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. @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.

  2. 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.

  3. @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.

  4. 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).

  5. @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.)

  6. 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.

  7. @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.

  8. @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.


  9. 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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