In my final post on Locke’s theory of appropriation/expropriation, a while back, I mentioned that his latter-day successors, Nozick and Rothbard didn’t offer any improvement. I said at the time I would spell this out a bit more. I’ll start with Rothbard who is more politically relevant, and also, in my opinion, more interesting. As an example, at least during his 1960s flirtation with the radical left, and at the time he developed the theory of ‘homesteading’, he favored reparations for slavery.

The core of Rothbard’s position is that appropriation of property justifies ownership even without the Lockean proviso that ‘enough and as good’ is left over for others. Rothbard doesn’t, as far as I can see, go far beyond presenting this as a self-evident truth, and in any case, I don’t propose to argue about in detail. Rather, I want to look at Rothbard’s choice of the term ‘homesteading’ to describe this process. This choice of term is self-refuting in two ways, one that applies to any historical process of appropriation/expropriation and the other specific to the US.

The general point is that the term ‘homestead’ connotes the home of an independent small farmer. There is, however, nothing in Rothbard’s theory to prevent his principle being applied to properties of arbitrary physical size.

The history of European settlement of the New World is full of struggles between early arrivers who turned their cattle loose over vast areas and established vast estates, with or without the prior sanction of the local state power, and latecomers seeking to establish their own homesteads for small-scale self-sufficient farming. After varying periods of conflict, these disputes were eventually arbitrated by state power, typically in ways that gave at least some rights to both sides. (fn: Nozick ‘refutes’ this principle with the silly-clever example of someone pouring a can of tomato juice into the Pacific Ocean. Given the ready availability of real-world cases to consider, this is the kind of philosophical thought experiment that really gets my goat). Rothbard’s terminology suggests the favors the small farmer in this case, but his principle favors the vast estate. Perhaps the term ‘homestead’ is supposed to imply some prohibition on massive claims, but if so, who does Rothbard think will do the arbitration.

There’s a more direct problem for Rothbard as an American. In the US context, ‘homesteading’ has a specific legal and historical meaning. It refers to the granting, by the US state, and subject to a range of conditions, of land previously expropriated from the indigenous inhabitants. The classic piece of legislation was the Homestead Act of 1862, which granted 160 acres of public land to any US citizen willing to settle on and farm the land for at least five years. Among the beneficiaries of this government largesse were the forebears of Cliven Bundy, who homesteaded land in 1877.

Bundy’s claim is that, having inherited land received as a conditional grant from the state, he should now be free of those conditions. This is the same claim made by the great majority of propertarians: despite their belief that the state which created and enforces the property rights system under which we live is an organized system of theft and enslavement, they believe that the property rights they claim should be given to them free of the obligations (for example, the payment of taxes) under which they were granted.

It’s unclear whether Rothbard actually endorsed this claim. His 1969 piece has an interesting discussion of post-socialist privatisation which illustrates the difficulties involved (I’ve changed some notation for clarity)

Suppose, for example, that B steals A’s horse. Then C comes along and takes the horse from B. Can C be called a thief? Certainly not, for we cannot call a man a criminal for stealing goods from a thief. On the contrary, C is performing a virtuous act of confiscation, for he is depriving thief A of the fruits of his crime of aggression, and he is at least returning the horse to the innocent “private” sector and out of the “criminal” sector. C has done a noble act and should be applauded. Of course, it would be still better if he returned the horse to A, the original victim. But even if he does not, the horse is far more justly in C’s hands than it is in the hands of B, the thief and criminal.

So far so good. But what if D comes along, knowing nothing of A. Then C appears as having stolen B’s horse, and D is therefore justified in confiscating it. Obviously we can proceed through the alphabet to Z. More interestingly, what if Z claims that A stole the horse’s sire from her (Z’s) grandmother. We have a closed circle in which every claim is as justified (or not) as any other.

A look at the history of any irredentist territorial claim will show that there’s nothing fanciful about a cycle of this kind.

Where does this leave us? Dumping Locke’s proviso doesn’t make a doctrine of property rights based on appropriation/expropriation any more appealing. Nozick’s use of a term that specifically describes rights created by the US state simply emphasizes the point that property rights are always and everywhere social constructs. Your property rights are those that are accepted and enforced by the society to which you belong.

The justice or otherwise of a set of property rights can’t be assessed separately from that of the social structure of which it is a part. To the extent that the social structure is just or unjust, a property rights system that effectively supports and reinforces that social structure shares that character.

Finally, how does this relate to the feeling of rightful possession which all of us have with regard to various things, some but not all of which are recognised as property? A system of property rights works better if the rights it creates tend to coincide with feelings of rightful possession on the part of both the owners and other members of society. Those feelings partly reflect inherent relationships and are partly created by the fact of legal property ownership. For example, I regard my ideas as my own even if, as works for hire, they are the intellectual property of my employer, who may sell them to some third party. But that third party will also claim rightful possession and will feel entirely justified in preventing me from infringing their rights by using what is, from their viewpoint, their idea.

85 thoughts on “Homesteading

  1. “Why did you do this? Why did you not stop and check?”

    I suppose it is an error – like the hypothetical developer who messed up the paperwork you had described. Why did the developer not stop and check? Shouldn’t the developer be held responsible and shouldn’t the law allow the developer to be held responsible by abolishing rediculously short limitation periods? (The limitation period should be defined with respect to the length of time it has taken to discover a mistake – a variable in other words.)

    It seems to me JQ has a point when he examines questions of property rights within a larger framework then current legal procedures. Incidentally, game theorists are also busy examining the stated objectives of laws (“to ensure”) and legal procedures from a mechanism design perspective with interesting results.

  2. @Ikonoclast
    Ikon, even the case against ‘bad faith’ adverse possession isn’t nearly as clear-cut as you think it is. Consider a scenario in which the property is a house in suburban Detroit, the ‘bad-faith trespasser’ is a family who lost their livelihoods due to the offshoring of US manufacturing and the economic downturn, and the owner is the bank who foreclosed on them, but has no interest in selling or maintaining the property because it has no market value. Under adverse possession, the family could eventually regain title to the house, but without it the bank could throw them out if it decided to sell, and gain a value windfall from their continued maintenance of the property.

  3. @Ernestine Gross
    In that scenario, an adverse possession claim is a much simpler and more straightforward solution than trying to sue the developer.

    More broadly, there’s an ongoing problem with holding property developers responsible for longer term problems arising from developments, because typically company structures are set up for the purposes of specific projects, then wound up once sales are complete. It requires more than changes to limitation periods to rectify.

  4. @Collin Street

    I thought the substantive issue was bad faith adverse possession. It was more directly related to the original topic and to the example that GrueBleen had given. There is the issue, that even in the scenario, you raise the application of adverse possession will leave an aggrieved party. The owner who loses the house to the freeway might feel aggrieved, “After all I should have had that other house.” Adverse possession used in this way is a legal expedient, not a guarantee of real justice or redress to all parties. But I agree, it could be even more unjust to throw out the other person.

    I read an article, lost the link now, where it was held that adverse possession “calmed” title and helped the market. The meaning was that the idea of adverse possession being available for redress for stuff-ups (swaps or boundary faults) helps in its own little way to make title secure and support its value. It’s an interesting argument but I am not sure I agree. Most home buyers, like I was for many years, I am sure are not aware of this technical nuance. Maybe commercial and developer buyers are.

    I often get the sense that arguments for archaic laws based on odd cases and flimsy justifications, are pretext arguments so that people can maintain such laws for other purposes. There are the pretexts for keeping the archaic law (odd cases) and then the real reasons for keeping the law (it suits capitalists and rentiers).

  5. @Tim Macknay

    I was waiting for someone to make this argument. The capitalist system, or at least an extreme laissez faire version of it, creates this impoverished family’s predicament. A dodgy law for redress of a wrong done by a dodgy system! It’s a very poor argument, IMO. Absurd systems like capitalism create chains of further abuses and absurdities.

  6. Here’s a paper which substantially supports my case that adverse possession is archaic law.;jsessionid=7F4D37F91A93E40A70877FF216268C93?doi=

    Title: A Critique of the Doctrine of Adverse Possession – Hong Yin Teo

    The author notes;

    “For adverse possession to be morally justified it must be shown that even with recent legislative developments, adverse possession is still the ‘better’ legal remedy.”

    The author could have added the issue of modern technological developments which also help secure title.

    Also, pay attention to the argument ending with;

    “Adverse possession does not, therefore, make records more certain. On the contrary, it is arguably one of the primary reasons why records are inaccurate today.”

    In other words, adverse possession creates messes in this arena rather than solves them.

    It’s worth reading the whole article. It strongly supports my case that adverse possession is archaic law and bad law. I rest my case. Certain parties may now feel free reexamine their angry diatribes against me and/or reexamine where any concern about Dunning-Kruger effects should truly rest.

  7. @Tim Macknay

    “In the circumstances you describe, a claim of adverse possession would certainly be unjust. But I don’t think it necessarily follows that all, or even many, cases of adverse possession fit your example.”

    But those circumstances – two people in dispute about who ‘owns’ something – is the starting point of constructing laws that are designed to determine on the basis of an accurate understanding of how humans behave in the contexts in which a dispute about how to divide and/or allocate property.

    And even before we make laws about how to allocate property between competing interests don’t we need to all be on the same page about what property is alienable and what is not?

  8. @Tim Macknay
    Your #45

    Yeah, Ikono is a victim of Kuhnian “pre-paradigm science”. Everything must be explained right from the beginning every time something is discussed. 🙂

  9. @GrueBleen

    That is a good thing in my way of trying to understand how we got to where we are now. You know maybe we can’t get where we or the ‘we’ I think of when I imagine people want to be by starting from western ways of thinking.

    Every other discussion could be interesting but is not relevant to the problem of understanding ourselves and our desires and how to negate the desires that are not functional if our aim is to construct societies that can provide the well being that all humans need to give of their best to their group.

    Kuhn was only able to imagine paradigm shifts because he was not captured by the hegemony of the white man – who thinks he is the high point of evolution – grand narrative.

  10. @Tim Macknay

    True, it requires more than extending the limitation period in this case. The legal entity, the company with limited liability, is also a problem.

  11. @Ernestine Gross
    Your #51

    Every time “we” get to a state such as this, I find it quite amusing, simply because we are in the universe of “making it up”. Every little thing in this debate is basically something that has just been “made up” by varius people in various places at various times. Values – such as rights and duties – are just ideas some person or group has made up and propagated – you won’t find rights and duties in the equations of physics or the formulae of biochemistry.

    Then we go on and make up “laws” – that we’re supposed to obey even when nobody is ever sure what the consequences of our growing complex of laws is.

    But what I do find is that Goedel’s Theorem applies: our ‘system of morality’ and our ‘complex of laws’ behave just like the complex axiom sets – eg numbers and arithmetic – that Goedel found to be ineluctably incomplete or inconsistent – or both. And then, just like Goedel’s axiom systems, we have to make a ‘meta system’ – known as courts and judges – to try to sort out the omissions and contradictions we have created.

    Such fun. Have you ever played ‘Nomic’ [ ] A fine addition to Game Theory ?

  12. @Julie Thomas
    Your #60

    But what if our aim isn’t “to construct societies that can provide the well being that all humans need” and what if we couldn’t care less about enabling people to “give of their best to their group” ? So far as I can see, there’s lots who think that way.

    But I’ll bite, what are these “western ways of thinking” against which you preach ? Or did you perhaps mean that we really should use “western ways of thinking”, but come to different conclusions – that you, perhaps would prefer ? But if we are not to use these “western ways”, whose ways are we to use ? And have we any reason to believe these “non-western ways” will produce any better result ? That is a result that I think is better, not just one that appeals to you.

  13. @Ikonoclast
    The thing is Ikon, now you’re talking about the whole system, not just a specific legal notion. Which is all well and good, but a different discussion entirely.

  14. @Ikonoclast
    But you’re right though, that the fact that ‘bad faith’ adverse possession can lead to just outcomes in particularly straitened circumstances isn’t a particularly good argument for the concept as a whole. Which, I suspect, is why it isn’t available in most jurisdictions. I think you’re probably right that the stronger belief in Laisse-faire in the USA is why it persists there to a greater degree.

  15. I thought the substantive issue was bad faith adverse possession.

    You didn’t. You couldn’t have thought that, because you didn’t distinguish good-faith and bad-faith adverse possession and didn’t realise that good-faith adverse possession was a thing that might happen. [despite people pointing this out to you].

    Or, more concisely, you fucked up.

    You also wasted my time and Tim’s. I don’t expect an apology — you certainly should apologise, but I don’t expect you to — but, right now for free [or sunk cost, at least] you’ve run into a really good opportunity to look at how you react when you’ve made conceptual mistakes, so as you can hopefully recognise that “I am making a conceptual mistake” feeling the next time you do this and you save others five hours.

    Now. I’m going to drop this. I strongly suggest that you not respond, unless it is to apologise; there is nothing you can say that will be useful other than to apologise. Have I mentioned that I don’t actually expect you to apologise? I’m grading on a curve, here; you don’t have to be perfect, you just have to improve bit-by-bit.

    Have a look at stages of grief: right now, you’re on the “denial” stage of grief over “you fucked up”. It’s been long enough, you should be able to move past that now.

  16. @GrueBleen

    “But what if our aim isn’t “to construct societies that can provide the well being that all humans need” and what if we couldn’t care less about enabling people to “give of their best to their group” ? So far as I can see, there’s lots who think that way.”

    I think that the economy/politics/society we have now is the result of not specifically aiming to build human friendly communities and a misguided misinformed disdain for the people who are unable to live up the requirements of the bourgeous doesn’t exist society that Thatcher so succinctly characterised and that you so reflectively want to defend.

    Why don’t ‘you’ want to build something important that will make the world a better place for your children and in return they look after you? You like the way things are for you and you don’t want to challenge the truths that have led to your successful negotiation of the society that has provided you with what you needed to succeed.

    yes there are lots who think that way but they don’t have any sort of scientific foundation on which to base those thoughts and impulses; they have been led astray by the Murdoch media and other assorted capitalist institutions who have used propaganda (and psychology) to create stupid ignorant angry envious people.

    I want all types of human thinking patterns to be specifically and explicitly aimed toward that ‘horizon value’; humans are not born to be individuals who achieve success through taking advantage of other less able people, we are born social animals and we can all have the dignity and freedom that comes from being a valued part of one’s community if we accept that as what it means to be human.

    “But I’ll bite, what are these “western ways of thinking” against which you preach ? Or did you perhaps mean that we really should use “western ways of thinking”, but come to different conclusions – that you, perhaps would prefer ? But if we are not to use these “western ways”, whose ways are we to use ? And have we any reason to believe these “non-western ways” will produce any better result ? That is a result that I think is better, not just one that appeals to you.”

    Why is it ‘biting’ to respond with a question that elicits more information if that is what you want? Am I really preaching or is that how you interpret what I am doing? Can you phone a friend?

    I don’t think I have that many conclusions about specific things; the certainties I have are about the process being the important thing to consider, not the product. It’s the way of doing things that seems to me to be the truest way of determining the truth of any idea or truth, not the product. If the process has integrity then the product will also have integrity and be a ‘good’ thing, is one ‘truth’ that I can see is working for me to build a good community around me for my children and grandchildren.

    Western ways that are only one way of conceptualising how things work? Reductionist thinking.

  17. @Tim Macknay

    That is the whole point. It is a whole-of-system argument. The entirety of the common law notion of adverse possession is now, in the modern era, archaic law and bad law; superseded in moral terms, legal-administrative terms (Torrens system) and technological terms (cadestral surveying, comprehensive database records and so on). The paper I linked to conclusively demonstrated this, I would suggest in the view of any person actually convinced by clear reasoning and deductive logic.

    But of course, I get to cop the jibes; “Dunning-Kruger effects”, “victim of Kuhnian “pre-paradigm science”” and “People told you it was more complex than you thought.”

    Then I produce a well argued paper which basically sinks the arguments of all three people tossing the jibes at me. Now I wonder who is suffering “Dunning-Kruger”, being victims of improperly examined positions and not realising that the complexities actually sink their arguments, not mine. Will one of you three who started on the personal jibes be big enough to admit to being clearly and comprehensively refuted in this argument? I doubt it.

    There are a lot of assumptions here that because I espouse what are often unorthodox positions that the default assumption must be that I am always wrong. Then it becomes a group behaviour thing. The conservative gang attacks the unorthodox thinker. The thing about gang behaviour is that “nice” people do it too. They just don’t realise they do it. The outsider, the unorthodox thinker is always attacked. Of course, if you don’t have enough analytical ability and strengthen of character to stand outside the orthodox gang ethos of this society, then you just won’t get it.

    Finally, note that I am not climate science denier nor a denier of the value of solar power (after being convinced by changing facts in the later case) for example. So I am not simply a standard derp and cannot reasonably be accused of that. I think it’s more the case that I am often unimpressed but conventional and orthodox “wisdom” – I mean in non-science matters – and thus I actually question everything else and make efforts to logically analyse it through. Pity a few more here didn’t do that and instead of prematurely making snarks that don’t hold up.

  18. Apologies to all my return flame above. I hold to me substantive, objective points but the flame was uncalled for. I will take at least a short holiday from blogging and maybe a long one.

  19. Apologies to all for my return flame above. I hold to the actual substantive, objective points I made but the flame tirade was uncalled for. I will take at least a short holiday from blogging and maybe a long one. Cheers.

  20. @Ikonoclast
    Your #73 and #74

    Now don’t do that, Ikono – take a long holiday from blogging – I’ll miss you.

    I was just thinking the other day when I read an old thread that there’s been quite a few commenters that seem to have dropped out over the years – haven’t seen anything from Fran Barlow for quite a while, for instance. Didn’t always agree with her, but she was mostly good to read.

    And I don’t always agree with you either, but I think I have mentioned a couple of times that I enjoy reading you – all of it, despite your Kuhnian pre-paradigm habit of covering everything in great detail.

    Perhaps I should tell you – in case it helps at all – my view, viz: I don’t know anybody who comments on this (or any other) blog, I haven’t personally met any in the flesh (so to speak), So, very simply, I don’t have any kind of emotional response (well other than occasional amusement) to what anybody writes in here. Nobody here is of enough importance for me to have emotions about.

    Enjoy your holiday.

  21. Ikon, you are the Alan Border of “John Quiggin”. They bombarded you with specious arguments, all of which you calmly dealt with. They tried to shoot the messenger, but I think the notion that adults, in their right mind, could have anything but suspicion of the worst of the adverse possession doctrine have well advanced the digging of their own grave.

    De-enclose, redeem the commons. Understand where the theft has come from.

  22. @paul walter

    I was substantively right in the material matter IMO. It took a little while and few wobbles for me to demonstrate it and to enlist the reference help. The law is not a field of my expertise after all. But I shouldn’t have lost my cool and I shouldn’t been excessively combative early in the piece. Until I can do better I shan’t blog much I don’t think.

  23. Ikonoclast, you must know me well enough by now. I am no Einstein, but I can follow basic current affairs at a thread and beleive I can with effort separate specious arguments from more substantial ones.

    Which is not to say you can’t be right sometimes also (ducks).

  24. @GrueBleen

    Your 62.

    I am busy playing Nomic – what a gift for the long Labour Day weekend in NSW. Thank you. (Goedel’s theorems – too difficult for me. Indeed moral rules don’t grow on trees but I am greatful for traffic rules.)

  25. I haven’t read through the entire discussion but I have something to add in the form of an anecdote. I was standing in a circle of “friends” at a pub holding a ten dollar note while discussing a shout. The person next to me snatched the note from my hand and immediately handed it to the person on their other side saying “here is that ten dollars I owe you”. That person did the same, and so on till the last person on my other side put the ten dollars in their pocket. I got the ten dollars back of course and the shout was had, but what if the last person conducted the shout. The purpose of the expenditure would be achieved, a series of debt obligations met, and the only loss would be the transfer for performing the shout from one person to another. But that becomes a real loss if the obligation to deliver the next shout fell upon me immediately after. However if the shout obligation rotated in the other direction then my loss would become marginal.

    This anecdote has a very real community connection in such circles as barnraisings.

  26. @paul walter

    I was joking of course in my last post. I mis-remembered anyway. Allan Border was nicknamed Captain Grumpy not Captain Cranky. Come to think of it, I’ve been called grumpy recently on this blog but not by you. 🙂

    This is me taking a “holiday” by not posting anything serious.

  27. @Ikonoclast
    I get back from a relaxing weekend in the country, and this is what is waiting for me… 😉

    Then I produce a well argued paper which basically sinks the arguments of all three people tossing the jibes at me. Now I wonder who is suffering “Dunning-Kruger”, being victims of improperly examined positions and not realising that the complexities actually sink their arguments, not mine.

    Dude, you cited an undergraduate essay. And that after ignoring the 2006 paper I linked to earlier, because you thought you had “comprehensively demonstrated” that the concept was entirely obsolete. Said “comprehensive demonstration” consisting of nothing more than a vehement assertion, with absolutely no argument whatsoever. I am trying to avoid quoting The Princess Bride here.

    There are a lot of assumptions here that because I espouse what are often unorthodox positions that the default assumption must be that I am always wrong.

    I bear some of the blame for the argument on this thread, as it was me who asked you to explain why you had such a strong opinion about the law of adverse possession. I asked that question because I was surprised that you would have such a strong, absolute position on a relatively obscure concept of limited importance, not because you were being ‘unorthodox’. I admit that I suspected that you didn’t understand much about the concept and had reacted that way because you were offended by the ‘vibe’ of it.

    I was also surprised when you were so dismissive of my pointing out that the adverse possession doctrine, even in its ‘bad faith’ form actually serves a positive function, in social justice terms, in the current USA. I recognised that it wasn’t a particularly strong argument as an overall philosophical defence of the concept, but that wasn’t what I was trying to do of course.

    The truth is, your view is hardly an ‘unorthodox’ position. Concerns about the moral implications of adverse position have been quite widespread, and are the reasons why the doctrine has been examined by different law reform commissions and has been modified in most jurisdictions. Those bodies have generally found that the doctrine has genuine uses, which is why it has not been completely abolished. As I explained previously. The undergraduate essay you cited takes a fairly superficial approach to the current functions played by adverse possession doctrine, which is only to be expected, because it’s an undergraduate essay. I wouldn’t expect you to be able tell that of course, because you don’t really know what you’re reading.

    To be perfectly blunt, the reason I referred to Dunning-Kruger is that, at that point in the discussion., my suspicions were confirmed that you knew next to nothing about the topic you were opining so vehemently about. And you now claim that you “clearly and comprehensively refuted” the argument (i.e. that the adverse position doctrine still has some uses in law) on the basis of citing an undergraduate essay.

    The fact is, Ikon, you have just given us an absolute textbook example of the Dunning-Kruger effect. Textbook.

    I actually don’t have any personal attachment to the adverse possession doctrine, and I wouldn’t bat an eyelid if it were completely replaced with other legal tools that served the same function. I agree that it does have archaic aspects to it and it does, superficially at least, appear to promote the unjust appropriation of property. But your insistence that you have ‘comprehensively demonstrated’ the correctness of your position, when in fact you have made it pretty clear you don’t really understand what you are arguing about, strikes me as bizarre. But then, I have been known to dig in for the sake of digging in when I get into an argument about something as well, so I suppose it’s not that unusual.


  28. Let’s call a halt to this one. I’m not interested in adverse possession and the thread has been well and truly derailed.

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