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Source link: http://archive.mises.org/7127/the-blockean-proviso/

The Blockean Proviso

September 11, 2007 by

I was having an interesting discussion via email about one of Walter Block’s arguments. A quick summary. Block says that just as nature abhors a vacuum, libertarianism “abhors” unowned property; that the “whole purpose” of homesteading is to bring hitherto unowned virgin territory into private ownership.

Block imagines someone who homesteads a donut-shaped circle of land, and won’t let anyone use his land to get to the unowned property in the middle of his donut. He argues that libertarian homesteading theory “abhors” land which cannot be claimed nor owned because of the land ownership pattern of a “forestaller”–a person who has encircled the land. In other words, if your property is somehow “necessary” for others to use, to get to unowned property, they have a sort of easement over it.(Block argues this in Libertarianism, Positive Obligations and Property Abandonment: Children’s Rights; “Roads, Bridges, Sunlight and Private Property: Reply to Gordon Tullock,” Journal des Economistes et des Etudes Humaines 8, no. 2/3 (June-September 1998): 315-26; and other publications, such as some of his articles on abortion: e.g. “Terri Schiavo: A Libertarian Analysis”; “Compromising the Uncompromisable: A Private Property Rights Approach to Resolving the Abortion Controversy“; “Stem Cell Research: The Libertarian Compromise“; “Abortion, Woman and Fetus: Rights in Conflict?”; “Toward a Libertarian Theory of Abortion.”)

Now his purpose in making this argument is to make an argument about the duty of parents to notify others that they are abandoning their kid and to let them come rescue the child, but we are talking here about his “forestalling” argument itself.

As best I can understand it, Block’s “forestalling” conclusion seems to be incorrect. It would imply a general easement right over everyone’s property on behalf of everyone else if they “need” that property to “get to” some other property they want to be on. I see no special status of the unowned property; it’s just property someone would like to go homestead. If they can’t reach it, it’s not the fault of those who have this resource surrounded.

In other words, after Rothbard, Hoppe (p. 246) and de Jasay (p. 91) have buried the Lockean proviso, Walter gives us a new one: the Blockean Proviso. The Lockean Proviso says that you may homestead an unowned good but only if “enough and as good” is left for others–that is, if you don’t harm them by your homesteading action by making it more difficult for them to have a similar opportunity to homestead some goods of that type. Both Block and I would reject this. But the Blockean Proviso would say that you can only homestead property that is a potential means of access to other unowned resource so long as enough and as good access to the unowned resource remains available!

We can generalize this Blockean Proviso: You can only homestead property that is located between two arbitrary external locations A and B, where some third might potentially want to travel over the property to travel from A to B.

From comments to me, Block also seems to believe that if you own a circle of property and some people live in the territory inside the circle, you are “trapping” them if you don’t let them use your property to “leave” the circle. This comment seems to confirm my concerns about his view and how it could be generalized to some kind of “necessity-easement” not limited to the homesteading case.

Let’s imagine a rectangular island with 3 people: A, B, and C. B owns the middle stripe, A and B own the pieces on the ends. Suppose A wants to visit C. He has to cross B’s property. He has a right to visit C, if C invites him, and if he has a means of getting there. But he has no means of getting there. So?

I assume Block would agree with me in this above example–that A has no easement over B’s property; that he can only visit C if B permits him to. But in Block’s theory, if C dies, all of a sudden this confers to A an easement-over-B’s-land ! How can this be?

Let me close with a final quote from Hoppe, pointed out to me by Johan Ridenfeldt:

In fact, what strikes Conway as a counterintuitive implication of the homesteading ethic, and then leads him to reject it, can easily be interpreted quite differently. It is true, as Conway says, that this ethic would allow for the possibility of the entire world’s being homesteaded. What about newcomers in this situation, who own nothing but their physical bodies? Cannot the homesteaders restrict access to their property for these newcomers and would this not be intolerable? I fail to see why. (Empirically, of course, the problem does not exist: if it were not for governments’ restricting access to unowned land, there would still be plenty of empty land around!) These newcomers come into existence somewhere – normally one would think as children born to parents who are owners or renters of land (if they came from Mars, and no one wanted them here, so what?; they assumed a risk in coming, and if they now have to return, tough luck!). If the parents do not provide for the newcomers, they are free to search the world over for employers, sellers, or charitable contributors — and a society ruled by the homesteading ethic would be, as Conway admits, the most prosperous one possible! If they still could not find anyone willing to employ, support, or trade with them, why not ask “What’s wrong with them?” instead of Conway’s feeling sorry for them? Apparently they must be intolerably unpleasant fellows and had better shape up, or they deserve no other treatment. Such, in fact, would be my own intuitive reaction.

Hoppe, Four Critical Replies, last page.

Now, it’s interesting that Hoppe here criticizes the state for restricting access to unowned property — but Block is criticizing private actors who do it… In any event, as Johan noted, the “tough luck!” line is key here. It is not directly relevant, only tangential, but the view expressed here seems to be compatible with my view that there is not any special problem if a would-be homesteader is unable to arrange for the permissions he needs to reach the target unowned resource.

Thoughts?

Update: Is Fermilab’s Tevatron unlibertarian for encircling a plot of land (and presumably preventing access to it to minimize traffic vibrations interfering with the particle smasher’s operation).

Update: My comment below refers to Roderick Long’s post Easy Rider: my comments to that have the following updated link: http://aaeblog.com/2007/09/11/easy-rider/comment-page-1/#comment-30130.

{ 63 comments }

Jean Paul September 14, 2007 at 4:43 pm

“Intuitively, I know that there is something very wrong with this scenario, but how can it be resolved without placing some kind of legal obligation on the father?”

It can’t be. Either the father is positively obligated or he isn’t.

Speaking in terms of the hypothetical ‘you’ (not referring to Scott D or anyone else specifically):

If you can establish a source of obligation – a signed contract is one possible example, but not the only example nor the best example – then you can forcibly coerce the father to meet his obligation.

But if you cannot establish an obligation, then you MUST refrain from coercive force to satisfy your intuitive desire that the child be cared for by his father. You are allowed to adopt the child; and if the child means so much to you when clearly the father does not care at all, then exercise your freedom while refraining from violating the father’s, and adopt the child yourself.

If you are unwilling or unable to adopt him yourself, whatever your list of excuses why not, the are as valid as the father’s. Violence remains NOT an option.

Jean Paul September 14, 2007 at 4:54 pm

Honestly, what makes you more warm and fuzzy inside:

“I love my parents, because they cared for me, because if they hadn’t, society would have threatened them with pain of death. My parents must really love me, and that’s why I love them so much.”

OR

“I love my parents, because at any time, they could have left me for dead to fend for myself, like a beached whale, or a bird with a broken wing. The life they provided for me is measured against a baseline of being left for dead in an alleyway. Every sacrifice they made was to put my life first, an end unto itself. My parents truly love me, and I love them.”

When you start talking about FORCING people to be good parents, the point has been so far missed, it may as well not even exist.

Scott D September 14, 2007 at 6:17 pm

Jean Paul,

I see that I did not explain the situation in enough detail. I completely oppose coercing the father to care for the child against his will. Instead, think of the case where the father is completely at liberty to give or sell his parenting rights, but he refuses to allow that and prefers to watch the child (who is too young to seek help alone) die instead.

Block says that this is wrong because the father did not advertise his abandonment of his parenting rights. Again, I feel that this is “almost” right, but that there is some element still missing.

Anthony September 14, 2007 at 6:31 pm

Robert, when Objectivism is spoken of, is it in reference to Rand’s system or the common definition of the word?

Anyway, JP, specieism is not in and of itself pernicious, if one can find a morally relevant discriminating factor that separates moral agents from all else.

Paul Edwards September 15, 2007 at 12:32 am

Scott,

“Fair enough. I too feel compelled to find a rational way to avoid the possibility of death through willful neglect.”

I think some compulsions are a virtue. This one in this context is one of them, in my opinion.

“On the one hand, I feel that it is wrong to compel one person to provide for another, on any level. Such reasoning lies at the heart of wealth redistribution.”

It gets easier when you realize that sometimes obligations to provide for another person can be voluntarily taken on or they can be incurred via some property violation.

“On the other hand, children present us with many complications. If a father of a teenager tells his son, “I’m done with you. Go take care of yourself,” I think we can all agree that, so long as only proportional force is used to remove the boy, the father is within his rights to make and enforce that proclamation in a libertarian society. For those worried about his fate, he’ll likely just go get a job.”

I really advocate Stephan’s “How We Come to Own Ourselves”. I think you’d find it interesting and worth-while. I should give it another read myself.

It’s here:

http://mises.org/daily/2291

“Reduce the child’s age to six in the same situation, and we instantly feel greater moral outrage towards the father, but I still can’t see any justification for forcing the father to continue to take care of the child. We can only hope that the child will make his way out of the house and that someone will choose to take over his guardianship. I don’t like it, but I can accept that the child at least has the physical and mental capacity to find help.

“Put the child at six months and the problem becomes more severe yet. Does the father say this to the infant and then leave it to die? Intuitively, I know that there is something very wrong with this scenario, but how can it be resolved without placing some kind of legal obligation on the father? Is the obligation a special case of parents and children (admittedly unique among human relationships)?”

———–
This is what Kinsella has to say on this:

“The idea here is that libertarianism does not oppose “positive rights”; it simply insists that they be voluntarily incurred. One way to do this is by contract; another is by trespassing against someone’s property. Now, if you pass by a drowning man in a lake you have no enforceable (legal) obligation to try to rescue him; but if you push someone in a lake you have a positive obligation to try to rescue him. If you don’t you could be liable for homicide. Likewise, if your voluntary actions bring into being an infant with natural needs for shelter, food, care, it is akin to throwing someone into a lake. In both cases you create a situation where another human is in dire need of help and without which he will die. By creating this situation of need you incur an obligation to provide for those needs. And surely this set of positive obligations would encompass the obligation to manumit the child at a certain point.”

———-

Paul Edwards September 15, 2007 at 12:45 am

JP,

“When you start talking about FORCING people to be good parents, the point has been so far missed, it may as well not even exist.”

I don’t think we are talking about being good parents. We are talking about fulfilling an ethical obligation to prevent an innocent defenseless human being who cannot take care of itself, from being allowed to suffer inhumanely and to die unnecessarily via neglect and starvation. This may entail finding someone who is willing to care for the child, or doing the job one’s self. Regulating the quality of the parenting job itself beyond that, does rather seem to be beyond the scope of the libertarian ethic.

Jean Paul September 15, 2007 at 11:16 am

To Scott D: hmm. NOW I see the problem. The inviolability of the father’s ‘property rights’ has become an invisible fortress – and cage – of ‘moral’ steel. Preventing access to the child is in some ways like imprisoning the child… and to the extent ‘imprisonment’ can be established, this opens the door for forceful intervention to preserve the wellbeing of the child.

I can’t see where the father is legally obligated to ever provide for the child – but perhaps the father can be justly made to stand aside while the ‘prisoner’ is ‘rescued’.

Jean Paul September 15, 2007 at 11:42 am

Let’s try THIS for a strange twist.

Scientists currently researching AI are ‘giving birth’ to an intelligence. At this point the process hasn’t gone far enough to recognize the created creature as anything but a pile of building blocks undergoing a slow evolution. But at some point, we will recognize what has been created is an intelligence.

If we cease research at this time, have we ABORTED, perhaps even MURDERED the nascent AI? Do the scientists have a positive obligation to keep providing for the machines’ power and cooling needs? At what point do the machines cease to be the scientists’ property (suppose they never trade away, nor give away, nor abandon this property), and the self ownership of the born AI take precedence?

At what point does any child (puppy, kitten, foal, etc) cease to be just a piece of meat, an outgrowth of the mother, PROPERTY of the mother – and instead become their own self-owning person?

Anticipating one possible answer, I think “when the umbilical cord is cut” is naive and incorrect… Likewise “when the umbilical cord COULD be cut” is not a satisfying answer.

Jean Paul September 15, 2007 at 12:05 pm

Here’s a mental image I just had.

I picture a blob of thick viscous ooze – primordial soup. The ooze is homogeneous and flowing, unthinking and unacting – its existence is purely inertial.

In the image now, we are observing from within the ooze, somewhere near the ‘surface’ of the blob. We see a fingered hand slowly break the surface from ‘outside’ the blob, slowly penetrating into the ooze. The deeper the fingers sink into the ooze, the more ‘present’ they are within the ooze, and the more their influence is exerted and felt throughout the ooze. Unlike the homogeneous and inertial ooze, the fingers are distinct; they have boundaries; they may collide with each other, may interfere with each other, may even damage each other. They are not inertial but act spontaneously. We give this non-inertial behavior a name; we call it WILL.

This mental picture is meant to be a metaphor for willful consciousness intruding into a deterministic, fatalistic universe of billard-ball particle physics (or wave harmonics or whatever the fabric of reality is). As the ooze – the stuff of reality – forms and flows, it allows the fingers – consciousness – to intrude into it. Consciousness may proceed to different extents before being stuck in the ooze and unable to go farther… so the evolution of a soup of proteins and nutrients into a conscious being is like the gradual intrusion of consciousness from some ‘other place’ where consciousness originates…

Wow. What the heck have I been smoking? I can’t even follow myself!

Nick Danger September 17, 2007 at 7:09 pm

“just as nature abhors a vacuum”

Does Walter know that Pascal proved this false about 300 years ago?

Stephan Kinsella September 20, 2007 at 11:11 am

Some scenarios I gave Walter by email; I have not seen his answers yet.

Walter, I’ve got some scenarios for you, to test your idea.

Scenario 1A: Let’s imagine there is a natural physical impediment to reaching and homesteading some interior resource. Imagine there is a huge, natural hemispherical dome over a huge patch of minerals, for example. Let’s posit that this dome’s existence makes reaching and homesteading the minerals beneath it impossible. Okay? I think you’d see no problem wtih this. Right? I am assuming a very large dome, so that even if it were owned, the owner would not necessarily own the territory beneath it.

Scenario 1B: I assume you could also envisage the same scenario, except that the dome can be penetrated, but at a cost greater than the expected value of the minerals on the inside. Again, no one homestead–but for economic, not impossibility, reasons. With me?

Question 1A: If A comes along and homesteads the impenetrable dome, he has done nothing wrong, right? No one could have homesteaded the interior resources anyway. Right?

Question 1B: If A homesteads the natural, penetrable dome, then does this mean others still have an easement to get to the middle? Even though they won’t use it? I am not sure why they do–A didn’t do anything except *claim* the dome that already existed. He can’t be blamed for not drilling thru it to homestead the interior, as it’s not economic to do so. So what do you say is the situation here re the easement?

Scenario 2: Now. Let’s assume the dome is not natural. Instead, it was built by A, as an artwork. He was not trying to forestall homesteading of the minerals beneath, but he did as a byproduct of his constrution of the dome. Right?

Scenario 2A: Assume the man-made artificial dome is penetrable but at great cost.

Question 2A1: In this case, I think you would say the owner has to grant an easement to anyone who wants one, right? It’s just that no one would use it. Correct? Does he owe anyone damages (like the increased cost of homesteading?)

Question 2A2: What if A abandons the dome. It’s similar then to case 1B above, no? Or is the A now to blame for placing this (now-abandoned) cost-to-homesteading? Does he owe anyone damages? Or is all fine? Your answer to this one interests me greatly.

Scenario 2B: Assume the man-made artificial dome is impenetrable and permanent (or its removal would totally destroy the interior).

Question 2B1: What happens then? It makes no sense to grant an easement, since it can’t be penetrated (by assumption). In this case, I think you’d have to say A has committed a “crime”, but if so, what happens next? An easement can’t be granted, and it can’t be removed. If you build a permanent, impenetrable barrier, is there an easement? (I don’t see how) Does he owe someone damages?

Question 2B2: What if A abandons it. If so, does he escape any liability that might have attached otherwise?

Scenario 3: A builds a huge dome and has it rigged so that the whole thing explodes if it’s penetrated, utterly destroying the minerals beneath it.

Question 3A: I suppose others have an easement, but they can’t use it. Does he owe any damages to anyone?

Question 3B: If A abandons it and leaves in place this huge structure, does he owe anyone damages?

***

Scenario 4: Say I build a donut-shaped centrifuge. It is very very tall. I have to grant easements to anyone who wants to cross it to try to homestead the forest in the center. Fine. But suppose it’s so tall that it would impose all sorts of costs on would-be homesteaders–they have to build a bridge over it (costing millions), or rig an elevator, which is costly and also limits the types of machinery that can easily be lifted over it; it adds delay of days or months or longer to reaching the center–before the homesteading, you could reach it in a day. Now, it takes more money, and months of delay.

I am not sure if you think this is okay or not. I think you are trapped no matter what you say. Here’s why. 4A: If you say he owes damages, then what this means is if you homestead and that imposes costs on others’ homesteading, you have to compensate them. But this would hold true of almost any homesteading–for example, I homestead a horseshoe shaped plot; I leave an opening to the middle, but this forces many people to travel the long way around now, which could cost a lot of money. But if merely making it more costly to homestead generates an obligation to compensate would-be or impeded homesteaders, then this applies not only to the donut-homesteader but to any homesteader; they are ALL “forestallers” in some sense, in the sense that they make it more *costly* to homestead certain unowned resources.

4B: So it seems to me you canNOT make any homesteader–a donut or whatever homestaeder–liable for damages merely because he has made it more difficult for others to homestaed, or even physically impossible. The only thing is you can say he has to let them try to cross, if they want to try (and maybe even pay him damages?).

But Walter, this would imply that all the donut-homesteader has to do, to avoid an involuntary easement, is to make it so costly to outsiders that they don’t WANT to use it. Hell, just line it with dynamite; or make a very very tall fence that is impratical (too costly) to cross (or to pay for repairs for). This seems an odd result of your theory–but there it is. That you are rewarde for making it too costly or too difficult to homestead.

And consider this: I homestead a donut shaped piece of land. The interior has a bunch of valuable virgin land, or minerals. Since I know that if I don’t homestead it, others now have an easement over my land–and I don’t want that–I’ll just nuke the interior, ruining it and making it valueless. If you nuke or destroy unowned land, you are doing nothing wrong–you are not takign anyone else’s property, as it’s unowned. Or maybe the bombing is a type of use, so you are homesteading it. I don’t konw. But the point is, if I did that, I’d again beoff the hook: as no one would even WANT to use any easement to reach the destroyed, valueless resource. So in your theory, which is allegedly based on the idea of promoting the (productive? peaceful?) homesteading of unowned property, you’ve established incentives for the first guy (the donut guy) to RUIN the resource. what a perverse incentive.

So it seems to me that you cannot say that the donut-forestaller dude owes damages; he only has to grant an easement. And you cannot say he does not owe damages, b/c this leads to perverse incentives and bizarre results.

Mark March 2, 2008 at 6:18 pm

Wow, I have just read the entire discussion and it really is something. Good comments all around. While I still haven’t made up my mind on the Blockean proviso, I think the last few posts helped me greatly come to an understanding regarding the abandonment and homesteading of child raising claims.

Paul said:

“This is what Kinsella has to say on this:

“The idea here is that libertarianism does not oppose “positive rights”; it simply insists that they be voluntarily incurred. One way to do this is by contract; another is by trespassing against someone’s property. Now, if you pass by a drowning man in a lake you have no enforceable (legal) obligation to try to rescue him; but if you push someone in a lake you have a positive obligation to try to rescue him. If you don’t you could be liable for homicide. Likewise, if your voluntary actions bring into being an infant with natural needs for shelter, food, care, it is akin to throwing someone into a lake. In both cases you create a situation where another human is in dire need of help and without which he will die. By creating this situation of need you incur an obligation to provide for those needs. And surely this set of positive obligations would encompass the obligation to manumit the child at a certain point.” ”

Doesn’t this solve the case of the father who watches his 3 month old baby starve in the kitchen? Picture a similar scenario along the lines of Stephan’s. A invites B onto his lakeside property, but while B is not looking A pushes B (who can’t swim) into the water, with intentions of watching him drown. A has now created a positive obligation.

C, standing on public land, or his own land or whoever’s land, that borders A’s land happens to see this and also sees that A is making no attempt to save B and is by that very fact trying to murder him. Now C runs onto A’s land uninvited, jumps into the water and saves B, using whatever force is necessary (but of course always minimal force) to prevent A from stopping him.

Is this not in tune with everything that has been said? Including Kinsella and Block?

jwg October 30, 2009 at 12:13 pm

Descending for a moment from the lofty heights of theory, we should consider the implications in the real world as the theory smashes up against the reality of human nature. Particularly the realities of what people do when they are suffering and feel (rightly or wrongly) like they cannot do anything because of what others (who are not suffering) are doing.

We have numerous real world examples of the resultant, good and bad, of easements and their ugly sister “eminent domain”.

We are coming closer and closer to a real world test of the “encirclement is okay” principle as Israel increasingly chooses to and succeeds in encircling “Palestine” and controlling/cutting off access from and to the region.

I am NOT arguing for or against the theory, nor for or against Israel or Palestine. However, I will argue that Libertarian theory really needs to address the “right” way to handle a situation where 1. a person is in the position of either committing evil or watching his children starve, and 2. has the means, and 3. the “community” does not have the means to pre-emptively take him out.

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