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Source link: http://archive.mises.org/18608/the-relation-between-the-non-aggression-principle-and-property-rights-a-response-to-division-by-zer0/

The relation between the non-aggression principle and property rights: a response to Division by Zer0

October 4, 2011 by

There was an interesting exchange recently between a left-libertarian (I think that’s what he is) who goes by Divide by Zer0, and anarcho-libertarian Stefan Molyneaux. “dbzer0″ argued against property rights and the non-aggression principle in his post Why the Non-Aggression Principle is useless as a moral guideline. Molyneux replied on Youtube; dbzer0 replied in Responding to Stefan Molyneux: “Theft of time”, NAP, and common sense.

Molyneux’s response is good, though I might quibble about some of his metaphor usage–saying that stealing someone’s improved/transformed property is a theft of the “time” he put into improving/transforming the item. Such metaphors can be helpful to picturing and really grokking the nature of the crime. But one has to be careful not to take this particular metaphor too literally, as it lead to various confusions that result from the labor theory of value, which has itself partly corrupted even Lockean and classical liberal thought, not to mention the errors of Marxism, and can lead to the confused idea of intellectual property. ((See my post On the Danger of Metaphors in Scientific Discourse; also Locke, Smith, Marx and the Labor Theory of Value; Rand on IP, Owning “Values”, and “Rearrangement Rights”; Locke on IP; Mises, Rothbard, and Rand on Creation, Production, and “Rearranging”; Libertarian Creationismthis comment to “Trademark and Fraud”; Elaborations on Randian IP; Objectivists on IP.))

I think dbzer0′s criticism is unfounded, but it is based on some confusions about the nature of libertarianism and the interrelationship between the non-aggression principle and property rights. This confusion is understandable as even many libertarians mangle this.

Many libertarians focus on the non-aggression principle as the essence of our political philosophy. Ayn Rand formulated a version of it in Atlas Shrugged: “So long as men desire to live together, no man may initiate — do you hear me? No man may start — the use of physical force against others.” ((Ayn Rand (Galt’s Speech, Atlas Shrugged, 1957).)) Some, such as Rothbard, have even called it the non-aggression “axiom”:

The libertarian creed rests upon one central axiom: that no man or group of men may aggress against the person or property of anyone else. This may be called the ‘nonaggression axiom.’ ‘Aggression’ is defined as the initiation of the use or threat of physical violence against the person or property of anyone else. Aggression is therefore synonymous with invasion. ((Rothbard, For A New Liberty, p. 23; see also Rothbard, Ethics of Liberty, p. 45. See also Hoppe, A Theory of Socialism and Capitalism, pp. 12, 7.))

Now the word “axiom” has different meanings (see wikipedia axiom entry). In math and logic it can refer to an assumed starting point, such as the presuppositions of Euclidean geometry; ((But see my post , arguing that some basic tenets of physics, such as Euclidean geometry, may be apriori.)) or, as Rand uses the term, to truths that are self-evident because denying the claim leads to self-contradiction. Ayn Rand used the word “axiom” in this way:

An axiom is a statement that identifies the base of knowledge and of any further statement pertaining to that knowledge, a statement necessarily contained in all others, whether any particular speaker chooses to identify it or not. An axiom is a proposition that defeats its opponents by the fact that they have to accept it and use it in the process of any attempt to deny it.

In this sense, Rand’s “axioms” resemble Misesian/Kantian “apriori” concepts the denial of which leads to self-contradiction. ((See my post Mises and Rand (and Rothbard).)) For this reason alone, it’s better to refer to the non-aggression principle instead of the non-aggression axiom.

Another reason is that it’s not clear that “non-aggression” is really the most fundamental libertarian principle. In fact, I think it’s not. I think the libertarian conception of property rights is more fundamental than aggression. If I use force to take an apple from your hand, is it aggression? Is it trespass? Well, that depends on who owns the apple. If it is my apple, and you have just stolen it from me, then it is not trespass. If it is your apple, then it is trespass, or aggression. Classifying an action as aggression or not requires knowing who owns what.

Confusion has arisen, I believe, because of failure to treat separately self-ownership and ownership of external objects. Self-ownership means one owns one’s body. As Hoppe writes, “Every person is the private (exclusive) owner of his own physical body.” ((Hoppe, State or Private-Law Society.)) And as I have written previously, “each person is prima facie the owner of his own body.” ((Kinsella, What Libertarianism Is.)) Why prima facie? Because these rights can be alienated or forfeited by committing aggression. ((See Kinsella, Punishment and Proportionality: The Estoppel Approach.)) Though some object to the notion of self-ownership on the grounds that it is incoherent or implies religious or mystical views, this objection is without foundation. The body is a scarce resource, and to avoid conflict over its use, either the person whose body it is owns it, or someone else does. The choice is self-ownership, versus other-ownership, i.e. slavery. The quintessential libertarian view is self-ownership. And this common sense, natural, intuitive notion is not new or hard to appreciate. As Richard Overton wrote in 1646, in An arrow Against all Tyrants: “To every individuals in nature, is given an individual property by nature, not to be invaded or usurped by any ; for every one as he is himself, so he hath a selfe propriety, else he not be himselfe”. And Locke, in 1690: “Though the Earth, and all inferior Creatures be common to all Men, yet every Man has a Property in his own Person. This no Body has any Right to  but himself.” ((John Locke, Second Treatise of government (1690), chap V, 27.))

When we speak of interpersonal conflict between human agents, that is, interpersonal violence involving their bodies, the idea of “aggression” and “self-ownership” express the same idea. To oppose the “initiation of force”, to oppose aggression, is merely another way of stating self-ownership. They each directly imply the other. This is one things dbzer0 glimpses.

But, as noted previously, when we speak of externally owned resources, a theory of property becomes primary. One first has to identify who the owner of a good is, to determine whether an action attempting to causally control the object is aggression, or just the exercise of ownership. In the case of the body, the agent, the person, himself, is the default owner of the body, so the answer is immediate and obvious (assuming he is not an aggressor). This is why in the case of interpersonal conflict, it makes sense to describe the libertarian anti-slavery, self-ownership principle by saying we oppose “initiation of force” or “aggression” (as Rand does in Galt’s speech).

And this is also why people get tripped up when they try to use the “initiation of force” language to describe why trespass–use of someone’s (non-bodily) property without their consent–is aggression. And again, this is what dbzer0 senses in his criticism of the coherence of treating external property the same as bodily-property.

The mistake lies in thinking property rights in one’s body are acquired in the same way and for the same reasons as property rights in external resources. Though they are linked, and though self-ownership is in a sense more fundamental, they are not the same. But it is a confusion to think of the basis of self-ownership as the same as the basis for ownership of external objects. We are used to thinking of Lockean homesteading–original appropriation, or initial use–as the basis for ownership of the latter. Thinking that all ownership must be of the same character and even origin, the assumption is also made that we own our bodies because we were the first users of our bodies. We try to fit self-ownership into the same framework we use to justify rights to inanimate, external objects.

As I explain in What Libertarianism Is, ownership of one’s body, and ownership of external objects, do have something in common, but it is not “first use.” It is rather that in each case, the resource in question is assigned to the person with the best link to the resource so as to avoid conflict and permit peaceful, productive use of the resource in question. This analysis draws on that the pioneering work of Hans-Hermann Hoppe, in his monumental treatise A Theory of Socialism and Capitalism (esp. chs. 1, 2, 7). The institution of property arises only because of the fundamental fact of scarcity, or rivalrousness, in the world. This makes violent conflict over the use of various scarce resources–Misesian means to action–possible. For those living in society who prefer peace, prosperity, and productive use of resources instead of violent conflict, it is obvious that it is desirable to assign an owner to each such contestable resource. These resources include our bodies, and other means we use in action to causally bring about our ends. Such rules, to suffice as social rules, must be objective and fair to ever be accepted by individuals and as an improvement over a world of might makes right. Thus, the search among civilized people in society is always for objective (what Hoppe calls intersubjectively ascertainable) property assignment rules. Human bodies and other resources share in common that they are both scarce resources, and property rules are needed for each.

In the case of one’s body, the libertarian position is simply that each person is the prima facie owner of his body–not because he first used it, but because he has a better claim to it, because he has an objective link to his body: namely, his ability to directly control it, not to mention the intimate connection between each “person” or “agent” in a legal personality sense, and “his” body. It is not first use that matters here; otherwise each person would be a slave of, owned by, his mother, who had the first use. It is not “appropriation” or homesteading, since the act of homesteading property presupposes features that are simply not present in the case of body-ownership. Consider: for A to homestead an object, A already has to have and own his body; and the object is previously unowned. That is, to be a homesteader presupposes one is already a self-owner. For this reason it makes no sense to speak of homesteading one’s body and becoming a self-owner that way.

So, in my view, and in the Hoppean framework (which extends and builds on that of Mises and Rothbard), all ownership is based on the fundamental fact of scarcity, and the consequent possibility of conflict. Property in one’s body is based on the fact that each person has the best link to his body, because of his direct control over his body. Property in external objects is based on Lockean homesteading, where first use, or original appropriation (“embordering,” as Hoppe refers to it), serves as the link between agent and resource. (And the reason first use gives the first user a better link to the resource is because ownership is based on the prior-later distinction, as Hoppe explains; if the first user did not have a better claim than the second claimant, who is a latecomer with respect to him, then the second claimant would not have a better claim than a third claimant, i.e., property rights evaporate and we have only possession and might makes right, which is contrary to the entire endeavor of property allocation rules in the first place.)

But once this relationship between assignment of body rights, and of rights to previously unowned resources, is understood, along with their connection to the libertarian project of finding objectively fair rules that permit peace, prosperity, and productive, conflict-free use of resources, the confusion of what it means to “initiate force” against someone by stepping on their land disappears.

With this perspective, we can see that criticism such as that leveled by dbzer0 is simply mired in confusion. To address just a few of his comments:

“Anarcho”-Capitalists, and assorted propertarians very frequently cite the Non-Aggression principle or Zero Aggression principle (Commonly called NAP or ZAP) as a core tenet of their ideology.

First, I think it’s better, as a rule, to call ourselves anarcho-libertarians than anarcho-capitalists. Not that I agree with condemnations of “capitalism” by modern left-libertarians (I agree with their criticism of crony-capitalism, but not with the capitalist aspect of the type of advanced economic order that would doubtlessly arise in a free society), but capitalism only describes one part of the economy of a free society. Second, the scare-quotes around “anarcho” imply doubt as to whether anarcho-libertarians are genuine anarchists. To the contrary; I would say that all consistent, principled libertarians are anarchist; and any genuine anarchist has to be a libertarian–if you are not a libertarian then you are in favor of abrogations of property rights that invariably require institutional force, i.e. a state. Third, dbzer0 here assumes the NAP is the “core tenet” of libertarianism; yet as I have explained, the NAP is merely a compressed way of re-stating self-ownership, and in the case of external property it is indeed a dependent concept on the more fundamental concept of the libertarian-Lockean first-use-first-own property rights allocation rule.

But what exactly is the NAP? The specific details might differ depending on the encompassing ideology, but the central point generally seems to be that no human should aggress over another human. This is meant to mean the initial use of coercive force as well as the threat of such.

As argued above, this is a way of restating self-ownership; but in the case of acquired objects, it is a consequence, not primary.

Now, if left to this end, this is not a half-bad principle, basically saying that people shouldn’t attack or threaten to attack others. However at this stage, it is also pretty much unnecessary to be given an explicit existence as a “principle” as the generic principle of freedom already encompasses this (i.e. attacking another person would violate their freedom). Other moral theories, particularly the utilitarian variants already encompass such rules (with stipulation) as a natural consequence of their suggestions.

“Freedom” here is a murky, ill-defined concept. It is the fact that opposing interpersonal, violent, bodily aggression necessarily implies self-ownership, whether anti-propertarians want to use the correct labels, words, and concepts, or not.

But propertarians do not generally leave it at just that but rather try to sneakily expand it by linking it with private property rights. You see, the NAP is frequently derived directly from the Self-Ownership “axiom” and thus the wrongly derived property rights are treated as an extension of the self. Therefore one can then treat violation of private property rights as an act of “initated force”, even though no actual violence or threat of violence has been perpetuated. This is turn is used as a cause to use actual violence or threat of violence on the violator of property rights.

He has somewhat of a point here, as I have explained above; except that it is not “sneaky.” Rather, libertarians who favor self-ownership as well as ownership of homesteaded resources use the word “aggression” to describe not only the former, but the latter, since there are analogies and similarities. But failure to treat body and external resource ownership separately and clearly, in the context of a social theory designed to permit cooperation and productive, conflict-free use of resources, has led to some confusion, which has been adopted, or seized on, by libertarian opponents. (Not that they have any better or more coherent theory in the first place.)

While it’s easy to understand that someone “aggresses” when they steal something from another person (which is why most other moral systems do not require a NAP to label theft as wrong), things get pretty murky when one goes beyond that. Do I “initiate force” when I use a productive machine without paying rent? How about if I pay only enough rent to cover the cost of the machine? Do I “initiate force” when I toil the unused land that is owned by someone else? How about when I trespass?

A given scarce resource that is the subject of a possible contest or conflict–as the machine noted above–has an owner. It is either the worker seizing it, or the homesteader (or his contractual transferee), or the state or some collective. And this is the crux of the matter. No one, even dbzer0, can deny argumentatively the value and desirability of property rules. Argumentation is itself a civilized, conflict-free activity, and arguing about who should get to use the resource is itself a search for fair, universalizable property allocation rules (again: even if the left-libertarian stubbornly abjures the term “property rules,” that is what he is arguing for). So the only real argument people like dbzer0 can have is that they think some property assignment rule other than first-use is more objectively just, that it establishes a better link between claimant and resource. And this, he has not done, or even tried to do. He has sidestepped this problem. The other possible property assignment rules would include some type of communism, a world of everyone-owns-everyone, which, as Rothbard has shown, is of course unethical and unworkable; ((See note 1 of my “Argumentation Ethics and Liberty: A Concise Guide”.)) might-makes-right, which is no property rule at all; or some kind of rule, inspired by the deeply flawed labor theory of value and muddled Marxian notions of “exploitation,” that ridiculously rests on the notion that employers/capitalists “exploit” the worker by “stealing” the “social surplus product”–the difference the employer’s revenues and the value of the worker’s labor, i.e. to the extent there is capitalist profit there is exploitation. ((See Hoppe’s “Marxist and Austrian Class Analysis,” in  The Economics and Ethics of Private Property; Kinsella, Hoppe: Marx was “Essentially Correct”; also see my post A Critique of Mutualist Occupancy.)) Of course, no coherent property assignment rule can rest on hoary, severely flawed economics and social analysis.

My view is that no non-libertarian property rule can be justified, precisely for the reasons that the libertarian, Lockean property appropriation rule is valid: only it recognizes man’s nature as an acting being that needs to employ external, previously-unowned scarce resources to act productively and successfully. For man to be able to ever use a previously unowned resource at all, much less peacefully or productively, it must be used first. Someone has to be the first to emborder it, transform it, employ it as a means. But those seeking peaceful, conflict-avoiding property assignment rules that permit such productive use of resources cannot deny the right of the first user to use the resource–otherwise it would never be employed at all. I.e., the first user has to have an ownership right. But if the first user has an ownership right, then that means latecomers have a worse claim–and that is, after all, what theft is: A owns a thing; B, a latecomer, takes it from A by violent force. To deny the importance of the prior-later distinction is to obliterate property rules, for anyone can take things from others, even if they come later, meaning we have a war of all against all, and right devolves into might–which is contrary to the very endeavor of searching for civilized norms in the first place.

{ 56 comments }

Juraj October 4, 2011 at 4:24 pm

zer0 indeed knows /not/ what he’s talking about:

“Why would a market come out when people get what they need whenever they need it? Of course a market would probably create inequalities, which is why I’m opposed to it, and this is one of the main sticking points between collectivist and individualist anarchists.”

http://dbzer0.com/blog/private-property-vs-possession#IDComment21595899

Subscribe to communism and Mana will start falling from the sky.

nate-m October 4, 2011 at 8:06 pm

There are two ways to convince people to work:

1. Convince them through voluntary agreement.
2. Force them through threat of physical violence.

Everywhere that pure socialism or communism has been practiced the state always ends up resorting to the latter.

Somebody needs to explain to these know-nothings is that when people work for one another under voluntary agreements, even if one financially benefits more then the other, they both gain.

That is a factory worker makes less then the factory owner, but the factory worker still makes more then he would if the factory didn’t exist or if he worked on his own… otherwise he wouldn’t be a factory worker.

Ultimately all collectivism really means is that you remove certain ‘disagreeable’ types of specialization out of the market place. It’s inefficient and you will just end up costing the workers as much as the owners in the long run.

Thursday October 4, 2011 at 9:15 pm

“Everywhere that pure socialism or communism has been practiced the state always ends up resorting to the latter.”

This leaves the door open for something like ‘Everywhere libertarianism has been tried it leads to X’, followed by ‘Well that wasn’t true libertarianism,’ followed by ‘Well it was the closest thing ever attempted,’ followed by more recursion into the no true scotsman fallacy.

I think you’d be better pointing out how, as Mises did, no society can rationally allocate resources without prices and markets (which require private property to exist).

Stephan Kinsella October 5, 2011 at 7:52 am

THanks, but this was just a blog post… I could only do so much. Of course Mises’s insights on the calculation problems facing socialism bolsters the Rothbardian-Hoppean view here.

Thursday October 7, 2011 at 11:53 am

Oh, I was replying to nate-m’s criticism, not to your article, Mr. Kinsella.

I thought the article was laid out pretty well :P I agree that it would simply take far too much digital ink to actually go through the entire calculation problem in addition to all the other issues you addressed… I often run into the problem myself trying to explain such views via conversation.

Wildberry October 7, 2011 at 11:59 am

Yes, and Mises’s insights on the resulting external economies bolsters the argument for IP.

I’m sure you meant to mention that.

Stephan Kinsella October 7, 2011 at 12:07 pm

No one has yet presented a sincere, coherent, principled case for IP, much less mises, you gadfly twit.

Peter Surda October 7, 2011 at 12:25 pm

Wildberry,

Mises’ insights refute the praxeological justification for IP, he merely says that other considerations might be relevant. It is a sad that demagogues misrepresent his words. If nothing else, this should be proof enough of invalidity of your approach. Have you read Cordato yet?

Stephan Kinsella October 7, 2011 at 12:51 pm

I doubt he has read Cordato, but others may want to–I assume you are referring to this stuff by Kirzner and Cordato: http://blog.mises.org/16570/cordato-and-kirzner-on-intellectual-property/

Wildberry October 7, 2011 at 2:45 pm

Dear Peter and Stephan show:

If Mises “merely says that other considerations might be relevant”, then I suppose it is reasonable to raise them here. Problem?

As to Cordato, no I have not, but I just downloaded it and will take a look.

In the meantime, given your familarity and expertise in the area, Mr. Kinsella, wish to drop the essential pearl of wisdom? I have never seen a comment from you on the issue of externalities. Did I just miss it? You seem to have written on everything else.

Peter Surda October 8, 2011 at 7:43 am

Stephan,

that’s the book I mean, although I read it before you made your post.

Wildberry,

again you are mixing several unrelated things and present double entendres, except you don’t expect your posts to be treated as a comedy.

blabbe October 4, 2011 at 6:27 pm

I have to ask Stephan, why do you insist on arguing with these leftists? They seem hellbent on doing nothing but redefine words. They are esentially the result of a lot of intelligence being invested in ignorance – the need for illusions is deep in them. I just don’t get why someone like yourself would devote so much time to these trolls.

Stephan Kinsella October 4, 2011 at 6:35 pm

I don’t really thinks this guy I’m replying to himself raises any significant points, but the debate between he and Molyneux made me think it was an opportune dispute to use to clarify some issues I’ve been thinking about for a while.

Rory Carmichael October 4, 2011 at 8:02 pm

Fascinating article and really well thought out. I’m with you all the way up until this bit:

“My view is that no non-libertarian property rule can be justified, precisely for the reasons that the libertarian, Lockean property appropriation rule is valid: only it recognizes man’s nature as an acting being that needs to employ external, previously-unowned scarce resources to act productively and successfully. For man to be able to ever use a previously unowned resource at all, much less peacefully or productively, it must be used first. Someone has to be the first to emborder it, transform it, employ it as a means.”

Now… this may simply be confusion on my part, or perhaps an overly pedantic way of looking at the problem, but it strikes me that the traditional concept of land ownership is far broader in scope than is necessary to facilitate a peaceful society. Embordering something, for instance, seems to me to be a distinction grown out of the might-makes-right ethos of a right to all that which you are capable of defending.

Transformation, or employment as means, both strike me as rights generating activities, but their scope seems to be naturally limited. For instance, it seems that one can rightfully lay claim to all oil one is able to pull up from a well, but the oil still in the earth, unmodified and unemployed, seems very clearly to be an unowned resource. If some other person were to set up a well next to the first, and tap the same oil, I can see no reason to think that theft has occurred. It seems that so long as no one destroys something created by another, and no one takes anything transformed or employed as means, then no aggression has occurred and there is nothing for a libertarian to complain about. Yet, this implies a sense of property far more limited than is commonly understood. Is there something wrong with my thinking, or is there something wrong with the current conception of property rights (especially with respect to land/natural resource ownership).

nate-m October 4, 2011 at 8:18 pm

Embordering something, for instance, seems to me to be a distinction grown out of the might-makes-right ethos of a right to all that which you are capable of defending.

It’s not a description of a ideal, it’s a observation of reality. It answers a very basic question:

Question: How does matter become property?
Answer: Through homesteading; except for your own body.

Everything that has existed on the planet Earth has always existed on the planet Earth. Always, with few exceptions. It belonged to nobody until some person at some point decided to pick up a rock or cut down a tree or plowed the earth…. then that is when it became property.

That’s all there is to it. It’s just a statement of fact. There is no ‘might makes right’ about any of it.

I think there is a lot of confusion people have because when you talk about ‘land’ in a economic sense it’s not just dirt or ground. It can be anything and everything physical. Any sort of resource.

If some other person were to set up a well next to the first, and tap the same oil, I can see no reason to think that theft has occurred.

It can and it can’t be theft. It really depends on the specifics of the situation.

Mineral rights are a complicated thing and is not something that can be discussed well in sweeping generalities.

Rory Carmichael October 4, 2011 at 9:13 pm

I’m just having trouble figuring out what the appropriate scope of a homesteading claim is. Does intending to use something kind of near you that no one else was near enough to intend to use before give you sufficient claim? If I build a building on some land, how much of the surrounding space do I automatically acquire claim to (if it is previously unclaimed)? Can I claim every unclaimed thing I see, or do I have to do something in order to gain ownership of those things? Does marking out the boundaries of what I’ve claimed on some sort of document validate my claim?

Historically, it seems that you could get what you could defend from competing claimants through coercive forces (either legal or, ahem, more direct).

Stephan Kinsella October 5, 2011 at 7:49 am

SEe footnote 26 of the article I linked to: http://mises.org/daily/3660#note26 , and links therein regarding Rothbard’s Relevant Technological Unit.

Stephan Kinsella October 5, 2011 at 7:51 am

Again, see http://mises.org/daily/3660#note26 — re oil etc. — I used to be an oil & gas lawyer and thought a bit about this, and wrote about applying homesteading rules to underground mineral resources, the “Rule of capture,” etc., briefly here: http://www.stephankinsella.com/2009/08/mutualists-and-randians-on-arab-oil/

NAPpy October 4, 2011 at 9:06 pm

Thank you for this article. It has helped clarify my thinking. Where I still get confused is in the epistomology that forms the foundation for austrian economics. I’ve read the article by Hoppe where he ties together Mises’ action axiom with the a priori synthetic, and ties it to another axiom, which I can’t think of off the top of my head. Anyway, it seems like whenever you argue with someone who actually keeps an open mind, arguments lead back to epistomology and first principles. Has anyone else attempted to summarize the links from epistomology to the action axiom to the laws of austrian economics? I’d definitely be interested in works along those lines.

Rory Carmichael October 4, 2011 at 9:07 pm

seconded! That’s a spectacular question.

Stephan Kinsella October 5, 2011 at 7:48 am

I’d just recommend Hoppe’s Economic Science and the Austrian Method, on his site hanshoppe.com, and also Mises’s Ultimate Foundation of Economic Science.

iawai October 5, 2011 at 8:55 am

But those seeking peaceful, conflict-avoiding property assignment rules that permit such productive use of resources cannot deny the right of the first user to use the resource–otherwise it would never be employed at all.

Here’s the sticking point that /0 would probably rebut as his best argument against libertarianism: There are people that are not “seeking peaceful, conflict-avoiding property assignment rules”. Most people, as libertarians recognize, are simply looking out for themselves. The NAP, when applied to a starving man with a stubborn neighbor whose grain silos are overflowing, would be resigning to death.

Indeed I think that there is room for compromise: the NAP is the utopian vision of the individualists, the all-knowing distributive state is the utopian vision of the statists. But how about we recognize that some aggression is JUSTIFIABLE, and implore the statists to recognize that redistribution, if it is to happen at all, is best left to competing individuals?

I think that the NAP is a great PERSONAL philosophy, but no institutions could impose this philosophy onto the statists. Instead, we must acknowledge that justice is just another personal value, and as such should be left to voluntary decision makers. The more we value a certain theory of justice, the more we can spend enforcing it. Hopefully the NAP would win out in an organically evolving market, but likely there would be a minimum level of coercion/aggression left in the world because the marginal costs of eradicating the remaining injustices would outweigh the marginal benefits of getting one step closer to utopia.

C. Rakish Spagaletto October 5, 2011 at 10:37 am

What do you mean when you say “some aggression is justifiable”? Give me an example please.

iawai October 6, 2011 at 8:38 am

Whether an action was “just” or not is a subjective determination. Like the extreme “life-boat” situation or the more mundane decisions like those made while driving, all actions can arguably affect other people, and there are differing opinions on what level and types of disturbances are unjust, or rights violating.

An example of generally justifiable aggression is bumping into someone while passing them in a crowded area. You meant to come into contact with their body, but you did so because that was justified by the situation.

Some people may disagree, however, and say it was unjustifiable. That’s fine, let them try to (justly) enforce a remedy. If they do so unjustly, then others are free to demand justice from the enforcers.

The NAP is a choice made by individuals, and may be used to develop a philosophy of things like laws and regulations, but in the end, what constitutes redress-able or unjust aggression is a subjective determination.

Phinn October 5, 2011 at 10:45 am

“The NAP, when applied to a starving man with a stubborn neighbor whose grain silos are overflowing, would be resigning to death.”

These lifeboat scenarios are always interesting to me. I’ve never understood how people can get so worked up over them, when they really almost never happen. They’re always the same — a man crossing the desert needing water, a guy drowning and his erstwhile rescuer bargaining with him for a floatie, a guy bleeding to death needing surgery but the doctor makes him sign his life away first, etc. They all have a certain cartoonish quality to them.

But I don’t think that the NAP needs to be tossed out merely because its application to vanishingly rare and extreme situations is somewhat difficult.

The solution to these conundrums is to be found in examining what the appropriate remedy would be if the property right or contract in question were violated.

What is the proper remedy for someone stealing a loaf of bread, or a cup of grain from an overflowing silo? Death?

What is the proper remedy for someone trespassing on your yard? For the aggrieved owner to blast the interloper into the afterlife with a shotgun?

It’s sort of like the slavery question — do people in a free society have the right to sell themselves into slavery? Well, yes and no. People have the right to enter employment contracts. But the problem with this slavery question (another type of lifeboat scenario) is: what is the remedy for an employer when an employee violates this type of extreme (de facto slavery) employment contract? Whips and chains for life? What has the purported slave-owner really lost when his lifetime employee decides to quit and work for himself?

Under ordinary, free, contractual rules, the person who suffers a breach of contract is expected to go out into the market and get a replacement, and can only sue the breaching party for the difference. If the employer can go out and get, on balance, as good a deal from someone else, then he hasn’t really suffered a loss. If A and B have a contact to sell a car for $1,000, but the buyer defaults and fails to close the deal, but the seller goes out and sells it to the next guy for $1,005, the seller hasn’t lost a thing. It’s a breach without damages.

If a trespasser walks across your yard, yes, under the strictest property rules imaginable, the landowner has been wronged. I fully sympathize. But the remedy is not an instantaneous death penalty. It’s virtually zero damages.

The draconian employer who suffers a breach of his draconian employment contract when his de fact slave quits his job is not entitled to use chains to get him back. He should be expected to go out and hire replacement workers at the best rate he can. If people are willing to sell themselves into slavery, I imagine there are other employee bargains to be had. And what if he does that, gets an inferior bargain from the next employee, and sues his ex-slave and wins? What then? Great, he’s just won a judgment against a penniless man.

So, too, with the starving thief. If a man is in such extremis that stealing a loaf of bread is what stands between life and a permanent dirt nap, then necessity dictates that he will steal. So be it. Sure, the victim has his property right violated. Now, his remedy shall be to collect the value of one loaf of bread, and collect it from a penniless man. Good luck with that.

Michael A. Clem October 5, 2011 at 3:38 pm

Excellent points. Yes, it’s not enough to merely consider when someone has been wronged, but to what extent they have been wronged, and what would constitute restitution for the wrongdoing. Thus, I think libertarianism implies appropriate restitution for there to be justice.

C. Rakish Spagaletto October 5, 2011 at 10:58 am

Stephan, What constitutes ‘first use’? Also, does the first user own the property even if he stops using it?

If he uses 10,000 acres of land, puts a fence around the land, and after 1 week, he completely stops using the land. 20 years later, does he still have the right to exclude others from using it?

Stephan Kinsella October 5, 2011 at 12:02 pm

“Stephan, What constitutes ‘first use’?”

If A and B have a violent contest over a particular resource, it has to be scarce, and the nature of the resource in quesiton is thereby illuiminated. Then it’s a question of who was the earlier user: A or B, which is factual.

” Also, does the first user own the property even if he stops using it?”

No.

“If he uses 10,000 acres of land, puts a fence around the land, and after 1 week, he completely stops using the land. 20 years later, does he still have the right to exclude others from using it?”

Yes, but unless he is actively using it productively he probably won’t have resources to stop squatters from adversely possessing it.

C. Rakish Spagaletto October 5, 2011 at 1:02 pm

The reason I asked is because when I try to defend the homesteading principle on blogs, I get questions like this: Who will determine what constitutes “use”. Do you have to mix your labor with every square inch of the land, etc.?

Is the best answer to this — a free market in law will decide the best answer to ironing out the details.

Rory Carmichael October 5, 2011 at 1:06 pm

“Yes, but unless he is actively using it productively he probably won’t have resources to stop squatters from adversely possessing it.”

This is exactly the might-is-right ethos I am talking about. When it boils down to it, the validity of a homestead seems to depend on the capacity to defend it. I just can’t see any other formulation that is consistent with common understanding of the right.

My personal feeling is that, as C. Rakish Spagaletto suggests (as a reductio ad absurdem I think), you possess only those things which you have actively mixed your labor with. The land on the fence, but not the land surrounded by it, if you will. Anything more seems to rest very heavily on the threat of force.

Stephan Kinsella October 5, 2011 at 1:26 pm

I don’t think it’s might is right. It’s the fact that if you don’t defend your claims from squatters you acquiesce in their re-homesteading, i.e. you abandon. I agree that you own things you emborder.

Elwood P. Dowd October 5, 2011 at 5:12 pm

To Pope Kinsella, et al.
Great way to contradict yourself Pope Kinsella. If he stops using the resource then he no longer owns it, but if he stops using it and only fences it, then he still owns it, unless of course someone else comes along and uses it. Such is the failure of religious beliefs.
You also said ” I agree that you own things you emborder.”
You are postulating a right to fence a piece of property and specifically and deliberately not use it. If you do not use it, you do not own it, that follows directly from the principle of first use. Again, if you do not own (use) the land outside the fence, and you do not own (use) the land inside the fence, where does your right to obstruct the free movement of other people come from?
Also from you: ” It’s the fact that if you don’t defend your claims from squatters you acquiesce in their re-homesteading, i.e. you abandon.”
How can the “squatting” be anything but criminal in the first place? For “squatting” to be allowed at all is a denial of property rights, UNLESS it is based on the idea that the previous owner has already lost ownership through non-use, or “abandonment”.
I love this completely faith based statement in your article: ” Though some object to the notion of self-ownership on the grounds that it is incoherent or implies religious or mystical views, this objection is without foundation. The body is a scarce resource, and to avoid conflict over its use, either the person whose body it is owns it, or someone else does. The choice is self-ownership, versus other-ownership, i.e. slavery.”
What about the third possibility, that people by their very nature cannot be owned, they are not property.
Just as scarcity is a prerequisite for things to be property, so they must also have other qualities before the term property correctly applies. One of these qualities is transferability, the thing must be capable of seperation such that multiple people have the physical ability to possess it. This may sound strange, but remember, as Hoppe and Pope Kinsella like to point out, property rights are about avoiding conflict. How can there be a property rights conflict over something that by its very nature cannot be seperated and taken away? Remember the context too, property rights presuppose the abandonment of force or violence as a means. If there is no possibility of conflicting use of a resource (within the context of property rights) then there is no application of property rights.

The Heretic and Poor Lost Soul, Sy Akhplart

Peter October 6, 2011 at 1:55 am

How can the “squatting” be anything but criminal in the first place? For “squatting” to be allowed at all is a denial of property rights, UNLESS it is based on the idea that the previous owner has already lost ownership through non-use, or “abandonment”.

The question you should be asking is: who has the right to prosecute the squatter for his crime? If you own the land, someone squats on it, and you choose to do nothing, you have clearly abandoned it, and the squatter gains rights through homesteading (after some time, which isn’t determined a-priori). If you want to let the “squatter” live there without giving up your rights, you have to do something that demonstrates his acknowledgement of your ownership—maybe charge him $1 a year in rent or something; then it’s not “adverse” possession.

Stephan Kinsella October 6, 2011 at 7:09 am

Well, in some cases this can work. But often the nominal owner is long gone, or does not patrol his property, does not discover the squatter, or does not take the time to get into a dispute or insist on a lease. In these cases, these are all strong indicia that the owner has acquiesced in the squatting, and/or should be viewed as abandoning the property.

Elwood P. Dowd October 6, 2011 at 9:39 pm

Peter
“The question you should be asking is: who has the right to prosecute the squatter for his crime? ”
No, I don’t care who has the right to prosecute at this time, you have completely missed (or ignored) my point. You say yourself that what the squatter is doing is a crime, how do you legitimize title to property that you obtained through a criminal act? That is entirely my point, you can’t. The issues you bring up speak only to the various ways that the two parties prove their respective positions to be correct. The squatter claims the property was already abandoned when he squatted on it, the nominal owner tries to show that was not true. The legitimate justification for adverse possession as a way to acquire ownership of property is based on showing that the property had already been abandoned BEFORE the squatter moved in. That the facts might be in dispute is true of all methods of acquiring property, not just adverse possession.

The Heretic and Poor Lost Soul, Sy Akhplart

Inquisitor October 6, 2011 at 1:30 pm

“What about the third possibility, that people by their very nature cannot be owned, they are not property.”

Slavery? And yes, your body most assuredly -can- be owned.

Elwood P. Dowd October 6, 2011 at 9:30 pm

Inquisitor
Really? You actually believe that slavery is a legitimate form of property? That people have and sometimes still are enslaved does not make slavery a property right, it is still a violent criminal activity. Just as murder is still not permissible even though it sometimes happens. Please pull your head out and take a deep cleansing breathe.

The Heretic and Poor Lost Soul, Sy Akhplart

Inquisitor October 7, 2011 at 8:08 pm

It is a form of appropriation of other persons. Not legitimate. However, that is why libertarians are focused on self-ownership, to de-legitimise slavery. If you mean to say that the very nature of one’s control over one’s body entails this, fair enough, but that’s precisely what Hoppe argues through his own arguments on self-ownership.

Graham O'Connor October 10, 2011 at 12:06 am

“20 years later, does he still have the right to exclude others from using it?”
This says nothing about the value that is being gained by the owner. Perhaps the land is being kept as a tract of natural ‘virginal’ countryside, to be enjoyed by the owner whenever they like. To someone else this may appear to be abandoned. Does the concept of ‘use’ involve constantly manually altering the land in some way?

Elwood P. Dowd October 10, 2011 at 11:52 am

Graham
Good question, it points right at the general confusion regarding property rights in the Church of Libertarianism. The question of what constitutes “use” in regards to property rights is generally glossed over. First, the “tract of natural ‘virginal’ countryside” that you reference in your example, how did the owner acquire title to this land in the first place? If unowned land can ONLY be acquired by “first use” how did this land, that you have defined as unused, become someones property in the first place? Your example requires something other than first use as a basis for property rights. The confusion over “use” has been made worse by Pope Kinsellas sloppy and confused discussion of “scarcity” as a prerequisite for property rights. This is compounded by the conflating of “economic value” and property in most explanations. That something has no economic value (money price) does not prevent it from possibly being property. Property rights are about conflicting uses, where different uses do not conflict, or where conflicting uses are not possible there is no question of property rights. To finally answer your question, “use” as employed in the principle of “first use” as a basis for property rights means ONLY use which conflicts with someone else’s use. Standing and gazing across a tract of untouched land with awe and reverence does not convey any property rights BECAUSE it does not conflict with anyone else’s similar use.
The Heretic and Poor Lost Soul, Sy Akhplart

Stephan Kinsella October 10, 2011 at 12:52 pm

First, the “tract of natural ‘virginal’ countryside” that you reference in your example, how did the owner acquire title to this land in the first place? If unowned land can ONLY be acquired by “first use” how did this land, that you have defined as unused, become someones property in the first place? Your example requires something other than first use as a basis for property rights.

This makes no sense. Unowned land is acquired by first use. Then it’s no longer unused. I cannot even understand this bizarre objection. No one else can object to A’s homesteading an unowned resource precisely because they are not the owner.

See de Jasay on this, in the references and links here http://blog.mises.org/9611/down-with-the-lockean-proviso/ and also http://blog.mises.org/archives/006992.asp, and notes 19 and 24 to http://mises.org/daily/3660#note19

Elwood P. Dowd October 10, 2011 at 1:29 pm

Pope Kinsella
Ahh, the blindness of faith. You do not understand the phrase “defined as unused”? How about the phrase “tract of natural ‘virginal’ countryside”? Just exactly what is the first use of this particular untouched piece of land that converted it from unowned to owned? Do you maybe ascribe to the communist view that we all use gravity and gravity is a property of the entire earth therefor we all own all of the earth?
“This makes no sense. Unowned land is acquired by first use. Then it’s no longer unused. I cannot even understand this bizarre objection.” This is so stupid it actually made me laugh out loud. Apparently you see no contradiction in saying that land that has never been used, has been used. As objectivist fools love to say, you believe in A and not-A at the same time.
The Heretic and Poor Lost Soul, Sy Akhplart

Stephan Kinsella October 14, 2011 at 4:10 pm

Ahh, the blindness of faith. You do not understand the phrase “defined as unused”? How about the phrase “tract of natural ‘virginal’ countryside”? Just exactly what is the first use of this particular untouched piece of land that converted it from unowned to owned? Do you maybe ascribe to the communist view that we all use gravity and gravity is a property of the entire earth therefor we all own all of the earth?

Seems to me you are now switching to a discussion of what counts as to first use. Not to the idea that some things are unused, and then become appropriate. Is your objection to Lockean homesteading really that it is meaningless to say some things are at one point unused, unappropriated, then at some later time, due to human action, they are appropriated? Really?

Elwood P. Dowd October 14, 2011 at 5:14 pm

Pope Kinsella
What are you talking about? Have you even read my posts? I have not switched my discussion at all. You are once again raising the issue of heresy, any difference in the minutia of Church Doctrine constitutes a rejection of all Holy Scripture. I have never rejected, at any point, Lockean homesteading, I have discussed the basis of Lockean homesteading and the confusion engendered by yours and others blind faith in the Gospel of Libertarianism.
“Seems to me you are now switching to a discussion of what counts as to first use.” No, that has been my discussion from the beginning, it is my opinion that defining property rights as being based on first use, and at the same time holding the question of what constitutes “use” as heretical, as you do, is dishonest. You cannot understand property rights by starting in the middle, you must have an understanding of your initial conditions to proceed rationally rather than simply by faith.

The Heretic and Poor Lost Soul, Sy Akhplart

Rory Carmichael October 5, 2011 at 1:32 pm

Perhaps I misunderstand what you mean by “defend”. I can’t imagine a sense of defending a claim on unused land that doesn’t ultimately rely on force. I mean, is complaining sufficient defense to validate my claim? Can I abandon something unwillingly?

I’m sorry, I’m not very well read on these issues. Perhaps I should be going through the literature you’ve mentioned instead of trying to hash things out on the forums, but I find it useful to have this sort of exchange to help me frame my questions. Thanks for continuing the conversation :-)

Michael A. Clem October 5, 2011 at 4:00 pm

I think all conflict resolution at least hints at resolution by force, or the threat of force, but it is a misunderstanding to think all conflict resolution requires force. I suspect a lot of people have a cartoonish vision of a property owner pointing a shotgun at trespassers and warning them to get off their property. In reality, most people are going to be much more reasonable, and merely talking to someone and explaining the situation can often resolve the issue. If not, there would still be legal and procedural means (arbitration and mediation) for resolving differences, so the actual use of coercion should be rather limited in practice.

Michael A. Clem October 5, 2011 at 3:48 pm

Thanks for distinguishing between self-ownership and ownership of external property. They are not the same thing. The point about the context of the force used in relation to property rights is well-taken, too, but I’m not sure I see how all property rights boil down to first use/homesteading. Sure, I see how all previously unowned property had to become owned at some point, and then after that, owned property is transferred either peacefully through sale or gift, or else unpeacefully through theft or fraud. But all the details hardly seem to resolve themselves down to a simple principle, but rather treat homesteading as a first cause for property, followed by subsequent transactions, and participants get into murky transactions where we generally assume that a trade is based upon legitimate property ownership without being sure of it, unless we have a full history of the acquisition and transfer of the property.

Stephan Kinsella October 5, 2011 at 4:16 pm

“I’m not sure I see how all property rights boil down to first use/homesteading.”

That was the point of my post. Property rights in your body are not based on homesteading.

“Sure, I see how all previously unowned property had to become owned at some point, and then after that, owned property is transferred either peacefully through sale or gift, or else unpeacefully through theft or fraud. But all the details hardly seem to resolve themselves down to a simple principle”

To become “owned at some point” implies original appropriation. To become owned at some point means someone starts using it when it was not used before.

“, but rather treat homesteading as a first cause for property, followed by subsequent transactions, and participants get into murky transactions where we generally assume that a trade is based upon legitimate property ownership without being sure of it, unless we have a full history of the acquisition and transfer of the property”

I think you are confusing proof of current title with the theory of just title and just contractual transfer. If A nominally owns property X — he has some legal title to it, he is using it, acting as owner — then he owns it with respect to everyone in the world, since he has a better claim than all of them–since none of them have a legal title or use of it that predates his. Now if a particular person B can show that A (or A’s ancestor-in-title) stole it from B or B’s ancestor, then B would get it. THat’s why A, when buying the property from Z, would have a title search done by some reputable title agency and then have title insurance issued. This is not dififcult.

Virginia Llorca October 5, 2011 at 8:34 pm

Any discussion, ever, anywhere, on “non-aggression” should reference the work of Konrad Lorenz. Just because you are talking abstract economic philosophy, (which may, I agree, apply to real situations) you should not ignore cultural anthropology or consider it, even tacitly, as irrelevant.

Last time I tried to mention this, you moderated me out. Dirty pool.

Stephan Kinsella October 5, 2011 at 9:09 pm

I never moderated you.

Elwood P. Dowd October 5, 2011 at 10:14 pm

Funny, we have a rather large club for people that you moderated out when you couldn’t deal with their comments. Afraid you fall a little short in the “believable” category when you deny moderating Virginia. Dirty pool is your specialty.
The Heretic and Poor Lost Soul, Sy Akhplart

Stephan Kinsella October 6, 2011 at 7:07 am

I am really not sure what you are talking about. I moderate spam, but not content or things I disagree with.

Virginia Llorca October 6, 2011 at 10:40 pm

I apologize for pointing an accusing finger at anyone specifically. It just seems that sometimes my comments get by and sometimes they do not. I shouldn’t get caught in your spam filter as I am properly registered. And, honestly, Mr. Kinsella, and I say this in my most respectful tone, I did not know you were one of the powers. I thought you were just a prolific commentator. I’m not much good at research unless it involves goldfish and grizzly bears.

Rudd-O October 11, 2011 at 10:57 pm
Stephan Kinsella October 12, 2011 at 7:33 am

Rudd-o–very nice post, and thanks for the nice words. You said you had an epiphany–in your post you mentioned several things–what part in particular were you referring to as your epiphany? The stuff in the last paragraph, I assume?

BTW I like your phrase “monopolies of the mind” on your site, and added it to my list of synonyms for IP here http://c4sif.org/2011/01/intellectual-poverty/

Rudd-O October 14, 2011 at 1:30 pm

Yup, the whole post is the intro to the epiphany which would be the last two paragraphs. Thanks for your attention, Stephan.

Did you know that you are the *only* person who I have seen convince Stefan Molyneux that he was mistaken about something to the extent of leading him in a 180 degree turn?

It’s not because Stef is arrogant or stubborn — he is not, it’s usually the case that people who disagree with Stef are the ones who are wrong, and very amateurishly or pettily so. It’s that Stef is almost all the time correct on what he speaks about, and the people who disagree with him just present specious arguments or insults.

In contrast with that, you are the only person I’ve ever seen be so compellingly right (remember the intellectual podcast with you and him and I think Wendy McElroy?) and presenting a case so watertight, with so much intellectual closure and consistency with observable reality, that Stef just… changed his mind completely after the cast.

I had read your book Against Intellectual Property before, so I sorta expected to listen to that cast and see some lively debate between you and Stef (who until that point believed in Ayn Rand’s theory of property, thus intellectual monopolies as well). There was NO DEBATE, LITERALLY. Everyone listened to you make your very simple, very straightforward points, Stef asked you a couple of questions (politely but clearly disagreeing), you answered them, that was it. No one got angry, no one got defensive.

That’s the power of simple, correct ideas. You are the man. Respect for that.

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