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.