music/Media: Is it IP? Is it Property? Is it homesteadable? is it free? … whole cultures are still trying to figure this out in the age of digital copying.

I’m sorry if I went too far on this. If we can share it, rules will need to be established to determine fairness of sharing, and how to address hording or greed on shared resources.

Kid Salami May 12, 2011 at 4:57 am

Gerald

I have problems with some of your statements, like “effectively distributed” and “determine fairness of sharing, and how to address hording or greed on shared resources” but possibly these disagreements would disappear with more discussion. Your wilingness to debate these issues is all I ask really. I have one big problem – the assumption that every problem can always, at all times and with no exceptions, be addressed only by examining “who owns what tangible good at what time”. This is the official position around here – and i think it is idiotic and people end up trying to work out who owns the water molecules and the photons and the air through which voice signals are transmitted – such a viewpoint is simply absurd and is to implicitly assume all kinds of stuff. You don’t appear to be taking this view in this comment.

But you do in this comment

“That’s enough of a definition for me. First define what is owned as property, then determine what the rights are with respect to that property, then violations of those rights are considered aggression.”

or more precisely you do IF you agree that the only things that can qualify as property are tangible. If you accept intangible things can be called property then you are not.

Gerald May 12, 2011 at 6:05 am

@Kid Salami:

Your concern about photons is essentially why I broke down property and “homesteading” the way that I had. Each of those 6 entries (or 5 if you consider ideas and art of the same level) have different (in my opinion) categories of what may constitute property. Because of that, *I* agree that ownership of water molecules and photons and ideas needs to be defined to some end, as it relates to here, and frankly I don’t have the answer…

When I say, “effectively distributed” for items (scarce resources?) like water, I mean to say, well, what about water? http://marginalrevolution.com/marginalrevolution/2007/07/a-libertarian-a.html I don’t know what the libertarian response to water management is or should be, and how it applies when multiple states or municipalities or even multiple individuals sharing the same water source.

Do I agree that “intangible” things are property? Why do you think I split the topic up? You tell me… 1,2,4 (Land, things, self)- yes
3 (water) … Can it be owned? yes. Then it’s property, when it’s owned. The morals, ethics, about allowing others to have access to water, cleanly, safely, is another topic that may exceed your question and this forum topic.

5/6 (ideas, art, music): I can say that a tangible expression of an artistic work or an idea can be owned, but the rest of it, I think is worth discussing.

Kid Salami May 14, 2011 at 11:38 am

Gerald

“Because of that, *I* agree that ownership of water molecules and photons and ideas needs to be defined to some end, as it relates to here, and frankly I don’t have the answer…I don’t know what the libertarian response to water management is or should be, and how it applies when multiple states or municipalities or even multiple individuals sharing the same water source.”

Ok – not totally sure I have the answer either. But again, I point out that you seem to disagree with the party line around here, which is what I’m arguing against.

“Do I agree that “intangible” things are property? Why do you think I split the topic up? You tell me… 1,2,4 (Land, things, self)- yes …5/6 (ideas, art, music): I can say that a tangible expression of an artistic work or an idea can be owned, but the rest of it, I think is worth discussing.”

You said earlier

“That’s enough of a definition for me. First define what is owned as property, then determine what the rights are with respect to that property, then violations of those rights are considered aggression.”

Ok – but the party line around here is, in short, that there is no such thing as an “artistic work”, and one certainly can’t be “property”. All there are are for the purposes of establishing rights are bits of paper which have ink on them in various patterns – an “artistic work” basically doesn’t exist. So to Kinsella there is nothing to discuss.

Stephan Kinsella May 10, 2011 at 4:24 pm

Kid Salami:

We all seem to agree that you own your own physical body.

Except for cranks who object to the “coherence” of self- (body) ownership (what do they favor–others owning their body??).

In “Causation and Aggression” you say:

“For libertarians, the purpose of a legal system is to establish and enforce rules that facilitate and support peaceful, conf lict-free interaction between individuals. In short, the law should prohibit aggression.”

This part “For libertarians, the purpose of a legal system is to establish and enforce rules that facilitate and support peaceful, conf lict-free interaction between individuals.” I’m with you.

Then you say “In short, the law should prohibit aggression.”

You’ve lost me. Wasn’t that a bit of a leap?

I define aggression in terms of property rights. SEe my What Libertarianism Is http://mises.org/daily/3660. For example it’s aggression to use your property without your permission–so you can see that we have to define property rights first. thus, as I say, libetarians support rules (property rights) that permit conflict-free use of scarce resources; thus, they oppose “aggression”, which is the invasion of said property rights.

As for your Indians question–are you asking me to act as judge and give you the answer to a particular dispute? If so, provide more context. But the basic answer is: the first person to appropriate an unowned resource has a better claim to it than others. IF it’s the Indian, then he is the owner. If he has not appropirated it, then he is not. The application is just a detail.

Kid Salami May 11, 2011 at 3:48 am

Stephan

…libetarians support rules (property rights) that permit conflict-free use of scarce resources; thus, they oppose “aggression”, which is the invasion of said property rights.

I’ve read that paper and am aware that you define aggression in terms of property rights. I don’t agree that the homesteading rule does “permit conflict-free use of scarce resources” in the framework of the Indian that I put to you. Like I said, an Indian used to be able to go for a walk and pick berries and only have to watch out for bumping into other walkers – his liberty is restricted now as he has to worry about who “owns” what land, which is an absurd concept to him. How can you own “land”?

Do you agree with Gerald, that this system of property rights is enough for a hunter-gatherer society but must be refined if we want to support more people and introduce large-scale agriculture. That is, do you agree that it is the division of labour that requires we change the original rules for property rights? I don’t think you will agree with him – but if you do, you have said elsewhere:

“Likewise, to my claim that the state and its aggression is unjustified, it is disingenuous and/or confused to reply, “anarchy won’t work” or is “impractical” or “unlikely to ever occur.” The view that the state is unjustified is a normative or ethical position. The fact that not enough people are willing to respect their neighbors’ rights to allow anarchy to emerge, i.e., the fact that enough people (erroneously) support the legitimacy of the state to permit it to exist, does not mean that the state, and its aggression, are justified.”

So if I the Indian responded to your homesteading rules by saying:

“It is disingenuous and/or confused to reply, “NON-HOMESTEADING won’t work [because it doesn't produce enough food]” or is “impractical” or “unlikely to ever occur.” The view that HOMESTEADING is unjustified is a normative or ethical position. The fact that not enough people are willing to respect their neighbors’ rights…does not mean that HOMESTEADING, and its aggression, are justified.”

then what would you say? I suggest that there is little you can say in response, that his argument basically is sound.

As for your Indians question–are you asking me to act as judge and give you the answer to a particular dispute? If so, provide more context. But the basic answer is: the first person to appropriate an unowned resource has a better claim to it than others. IF it’s the Indian, then he is the owner. If he has not appropirated it, then he is not. The application is just a detail.

Here you are applying the homesteading rule to this situation – this wasn’t what i was asking.

Stephan Kinsella May 11, 2011 at 7:22 am

“I’ve read that paper and am aware that you define aggression in terms of property rights. I don’t agree that the homesteading rule does “permit conflict-free use of scarce resources” in the framework of the Indian that I put to you. Like I said, an Indian used to be able to go for a walk and pick berries and only have to watch out for bumping into other walkers – his liberty is restricted now as he has to worry about who “owns” what land, which is an absurd concept to him. How can you own “land”? ”

Ah, I see where you are going now. I thought my Georgism-dar was going off. Glad I flushed you out–always good to be explicit about these things. So there are a few ways to approach this. First, you say it does not solve the dispute–but this is the point: when two people (say, and Indian and a white man) both claim ownership of the same resource, then if they are civilized they will seek dispute resolution and the question becomes: who has the better claim to this resource. If you are arguing the Indian has the better claim–I don’t know, because he used to walk on it–then make the argument. The problem is the Indian himself never claimed ownership of it. If you say that no one can ever own it b/c homesteading a resource restricts others’ potential liberty, then you are making a sort of Georgist-Lockean-proviso argument that means NO property can ever be homesteaded, even movable property–for there is no relevant distinction between an apple and a bucket of water and a tract of land–all are scarce resources. If you can’t ever own land you can’t own anything else, even including your own body; and all civilized life would be impossible.

That said I do think there is a middle position: the Indians in some cases might be said to have “partially” homesteaded the land–that is, a right of way, or easement (servitude). Hoppe explicitly adverts to this here http://mises.org/daily/5042/The-Rationale-for-Total-Privatization — “The privatization of “public” streets has a twofold result. On the one hand, no resident is henceforth forced to pay any tax for the upkeep or development of any local, provincial, or federal street. The future funding of all streets is solely the responsibility of their new private owners (whomever they may be). On the other hand, insofar as a resident’s rights-of-way are concerned, the privatization must leave no one worse off than he was originally (while it also cannot make anyone better off).”

i.e., even if your Indian ddidn’t claim to homestead the tract of land outright, he might have a servitude/easement. But this has to be established. In any case, this is also compatible with Lockean/libertarian homesteading. But the extreme proviso/no ownership position you are implicitly advocating cannot be defended.

Peter Surda May 11, 2011 at 8:02 am

Kid Salami,

So if I the Indian responded to your homesteading rules by saying:
.
.
.

From a certain perspective, you are right. However, you neglect to address the core issue of scarcity. Even if the Indians were happy with the state they describe and were able to resolve internal issues without referring to homesteading, that only addresses some situations and not all. If, for example, a white man came and put an electric fence around the land, thus barring the Indians access, that would obviously create a conflict in the use of the land. So logically, in any given economic system, at least one of them is wrong. We will further simplify it by assuming that one of them is wrong and the other one is right (there are no other contestants, for example). However, in order to make the argument that the Indians are right, you need a rule that would lead to such a conclusion. You have not provided such a rule. Stephan, on the other hand, did: the Indians were there first. You might not agree with his ethical standards, however the fact remains that it is not the first occupant, but the subsequent ones, that are the source of the conflict.

So we have a value-free definition of the problem (mutually exclusive states sought by contestants create a social conflict) and explanation of what a solution must do (define a system of ethics that allows to make the conclusion which of the mutually exclusive states are ethical and which are not).

However, the analogy fails with ideas and all other abstract concepts. There is no conflict in the abstract. Conflict can only exist with scarce resources. So the question of ethics does not even arise: there is nothing it can address.

I would further like to add that although I understand the argument that the ethical standards should support an increasing complexity of division of labour, you have not provided an explanation why a system other than the one based on homesteading does that. You do not even explained what is wrong with homesteading from this perspective in the first place.

Kid Salami May 12, 2011 at 4:58 am

Peter and Stephan

One quick preamble. I’m not saying there is anything wrong with homesteading, necessarily. We seem to have gotten off track – the Indian scenario was just a concrete example, one i’m still willing to defend. But generally, what i’m saying is very clear – I’ve already said it but I’ll say it again. This statement:

“the purpose of a legal system is to establish and enforce rules that facilitate and support peaceful, conf lict-free interaction between individuals. In short, the law should prohibit aggression.”

seems to me to be at worst false and at best requiring further qualification. If you want to tell me that picking on one statement and focusing on it out of context with a microscope is unfair for some reason then this might be a reasonable objection – but, nevertheless, all I have to go on is what people write. If you want to edit or expand on this statement, then please do – that’s what i’m asking.

But I repeat, I think the idea that you can substitute “facilitate and support peaceful, conf lict-free interaction between individuals” (note the word “interaction”) with “prohibit (Rothbard/kinsella) aggression” is, in my opinion, just a giant assertion on your part. It is a very good approximation but no more.

Kid Salami May 12, 2011 at 5:00 am

“.. you say it does not solve the dispute–but this is the point: when two people (say, and Indian and a white man) both claim ownership of the same resource, then if they are civilized they will seek dispute resolution”

There is already a dispute resolution in place – if it is part of your body or is physically guarded ie. you have it on your person or in your “vicinity” then it is yours, and any act to remove it from you by force is “aggression”. If you don’t have it with you then it is not yours to own and is up for grabs. Why is any further dispute resolution required?

“If you say that no one can ever own it b/c homesteading a resource restricts others’ potential liberty, then you are making a sort of Georgist-Lockean-proviso argument that means NO property can ever be homesteaded”

I’m not saying it can or can’t. I’m asking why we need “homesteading” at all? Not because I don’t have my own answer/idea or because I think it is impossible or illogical or not useful. I’m asking you for your reasons – in your framework – why we need it at all, given that the scenario i described – one more fundemental and simpler than the homesteading framework – also satisfies your aim of “facilitate and support peaceful, conf lict-free interaction between individuals”. I already said what the Indian’s argument would be to this, using your words as a basis.

You (and Peter) are missing the point I’m trying to make – we can’t talk of “Indians in some cases might be said to have “partially” homesteaded the land” or “he might have a servitude/easement” or “If you are arguing the Indian has the better claim–I don’t know, because he used to walk on it–then make the argument. The problem is the Indian himself never claimed ownership of it.”. The Indians have decided that there is no notion of “owning” land – you are insisting they use your term “homesteading” when they have no concept of it or need for it in any kind of dispute resolution.

And there is no scarcity problem – the word “scarcity” should be banished from this blog as it clearly has no meaning, or at least everyone has a different definition of it and it just makes the debates circular and interminable. But that aside, there is no conflict when 2000 Indians are sharing a million square miles. No’one is doing any agriculture or building permanent stone houses – in the same way when you go onto a beach with one family on it you don’t walk over and ask them to move, the path of least resistance for anyone looking for someone to set up a teepee is to go somewhere that is not occupied and accept that currently occupied land is out of bounds.

Why have homesteading it at all? Your answer appears to be below.

“…there is no relevant distinction between an apple and a bucket of water and a tract of land–all are scarce resources. If you can’t ever own land you can’t own anything else, even including your own body”

Ok, so this is your answer it seems. I simply don’t agree with this – this is just an assertion pulled from the air. You are telling me that there is no way to distinguish between the class of object like an axe in your pocket and tracts of land hundreds of miles away left unattended. These are two compeltely and utterly different things and it is absurd to claim otherwise.

Kid Salami May 12, 2011 at 5:01 am

Peter

“From a certain perspective, you are right. However, you neglect to address the core issue of scarcity. Even if the Indians were happy with the state they describe and were able to resolve internal issues without referring to homesteading, that only addresses some situations and not all. If, for example, a white man came and put an electric fence around the land, thus barring the Indians access, that would obviously create a conflict in the use of the land. So logically, in any given economic system, at least one of them is wrong. We will further simplify it by assuming that one of them is wrong and the other one is right (there are no other contestants, for example). However, in order to make the argument that the Indians are right, you need a rule that would lead to such a conclusion. You have not provided such a rule.”

As i said above, the word “scarcity” needs to be banished from this debate. I don’t understand – of course there is a rule. Your body and stuff on your person are yours. Land you are on and physically “using” right now is temporarily yours – land you are not on right now is not yours and the settler is free to put a fence on it if he wishes – and so long as he guards the fence all the time, no’one can steal the fence, and so long as he is on and “using” the land inside the fence then again, there is no dispute. The indian who goes for a walk can see him clearly on his bit of land and so walks around, just like always – he has to avoid bumping into people and invading their current space. If the guy puts up a fence and then abandons it and goes on holiday, then the Indian can dismantle the fence and burn it or whatever he wants.

“…the fact remains that it is not the first occupant, but the subsequent ones, that are the source of the conflict.”

There is no conflict.

“I would further like to add that although I understand the argument that the ethical standards should support an increasing complexity of division of labour, you have not provided an explanation why a system other than the one based on homesteading does that. You do not even explained what is wrong with homesteading from this perspective in the first place.”

See my comment to Stephan above.

Gerald May 12, 2011 at 6:29 am

Kid Salami:
I think the point of homesteading land is equivalent to countries establishing borders. Your point is that ownership is related to property being on your person and the minute that you aren’t physically protecting your land (fence) or your car when it’s parked in the airport parking lot when you’re on vacation there is no conflict when someone takes that property is interesting.

So, when you go to work, and someone enters your house and takes all your belongings, there is no conflict, no aggressor, because the thief didn’t consider what he took as your property?

The purpose of homesteading is exactly for the purpose of saying, “This is mine. I am the sole owner of the property. All other claimants are invalid.” Now, because I have firmly and specifically established my boundaries, I can firmly and specifically determine who is a trespasser on my property. Without owning the land, anything that is stored on the land is fair game for anyone who considers *he* has a right to the resources (your stuff) on that land.

Specifically, the Indians can be confused about staking out property, and confused about *why*, but the Indians can just go around the property, as you’ve said, until the limited amount of land that is available (scarcity. Land isn’t infinite.) has been homesteaded and there is no more place for the Indians to go around.

Peter Surda May 12, 2011 at 6:59 am

Kid Salami,

I think you are missing the point. The point is not whether it is possible to resolve conflicts without escalation, but whether it is always possible to do that. The examples you presented show both parties agreeing on how the scarce resource should be utilised. But this depends on their desires. You cannot base your argument on the assumption that people will always agree to avoid conflicting uses.

The Indians have decided that there is no notion of “owning” land – you are insisting they use your term “homesteading” when they have no concept of it or need for it in any kind of dispute resolution.

But when faced with a situation that involves a conflict and the absence of agreement, they are screwed. Let’s assume the white man would erect the fence while the Indians were gathering the crops. Or, he would erect the fence around their teepees while they were sleeping. Or, he would dig around a big trench that prevented them from leaving it.

What would they do? Would they remain in the enclosed areas and starve to death?

And there is no scarcity problem – the word “scarcity” should be banished from this blog as it clearly has no meaning, or at least everyone has a different definition of it and it just makes the debates circular and interminable.

The point is not the word. The point is what it means. Whether you call it scarcity, options, opportunity costs, alternatives, choice, mutually exclusive states or conflict does not matter. It is the notion that the way you act influences how other people can act and vice versa. We cannot simply assume it away by postulating that people always agree.

But that aside, there is no conflict when 2000 Indians are sharing a million square miles.

Again, assuming they all agree and there are no other contestants. But what if the white man fenced off increasingly more and more land, thus squeezing them into increasingly smaller and smaller areas? Wouldn’t they act in a violation of their own “theory” and attack the white man? Oh wait, that sounds familiar.

Why have homesteading it at all?

If not for anything else, then at least because you have not provided an alternative.

I simply don’t agree with this – this is just an assertion pulled from the air.

It is not, it is based on the concept of scarcity. If there was no scarcity, there would be nothing to debate about.

You are telling me that there is no way to distinguish between the class of object like an axe in your pocket and tracts of land hundreds of miles away left unattended.

No. If you want to use either of them, you need to occupy them first. If there is a previous occupant and he does not agree with your intended use, there is a conflict, because both of them cannot occur simultaneously. You simply assume the conflict away because the two contestants might coincidentally agree.

Let’s say the absentee owner lays mines onto the land he previously occupied. Or even better, he leaves there automated attack drones. When the subsequent contestant appears, the mines/drones would conflict with his plans. Does that mean that if the previous owner does not remove the mines/drones at his expense, he is violating the new contestant’s rights? If not, then why does the presence/absence of mines/drones determine who has the right to use that resource? It does not? Well then you just concluded homesteading.

These are two compeltely and utterly different things and it is absurd to claim otherwise.

The are not different. They are both scarce goods.

Gerald May 12, 2011 at 7:09 am

@Kid Salami: Are you defining tangible as “something touchable” or “something touchable, but in addition, actually touched.”? Because, I’d probably consider anything touchable to being “ownable/claimable” as property, which puts land in the same case as an apple.

If you don’t believe land is ownable/claimable as property in the same manner as an apple, please explain your reasoning, because once I place a “permanent” structure on a piece of land, — and by what manner or authority should I be privy to do that if I do not own the ground on which I construct this permanent structure? — it should inherit the properties of ownership of the land on which it sits. This is the reason for homesteading. This is the reason that land ownership is the cornerstone of wealth building. If you cannot own land, you cannot build permanent assets, and your ability to create wealth is severely curtailed (again, see Haiti).

Peter Surda May 12, 2011 at 7:10 am

Kid Salami,

I don’t understand – of course there is a rule.

I apologise, you are correct, I misinterpreted your claims. The problem however remains. If a good is not occupied at a specific time, it does not necessarily mean that, from the perspective of the previous occupant, it is unused.

land you are not on right now is not yours and the settler is free to put a fence on it if he wishes

This leads to impractical conclusions, and as we saw from history, war. It also prevents specialisation of labour, which seems to be your favourite.

There is no conflict.

So if my leftover attack drones kill your tribe, there is no conflict?

Kid Salami May 14, 2011 at 11:45 am

Gerald

“I think the point of homesteading land is equivalent to countries establishing borders. Your point is that ownership is related to property being on your person and the minute that you aren’t physically protecting your land (fence) or your car when it’s parked in the airport parking lot when you’re on vacation there is no conflict when someone takes that property is interesting….If you don’t believe land is ownable/claimable as property in the same manner as an apple, please explain your reasoning, because once I place a “permanent” structure on a piece of land, — and by what manner or authority should I be privy to do that if I do not own the ground on which I construct this permanent structure? — it should inherit the properties of ownership of the land on which it sits. This is the reason for homesteading. This is the reason that land ownership is the cornerstone of wealth building. If you cannot own land, you cannot build permanent assets, and your ability to create wealth is severely curtailed (again, see Haiti).”

I know what I think the “point” of homesteading is, you’re explaining it to me like i’m tarzan and this is my first day in a city. I’m not arguing that there is no justification for it – I’m not arguing that we should be living like these Indians.

What i am asking is very specific – I’ve written it at least twice. I’m saying this: these Indian property rights satisy Kinsella’s request in that they “facilitate and support peaceful, conf lict-free interaction between individuals” and i want to know why we should instead accept his statement that if we want this we should “prohibit (Rothbard/Kinsella) aggression”. I’m not saying we shouldn’t be able to homestead things – i’m asking what is the general principle on which we should accept the homesteading version of property rights instead of the indian version, given that our super-objective is to “facilitate and support peaceful, conf lict-free interaction between individuals”. Can anyone who wants to reply to me please read this to stop me having to say it in every post.

“the Indians can just go around the property, as you’ve said, until the limited amount of land that is available (scarcity. Land isn’t infinite.) has been homesteaded and there is no more place for the Indians to go around.”

In don’t quite understand this. All the land is occupied. once all the land is occupied, then.. well..all the land is occupied. So what? Someone leaves it, someone else can step in if they want. What is it about this “scarcity” that means we have to change the rules from having to stay and guard the land to being allowed to erect a fence and leave it?

Kid Salami May 14, 2011 at 11:49 am

Peter

Me: “Why have homesteading it at all?”
Peter: “If not for anything else, then at least because you have not provided an alternative.”

I’m not going to dignify this with a response.

“I simply don’t agree with this – this is just an assertion pulled from the air.”
“It is not, it is based on the concept of scarcity. If there was no scarcity, there would be nothing to debate about.”

Can you please explain what I am missing about the “concept of scarcity” as I genuinely have no idea.

“No. If you want to use either of them, you need to occupy them first. If there is a previous occupant…”

In my scenario there is no such thing as a previous occupant, only a current one.

Hang on, maybe you have retracted these comments below, i’m not sure.

This seems to be your answer to my question:

“Let’s say the absentee owner lays mines onto the land he previously occupied. Or even better, he leaves there automated attack drones. When the subsequent contestant appears, the mines/drones would conflict with his plans. Does that mean that if the previous owner does not remove the mines/drones at his expense, he is violating the new contestant’s rights? If not, then why does the presence/absence of mines/drones determine who has the right to use that resource? It does not? Well then you just concluded homesteading.”

Killing is obviously still a “crime” in this society even if you do it remotely via a mine or attack clone and not face to face. So, assume there are no deaths or bodily harm, let’s say it just means the land is unfit for use for someone who doesn’t know exactly where the mines are. There is nothing different in principle here to a fence – in that you have simply added to the cost that it will take to step in and use/occupy the land for a while. A huge barbed wire fence is the same as mines – if there is other land, someone will likely just go and use that instead as it’s easier. (obviously if these mines are set around the local water source, things get complicated but lets ignore that for now).

I don’t think you’ve thought this through. You are saying that we must allow homesteading of land that is unguarded because if we don’t it will just happen anyway. that is, we will have de facto land homesteading system because people will erect barriers around portions of land that are secure enough to mean that the cost of penetrating the barrier is too great. You seem to be advocating that property rights are the “efficient” solution rather than something derivable from fundamental givens like the ownership of your own body. Seems almost the kind of thing you might read from one of the Chicago School.

“They are not different. They are both scarce goods.”

This clearly makes no sense.

“This leads to impractical conclusions, and as we saw from history, war. It also prevents specialisation of labour, which seems to be your favourite.”

Yes, of course it does. That’s why no’one does it. I’m not saying we should live like this – I’m asking what we need to add to Kinsella’s request for a system which will “facilitate and support peaceful, conf lict-free interaction between individuals” to allow us to also include land homesteading. This is tiresome – I believe i’ve taken time to ask a very clear and question and in fact taken time to make it very specific and focused, and you are either not seeing this or dodging it. I believe I made myself clear and that people aren’t interested in actually answering my very simple request for clarification.

This might be because I’m a moron. Or it might be because this “who owns what tangible good” as the approach, and the only approach, to each and every problem is one giant dog and pony show.

Gerald May 14, 2011 at 12:25 pm

Kid Salami:

what is the general principle on which we should accept the homesteading version of property rights instead of the indian version, given that our super-objective is to “facilitate and support peaceful, conf lict-free interaction between individuals”. Can anyone who wants to reply to me please read this to stop me having to say it in every post.

We should accept the homesteading version of property rights because we want property rights. If the Indian method allowed for personal property rights (explain how it would be possible, please?) it would be acceptable in a libertarian format (in my opinion). If there is a viable alternative to establishing property rights that isn’t homesteading, define it.

If your view is the initial land grab decries the fundamentals of libertarianism, fine. What do you want to do about that?

How far back do we need to take this? Somebody is going to make someone mad in the initial land grab. It happens. If this land is sold/transfered/bartered to a new tenant, should the new owner of the land be liable for the initial land grab? Forever? Do we find out from whom the Indians appropriated their land?

Gerald May 14, 2011 at 12:49 pm

Kid Salami:

Or it might be because this “who owns what tangible good” as the approach, and the only approach, to each and every problem is one giant dog and pony show.

If property rights is the answer, who owns it is the only question. If you have another approach, tell us.

Peter Surda May 14, 2011 at 7:43 pm

Kid Salami,

I’m not going to dignify this with a response.

You have been complaining for quite some time that homesteading does not cater for advanced division of labour. You presented a theory, which, in your own words, does not provide a better system for division of labour. When I point this out, you object.

Can you please explain what I am missing about the “concept of scarcity” as I genuinely have no idea.

I think I misunderstood you. Please ignore that part.

In my scenario there is no such thing as a previous occupant, only a current one.

This is limited inasmuch the previous occupant might alter the land in some way that interferes with the activities of the current one.

Hang on, maybe you have retracted these comments below, i’m not sure.

You are correct.

Killing is obviously still a “crime” in this society even if you do it remotely via a mine or attack clone and not face to face.

Although the activities of the white man would be causally related to the deaths, I don’t think you can, in your system, make the conclusion that he violated their rights. He relinquished the possession of the mines/drones. Why should he be responsible for what happens afterwards?

So, assume there are no deaths or bodily harm, let’s say it just means the land is unfit for use for someone who doesn’t know exactly where the mines are.

That’s not the only problem. The other problem is that it can lead to the demise of the Indians.

There is nothing different in principle here to a fence – in that you have simply added to the cost that it will take to step in and use/occupy the land for a while.

You neglect to notice that the fence divides the world into two parts. Without homesteading, the parts are equivalent. You can occupy one of them while enclosing another party in the other part. Like in my example, you can build a fence around the Indian’s teepees while they are asleep. Or make that a cage. You enclose them in it, although you don’t occupy it.

In the system of homesteading, this is prevented by making an agreement with the owner of the land to guarantee egress (see Walter’s Block’s papers). Without homesteading, such an agreement is impossible, because as soon as the current occupier leaves, the subsequent one can still deny you egress.

…if there is other land, someone will likely just go and use that instead as it’s easier.

But if you deny them egress, they are screwed.

I don’t think you’ve thought this through.

While it is certainly possible, I don’t think you have thought this through either. The system you describe leads to demise. It might work in a hunter-gatherer society, but it prevents anything more complex, e.g. farming.

You are saying that we must allow homesteading of land that is unguarded because if we don’t it will just happen anyway.

What I am saying is that the purpose of property rights is to determine which acts are permitted and which are not. Now, you might claim that your system does that, but the counterexamples I provided challenge that. If egress is denied to you, are you allowed to break out? Should your pack have a 24/7 guard to watch if someone is trying to deny you egress? Are you responsible for the effects of objects you abandon?

we will have de facto land homesteading system because people will erect barriers around portions of land that are secure enough to mean that the cost of penetrating the barrier is too great.

Well, I have not actually expressed my thoughts about this specific one, but my argument would be that people would be trying to make sure that conflicts can be foreseen, so that they can avoid them without too much effort. Erecting fences is one way of doing that.

You seem to be advocating that property rights are the “efficient” solution rather than something derivable from fundamental givens like the ownership of your own body.

In a way, you are right, although I would not use the word “efficient”.

This clearly makes no sense.

Well, both can be possessed (or occupied), and be left unattended. From the point of view of a primitive society, there might be a difference, but when you have drills, dynamite and trucks there isn’t really much.

I’m asking what we need to add to Kinsella’s request for a system which will “facilitate and support peaceful, conflict-free interaction between individuals” to allow us to also include land homesteading.

What I would add is the requirement that it must be foreseeable which actions would lead to conflict and which not. Occupancy/possession is insufficient, because actions aim at a specific future outcome. If you don’t know who the occupant/possessor at the time of the expected outcome will be, you cannot make rational decisions.

The Kid Salami May 23, 2011 at 7:32 am

Peter and Gerald

Apologies for delay, I would like to respond to your points in detail but I don’t have time right now – and I don’t actually think I disagree with either of you that much actually.

The point of my question was to ask what reasons we have for rejecting the Indian system of property rights – not because I think that is the way we “should” live, but to get some reasons for rejecting ANY system of property rights (one that seemed to satisfy Kinsella’s initial requirements) in favour of the homesteading theory.

Kinsella didn’t provide them, his answer was in fact very surprising in that he just asserted the problem away by saying “If you can’t ever own land you can’t own anything else, even including your own body; and all civilized life would be impossible”. Whilst I of course don’t deny that this system makes “civilized” life impossible, Kinsella has also said:

“Libertarian opponents of anarchy are attacking a straw man. Their arguments are usually utilitarian in nature and amount to “but anarchy won’t work” or “we need the (things provided by the) state.” But these attacks are confused at best, if not disingenuous. To be an anarchist does not mean you think anarchy will “work” (whatever that means); nor that you predict it will or “can” be achieved.”

So in this quote, Kinsella is saying that he doesn’t care if anarchy “works” or not – the ONLY thing to consider is “is there any aggression”. He has said this innumerable other times also.

It is this I have a problem with. On the one hand, we need a system which allows for civilization which requires we agree on some methods of interaction that allow for this. On the other hand, his stance on aggression means that the approach to each and every problem, without exception, is and can only be: who owns what tangible good?

These two approaches conflict as they stand – if further elucidation reveals that they don’t then it should be easy to explain in step by step fashion why this is true. I don;t see any sufficiently systematic approach to this in this theory.

I would say i agree with every word in Frank Van Dun’s criticism of Walter Block here

http://mises.org/journals/jls/18_2/18_2_2.pdf

except for maybe one line, where he says “Orchestrating a smear campaign that is intended to drive him out of business does entitle him to compensation, to the extent that his business losses can be traced to the campaign’s lies and false accusations.” I think exactly what a “smear campaign” is would need to be clarified. Otherwise, Van Dun makes very similar (and no doubt clearer) charges to Walter Block and I’m not persuaded by Block’s response.

The Kid Salami May 23, 2011 at 7:34 am

Peter

for example, you say “the purpose of property rights is to determine which acts are permitted and which are not” – I agree. But why bother to phrase it like this if you really mean “aggression, and only aggression, is illegal”? As you won’t consider the idea of blackmail being illegal at all, because it isn’t aggression, then why use the first phrase at all? It is valid only if you can show that someone agreeing with one must agree with the other and vice versa – ie. they are identically equal. I don’t belive they are.

Here are some of the things you said:

“What I am saying is that the purpose of property rights is to determine which acts are permitted and which are not….He relinquished the possession of the mines/drones. Why should he be responsible for what happens afterwards?…The other problem is that it can lead to the demise of the Indians….The system you describe leads to demise. It might work in a hunter-gatherer society, but it prevents anything more complex, e.g. farming…..Now, you might claim that your system does that, but the counterexamples I provided challenge that. If egress is denied to you, are you allowed to break out? Should your pack have a 24/7 guard to watch if someone is trying to deny you egress? Are you responsible for the effects of objects you abandon?”

And

Me:“You seem to be advocating that property rights are the “efficient” solution rather than something derivable from fundamental givens like the ownership of your own body”.

Peter: “In a way, you are right, although I would not use the word “efficient”.

I agree that these are all good answers. I succeeded in my aim getting you to make arguments similar to ones I have made elsewhere – because my point is that these are not up for debate in the context of patents/copyrights/trademarks. Whenever anyone brings them up, the argument immediately reverts to “well, whatever, it doesn’t matter anyway because tangible objects can’t be property so go away. You’re a moron”. This isn’t debate, it’s just a dog and pony show (and I know that there is a resource crunch with scarce goods that is not present with any kind of intangible entity – the situations are not identical, but this is not, to me, the magic bullet everyone thinks it is).

Peter Surda May 23, 2011 at 9:06 am

Kid Salami,

I would like to say that your posts are very unique and I mean that in the positive sense.

If I had to summarise my position with regards to your arguments is that there are two separate requirements for a legal system. First, a proponent of a specific legal system must provide a coherent set of rules. These rules, given facts regarding a situation, must evaluate to either true or false (i.e. whether the facts are in accordance or in violation of them). Most people can’t even pass this threshold, so this is what I usually end up debating about.

Second, the data that serves as an input for these rules should be as neutrally determinable as possible. You could say this is a normative requirement, I admit as much.

However, we know (and you seem to agree) that the reason why people attempt to construct legal systems in the first place is the scarcity of resources. So, in the final step, the use of scarce resources is the question that the legal system has to answer. I’m simply saying that the minimalist (Occam’s razor) approach is to both start and stop at the question of scarce resources.

The example with Indians also seems relatively simple, on the first look. However, if I understood you correctly, the example divides scarce goods into two types: those you can homestead, and those that you can’t (for example, due to technical difficulties or unprofitability). That is an unnecessary assumption, so due to Occam’s razor I recommend to eliminate it. It’s an empirical distinction, rather than a praxeological one.

Most people agree at least to some extent with the concept of homesteading, i.e. do not disregard the approach of scarce goods completely. However, most people have the urge to mix these with interpretations of those scarce resources. In my opinion, this is something that is outside of the scope of economics or even science, so I typically try to avoid it. Out of all possible interpretations of scarce resources, which ones should be relevant and which not? Who knows? I don’t think this is something scientists should be taking seriously.

The Kid Salami May 23, 2011 at 11:22 am

Peter – by the way, look at page 118-119 (chap 10) of Friedman’s book

http://www.daviddfriedman.com/laws_order/index.shtml

He discusses your attack drones.

Peter Surda May 23, 2011 at 12:45 pm

Kid Salami,

very well quoted. According to Friedman, the reason why the switch from communal land ownership to private land ownership was due to a technological breakthrough: the domestication of dog. This sounds very plausible.

However, it is still unclear to me whether the dogs attacking third parties (“trespassers”) constitute a violation of property rights or not. The explanation merely shows that the new system supersedes the old one.

Gerald May 14, 2011 at 12:38 pm

me:

“the Indians can just go around the property, as you’ve said, until the limited amount of land that is available (scarcity. Land isn’t infinite.) has been homesteaded and there is no more place for the Indians to go around.”

Kid salami
In don’t quite understand this. All the land is occupied. once all the land is occupied, then.. well..all the land is occupied. So what? Someone leaves it, someone else can step in if they want.

Occupied doesn’t mean owned, unless it means that to you. When someone can step into the owned land (not unoccupied, owned), he is trespassing, fence or no fence. Scarcity means that the land that is owned is out of play. It’s not simply tenant or no tenant. It’s available or unavailable.

What is it about this “scarcity” that means we have to change the rules from having to stay and guard the land to being allowed to erect a fence and leave it?

The rules are about ownership — how do you protect and define *your* property — not scarcity.

Ethan May 11, 2011 at 9:14 am

Stephan,
If I remember correctly Rothbard seems to imply in the Ethics of Liberty, if not state outright, that the root definition of what is considered property is, at the core, relative to the cultural conventions or traditions, or mindset of the people living in a given palace.
Is this right or am I really mixing something up.

Ethan May 14, 2011 at 9:05 pm

The Ethics of Liberty goes into this subject of homesteading extensively. Beyond the “how far back should we go question” we also have the stollen property question which is even more interesting: what it all boils down to in Rothbard is this, just because you bought or inherited something doesn’t make it yours if someone can demonstrate clear title to the land which was subsequently stollen. The real owner gets their property back, the one who bought it can get restitution from the thief if there is anything, this could go way back generations. Does this create huge problems? Sort of, but nothing that the market can’t sort out, perhaps actual land ownership returns to a victim of eminent domain and the factory own still owns their factory and leases the plot from the legitimate owner as a possible arrangment. Considering that demonstrating title could be very difficult, some stollen property could conceivably become available for homesteading. Now the 800 lb gorilla: a point further articulated by Hoppe, government does not legitimately own property, (the king does not homestead by planting the flag and claiming everything from sea to shining sea) so anything collectively owned, before being opened up to homesteading, could be used to make restitution to all victims who paid for stollen property, who “contributed” to social security, or in any way could demonstrait harm by the criminal class. But I digress, the chapters in ethics of liberty related to homesteading, receiving stollen goods, restitution, feudalism etc are foundational reading for this discussion. This is also where Rothbard delves into the idea that at it’s root the fundamental defining of what can legitimately be property, has its roots in culture and as a result is strangely relative. It is also where he posits the idea that patent enforcement is artificial but copyright might hold up in a maket order society. I highly recommend this easy read as it lends a lot to the subject at hand.

Duane Cochran May 20, 2011 at 2:36 pm

Ah! If only men were Angels . . .

Kid Salami July 6, 2011 at 6:50 am

Peter

“The usage of three out of five senses (vision, hearing, smell) does not require possession of the object you are observing. Any time you use one of those, you are copying.”

This is not the copying I have in mind, and you know it. You are – once again – essentially claiming that there is no definition of “copying”, that if I have some pieces of paper in my possession with words on them that there is no way to decide if the words were copied from “Harry Potter” or not. This is not a serious position.

You may as well argue that you can’t restrict someone from, say, commercial activity by servitude because you can say “I just happened to build a building, with a sign and a reception. And if I want to place ads for this building in the yellow pages, that is my business. And, if when people see these ads and come to see me they decide to request I exchange the stuff I have lying around on shelves in my building for bits of metal or paper they have in their pocket, who are you to get in the way? What are you, a fascist?”.

I would say this argument for not being able to prevent commercial activity is not much more absurd than your argument that you copying can’t be outlawed because it is just “causality”.

Peter Surda July 6, 2011 at 8:19 am

Kid Salami,

This is not the copying I have in mind, and you know it.

Very odd, I could have sworn that I already explained this to you in the past. I hope Wildberry did not infect you with his stupidity.

You are – once again – essentially claiming that there is no definition of “copying”, that if I have some pieces of paper in my possession with words on them that there is no way to decide if the words were copied from “Harry Potter” or not. This is not a serious position.

You are misrepresenting my position. If you can restrict copying by contracts, it does not follow that such a restriction is a consequence of property rights of an arbitrary object that is referenced by such a restriction, or that it applies to people outside of the contract. If I, for example, contractually agree to abstain from copying a specific book, it does not mean that the ability of the other party to enforce such a restriction is the consequence of the property rights in that book. I explained this to Wildberry around the end of April.

You may as well argue that you can’t restrict someone from, say, commercial activity by servitude because you can say “I just happened to build a building, with a sign and a reception.

If he voluntarily agreed to a contract where he promises not to use the building for commercial purposes, then you can evaluate whether the terms of contract were violated or not. There is, of course, some level of uncertainty in it, but because both parties entered into a contract voluntarily, you know they assumed a common understanding of it. I already told you this quite some time ago. However, such a restriction has no effect on people who did not enter into the contract. Since they did not enter into a contract, you cannot assume that they had any common understanding regarding such a restriction.

I would say this argument for not being able to prevent commercial activity is not much more absurd than your argument that you copying can’t be outlawed because it is just “causality”.

You are mixing together two things: restrictions that follow from property rights as such, and restrictions that follow from contracts. If two people agree upon certain future behaviour, it does not follow that this has any effect on other people’s future behaviour.

Kid Salami July 6, 2011 at 6:51 am

Peter

You say – repeatedly – things like

“On the contrary, I explained it explicitly. The servitudes run with the original. They do not, per se, run with copies. They only run with copies in your fringe cases….. Now we’re back to you using causality to justify property rights….Each copy is causally related to the original. So, is causality a sufficient condition for a property right claim or not, Fraudberry?”

Kinsella has also said the same many times, for example this

“This is nothing more than the old argument that you can create IP by contract, and you are dressing it up by calling it an easement. Your argument here seems to be that if A sells an object to B, burdened by an easement, then third parties C, D, etc., are somehow bound by this easement. This may be true in the case of a resale of the particular object by B to C”

or this

“YOu appear to here be talking about an actual object originally owned by the author, and still subject to a servitude owned by that author (the “copy” of the manuscript–i.e. a physical book).”
It’s clear, now after some time, that you agree that restrictions can “run” with a “particular object” – with a particular collection of molecules. You should not assume what I say below are the only objections to this theory that I have. I in fact think this view – which you all seem so proud of and think is the clincher – is borderline insane.

But I might ask what you meant when here

http://blog.mises.org/16855/state-or-private-law-society/#comment-780243

you explained how land and movable property were basically the same because “From the point of view of a primitive society, there might be a difference, but when you have drills, dynamite and trucks there isn’t really much.” So, are you saying if the topsoil is replaced you extinguish the easement, because the physical atoms are gone? No? How deep to we have to go? I turn my land into a quarry – does this extinguish it?

To even have this discussion shows that you’re out to lunch. It has nothing to do with the particles of soil, and everything to do with the dominant estate being able PERFORM THE ACT that the original easement was designed to allow eg. access some location not otherwise reachable without the easement.

Just like, as I pointed out above on this thread, Kinsella told me there was no difference between moveable and immovable land from a homesteading perspective beause it suited his purpose but then contradicted himself later, you previously pulled out “when you have drills, dynamite and trucks there isn’t really much” difference argument when it suited you on that same thread. Are you now also going to come out with something different?

I could also say that as for your absolute 100% cast-iron certainty that there can be no restriction on any other property (eg. copies) that were not one of the “particular objects” subject to the original agreement – what about a negative servitude preventing use of the property for commercial purposes? I am not allowed – even if I make no adjustments to the land molecules at all – to use my property to sell stuff from it or use my phone to call yellow pages as per the scenario above? These weren’t a “particular object” involved in the original agreement, so why am I restricted?

Again, the particular act that the original servitude was designed to prevent – the commercial use – is what is important, not tracking individual molecules like a crazy person.

Peter Surda July 6, 2011 at 8:49 am

Kid Salami,

I don’t understand why you bring up atoms and quarries. With respect to my argument, they are irrelevant. A necessary condition for being bound by a restriction (including servitudes) is entering into a contract. The details of that restriction are irrelevant to people who did not enter into a contract. If you enter into a contract and subsequently try to wiggle out of it (which is what your examples are), it still only affects you, rather than people who did not enter into the contract. Whether you (i.e. the person from the examples) succeed or end up in jail, that’s your problem and noone else cares.

To put this back into the topic, if an author wants to prevent everyone from copying as such, he needs to make sure that prior to having an opportunity to copy, one has to agree to a contract. Servitudes do not change this. However, having an opportunity to copy does not, per se, imply either a violation of property rights, or a contractual agreement. So the argument that copying necessarily violates servitudes (which is essentially what Wildberry’s saying) is false.

In other words, the whole debate is pointless with respect to IP. There might be a minuscule overlap between what is colloquially called IP and servitudes, just like there might be a minuscule overlap between non-disclosure agreements and IP, but that only means that IP is incoherent rather than “servitudes prove IP”.

This is why I am not a great fan of articles like the one about negative servitudes. It’s a distraction and instead of helping people understand, it confuses them.

Stephan Kinsella July 6, 2011 at 9:38 am

Peter, I think it is not the argument that confuses people–you understood it well enough. What is going on is that dishonest IP advocates are twisting it on purpose. But this is just their m.o. They will continually lie as they trot out one fallacious argument after another.

I do think it is helpful to accurately describe the legal nature of patent and copyright, and the ability of the holder of these rights to restrict how others’ use their property is very similar to the negative servitude. If you can show people that this is the case, then maybe they can see that IP is invalid since the servitude was never agreed to by the servient estate owner. But of course we can expect Wildberry and his ilk to disingenuously twist and distort whatever explanation we come up with.

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