Libertarian Law and Legal Systems Part Two – Self-Ownership and Original Appropriation

By Duncan Whitmore

In part one of this five-part series we outlined some preliminary considerations concerning how a libertarian legal system might unfold and develop. We are now in a position to begin exploring the causative events of legal liability in a legal order governed by libertarian prescription.

Prior to considering any specific area of the law such as tort or contract we must explore the ways in which a libertarian legal system will recognise and enforce self-ownership and also the original appropriation of previously ownerless goods.

Technically speaking, the latter topic at least could be covered as part of the law of consent. This concerns the moral imperative that a person should only be liable for the actions that he has undertaken as a voluntary agent – i.e. through his own choice and volition. Both self-ownership and titles over goods allow their owner to not only enjoy the productive services flowing from his body and external goods, but equally and oppositely they burden him with the responsibility of ensuring that, through his actions, those goods do not physically interfere with the person and property of anybody else. Indeed, although law, as understood by libertarians, responds to actions rather than to ownership per se, there is likely to be at least prima facie liability of the owner of property if that property is found to have physically interfered with the person or property of somebody else. Thus, in the same way that it is unjust to physically interfere with someone else’s property, so too is it unjust to hold someone responsible for property that he has not voluntarily asserted control over through his actions.

For example, if the brakes of a car fail and the car rolls down hill before striking a person you are responsible only if it is your car and hence have responsibility for ensuring that the failure of its brakes do not cause an accident. It would be a travesty of justice if, barring any special circumstance, you were held legally liable for someone else causing an accident with their car that they were supposed to maintain. In short, people should not be burdened with the ownership of goods when they have not voluntarily assumed that burden, either by original appropriation or by contract.

Nevertheless we will confine our discussion of the law of consent to bilateral arrangements such as contracts while concentrating here on the unilateral incurrence of rights and obligations.

Our first task, therefore, is to understand very clearly how a libertarian legal system will recognise bodily ownership on the one hand and the original appropriation of previously ownerless goods on the other. As we mentioned in part one, we will not attempt to justify the concepts of self-ownership and homesteading of previously ownerless goods here. We will only assume their equity to be true as our task here is to explain how a libertarian legal system will come to recognise and enforce them or, at the very least, we will enunciate the issues that such a system will face in so doing.

Legal Persons and Self-Ownership

The fundamental task for any legal system, then, is to recognise which entities are legal persons and which are not – legal persons being those who can enjoy rights on the one hand and can be burdened with obligations on the other. In other words who is it who has the ability to both enforce his rights and also bear the responsibility of adhering to his obligations?

In libertarian theory it is those entities that demonstrate rational action who possess self-ownership. Such action is demonstrative of desires and choices that lead to action that utilises means to realise ends without being governed purely by instinct, by reflexive impulses or simply by the inertia of external force such as the wind or gravity.¹ Any libertarian legal system is therefore required to determine which entities demonstrate rational action so that they may enjoy both the benefits and burdens of self-ownership.

As we stated in part one, it will never be sufficient for an entity to simply possess choices, desires, ends and so on; rather, these have to be publicly evidenced and acknowledgeable. Rocks, for example, might possess rational thoughts and feelings that our current level of scientific understanding is unable to detect, but the inability of a rock to demonstrate these thoughts and feelings through objectively viewable action renders it outside of the category of legal persons. Every person needs to act now and to know what his rights and obligations are now, and the mere possibility that another entity could be discovered to have rational thoughts in the future is not sufficient. The alternative would be to tip toe around every piece of matter and, effectively, to never act at all, thus condemning oneself and the rest of the human race to death. With the requirement of rational action, therefore, it is critical that there is in fact any observable action at all as much as it is that the action should be rational.

When interpreting this action in order to recognise self-ownership, the basic question that will be asked is likely to be whether the person can appeal for an enforcement of his rights. In other words, conflicts over scarcity and the resulting legal disputes with an appeal to morality and justice only arise precisely because the parties to the conflict are able to demonstrate rational action. For instance, when a cheetah kills an antelope, the antelope’s relatives do not gather together a high council of antelope judiciary ready to subject the delinquent predator to trial. Nor does a human being demand justice from a dog if it bites him (although he may, of course, sue the dog’s owner). Questions of justice arise only between those who are able to appeal to it, such an appeal itself being a rational action.²

All of this is likely to be academic given that the only beings we know are capable of rational action are adult humans, and so these questions will probably not be asked explicitly until we come across some other being or species (perhaps alien visitors) that exhibit the same qualities as us. Moreover, while a libertarian legal system will, of course, have to face the difficult questions of the rights of foetuses, very young children and the mentally disabled (i.e. entities that we regard as human or at least consisting of human tissue but nevertheless may currently lack the ability to demonstrate rational action to a full extent), we might as well point out here that it is not the possible mis-categorisation of an individual being as a non-legal person that presents the biggest problem when preserving liberty. After all, our current statist legal systems cope with recognising the legal status of healthy adults, children, the mentally disabled, and so on, while the rights of unborn babies will be a hotly debated whichever system of ethics informs the law. Indeed, we might even say that in some cases the benefits of legal personage are, today, granted too freely when we consider that legislatures and courts often recognise animals (which may demonstrate some similarity to human behaviour but otherwise demonstrate a minimal capability of rational action) as possessing rights.

Rather, it is suggested that the more urgent task for a libertarian legal system is not to define which entities are legal persons, but to preserve the content of the rights that a legal person enjoys. In our statist world today we can quite clearly see that it is mostly the dilution of a person’s rights that leads to the loss of that person’s liberty, not the classification of a person as being “without rights”.³ In our contemporary legal systems, what each person enjoys is not the rights to self-ownership and to private property; instead, it is a concoction of artificial and invented rights and obligations that are bracketed under the term human rights. Human rights, however, are never termed in such a way so as to confer their full, irrevocable benefit upon each individual human; rather they are a smorgasbord-selection of open-ended (and often contradictory) values that, in most cases, should properly be categorised as goods rather than rights or freedoms.

For example, the so-called “right to life” could mean anything from your right not to be purposefully killed (which is, of course, a perfectly valid right) all the way up to your right to demand positive sustenance to keep you alive (which would breach the rights of somebody else). Your “right to free speech” may allow you to speak openly against the state but does it permit you to break into someone’s house and force them to endure a lecture, thus invading their “right to privacy”? As it is left up to the state to determine whose rights in these situations should be upheld and whose should yield, no one truly enjoys any rights at all except as a gift from the state.

This situation is clearly insufficient in a libertarian legal system. Whoever is endowed with the term legal person is entitled to the full and unbridgeable right to self-ownership and to ownership of the goods of which he is the first owner-occupier (or the latter’s voluntary successor in title) – not some charter of ends that the court has to take it upon itself to balance. To repeat, there may be some modification of this position in order to accommodate, for example, children who are not yet able to demonstrate rational action to its fullest extent. But for regular, healthy adults the entirety of their right to self-ownership and their full obligation to preserve the self-ownership of other individuals should be applied without exception. Any laws or norms that breach this principle would be invalid as libertarian laws.

Corporations and Companies

Some difficulty exists in libertarian theory concerning the legal personage of incorporated associations such as companies. The main bone of contention is the concept of limited liability (that is, that the shareholders of the company are liable only to the extent of their investment in the company, and cannot be sued for assets they own outside of the company structure) and whether such a concept can exist without state privilege. A few words on this are necessary.

There is likely to be no problem in a libertarian legal order with recognising collective entities for the purposes of commercial convenience. A company’s legal personage, for instance, simply acts as a conduit for a multiplicity of relationships regarding a complex operation so that all of the numerous parties – the owners, the suppliers, the customers, etc. – can deal with each other in a cost efficient manner.

For instance, let’s say that A, B, C, D and E set up Acme Ltd. of which they each own a share. If A, B, C, D and E wish to purchase shop premises for Acme Ltd. from F, a property vendor, F can sell the property by signing one, single contract with Acme Ltd. instead of having to sign five contracts, one each with A, B, C, D and E. Similarly, if the five owners wish to borrow £1m from G, they can do so through the same method. Acme Ltd. owns the store sold by F, and is liable to pay back the £1m to G, but the ultimate ownership of these assets and liabilities belong to A, B, C, D and E. Should Acme Ltd. be wound up, these five will benefit from the sale of all of its assets.

Now, if one of the owners of Acme Ltd., E, wishes to sell his share in the company to H, he can do so through one, written contract transferring his interests in all of Acme’s assets and liabilities to H. He does not have to go to F and G, as well as the multiplicity of other debtors and creditors of Acme Ltd., and renegotiate every single one of their contracts so as to transfer his interest to H. If H now becomes the new part-owner, F is still required to deliver a property to Acme Ltd. and Acme Ltd. still owes £1m to G, but the ultimate ownership of these assets and liabilities now belongs to A, B, C, D and H rather than to A, B, C, D and E. In the final analysis, therefore, all rights and obligations are held by individual persons.

Within this matrix, there will be no problem with recognising limited liability where there is a contractual relationship between the parties for the reason that such a restriction upon liability can simply be included as a term of the contract. The party contracting with the company realises and understands that his recovery for outstanding debts is limited to assets held within the company structure, and he judges the benefit/risk of entering the contract accordingly. This will become clearer when we discuss property distributions that can be agreed as terms of a contract.

The contentious issue concerns liability for torts committed against persons with whom there is no prior, contractual relationship. This will be discussed in more detail in Part Five when we examine vicarious liability. Suffice it to say here that liability for torts arises from the actions of individuals, not from ownership, and so it is the perpetrator of the tort, not the business owners, who are fully liable for compensating the injured party (unless the individuals concerned were acting as agents for or otherwise under the direction of the owners). This is a matter we will explore in Part Four.

Original Appropriation of Goods

A libertarian legal system having determined which entities are legal persons, it will then be required to determine how legal ownership of previously ownerless goods will be recognised. There are several criteria that a libertarian legal system is likely to require:

• There is a tangible good;
• Ownership of the good is claimed by a legal person;
• The legal person has put the good to productive use;
• The productive use has ring-fenced the good from matter not put to productive use;
• The good is ownerless.

The first criterion – that there should be a tangible good – might seem trite, but it is worth emphasising that goods capable of ownership must have a physical presence for it is only physical goods which are scarce. While contracts, as we shall see in part three, can deal with property that is not yet in existence but is proposed to come into the ownership of one of the contracting parties in the future, it is clear that claims of present ownership must be over existing goods. Not only will this requirement exclude unreal or imagined entities or objects, but so too will it not capture thoughts, feelings and ideas. The elevation of these intangible elements to the level of goods capable of generating rights always takes effect as a de facto right over how someone else can use their tangible property.⁴ Space precludes us from examining in detail whether libertarian legal systems will recognise so-called “intellectual property” but here we must assume that they will not and that all claims of ownership will be over real, tangible, existing goods.

Second, it should be self-evident that only a legal person can take legal ownership of goods. Objects and animals, as well as not possessing the right to self-ownership, cannot also possess the right to own goods external to them. A banana, a mere unconscious object that cannot own itself, a fortiori cannot be said to have rights of ownership over other such objects. Self-ownership is, therefore, a pre-requisite for owning something else.

Third, a legal person must have put the good to productive use. In libertarian theory, the lawful owner of a good is that good’s first “user-occupier”.⁵ “Productive use” is the criterion for identifying a “user-occupier” for the reason that the latter is a praxeological concept: it refers to the fact that humans identify certain goods as scarce and thus they “use” and “occupy” them, through their actions, in order to direct them towards their ends. In other words, a “user-occupier” of the good is a person who has physically used the good to produce a service that would be lost to him should he be forced to cede ownership – hence, “productive use”. Behaviour that would be excluded from this ambit would be any that is merely innocuous and incidental, such as touching the good, brushing past it, or moving it out of one’s way to achieve some other purpose. Any persons displaying such transient contact with the good would not be regarded as “user-occupiers”. It would, after all, be absurd if you were to, say, exert backbreaking work on a plot of apparently uncultivated land before another individual popped up and claimed that he, instead of you, should be the just owner for the reason that he did something trivial such as dropped a stone onto it five minutes before you settled the land.

It is important to emphasise that “productive use” is a formal, not evaluative criterion. Courts are looking solely at whether a person sought an end with the good in question – they should not award ownership based on any qualitative judgment of that end. This has several ramifications. First – and, perhaps, most importantly – it means that courts should attempt no examination of whether the ends of one user are “better” or “more worthy” than the ends of another, and certainly not whether one is or would be contributing more than the other to “society”. It should make no difference to the court whether the first user-occupier wants to deploy a good in manufacturing medicines or sex toys, nor should they care whether he needs a computer to work on or to play video games. Courts should be focussed solely on the formal fact of who was first, and however fleeting, selfish, or unremarkable the first user’s ends may appear to be they should be protected against all late comers. In short, what is and what is not productive is for individuals to decide. Second, it should be clear that the threshold for qualifying actions is very low, and could be something as simple as moving an object from one place to another, gathering logs to use as firewood, removing weeds from soil to plant seeds, and in most cases simple possession may suffice to prove one’s claim to title. A person does not need to have, say, actually built a wall in order to claim ownership over the materials involved in doing so, or chiselled out a sculpture to claim ownership over the clay. Moreover, it should be obvious that a person does not have to be physically occupying a good every waking moment – his actions need to show merely that he has reserved for himself the option to revisit the good in the future. Storage of goods for use later is clearly productive from the actor’s point of view, and it would, moreover, be an obvious absurdity to suggest that one cedes ownership of shirts, socks and trousers in one’s wardrobe because you are not currently wearing them. Finally, courts should entertain no notion of who is more “deserving” of ownership by reference to the quantity of labour or other resources a user may have invested in cultivating the good. Rights are not trophies to be handed out as “rewards” for effort. “Productive use” is an evidential indicator of “use-occupation”, not a badge of moral worthiness. Moreover, what counts as “productive” depends upon the end in question; some ends may require more work to be done in relation to a good than others, and so volume of work in the abstract is not determinative of productivity. There may, of course, be cases where deciding, out of two competing users of a good, which was the first and which was the second is difficult to achieve with certainty, and so the court may award ownership to the individual who appears to have done “more”. Such a result, however, would owe itself to the preponderance of evidence of “use-occupation” in favour of the victor. If it is otherwise clear that one user was first and the other was second then the first must always be awarded title, regardless of however much the latecomer may have done. You cannot work to turn somebody else’s house into a hotel and then claim ownership over it simply because you worked hard in doing so.

Fourth, the productive use of the good must extend over the entirety of the physical good claimed and thus serve to clearly ring-fence the good from matter that is not put to productive use. As we said in part one, the purpose of rights and ownership is to avoid or otherwise resolve conflicts arising from scarcity – this cannot be done unless the matter over which a person claims a right is encircled by a clear boundary, a red line over which people know they must not cross.

For most self-contained objects this requirement will not present too much of a problem. One log of wood, for instance, in bounded within the physical limits of the good itself. When I move the log from the forest to my home in order to use it as firewood it is clear that the extent of my productivity is limited to that log and not to an indeterminate quantity of the forest.

Things become more difficult when this is not the case. One example that is used frequently as an objection to the homesteading principle is that if several people are swimming or sailing to an ownerless island does the first one to reach it claim the entire island? Or if a person dives into the sea is he entitled to ownership of the whole ocean?

The answer is no, because in each of these cases the extent of the person’s physical presence has not served to ring-fence the entire island or the entire ocean within his sphere of productivity. The person’s valuable ends were achieved without any productive effort being extended beyond his immediate location. If a person wishes to claim ownership over the entire island or the ocean he must be able to demonstrate the extent of his productivity over that entire matter. His ownership will stop at the point where evidence of productive use also stops, and the matter within that sphere of productivity will be ring-fenced.

In some cases, a person may have exerted (at least in his mind) productive effort but there is insufficient evidence to prove that such an effort has ring-fenced property. The most typical type of example will be on boundaries of homesteaded land. If a person has homesteaded an allotment, that part of the garden where crops have been planted and are growing will clearly be part of the ring-fenced allotment. However, at the boundary of the allotment, will, say, evidence of a dropped tool a few metres from the nearest crop, or a single footprint made when the gardener stood back to view his work, serve to extend the boundary of the homesteaded land to these locations? Clearly, if the gardener had erected fencing to close in his land then this would itself consist of productive use and this problem would not exist.

A related problem is where productive use has apparently extended to only part of a good yet an individual alleges that the whole good is necessary to fulfil his ends. An example is if I draw water daily from a small lake by standing on its edge and then someone else begins to draw water from the other side. Can I complain that this latter person is violating my private property?

A libertarian court is likely to conclude that the answer is no as if the entirety of the lake was of value to me then I should have extended my productive efforts to ring fence the whole thing. Instead, my only productive acts extended to a small portion of the water available each day. Thus I did not demonstrate that the remainder of the water was of any value to me. Water rights are, of course, a complicated issue, especially in regards to flowing water, but we can acknowledge that in clear cases where it was possible to fully homestead a good and that opportunity was not taken a person cannot later complain that his rights were usurped.

The failure to determine the extent of an individual’s property rights according to boundaries of his productive action vis-à-vis the property in question would lead to obvious absurdities. Whenever a person puts anything to productive use this matter will be connected to the entire Earth – nay, the entire universe. Was the first person who trod on the virgin soil of the planet able to claim ownership over the entire thing?

Fifth, and finally, the good must, of course, be ownerless and no one else must have previously satisfied the criteria we have just elaborated. If another person has so satisfied these criteria then this latter person’s title trumps that of the claimant.

Abandonment

A libertarian legal system will have to determine which actions of a person who owns a good are sufficient to determine the abandonment of and, hence, the loss of ownership over that good. This is important for two reasons – first, to determine if a subsequent person may extend productive use over the good and thus claim ownership over it without contravening the rights of the previous owner; and, second, to determine if the first owner remains liable for his past actions in the event that those actions subsequently cause a physical interference with someone else’s property.

If, for example, a person builds a house and, after a period of time, abandons it and it falls into disrepair, it may subsequently collapse into a neighbouring dwelling. If the original owner of the collapsed property still owns it then the owner of the damaged, neighbouring property may be able to sue him. If not, and the collapsed house is held to have been abandoned and placed back into the sphere of ownerless nature, then the court is likely to hold that the collapse is not the consequence of any prior owner’s action and is, instead, of the same ilk as a tree falling or a lightning strike. Thus, the owner of the neighbouring property will be without remedy against anyone else.

As we shall see, the contract is one method of exercising the abandonment of a good by transferring it to another individual, and the terms of contracts may selectively nullify the original owner’s liability for past actions vis-à-vis the property, transferring this liability to the new owner.

“Entrapment”

Some scholars have identified a possible problem of “entrapment” or of some kind of “encirclement” when it comes to the settlement of land. The fear is that, if all land is privately owned, the owners of neighbouring properties that encircle your land could, either unilaterally or by agreement between themselves, refuse to allow you a right of passage over their land – in other words, you could be “trapped” on your own land with the movement of all people and supplies between you and the rest of the world blocked off. After all, libertarian theory permits the right of disassociation – no one can be compelled to perform for you a service, never matter how much you are prepared to offer in return.

Solutions to this alleged problem include “free movement provisos” that temper the homesteading rule in order to permit neighbouring property owners reasonable access. Walter Block also argues that property owners who have encircled unhomesteaded land in a kind of “doughnut” shape must provide a right of access to the outside world so that the aforesaid land can be claimed for ownership (a general argument that he makes in order justify his specific approach to abortion and children). In this guise, the free movement proviso has become colloquially known as the “Blockean proviso”.⁶

Most of these fears are, however, empirically unfounded, at least as far as they relate to the immediate vicinity of one’s property, and it wouldn’t be necessary to dwell on them but for the fact that they are advanced by some highly reputable libertarian scholars. As we shall see now, such fears reflect the reality of neither land settlement nor the subsequent sale and purchase of land.

The quantity of available land has always exceeded the number of people who wish to settle on that land, and so the original settlement of homesteaded plots has always taken place in a sea of ownerless land (and still could do, given the vast swathes of ownerless territory that are blocked off from new ownership claims by the state).⁷ Individuals who homestead land will not move themselves to their own little plot then sit on it forever and a day. Rather, they will cross the surrounding, ownerless land to access water (perhaps from a nearby river), food supplies, other properties, or wherever they need to go, on a regular basis. The owners of homesteaded land therefore gain easement rights over portions of the surrounding, ownerless land which will bind any later homesteaders of this land (who will only bother with homesteading if they judge this burden to be a tolerable incursion to their use of the land). In the first instance, therefore, everyone would have continued access from his own property to everywhere else he “needs” to go, and there is no danger of anyone becoming either “entrapped” or “encircled” on their own land through a strict application of libertarian law.

This is true also of communities consisting of dozens of homesteaded plots. It is likely that people will homestead their patches of land around a portion of unhomesteaded land to which all the properties have access (i.e. what will eventually become a “street”). No one will homestead this latter portion of land because their property will simply be burdened by all of the easement rights of the existing property owners, and so there is no risk of all of the houses suddenly being blocked in. This is, of course, until it becomes profitable for someone to upgrade the unkempt dirt track into a paved thoroughfare, possibly by buying up the access rights in return for a lump sum payment, or by guaranteeing the residents access rights in return for a discounted payment that reflects the cost of maintenance (with non-residents being charged more). Another possibility is that the residents themselves could simply club together and invest their own funds in upgrading the quality of the street.

Such easement rights over neighbouring land are likely to transfer in any subsequent sale of the homesteaded land to another owner. After all, no one in his right mind would purchase a plot of land without first ensuring that it isn’t landlocked, and the original owner will have no use for the easement rights once he disposes of the mother plot. It is, of course, entirely possible that a landowner could sell his easement rights over neighbouring property back to the latter’s owners and, thus, voluntarily “entrap” himself on his own plot; but this would be his own choice and not the result of any kind of deliberate or “hostile” action on the part of his neighbours.

It is true that at some point one will wander a certain distance in any direction of the compass and come across homesteaded land over which one does not have easement rights, and the owners of this land are within their rights to deny you access. Is it possible that one could, therefore, become trapped forever and a day within one’s own tiny locality? What if you need to get to somewhere that is beyond the barred land, for example if you received an invitation from a distant property owner? What if you need to receive goods and services from across this land?

Conceivably, this could all happen. But in just the same vein it is conceivable that every available supermarket will stop selling food to you; that every accessible doctor will stop giving you medical services; that every bus driver could refuse to take you as a passenger; that every butcher, baker and candlestick maker could shut their doors in your face. Under the division of labour, everybody is in the position of sourcing practically every single one of the goods and services he needs to survive and thrive from other people and, hypothetically, everybody else could refuse to offer you a service. Movement and transportation is only one of these needs that a person can fulfil only with means owned by others. If, as libertarians will argue, it is unjust to force these other people to perform you a service (even though their collective refusal would result in your certain death) then why is it just to force landowners to do so simply because their means of provision consists of land rather than of some other resource?

In any case, compelling land owners to grant access is always likely to be unnecessary as the whole point of the marketplace is that it becomes more worthwhile to exchange the means at your disposal for a price rather than to hoard them or to deliberately make yourself uncompetitive by practising arbitrary and wanton discrimination. In fact, any owners of roads or of other access routes will be motivated to maintain as much access as possible in order to attract a plethora of residents and businesses to adjoin their roads. More access means more revenue. Restricting access, on the other hand, would simply cause the opposite – the adjoining land would become undesirable, businesses would shut down, and people would stop visiting, all of which means the road owner would drive himself to bankruptcy. Indeed, even a single case of arbitrary denial of access may be enough to ruffle everyone’s feathers.

Even if we were to ignore all of this and grant that such “entrapment” was feasible, Frank van Dun dismisses the possibility that an “entrapped” person could tunnel underneath or build a bridge over the encircling land only by painting the situation faced by this individual in increasing heights of absurdity. According to Van Dun: “the encirclement of a person could be three dimensional, for example if some of the neighbours run mining operations under his property and others fill the airspace above it with antenna wires, power lines and weather balloons.”⁸ Just how likely is it that all of this will escape the attention of the “entrapped” landowner before he gets around to thinking that he might need a right of way?

Moreover, given that Van Dun’s primary preoccupation is with “hostile” (i.e. deliberate) encirclement, what kind of desperation must the neighbours possess in order to prioritise the achievement of three-dimensional encirclement? If this truly is the case then, as Hans-Hermann Hoppe suggests⁹, instead of asking what is wrong with the neighbours perhaps we should be asking what is wrong with the “entrapped” individual. Why is everyone so unusually desperate to isolate him to the extent that they will yield to no reasonable offer from him whatsoever, and why are they prepared to invest a seemingly limitless pot of funds to achieve a goal that will produce no return? Perhaps it is because the “entrapped” individual is a thoroughly nasty, evil and unpleasant person who is causing untold damage and disruption to his neighbours, and their subsequent response is a justified attempt to neutralise this threat?

In addition to these empirical remarks, the invocation of free movement provisos is part of a philosophical attack on the notion of “freedom as property”, the traditional libertarian conception of liberty. The problem with this attack is that it employs an equivocation regarding the meaning of “liberty” – one that is used most often by redistributionist politicians.

Properly considered, liberty is a sociological concept that concerns the relationship between individual humans – it exists when you are able to act unrestrained by any physical imposition caused by another person. What liberty does not mean is any kind of increased satisfaction of needs and desires that an individual may happen to have, i.e. “freedom from hunger”, “freedom from sickness”, “freedom from the cold”, etc. All of these things concern man’s relationship, not with his fellow human beings, but with nature, and they can only be dealt with by labouring with the resources that nature has provided. Theoretically, therefore, a person could be hungry, sick and cold while still being in a state of political liberty (although a community of free individuals does, of course, provide the greatest wherewithal for fulfilling these needs). However, it is clear that any conception of “freedom before property” couches liberty not in terms of the relationship vis-à-vis human beings but in the terms of satisfaction of desire – in this case here, the desire to transport oneself across land.

If, however, freedom is couched in terms of satisfaction of desire, then people can achieve this only through the physical means they have available, i.e. through property. If one person is permitted to use the physical means available to service his ends it necessarily means that another must have his desired ends vis-à-vis the means left unfulfilled. Either I can eat a single apple or you can, but we cannot both eat it, and so, if we both covet it, one of us must go without. Libertarians believe it just to grant ownership to the first user of the property because he is the only one whose values are not conflicting with anyone else’s – no one else has bothered putting the hitherto ownerless resource to productive use, and so, to the rest of the world, the withdrawal of the property from the sphere of the ownerless is of no consequence.

The insertion of a “free movement proviso”, however, necessarily restricts one person’s freedom – the landowner’s – for the sake of another’s. For the landowner, who has already demonstrated his value of the land through the act of homesteading, has now had the fulfilment of his desires through the land restricted, whereas some Johnny-come-lately benefiting from the proviso has had the ability to fulfil his desires expanded. But why must the landowner’s ends vis-à-vis the land take a back seat to the ends of someone else who wishes to move across the land – someone who has previously shown no interest in the land whatsoever? Why are the latter’s needs so much more important than the landowner’s, the only person who demonstrated the value of the land to him through his actions?

The only answer is that the “freedom before property” advocate believes one person’s need to be more important than the other’s. This, however, ignores the fundamental difference between libertarians and their “free market” fellow travellers (such as the neo-liberals), which is that the latter are willing to grant property rights only so long as such rights are able to realise some value – such as “efficiency” or “social justice” – that they regard as being important.¹⁰ These rights can be curtailed either where they cease to be effective in maintaining this value or where they actively conflict with it. Advocates of a free movement proviso are behaving in just this manner. They elevate what they think is more important – the need for everyone else to move about – rather than what real people in the real world have demonstrated is important through their physical actions that use means to achieve ends. The “freedom” claimed is really that of the advocate to have the world configured in a way that he wants rather than in a way that everyone else wants. Conceptually, therefore, “freedom before property” is no different from any other redistributionist scheme, and, like neo-liberalism, is distinguished from such schemes only by its relative restraint.

Free movement provisos may have some residual justification when it comes to transitioning between our current world (in which public land is owned by the state) to a world in which all land is owned privately in order to ensure that no existing, privately owned plots become landlocked. But even here it is likely that rights of way will be granted over neighbouring land only to the extent that a person has actually used that land (i.e. the roads, pavements, etc.) while it was in public ownership. In other words, the sale of state owned land would still be subject to the priority of current users just as original, homesteaded land would be. All in all, it is submitted that any fear of “entrapment” or “encirclement” is a hypothetical and imagined problem with no empirical basis, and for which the invented solutions lack any theoretical justification.

Conclusion

Having, therefore, outlined how a libertarian legal system will determine who has self-ownership and how the original title to goods will be established, we can now, in the remaining parts of this series, turn our attention to specific causative events of legal liability.

Part Three is now available.

Notes

¹For a detailed explanation, see Duncan Whitmore, Why Libertarians Should Read Mises – Part Two, https://misesuk.org/2018/09/14/why-libertarians-should-read-mises-part-two/

²As Frank van Dun puts it, “If a man proves himself an animal rationis capax by engaging others in argumentation, then he is a person and ought to be regarded and treated as such by other persons”. Frank van Dun, Argumentation Ethics and the Philosophy of Freedom, Libertarian Papers, Vol. 1, No. 19 (2009), 9.

³This is not to suggest, of course, that attempts to categorise individuals as being below the status of a full legal person have not been made. In the former Soviet Union, for example, a declaration that a person was mentally disabled and thus subject to fewer rights (if any) was a convenient method of disposing of political opponents. Nazi racial doctrine regarded certain races as being sub-human although that creed’s inability to think in anything other than collective rather than the individual perhaps makes little difference. Furthermore, the current war against terror seemingly allows states to categorise so-called “terrorist suspects” as “enemy combatants”, suspects who have been denied the full rights due to that latter category under the Geneva Convention.

⁴For a detailed explanation of why this is so, see Whitmore, note 1, above.

⁵In addition there are also easement rights which we will shall touch on when we explore entrapment, below.

⁶See for instance Walter Block, Libertarianism, Positive Obligations and Property Abandonment: Children’s Rights, International Journal of Social Economics, Vol. 31, No.3 (2004), 275-286; Frank van Dun, Freedom and Property: Where they Conflict, Ch. 23 in Jörg Guido Hülsmann and Stephan Kinsella (eds.), Property, Freedom & Society: Essays in Honour of Hans-Hermann Hoppe, Ludwig von Mises Institute (2009), 223-234.

⁷This does not mean to say that all land is equally desirable; merely that the actual, homesteaded plots are matched by a far greater quantity of virgin territory.

⁸Van Dun, Freedom & Property, 226.

⁹Hans Hermann Hoppe, Four Critical Replies, Appendix to The Economics and Ethics of Private Property, Ludwig von Mises Institute (2006), 418.

¹⁰Cf. Jeff Deist & Jörg Guido Hülsmann, Today’s Leading Mises Scholar on the Man and his Legacy, https://www.lewrockwell.com/2018/08/jeff-deist/todays-leading-mises-scholar-on-the-man-and-his-legacy/