The following is an edited version of my recent post on a libertarian discussion list. I’ve often noted how Hoppe’s writings on libertarian ethics stress the importance of the “prior-later” distinction and the problems with the “latecomer” ethic. A few thoughts on this, which occurred to me while daydreaming earlier today. Much of it is redundant with what has been said before.
Often we have emphasized the importance of the first-use (Lockean homesteading) rule as the only objective, fair, rational principle for allocating property rights. Hoppe repeatedly blends this in with his defense of the first-use, first-own idea.
Let me first note simply that if there is any dispute about ownership, it recognizes ownership as distinct from mere possession. Ownership may be thought of as the right to possess. As Yiannopoulos notes (2):
“Property may be defined as an exclusive right to control an economic good, corporeal or incorporeal; it is the name of a concept that refers to the rights and obligations, privileges and restrictions that govern the relations of man with respect to things of value. People everywhere and at all times desire the possession of things that are necessary for survival or valuable by cultural definition and which, as a result of the demand placed upon them, become scarce. Laws enforced by organized society control the competition for, and guarantee the enjoyment of, these desired things. What is guaranteed to be one’s own is property. …. [Property rights are those] rights that confer a direct and immediate authority over a thing.”
But what is implied in the idea that the right to possess–ownership, that is–is distinct from mere possession? It means that if there is any ownership at all–and those who quarrel over things are all asserting different ownership claims and thus presupposing ownership and its distinction from possession–then it does not accrue merely to those who take things from others. That is, if B takes a thing by force from A, this cannot in and of itself make B the owner. Why? Because if it did, it means that C could take it from B, and thereby become owner. But this just means there is no such thing as ownership; there is only possession. “Might makes right,” so to speak. But this contradicts the presumption that ownership and possession are different.From this very simple idea, we see that the entire Lockean idea of first-use, first-own, follows. Why? Because if taking some good by force from its previous is not sufficient to ground an ownership claim, then by Misesian-style “regression” it becomes obvious that only the first possessor/user can have an ownership claim. Every other person takes it from a previous possessor, and is thus a mere possessor–not an owner. The first possessor–the person who plucks the resource from its unowned state out of the commons–is the only possessor who does not take it from someone else; this is why first possession imbues the homesteader with the unique status of ownership.
I.e., the first user and possessor of a good is either its owner or he is not. If he is not, then who is? The person who takes it from him by force? If forcefully taking possession from a prior owner entitles the new possessor to the thing, then there is no such thing as ownership, but only mere possession. But such a rule â€“ that a later user may acquire something by taking it from the previous owner â€“ does not avoid conflicts, it rather authorizes them.
In other words, we can see not only that Lockean homesteading (which is essential to libertarian ethics) is inextricably bound up with the prior-later distinction (and opposed to the late-comer ethic), but that the very idea of ownership implies that only libertarian-style ownership is justifiable.
Now this kind of reasoning is inherent in Hoppe’s repeated emphasis on the latecomer ethic being inherent to all forms of socialism. See, e.g., Hoppe, A Theory of Socialism and Capitalism. Some relevant excerpts are appended below.
Note also de Jasay’s way of putting this: his “let exclusion stand” principle (see extended quotes/discussion below). In a nutshell: de Jasay equates property with its owner’s “excluding” others from using it, for example by fencing in immovable property (e.g. land) or finding or creating (and keeping) movable property. Thus, the principle means “let ownership stand,” i.e., that claims to ownership of property appropriated from the state of nature or acquired ultimately through a chain of title tracing back to such an appropriation should be respected. De Jasay uses this idea to demolish the criticism that homesteading unowned resources unilaterally and unjustifiably imposes on others moral duties to refrain from interfering. He writes:
“The basic defense, however, is quite general and straightforward. It is that if a prospective owner can in fact perform it, taking first possession of a thing is a feasible act of his that is admissible if it is not a tort (in this case not trespass) and violates no right; but this is the case by definition, i.e., by the thing being identified as “unowned” [p. 173].”
In other words, if everyone is generally free to act unless they are violating others rights, there is simply no reason not to allow a person to appropriate unowned property. For who could object, if not another, prior owner? To be entitled to object is to be able to “exclude” the claimant, but the right to exclude is an incident of ownership, and the property is by presumption unowned. No one can validly object to my appropriating unowned property, then, because, assuming feasible actions are free, any objection itself must claim a right, and this itself raises a type of ownership claim.
Note that the de Jasayan idea of “let exclusion stand” or the Hoppean idea that the prior-later distinction is of crucial importance also sheds light on the nature of homesteading itself. Often the question is asked as to what types of acts constitute or are sufficient for homesteading (or “embordering” as Hoppe sometimes refers to it); what type of “labor” must be “mixed with” a thing; and to what property does the homesteading extend? What “counts” as “sufficient” homesteading? Etc. And we can see that in a way the answer to these questions is related to the issue of what is the thing in dispute. In other words, if B claims ownership of a thing possessed (or formerly possessed) by A, then the very framing of the dispute helps to identify what the thing is and what counts as possession of it. If B claims ownership of a given resource, he must want the right to control it according to its nature. Then the question becomes, did someone else previously control it (according to its nature); i.e., did someone else already homestead it, so that B is only a latecomer? This ties in with de Jasay’s “let exclusion stand” principle, which rests on the idea that if someone is actually able to control a resource such that others are excluded, then this exclusion should “stand.” Of course, the physical nature of a given scarce resource and the way in which humans use such resources will determine the nature of actions needed to “control” it and exclude others.
De Jasay, as a matter of fact, considers two basic types of appropriation: “finding and keepingâ€ and “enclosureâ€ (p. 174). The former applies primarily to movable objects that may be found, taken, and hidden or used exclusively. Since the thing has no other owner, prima facie no one is entitled to object to the first possessor claiming ownership.
For immovable property (land), possession is taken by “enclosingâ€ the land and incurring exclusion costs, e.g., erecting a fence (again, similar to Hoppe’s “embordering”–establishing an objective, intersubjectively ascertainable border). As in the case with movables, others’ loss of the opportunity to appropriate the property does not give rise to a claim sufficient to oust the first possessor (if it did, it would be an ownership claim).
One more tie-in to note: as the above discussion makes clear, different types of scarce resources are homesteaded (and controlled) in different ways. E.g., land is appropriated by embordering and/or transforming it; other things, such as movables, things that may be “found, taken, and hidden or used exclusively”, by “finding and keeping” the good in question.
But note that this applies to unowned resources–not to bodies, which are never unowned. Unowned resources, as I point out in How We Come To Own Ourselves, are unowned, non-bodily things appropriated by actors-with-bodies. As I note in that article, appropriation (first use) is the general way of establishing ownership of–an objective link with–an unowned resource; but in the case of bodies, the objective link is established by the unique relationship between a person and “his” body â€” his direct and immediate control over the body, and the fact that, at least in some sense, a body is a given person and vice versa.
Thus, just as there are different ways to appropriate–first use, or possess–an unowned resource, according to its nature and the way it in which it is controlled, so there is a difference in how ownership is established over one’s body, and over (unowned) things one (already having a body) acquires from the commons. But in all cases, one’s control over the resource in question (and it is “direct and immediate control” in the case of oen’s body) is relevant to ownership claims.
Below are some extended relevant excerpts from Hoppe and de Jasay (or my summary/discussion of de Jasay):
Hoppe, A Theory of Socialism and Capitalism, pp. 141-43:
“The basic norms of capitalism were characterized not only by the fact that [p. 142] property and aggression were defined in physical terms; it was of no less importance that in addition property was defined as private, individualized property and that the meaning of original appropriation, which evidently implies making a distinction between prior and later, had been specified. It is with this additional specification as well that socialism comes into conflict. Instead of recognizing the vital importance of the prior-later distinction in deciding between conflicting property claims, socialism proposes norms which in effect state that priority is irrelevant in making such a decision and that late-comers have as much of a right to ownership as first-comers. Clearly, this idea is involved when social-democratic socialism, for instance, makes the natural owners of wealth and/or their heirs pay a tax so that the unfortunate latecomers might be able to participate in its consumption. And this idea is also involved, for instance, when the owner of a natural resource is forced to reduce (or increase) its present exploitation in the interest of posterity. Both times it only makes sense to do so when it is assumed that the person accumulating wealth first, or using the natural resource first, thereby commits an aggression against some late-comers. If they have done nothing wrong, then the late-comers could have no such claim against them.
“What is wrong with this idea of dropping the prior-later distinction as morally irrelevant? First, if the late-comers, i.e., those who did not in fact do something with some scarce goods, had indeed as much of a right to them as the first-comers, i.e., those who did do something with the scarce goods, then literally no one would be allowed to do anything with anything, as one would have to have all of the late-comers’ consent prior to doing whatever one wanted to do. Indeed, as posterity would include one’s children’s childrenâ€”people, that is, who come so late that one could never possibly ask themâ€”advocating a legal system that does not make use of the prior-later distinction as part of its underlying property theory is simply absurd in [p. 143] that it implies advocating death but must presuppose life to advocate any thing. Neither we, our forefathers, nor our progeny could, do, or will survive and say or argue anything if one were to follow this rule. In order for any personâ€”past, present, or futureâ€”to argue anything it must be possible to survive now. Nobody can wait and suspend acting until everyone of an indeterminate class of late-comers happens to appear and agree to what one wants to do. Rather, insofar as a person finds himself alone, he must be able to act, to use, produce, consume goods straightaway, prior to any agreement with people who are simply not around yet (and perhaps never will be). And insofar as a person finds himself in the company of others and there is conflict over how to use a given scarce resource, he must be able to resolve the problem at a definite point in time with a definite number of people instead of having to wait unspecified periods of time for unspecified numbers of people. Simply in order to survive, then, which is a prerequisite to arguing in favor of or against anything, property rights cannot be conceived of as being timeless and nonspecific regarding the number of people concerned. Rather, they must necessarily be thought of as originating through acting at definite points in time for definite acting individuals.
“Furthermore, the idea of abandoning the prior-later distinction, which socialism finds so attractive, would again simply be incompatible with the nonaggression principle as the practical foundation of argumentation. To argue and possibly agree with someone (if only on the fact that there is dis agreement) means to recognize each other’s prior right of exclusive control over his own body. Otherwise, it would be impossible for anyone to first say anything at a definite point in time and for someone else to then be able to reply, or vice versa, as neither the first nor the second speaker would be independent physical decision-making units anymore, at any time. Eliminating the prior-later distinction then, as socialism attempts to do, is tantamount to eliminating the possibility of arguing and reaching agreement. However, [p. 144] as one cannot argue that there is no possibility for discussion without the prior control of every person over his own body being recognized and accepted as fair, a late-comer ethic that does not wish to make this difference could never be agreed upon by anyone. Simply saying that it could implies a contradiction, as one’s being able to say so would presuppose one’s existence as an independent decision-making unit at a definite point in time.”
“19. For an awkward philosophical attempt to justify a late-comer ethic cf. J. Rawls, A Theory of Justice, Cambridge, 1971, pp.284ff; J. Sterba, The Demands of Justice, Notre Dame, 1980, esp. pp.58ff, pp.137ff ; On the absurdity of such an ethic cf. M. N. Rothbard, Man, Economy and State, Los Angeles, 1972, p.427.
“20. It should be noted here, too, that only if property rights are conceptualized as private property rights originating in time, does it then become possible to make contracts. Clearly enough, contracts are agreements between enumerable physically independent units which are based on the mutual recognition of each contractor’s private ownership claims to things acquired prior to the agreement, and which then concern the transfer of property titles to definite things from a specific prior to a specific later owner. No such thing as contracts could conceivably exist in the framework of a late-comer ethic! [p. 239]“
See also my discussion of Hoppe and embordering in the thread to the Owning Thoughts and Labor post. Note first Hoppe’s discussion of the notion of scarcity, from A Theory of Socialism and Capitalism (p. 134):
I will first state this general theory of property as a set of rules applicable to all goods with the purpose of helping one to avoid all possible conflicts by means of uniform principles, and will then demonstrate how this general theory is implied in the nonaggression principle. Since according to the nonaggression principle a person can do with his body whatever he wants as long as he does not thereby aggress against another person’s body, that person could also make use of other scarce means, just as one makes use of one’s own body, provided these other things have not already been appropriated by someone else but are still in a natural, unowned state. As soon as scarce resources are visibly appropriatedâ€”as soon as someone “mixes his labor,â€ as John Locke phrased it,10 with them and there are objective traces of thisâ€”then property, i.e., the right of exclusive control, can only be acquired by a contractual transfer of property titles from a previous to a later owner, and any attempt to unilaterally delimit this exclusive control of previous owners or any unsolicited transformation of the physical characteristics of the scarce means in question is, in strict analogy with aggressions against other people’s bodies, an unjustifiable action.11 [p. 135]
Note hoppe nowhere assumes you own your labor, any more than you own your acts, thoughts, knowledge, intentions, etc., all of which are needed to do possess something. Hoppe focuses on embordering something–being the first to demark an unowned thing as one’s own. As Hoppe writes: “… property claims … which can be derived from past, embordering productive efforts and which can be tied to specific individuals as producers… ” [TSC, p. 13] So, according to Hoppe, it’s not because you own your labor; it’s because you have the best connection to the resource because you were the first; note elsewhere Hoppe focuses repeatedly on the significance of the prior-later distinction.
Hoppe also writes:
Hence, the right to acquire such goods must be assumed to exist. Now, if this is so, and if one does not have the right to acquire such rights of exclusive control over unused, nature-given things through one’s own work, i.e., by doing something with things with which no one else had ever done anything before, and if other people had the right to disregard one’s ownership claim with respect to such things which they had not worked on or put to some particular use before, then this would only be possible if one could acquire property titles not through labor, i.e., by establishing some objective, intersubjectively controllable link between a particular person and a particular scarce resource, but simply by verbal declaration; by decree.  The separation is based on the observation that some particular scarce resource had in fact â€“ for everyone to see and verify, as objective indicators for this would exist â€“ been made an expression or materialization of one’s own will, or, as the case may be, of someone else’s will.” (TSC, pp. 135-136; see also pp. 142-144)
Here Hoppe talks about acquiring property by one’s labor, which he equates to “establishing some objective, intersubjectively controllable link between a particular person and a particular scarce resource”, and which he contrasts with “simply by verbal declaration; by decree”. I.e., for Hoppe, ownership of a thing is established by establishing an objective link between the person and the resource. Once this is done, that person has the best claim to it, by virtue of the prior-later distinction. Nowhere does Hoppe accept the ridiculous notion that you “own” your “labor.”
Also, from my review of de Jasay’s great book, against politics:
“As noted above, however, de Jasay does not seem to believe that normative propositions can be justified, and he does not really try to do so. He just uses the occasional “should” and normative premise where it is unavoidable and appears to simply presume that the reader shares these (uncontroversial) premises, perhaps counting on the reader’s own good will or love of consistency. For example, he merely asserts that “[i]t is dubious in the extreme that a political authority is entitled to employ its power of coercion for imposing value choices on society . . . and on individual members” (p. 151). Yet the force of the normative concepts “dubious” and “entitled” here is diluted by the lack of even an attempt at justification.
De Jasay’s argument is thus a hypothetical oneâ€”and I am not sure if he would disagree for I am not sure he thinks anything better is possibleâ€”for it relies for its persuasiveness on the listener already valuing (for some reason) the goals of justice, efficiency, and order. Nevertheless, because most of these principles are certainly sound and justifiable anyway (for example, using Rothbard’s or Hoppe’s ethical theory), and because de Jasay’s critical and analytical skills are so acute, much of interest emerges from this essay.
His three principles of politics are: (1) if in doubt, abstain from political action (pp. 147 et seq.); (2) the feasible is presumed free (pp. 158 et seq.); and (3) let exclusion stand (pp. 171 et seq.). … … I found the justification of principle (3), “let exclusion stand,” to be of most interest, especially the discussion of homesteading or appropriation of unowned goods. De Jasay equates property with its owner’s “excluding” others from using it, for example by fencing in immovable property (land) or finding or creating (and keeping) movable property (corporeal, tangible objects). Thus, the principle means “let ownership stand,” i.e., that claims to ownership of property appropriated from the state of nature or acquired ultimately through a chain of title tracing back to such an appropriation should be respected.
The basic defense of the Lockean proposition that the first or original appropriator of property is entitled to appropriate it draws on his previous “feasible” principle (2) as well as his distinction between rights and liberties. Others have objected to the idea that one can appropriate unowned property on the grounds that such an action unilaterally (and thus unjustifiably) imposes on others moral duties to refrain from interfering.
The basic defense, however, is quite general and straightforward. It is that if a prospective owner can in fact perform it, taking first possession of a thing is a feasible act of his that is admissible if it is not a tort (in this case not trespass) and violates no right; but this is the case by definition, i.e., by the thing being identified as “unowned” [p. 173].
Thus, by treating individuals as being free to act unless it contravenes a right (claim) of another, there is simply no reason not to allow a person to appropriate unowned property. For who could object, if not another, prior owner? To be entitled to object is to be able to “exclude” the claimant, but the right to exclude is an incident of ownership, and the property is by presumption unowned. No one can validly object to my appropriating unowned property, then, because, assuming feasible actions are free, any objection itself must claim a right, and this itself raises a type of ownership claim.
See Hans-Hermann Hoppe, A Theory of Socialism and Capitalism, ch. 7; idem, Economics and Ethics of Private Property, chs. 8-11.
Similar reasoning is employed in my estoppel theory of rights to preclude someone from denying the rights that they necessarily presume exist in a certain context (punishment). This theory is related to and draws on Hoppe’s argumentation ethics. See Kinsella, “A Libertarian Theory of Punishment and Rights”; idem, “New Rationalist Directions in Libertarian Rights Theory.” Hoppe’s insights into why the first appropriator has a better moral claim than late-comers is also of relevance here. See Hans-Hermann Hoppe, A Theory of Socialism and Capitalism, p.141-44; idem, Economics and Ethics of Private Property, p. 191-93.
Also, an excerpt from my Defending Argumentation Ethics:
Objective Links: First Use, Verbal Claims, and the Prior-Later Distinction
So now we come to libertarianism. It turns out that libertarianism is the only theory of rights that satisfies the presuppositions of discourse, because only it advocates assigning ownership by means of objective links between the owner and the property. This link, of course, is first use, or original appropriation. Only the norm assigning ownership in a thing to its first user, or his transferee in title, could fulfill this requirement, or the other presuppositions of argumentation.
There is clearly an objective link between the person who first begins to use something, and emborders it, and all others in the world. Everyone can see this. No goods are ever subject to conflict unless they are first acquired by someone. The first user and possessor of a good is either its owner or he is not. If he is not, then who is? The person who takes it from him by force? If forcefully taking possession from a prior owner entitles the new possessor to the thing, then there is no such thing as ownership, but only mere possession. But such a rule â€“ that a later user may acquire something by taking it from the previous owner â€“ does not avoid conflicts, it rather authorizes them. It is nothing more than mights-makes-right writ large. This is not what peaceful, cooperative, conflict-free argumentative justification is about.
What about the person who verbally declares that he owns the good that another has appropriated? Again, this rule is not justifiable because it does not avoid conflicts â€“ because everyone in the world can simultaneously decree that they own any thing. With multiple claimants for a piece of property, each having an “equally good” verbal decree, there is no way to avoid conflict by allocating ownership to a particular person. No way, other than an objective link, that is, which again shows why there must be an objective link between the claimant and the resource.
As Hoppe states:
“Hence, the right to acquire such goods must be assumed to exist. Now, if this is so, and if one does not have the right to acquire such rights of exclusive control over unused, nature-given things through one’s own work, i.e., by doing something with things with which no one else had ever done anything before, and if other people had the right to disregard one’s ownership claim with respect to such things which they had not worked on or put to some particular use before, then this would only be possible if one could acquire property titles not through labor, i.e., by establishing some objective, intersubjectively controllable link between a particular person and a particular scarce resource, but simply by verbal declaration; by decree.  The separation is based on the observation that some particular scarce resource had in fact â€“ for everyone to see and verify, as objective indicators for this would exist â€“ been made an expression or materialization of one’s own will, or, as the case may be, of someone else’s will.” (TSC, pp. 135-136; see also pp. 142-144)
As Hoppe notes, assigning ownership based on verbal decree would be incompatible with the “nonaggression principle regarding bodies,” which is presupposed due to the cooperative, peaceful, conflict-free nature of argumentative justification. Moreover, it would not addess the problem of conflict avoidance, as explained above.
Thus, Hoppe is correct, when he writes:
“Hence, one is forced to conclude that the socialist ethic is a complete failure. In all of its practical versions, it is no better than a rule such as ‘I can hit you, but you cannot hit me,’ which even fails to pass the universalization test. And if it did adopt universalizable rules, which would basically amount to saying ‘everybody can hit everybody else,’ such rulings could not conceivably be said to be universally acceptable on account of their very material specification. Simply to say and argue so must presuppose a person’s property right over his own body. Thus, only the first-come-first-own ethic of capitalism can be defended effectively as it is implied in argumentation. And no other ethic could be so justified, as justifying something in the course of argumentation implies presupposing the validity of precisely this ethic of the natural theory of property.” (144)
Excerpt from my How We Come To Own Ourselves:
Recall that the purpose of property rights is to permit conflicts over scarce (rivalrous) resources to be avoided. To fulfill this purpose, property titles to particular resources are assigned to particular owners. The assignment must not, however, be random, arbitrary, or biased, if it is to actually be a property norm and possibly help conflict to be avoided. What this means is that title has to be assigned to one of the competing claimants based on “the existence of an objective, intersubjectively ascertainable link between owner and the” resource claimed.
Thus, it is the concept of objective link between claimants and a claimed resource that determines property ownership. First use is merely what constitutes the objective link in the case of previously unowned resources. In this case, the only objective link to the thing is that between the first user â€” the appropriator â€” and the thing. Any other supposed link is not objective, and is merely based on verbal decree, or on some type of formulation that violates the prior-later distinction. But the prior-later distinction is crucial if property rights are to actually establish rights, and to make conflict avoidable. Moreover, ownership claims cannot be based on mere verbal decree, as this also would not help to reduce conflict, since any number of people could simply decree their ownership of the thing.
So for homesteaded things â€” previously unowned resources â€” the objective link is first use. It has to be by the nature of the situation.
Hoppe elaborates on these themes in ch. 1, 2, and 7 of A Theory of Socialism and Capitalism.