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A Justification for The Libertarian Property Theory
By Ancapdoggo ·
Made a collection of some of the best arguments for the Libertarian property theory a little while ago so i decided to post it here as well:
To understand the libertarian theory of property and how it is justified we need to begin with why property rights are necessary and what its preconditions are. Lets first look at the very first starting point for the concept of ownership, mainly human action as Hans Herman Hoppe explains:
As long as a person acts, i.e., as long as a person intentionally tries to change a state of affairs that is subjectively perceived and evaluated as less satisfactory into a state that appears more rewarding, this action necessarily involves a choice regarding the use of this person’s body. And choosing, preferring one thing or state over another, evidently implies that not everything, not all possible pleasures or satisfactions, can be had at one and the same time, but rather that something considered less valuable must be given up in order to attain something else considered to be more valuable. Thus choosing always implies the incurrence of costs: foregoing possible enjoyments because the means needed to attain them are scarce and are bound up in some alternative use which promises returns valued more highly than the opportunities forfeited. Even in the Garden of Eden I could not simultaneously eat an apple, smoke a cigarette, have a drink, climb up a tree, read a book, build a house, play with my cat, drive a car, etc. I would have to make choices and could do things only sequentially. And this would be so because there is only one body that I can use to do these things and enjoy the satisfaction derived from doing them. I do not have a superabundance of bodies which would allow me to enjoy all possible satisfactions simultaneously, in one single bliss. And I would be restrained by scarcity in another respect as well: as long as this scarce resource “body” is not indestructible and is not equipped with eternal health and energy, but rather is an organism with only a limited life span, time is scarce, too. The time used up in pursuing goal A reduces the time left to pursue other goals. And the longer it takes to reach a desired result, the higher the costs involved in waiting will be, and the higher the expected satisfaction must be in order to justify these costs. Thus, because of the scarcity of body and time, even in the Garden of Eden property regulations would have to be established. Without them, and assuming now that more than one person exists, that their range of action overlaps, and that there is no preestablished harmony and synchronization of interests among these persons, conflicts over the use of one’s own body would be unavoidable. I might, for instance, want to use my body to enjoy drinking a cup of tea, while someone else might want to start a love affair with it, thus preventing me from having my tea and also reducing the time left to pursue my own goals by means of this body. In order to avoid such possible clashes, rules of exclusive ownership must be formulated. In fact, so long as there is action, there is a necessity for the establishment of property norms.
That is to say that the concept of ownership arises from the fact of the possibility of conflicts, when mans actions are in a harmoneus state where the actions do align there is no question of ownership, conflict is defined as mutually exclusive actions i.e when 2 or more actors try to implement the same scarce means towards mutually exclusive ends, to further expand on the concept of conflict, it has to do with the specific temporal order of the means ends relationship within human action, Consider Crusoe alone on his island. He picks up a stick and begins fashioning it into a spear for fishing. He has now incorporated the stick into his action plan — it is now a means toward his chosen end. Now Friday arrives. Seeing the stick in Crusoe’s hands, Friday decides to seize it by force to build a campfire. Friday is attempting to use the same scarce resource toward a mutually exclusive end. Here we see the essence of conflict: two actors directing the same means toward incompatible goals. There is a clear temporal order — Crusoe was already employing the stick when Friday initiated the conflict. Friday is then thus defined as the aggressor, aggression being defined as the initiation of conflict. The concept of ownership is then derived from this brute fact of the possibility of conflict.
It is then the function of property rights to avoid such possible clashes over the use of scarce resources by assigning rights of exclusive ownership. Property is thus a normative concept: a concept designed to make a conflict-free interaction possible by stipulating mutually binding rules of conduct regarding scarce resources. It does not need much comment to see that there is indeed scarcity of goods, of all sorts of goods, everywhere, and the need for property rights is thus evident.
Every single theory Tackles with the problem of ownership, that is asigning control in cases interpersonal conflicts. For example when a statist claims eminent domain is justified, what they are actually doing is that they are asigning the property right of the given property to the state, this would also then be the case for any example of taxation or any form of forced redistribution. Now i wanna further expand on the concept of ownership using Murray Rothbard's trichotomy argument. lets first take a look at ownership in human bodies. That is that there are fundamentally 3 ways of dividing up ownership.
1. Every man owns him self (Self ownership)
2. Every man is co owned by everyone (The communist ethic)
3. Some men can own another group of men (The slavery ethic)
Let's first take The communist ethic where everyone has the right to own his own equal quotal share of everyone else.
This alternative, what we might call “participatory communalism” or “communism,” holds that every man should have the right to own his equal quotal share of everyone else. If there are two billion people in the world, then everyone has the right to own one two-billionth of every other person. In the first place, we can state that this ideal rests on an absurdity: proclaiming that every man is entitled to own a part of everyone else, yet is not entitled to own himself. Secondly, we can picture the viability of such a world: a world in which no man is free to take any action whatever without prior approval or indeed command by everyone else in society. It should be clear that in that sort of “communist” world, no one would be able to do anything, and the human race would quickly perish. But if a world of zero self-ownership and one hundred percent other ownership spells death for the human race, then any steps in that direction also contravene the natural law of what is best for man and his life on earth. Finally, however, the participatory communist world cannot be put into practice. For it is physically impossible for everyone to keep continual tabs on everyone else, and thereby to exercise his equal quotal share of partial ownership over every other man. In practice, then, the concept of universal and equal other-ownership is utopian and impossible, and supervision and therefore control and ownership of others necessarily devolves upon a specialized group of people, who thereby become a ruling class. Hence, in practice, any attempt at communist rule will automatically become class rule.
Now let us really examine what it means to say that “everyone owns everyone else.” This would imply that no man has the right to act without the universal consent of all others. Yet we must remember that there is no such thing as non-action. Even choosing to stand still and do nothing is itself an action — it is the use of one’s scarce body and time toward chosen ends. It thus fails to meat the preconditions for a theory of ownership at all. So a better way to phrame this argument and for better clarity it is easier framed as a dichotomy rather then as a trichotomy.
So here we have it that there are 2 ways of dividing up ownership in human bodies
1. Every man owns him self (self ownership)
2. Some men can own another group of men (The Slavery Ethic)
Lets examine what it would imply for man to be able to own another man, that is that a certain class of people, A, have the right to own another class, B;
This would imply that while Class A deserves the rights of being human, Class B is in reality subhuman and therefore deserves no such rights. But since they are indeed human beings, the first alternative contradicts itself in denying natural human rights to one set of humans. Moreover, as we shall see, allowing Class A to own Class B means that the former is allowed to exploit, and therefore to live parasitically, at the expense of the latter. But this parasitism itself violates the basic economic requirement for life: production and exchange.
That is to say that the slavery ethic is thus a kind of class based ethic.
Any form of class-based law is an ethic in the form of one rule for class A and another for class non A. But by what possible means could one derive that one ethic applies to A and another incompatible ethic applies to non A? Surely such an ethic could not be derived from the nature of man as such, because if it were then we would have a universal principle, not one that applies only to a particular subset of humanity. Therefore, such an ethic must be arbitrarily particularised—we have an arbitrary distinction which forms a class of humans and a class of sub-humans, we do not here have a rational ethic for man.
Now we can see how this form of class-based ethic is necessarily arbitrary and thus irrational. To further expand on the nature of self ownership and the even more direct contradiction inherent within slavery ethic allow me to quote Stephan Kinsella at length:
The “first use” rule is merely the result of the application of the more general principle of objective link to the case of objects that may be homesteaded from an unowned state. 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. So for homesteaded things — previously unowned resources — the objective link is first use. It has to be by the nature of the situation. But for bodies, things are not the same. As noted above, one is not really the “first user” of one’s body in the same sense as one is the first user of a previously unowned thing that one appropriates. It’s not as if the body was just lying, unoccupied and unused, in the wild, waiting for an occupant to homestead it. Additionally, to homestead an unowned resource presupposes one already has a body, which one uses to act in the world and to homestead unowned things. But this is not the case for “homesteading” one’s body. One has no body before one gains rights to it. If “first use” is not the ultimate test for the “objective link” in the case of body ownership, what is? It is the unique relationship between a person and “his” body — 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. This is what constitutes the objective link sufficient to give that person better title to his body than any third party claimant
Moreover, any outsider who claims another’s body cannot deny this objective link and its special status, since the outsider also necessarily presupposes this in his own case. This is so because in seeking dominion over the other, in asserting ownership over the other’s body, he has to presuppose his own ownership of his body, which demonstrates he does place a certain significance on this link, at the same time that he disregards the significance of the other’s link to his own body. (Notice that if a victim seeks dominion over the body of his aggressor for purposes of proportional punishment, his claim of ownership over the aggressor’s body is not incompatible with a claim of self-ownership, since the cases are different. It is not inconsistent to claim that the special link between an innocent person and his body gives him the best claim over that body, and to also claim that this no longer holds for an aggressor because he has committed aggression. This distinction is neither arbitrary nor particularizable; it is grounded in the nature of things. The basic point about the primacy of the “direct” link over an “indirect” link
The Hoppean theory implies the logical priority of direct versus indirect control over one’s body. In fact, the argument made above (that any outsider who claims another’s body cannot deny the objective link between person and body) In fact, Hoppe made a similar argument in a German publication in 1985:
The answer to the question what makes my body “mine” lies in the obvious fact that this is not merely an assertion but that, for everyone to see, this is indeed the case. Why do we say “this is my body”? For this a twofold requirement exists. On the one hand it must be the case that the body called “mine” must indeed (in an intersubjectively ascertainable way) express or “objectify” my will. Proof of this, as far as my body is concerned, is easy enough to demonstrate: When I announce that I will now lift my arm, turn my head, relax in my chair (or whatever else) and these announcements then become true (are fulfilled), then this shows that the body which does this has been indeed appropriated by my will. If, to the contrary, my announcements showed no systematic relation to my body’s actual behavior, then the proposition “this is my body” would have to be considered as an empty, objectively unfounded assertion; and likewise this proposition would be rejected as incorrect if following my announcement not my arm would rise but always that of Müller, Meier, or Schulze (in which case one would more likely be inclined to consider Müller’s, Meier’s, or Schulze’s body “mine”). On the other hand, apart from demonstrating that my will has been “objectified” in the body called “mine,” it must be demonstrated that my appropriation has priority as compared to the possible appropriation of the same body by another person. As far as bodies are concerned, it is also easy to prove this. We demonstrate it by showing that it is under my direct control, while every other person can objectify (express) itself in my body only indirectly, i.e., by means of their own bodies, and direct control must obviously have logical-temporal priority (precedence) as compared to any indirect control. The latter simply follows from the fact that any indirect control of a good by a person presupposes the direct control of this person regarding his own body; thus, in order for a scarce good to become justifiably appropriated, the appropriation of one’s directly controlled “own” body must already be presupposed as justified. It thus follows: If the justice of an appropriation by means of direct control must be presupposed by any further-reaching indirect appropriation, and if only I have direct control of my body, then no one except me can ever justifiably own my body (or, put differently, then property in/of my body cannot be transferred onto another person), and every attempt of an indirect control of my body by another person must, unless I have explicitly agreed to it, be regarded as unjustified).
So now that we have it that the slavery ethic is contradictory and thus false we are only left with the alternative of self ownership. But what about the ownership of external resources? The fundamental question of ownership—whether of one’s body or of external scarce goods ultimately reduces to the same dichotomy, more clearly framed in temporal terms: a first-comer ethic versus a late-comer ethic. Either the property right is allocated to the first appropriator of a good or some late comer. Also known as the Prior later distinction in the words of Hans Herman Hoppe
But 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 children—people, that is, who come so late that one could never possibly ask them—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 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 person—past, present, or future—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.
Another argument by Anthony de Jasay also gives a justification for homesteading by showing that there is simply no reason to not allow someone to appropriate something from nature.
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.” Thus, by treating individuals as being free to act unless it contravenes a right 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.
A further proof of why the late comer ethic fails is due to the fact that the first comer ethic is going to be presupposed by virtue of having any dispute in regards to interpersonal conflicts, as we can see if there is a dispute between A and B over who should control a given resource, both parties must already presuppose a clear distinction between possession and ownership. Ownership being defined as the right to control a given resource. A is not merely saying “I currently have the resource.” Instead, A asserts that even if B manages to seize physical control, it is still A who should be the one in control. Similarly, B asserts that even if A keeps physical possession, B is nevertheless the one who should control it. In making these claims, both A and B are distinguishing between who actually possesses the resource at any moment and who ought to have control over it. They are not arguing about current power alone — they are making normative claims about rightful control. This distinction between possession and ownership is therefore presupposed by both parties the moment they enter into any dispute. But as Stephan Kinsella explains the very idea of ownership implies that only the first comer ethic is justified:
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 — that a later user may acquire something by taking it from the previous owner — 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 there is an even deeper problem for those who deny the very concept of ownership completely, who claim that rights are mere illusions, social constructs, or that “might makes right” is the only reality — these people thus must confront a deeper problem. To even deny the existence of rights, as Kinsella explains:
If any right at all exists, it is a right of A to have or do X without B’s preventing it; and, therefore, A can legitimately use force against B to enforce the right. A is concerned with the enforceability of his right to X, and this enforceability is all that A requires in order to be secure in his right to X. For a rights-skeptic meaningfully to challenge A’s asserted right, the skeptic must challenge the enforceability of the right, instead of merely challenging the existence of the right. Nothing less will do. If the skeptic does not deny that A’s proposed enforcement of his purported right is legitimate, then the skeptic has not denied A’s right to X, because what it means to have a right is to be able to legitimately enforce it. If the skeptic maintains, then, that A has no right to X, indeed, no rights at all since there are no rights, the skeptic must also maintain that A’s enforcement of his purported right to X is not justified. But the problem faced by the skeptic here is that he assumes that enforcement—that is, the use of force—requires justification. A, however, cares not that the rights-skeptic merely challenges A’s use of force against B. The rights-skeptic must do more than express his preference that A not enforce his right against B, for such an expression does not attack the legitimacy of A’s enforcing his right against B. The only way for the skeptic meaningfully to challenge A’s enforcement action is to acknowledge that B may use force to prevent A’s (illegitimate) enforcement action. And here the rights-skeptic (perversely) undercuts his own position, because by recognizing the legitimacy of B’s use of force against A, the rights-skeptic effectively attributes rights to B himself, the right not to have unjustifiable force used against him. In short, for anyone to meaningfully maintain that A has no rights against B on the grounds that no rights exist, he must effectively attribute rights to B so that B may defend himself against A’s purportedly unwarranted enforcement action. More common-sensically, this demonstration points out the inconsistency on the part of a rights-skeptic who engages in discourse about the propriety of rights at all. If there are no rights, then there is no such thing as the justifiable or legitimate use of force, but neither is there such a thing as the unjust use of force. But if there is no unjust use of force, what is it, exactly, that a rights-skeptic is concerned about? If individuals delude themselves into thinking that they have natural rights, and, acting on this assumption, go about enforcing these rights as if they are true, the skeptic has no grounds to complain. To the extent the skeptic complains about people enforcing these illusory rights, he begins to attribute rights to those having force used against them. Any rights-skeptic can only shut up, because he contradicts himself the moment he objects to others’ acting as if they have rights.
Now another way to respond to a rights-skeptic would be to propose to physically harm him. If there are no rights, as he maintains, then he cannot object to being harmed. So, presumably, any rights-skeptic would change his position and admit there were rights (if only so as to be able to object to being harmed)—or there would soon be no more rights-skeptics left alive to give rights-advocates any trouble.
Citations:
Hans-Hermann Hoppe: A Theory of Socialism and Capitalism (page 19/23)
https://cdn.mises.org/Theory%20of%20Socialism%20and%20Capitalism,%20A_4.pdf
Murray N Rothbard: For a New Liberty (page 45/46)
https://cdn.mises.org/For%20a%20New%20Liberty%20The%20Libertarian%20Manifesto_3.pdf
LiquidZulu: An Ethical Defense of Private Property (page 5/6)
https://www.scribd.com/document/792697548/an-ethical-defense-of-private-property
Stephan Kinsella: How We Come to Own Ourselves
https://mises.org/mises-daily/how-we-come-own-ourselves
Hans-Hermann Hoppe: A Theory of Socialism and Capitalism (Page 170/171)
https://cdn.mises.org/Theory%20of%20Socialism%20and%20Capitalism,%20A_4.pdf
Anthony de Jasay: Against Politics (Can't find a link to the book but Kinsell has has stuff on it here)
https://stephankinsella.com/2023/04/book-review-de-jasay-against-politics/
Stephan Kinsella: Thoughts on the Latecomer and Homesteading Ideas; or, why the very idea of “ownership” implies that only libertarian principles are justifiable
https://mises.org/mises-wire/thoughts-latecomer-and-homesteading-ideas-or-why-very-idea-ownership-implies-only-libertarian-principles-are-justifiable
Stephan Kinsella: Dialogical Arguments for Libertarian Rights
https://stephankinsella.com/2019/06/dialogical-arguments-for-libertarian-rights-in-the-dialectics-of-liberty/