An Interesting Discussion About Property Rights, Homesteading and the Blockian Proviso

Read from the bottom up, so as to get the gist of this.

Dear G:

I congratulate you on your logic, your willingness to rigorously attempt take your argument wherever it logically leads to. However, I regard your conclusion as a reductio ad absurdum. I don’t agree with the logic you emply either. “Might makes right” can certainly determine who possesses property, but, not who the rightful owner is. The libertarian is concerned with the latter, not the former. I also disagree with the concept of “embordering.” I place a fence around a 10 square mile plot of land. I don’t think I own all the internal acreage since I didn’t homestead any of it. Also, in my view, Stephan Kinsella was kind enough to call this the “Blockian Proviso,” this is an illicit format for homesteading, since the person who does this (assume no helicopters, bridges, tunnels, world-class pole vaulters, etc.) controls land he has not homesteaded.

I’ve written about this here:

Block, Walter E. 2016. “Forestalling, positive obligations and the Lockean and Blockian provisos: Rejoinder to Stephan Kinsella.” Ekonomia Wroclaw Economic Review. http://ekon.sjol.eu/category/22-3-2016-529

Best regards,

Walter

From: G
Sent: Sunday, September 11, 2016 12:51 PM
To: Walter Block
Cc: K
Subject: RE: Homesteading and Private Property Rights

I was reacting to your “might does not make right” point. If there were a very wealthy person who had the “might”, meaning the resources, to effectively police the entire globe minus the small other plot, and before he acted the globe was virgin land, then I am arguing he could homestead the entire globe by using his resources to deny others access to the globe (without his consent) through use of a fence, helicopters circling overhead with guards using megaphones to yell “Get out of here”, laser beams covering the property that send out pain if crossed, etc. Sure, he is using force or threats, but if the land was virgin first, then he put all of this in place, I would say he has legitimately homesteaded the globe and is entitled to use this force or threats to keep people from trespassing.

From: Walter Block [mailto:walterblock@business.loyno.edu]
Sent: Sunday, September 11, 2016 12:40 PM
To: G
Cc: K
Subject: RE: Homesteading and Private Property Rights

Dear G:

Your point is correct, but I don’t see its relevance.

Best regards,

Walter

From:G
Sent: Sunday, September 11, 2016 11:37 AM
To: Walter Block
Cc: K
Subject: RE: Homesteading and Private Property Rights

Might can make right in the context of self-defense of one’s body and legitimate property. I can point a gun at someone who trespasses on my property but is unarmed.

And the “might” to control the virgin globe minus that small plot would have to be unheard of wealth to afford to police every square inch of the globe effectively – sort of like the U.S. military!

From: Walter Block [mailto:walterblock@business.loyno.edu]
Sent: Sunday, September 11, 2016 12:26 PM
To: G
Cc: K
Subject: RE: Homesteading and Private Property Rights

You would too be able to evidence effective control of that large a portion of land if you were very strong. But, might does not make right.

From: G
Sent: Sunday, September 11, 2016 11:24 AM
To: Walter Block
Cc: K
Subject: RE: Homesteading and Private Property Rights

Walter:

I don’t think a literal definition of “mixing one’s labor with the land” makes sense. There has to be something more. Under that basis, if I build a two inch-wide fence around a (small) plot of virgin land, electrify it, and post outward-facing signs saying “Keep out” (in other words, there is no doubt I am only trying to homestead the small portion of land enclosed by the fence, not the rest of the globe), I would only have homesteaded the two-inch border of the land with which I “mixed my labor” when I constructed the fence, i.e., not even the interior small portion.

Per Hoppe, I think the more important and more general concept is to use your labor or legitimately-acquired other resources to objectively evidence effective control of something that was previously unowned. The larger the claim made the harder it will be to evidence effective control.

Thus, as per part of the original discussion in this thread, the reason building that fence cannot be an effective homesteading of the globe minus the small plot is that I would not be able to evidence effective control of that large a portion of land.

G

From: Walter Block [mailto:walterblock@business.loyno.edu]
Sent: Sunday, September 11, 2016 12:05 PM
To: G
Cc: K
Subject: RE: Homesteading and Private Property Rights

Dear G:

I disagree. In order to (initially, for virgin land) own something, you have to mix your labor with it. You have to homestead it. The owner of B did not do this,.

Let me try this on you. I put a fence around one acre of virgin land. According to you, I own that land, even though I never touched any of it. But, a circular fence enclosing one acre of land also encircles the entire globe, minus that one acre. Would you be so rash as to say I now own the entire planet (minus that one acre)?

Best regards,

Walter

From: G
Sent: Friday, September 09, 2016 8:27 PM
To: Walter Block
Cc: K
Subject: RE: Homesteading and Private Property Rights

Walter:

My argument was that if the owner of B land effectively controls A land then he has homesteaded it. Per Hoppe, someone who has the objectively identifiable most direct link to a previously unowned asset has homesteaded it. If someone controls unowned land, doesn’t he satisfy this test?

I’m sorry, but given I have a full-time job I can’t write a scholarly rejoinder, so I guess I’ll just keep watching this space!

G

From: Walter Block [mailto:walterblock@business.loyno.edu]
Sent: Friday, September 09, 2016 4:12 PM
To: G
Cc: K
Subject: RE: Homesteading and Private Property Rights

Dear G:

With forestalling, the owner of B land controls A land without having homesteaded the latter. That is contrary to deontological principles.

Dear K:

This article has been accepted for publication:

Block, Walter E. Forthcoming. “Forestalling, positive obligations and the Lockean and Blockian provisos: Rejoinder to Stephan Kinsella.” Ekonomia Wroclaw Economic Review

So, it is now your turn if you want to write a rejoinder. G, ditto.

Best regards,

Walter

From: G
Sent: Tuesday, September 06, 2016 9:38 PM
To: Walter Block
Cc: K
Subject: RE: Homesteading and Private Property Rights

Walter:

Having read your forthcoming piece, I have to say I’m much more sympathetic to K’s views as you articulate them in your paper.

You place a lot of emphasis on “the libertarian ideal that all of the earth’s surface should come under private ownership.” I haven’t seen that libertarian ideal developed from first principles before: it seems neither just nor unjust for less than 100% of the world to be privately owned. There is no justice in the percentage; it is merely an arithmetic measure.

Further, it seems to me that to argue thus against forestalling is to argue consequentially: if we allow forestalling, we may not achieve our ideal percentage, ergo, forestalling is illegitimate.

And, if there is one, isn’t the “libertarian ideal” to minimize conflict over scarce resources, rather than privatize 100% of the earth (as nice as that might be)? You can certainly achieve the former without the latter.

Further, when you say that there is “yet another principle of libertarian homesteading: that no one may control land he himself has not homesteaded”, that sounds tautological. If you control (previously unowned) land, haven’t you thereby homesteaded it? Isn’t it like saying “No one may be a bachelor unless he has not married”?

I don’t see where in the Rothbardian formulation of property rights acquisition the “easement based on need” arises. The easement is not arising from homesteading unowned land (when C dies, why does his land necessarily become unowned?) , nor from voluntary transfer, and the forestalling party B has not committed any wrong against the trapped party A’s body or property, so there is no claim for restitution. I would argue, instead, that if B effectively controls the forestalled land, he has homesteaded it (if it were unowned).

As to the parent who refuses to feed her baby, I don’t think we need to rely on “invalid positive obligations” to save the baby. It is consistent with libertarianism for voluntarily assumed positive obligations to exist. To wit, if a parent brings a child into this world then she is voluntarily assuming the positive obligation to care for that child until the child can do so itself. This is the principle that if you voluntarily put someone in a situation of danger, you assume the positive obligation to rectify things. If, in breach of this obligation, the mother is derelict, one could argue that anyone else who comes along and is willing to voluntarily assume the positive obligation of care can act legitimately to take the baby, on the grounds that the baby would ratify this act if it were of decision-making age (the boundaries of this principle in any private legal system would need to be developed from the ground up by local courts).

Anyway, very interesting stuff. I look forward to K’s rejoinder article.

G

From: Walter Block [mailto:walterblock@business.loyno.edu]
Sent: Wednesday, August 17, 2016 12:39 AM
To: K, G
Subject: RE: Homesteading and Private Property Rights

Dear G:

K and I disagree on homesteading borders:

Block, Walter E. Forthcoming. “Forestalling, positive obligations and the Lockean and Blockian provisos.” Ekonomia Wroclaw Economic Review

Dear K:

It is now your turn.

Best regards,

Walter

—–Original Message—–
From: K
Sent: Tue 8/16/2016 10:19 PM
To:G
Cc: Walter Block
Subject: Re: Homesteading and Private Property Rights

On Tue, Aug 16, 2016 at 8:16 PM, G wrote:

K:

On the land homesteading, very well, I accept your examples make some good
points. However, Walter’s original answer was a flat “no” to homesteading
a large area of land by fencing it. I think that could be sufficient in
some cases: for instance, if I construct an electric fence with signs on
the outside saying “Keep Out”. Do I have to do more?

I don’t know. And I agree, that if, as a practical matter, you control an
access area that prevents people from homesteading the middle, or getting
to it, it’s similar to homesteading the middle. I guess. Because ultimately
property ownership doesn’t mean the right to control it means the right to
exclude others from using.

In fact this may be what motivates Walter’s opposition to doing this donut
thing! — see e.g.
https://web.archive.org/web/20130614090157/http://archive.mises.org/007127

Your point about not sufficiently policing it suggests you can abandon by
being passive, as opposed to abandonment requiring actual intent. But what
if your desired use is just to own some vacant land next to your house to
ensure you have no neighbors. It would look like you’re not actively using
it, or profiting from it, but is that sufficient to constitute abandonment?

“look like” is the key, I think. If you see them doing it, you can warn
them or something. That is public and conspicuous. That’s one reason the
civil law distinguishes between these cases– for example if I see someone
squatting and confront them, and agree to give them (say) a 50 year
lease–then they are not ‘tolling’ the statute of limitations/acuqisitive
prescription because they are holding it “under color of title” or whatevr
the doctrine is called. They are doing it ostensibly with my permission.
bUt if they refuse to sign the lease and insist they own it, and use it in
open defiance of my demands, and I never take physical or legal action to
oust them, then after a cetain time (say, 30 years) we would say, their
title is good–so I have effectively abandoned it.

And, of course, your comments about what might be abandonment must assume
some initial homesteading — by building the fence? — since you cannot
abandon what you don’t first own.

this is too complicated to discuss here–I think you don’t need actual
homesteading or even actual ownership to base your claim on–precisely
because onwership disputes are always between 2 or more real peoplel, so
the law just makes A and B trce title back to a “common ancestor” C. THen
it figures out who has the better claim “since C”. It doesn’t matter if C
actually can trace his title back to Adam. but agian this is too
complicated to explain here. But I think in many ways the law gets it
rihgt, but it’s complicated and the nuances and solutions like thes are not
well known to people trying to deduce things from scratch. armchair
theorizing can be perilous!

G

On Aug 16, 2016, at 12:21 PM, K
wrote:

On Mon, Aug 15, 2016 at 9:10 PM, G
wrote:

Walter and K:

As to the apple, don’t you have to first argue (absent contract) that
keeping the apple is appropriate compensation for the trespass (that is, is
not excessive compensation for the trivial trespass)? If by accident I
drop a very valuable diamond over the fence, can you say keeping the
diamond is appropriate compensation for the trivial trespass? If my dog
runs into your yard for a minute, can you keep my dog? Your argument
(Walter) seems to suggest “yes” to both of these hypotheticals. This is
the Venus fly trap theory of compensation. And, Walter, since you advocate
that our bodies can be alienated (I know K disagrees), if I trespass
on your land can you seize and own my body?

I agree /w G here.

As to the land homesteading, I don’t understand what your argument is.
If constructing a fence is not sufficient, how can you ever homestead land,
since you won’t “touch” all of it? What percentage do you have to
“touch”? Are we back in Locke’s “mixing labor with land” regime? If I
lasso a horse in the wild, have I only homesteaded its neck, since I won’t
have touched all of it? Am I misinterpreting Hoppe’s embordering
concept? Surely putting up a fence creates an objective, direct link.

It’s not always sufficient, in the cases you are imaginging, IMO. For one
thing, the surface of the earth is not really flat, it’s spherical, so a
circular fence encloses the “inside” as well as the “outside.” Or imagine
building a fence on the equator–does this mean you now own teh en tire
earth? Or you build a small circular fence at the north pole–does this
mean you have homesteaded the entire planet? Etc. I think there are limits
to how much you can homestead. This ties in with Rothbard’s “relevant
technological unit” and with practical concerns too. For one thing if you
homestead a million acres somewhere, then unless you are actualy actively
using and policing it, and thus profiting from most of it, you won’t have
hte resources to regularly patrol it and kick off squatters. It’s expensive
to own land, to maintain it. So if you don’t, you will tacitly be
consenting to the use by the squatters and after some time you wll be
considered to have abandoned it and the current owners will have
re-homesteaded it. This is called acquisitive prescription in the civil
law and I think it is a concept that makes rough sense from a libertarian
perspective. I agree w/ Nozick (?) that if you dump a can of tomato soup
into the ocean that means you lose ownership of the soup, instead of
homesteading the whole ocean.

What am I missing? If you fence 10 square feet but don’t touch any of
it (you fence from the outside), have you not homesteaded that small parcel
of land? Maybe you’ve homesteaded only the land outside the fence on which
you walked!

G

On Aug 15, 2016, at 8:48 PM, Walter Block <walterblock@business.loyno.edu
wrote:

G

Dear K and G:

Please allow me to introduce the two of you to each other. Whenever I
come across libertarian issues of which I’m not entirely sure, K is
one of the primary people I consult with.

K and I agree on #7. If you homestead the perimeter of a big
circle, you don’t own the entire circle. You only own what you actually
homestead. And, if the circle has a large amount of land in it, you didn’t
even touch most of it.

As to #1, K you’re discussing what implicit contracts might well
arise, and I agree with you. But, suppose there are no implicit contracts,
for any reason. In my view, if an adult (kids complicate matters) hits his
ball onto my property, I’m now the rightful owner of it, I think. Ditto for
an apple dropping onto my property. It would be nice if I returned both,
but supererogatory. The ball, and the apple are in effect trespassing onto
my property.

Does looking at this issue from the perspective where people are total
strangers change your analysis of it?

Best regards,

Walter

—–Original Message—–
From: K

Sent: Sun 8/14/2016 8:40 PM
To: Walter Block
Subject: Re: FW: Homesteading and Private Property Rights

Hmm. I think I agree with him on 1. I think I agree wtih you on 7. As for
1, the case seems analogous to me to the baseball. If I accidentally toss
a
baseball into your yard, does that mean you own it now? I don’t see how
that’s automatically teh answer. Especially if we assume community norms
indicate tacit consent by property owners for such minor uses–so that
it’s
not even trespass to drop an apple or baseball into your yard. If you have
a laden apple tree hanging over my yard I suppose I could warn you that
any
apples that fall are considered trespass and bounty, and to demand that
you
cut back your tree, and if you don’t do so, then you forfeit any apples
that fall onto my demesne. However most people would not do this. But my
view is: some custom would emerge, over time, in a given region. If A’s
tree overhangs B’s estate Blackacre and drops fruit onto blackacre–who
owns the fruit? I would imagine that if the amount is trivial, no one
cares. If B eats it, A is in no position to complain. If A asks politely
for permission to come collect his fruit, maybe B charges a rent or a
favor, and everyone is happy. I imagine something would be worked out. But
whichever way the law develops, as a default–in A’s, or B’s, favor–then
contractual institutions would arise in response thereto–Coasian style
(not that I want to endorse Coase).

On Sun, Aug 14, 2016 at 2:00 PM, Walter Block <
walterblock@business.loyno.edu wrote:

Dear K:

Was I wrong on this? How do you answer the kid’s baseball challenge?

Best regards,

Walter

—–Original Message—–
From: G
Sent: Sun 8/14/2016 8:58 AM
To: Walter Block
Subject: Homesteading and Private Property Rights

Walter:

I want to push back on two of your responses to “EP”:

1) If I had an apple tree on my property and an apple fell down to my
neighbor’s property who has property of the apple?

<< neighbor

If I own the apple tree then I own its apples unless I (a) voluntarily
transfer them, (b) abandon them, or (c) violate someone’s rights and the
proportional remedy principle allows someone else to rightfully claim
the apples. In this case neither (a) nor (b) would apply since both
require a manifestation of intent to transfer or abandon, as the case may be, and
the tree accidentally dropping an apple cannot be a manifestation of my
intent. If you are relying on (c) I would argue that there has been no
intentional violation of my neighbor’s rights, and thus he cannot use
Kinsella’s estoppel principle for restitution/punishment; and there has
been no actual damage caused so why would the neighbor have any remedy?

Are you claiming that if a kid playing baseball in his backyard
accidentally hits his ball into the neighbor’s yard (without causing any
damage) the neighbor can refuse to give the ball back?

7) What does someone have to do to own property by homesteading. if I
built a fence around a 10000 square mile aria I wouldn’t own all that land or
would I?

<< no

Why “no”? Per Hoppe’s “embordering” concept I have taken purposeful
action with my legitimately-owned resources to objectively separate this
(assumed previously unowned) land from all other land and I have the
most direct link to this land of anyone. If your answer is “no”, then it
must be “no” for any size area, even 10 square feet. If fencing unowned land
does not amount to effective homesteading, what would?

G

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9:11 pm on January 7, 2019