Libertarian Answer Man: Strict Liability; and Tracing Title Back to Adam

No time to clean this one up at present, so here it is mostly raw. All the indented (and lighter colored) text is from my questioner:

QUERY:

This is not a question, more of a light-bulb insight the book helped clarify for me: Page 225 says “…acquiring and abandoning both involve a manifestation of the owner’s intent”.

Formerly, I would sense a gap between the nature of first-acquired title, versus subsequently title transfer.

Original appropriation seemed clean and straightforward. But acquiring already-owned resources always seemed interlaced with a history of title transfer…acquiring it from someone who themselves can show clear title from a former owner; and that former owner can show the same, and so on, as far back as the property’s history is known (reasonably). And indeed I intuitively saw nothing wrong with this. It just seemed complicated in comparison to pure homesteading.

The insight was exactly how (down to the root), a title transfer happens, including the expression of intent of the owner. I realized the phrase “transfer of title” is actually our shorthand way of describing the fundamental process.

The owner is abandoning it, but in such a way as to set the next owner of his choice (except in the rarer cases of outright abandonment).

So I imagined the simplest of barters: I have an egg, you have an apple, and we want to trade them. And indeed this is a template for the even most complex of contracts (at least those that do full, not partial title transfers).

It starts with our verbal agreement. This is where our intent is expressed.

Next, let’s say I physically hand you my egg, first.

At this moment the contract is not yet fulfilled. So I still own that egg. The future is uncertain, so you may not hand me the apple, in which case you are indeed holding my egg.

But you do hand me the apple. Let us freeze at this moment in time – the instant the contract’s terms are fulfilled. I now hold the apple, you hold the egg (FYI, I am not putting unnecessary weight on the fact of possession, as it was merely the terms of this barter. It could work just as well if I specified you hand the apple to my son).

My big insight was how this moment does not so much reflect title transfer. It reflects abandonment.

At this instant, my intent to abandon the egg manifests. The egg is abandoned. As it the apple. But our conditions (and now, manifested-actions-that-had-intent) do something else. They’ve configured reality in such a way (in this case, by possession) that the resources are sitting in exactly a state that publicizes an act of homesteading: the apple is in my hands; the egg in yours.

In the human passing of time perspective, it is seen as title transfer, but in fact in this frozen moment, resources were abandoned and then homesteaded, essentially instantaneously.

To be honest I don’t know how much that analysis matters, beyond me seeing how things look under the hood. But I couldn’t help seeing that all transfers-out are really abandonments. If so, it means all transfers-in are original appropriations! And what this means, is that (what we call) ‘history of title’, is not fundamentally a part of ownership changes. Rather, ownership changes are the result of certain actions that happen to involve scarce resources.

The usefulness of histories of title are secondary…they are (quite handy) tools we may need just in case a dispute arises later.

I hope I made that clear, and of course no reply is needed.

KINSELLA’S REPLY:

Quoting your query:

It’s not a question, more of a light-bulb insight the book helped clarify for me. Page 225 says “…acquiring and abandoning both involve a manifestation of the owner’s intent”.

Formerly, I would sense a gap between the nature of first-acquired title, versus subsequently title transfer.

Original appropriation seemed clean and straightforward. But acquiring already-owned resources always seemed interlaced with a history of title transfer…acquiring it from someone who themselves can show clear title from a former owner; and that former owner cana show the same, and so on, as far back as the property’s history is known (reasonably).

On this latter point keep in mind that you don’t have to trace title back to Adam. This is the fallacy that if title can come from original appropriation, then no title that has cloud in the title can be valid. This is not true since all title is ultimately relative. This is because all disputes are disputes among two or more existing, real people. the question is always: which one has a better claim. Or Better title. See on this Rothbard on the “Original Sin” in Land Titles: 1969 vs. 1974 and Mises, Rothbard, and Hoppe on the “Original Sin” in the Distribution of Property Rights.

I believe I talk about this in the book in a few places too. see e.g. p. 26, 268, 689.

And indeed I intuitively saw nothing wrong with this. It just seemed complicated in comparison to pure homesteading.

The insight was exactly how (down to the root), a title transfer happens, including the expression of intent of the owner. I realized the phrase “transfer of title” is actually our shorthand way of describing the fundamental process.

The owner is abandoning it, but in such a way as to set the next owner of his choice

Exactly. or this is my view of it. I am unaware of any legal or political scholars seeing this way or agreeing with me, but this is how I view it. As far as I know it’s one of my original insights in this area, but I’d be happy to be proven wrong and have allies and not be working without a net.

(except in the rarer cases of outright abandonment).

So I imagined the simplest of barters: I have an egg, you have an apple, and we want to trade them. And indeed this is a template for the even most complex of contracts (at least those that do full, not partial title transfers).

It starts with our verbal agreement.

Not to pettifog, but it need not be “verbal”. Let’s be clear here. Verbal means “using words”–verbs. This would include both oral communications (which most people erroneously refer to as “verbal contracts”) as well as written contracts. So both oral and written contracts are verbal. But a contract need not be verbal at all. the main issue is communication and communicated transmission of intent, of consent. If I am visiting Transylvania and want to buy a pretzel from a vendor on the street, and point it and hand him a local coin, we have a contract but it was not even verbal, really.

This is where our intent is expressed.

Yes. Usually. But intent can be expressed without words. For example if your date gives you a look and you give her a kiss, with no words exchanges, we can say she consented–without words. It was a “contract” in the sense that she gave consent to you to use her body for this limited puprpose–to give consent, means to transmit or manifest or communicate it. BUt it need not be in words, or written; it need not be “verbal” (contra the woke feminazis who want the boy and girl to sign a notarized and written agreement with two witnesses).

Next, let’s say I physically hand you my egg, first.

At this moment the contract is not yet fulfilled. So I still own that egg. The future is uncertain, so you may not hand me the apple, in which case you are indeed holding my egg.

I would say it depends on the understanding, but sure, that’s a reasonable one.

But you do hand me the apple. Let us freeze at this moment in time – the instant the contract’s terms are fulfilled. I now hold the apple, you hold the egg (FYI, I am not putting unnecessary weight on the fact of possession, as it was merely the terms of this barter. It could work just as well if I specified you hand the apple to my son).

Correct. at that point in time possession has transferred but not ownership. it’s like if your date hands you her purse to hold it while she goes to the bathroom–you are not the owner though you are the (rightful) possessor.

My big insight was how this moment does not so much reflect title transfer. It reflects abandonment.

At this instant, my intent to abandon the egg manifests. The egg is abandoned. As it the apple. But our conditions (and now, manifested-actions-that-had-intent) do something else. They’ve configured reality in such a way (in this case, by possession) that the resources are sitting in exactly a state that publicizes an act of homesteading: the apple is in my hands; the egg in yours.

In the human passing of time perspective, it is seen as title transfer, but in fact in this frozen moment, resources were abandoned and then homesteaded, essentially instantaneously.

Yes, and if then the new possessor is in possession of a now-unowned thing, they can easily re-homestead it.

Of course this is very simplistic scenario and clever lawyers in an advanced capitalist world can come up with more and more complex transfer arrangements. The point is if you undrstand all this, it’s just the legal infrastructure of how contracts and deals get done; almost every contract we are aware of now undre the conventional binding-promises view of contracts would work almost the same under my Kinsellian title-transfer version. Except for a few differences, perhaps:

• there is no such thing as breach of contract, since contracts are not binding obligations but just title transfers
• damages are just implied or expressly agreed title transfers
• contra Rothbard and block, there is no such thing as “implicit theft”; failure to repay a debt is not theft.
• there would be no tort action for interference with contractual relations, as exists in both marital and contract law since the contract is not a set of binding obligations (where A binds himself to do something for B, so that if A fails to perform, it violates B’s rights; it’s a “breach of contract”; and thus if C “induces” A to breach his contract with B, then C is co-liable for helping A to violating B’s rights–as an example see cases where husbands can sue a wife’s love; or the crazy Pennzoil v. Getty case — https://en.wikipedia.org/wiki/Pennzoil#Pennzoil,_Co._v._Texaco,_Inc.

Continuing on with your query:

To be honest I don’t know how much that analysis matters, beyond me seeing how things look under the hood.

It matters in subtle ways, as indicated above.

But I couldn’t help seeing that all transfers-out are really abandonments. If so, it means all transfers-in are original appropriations!

YES. Very few people grok this.

But note also the implications this has for libertarians who talk about public use of government property, e..g the bum in the library. they’l say the property is “unowned” so why shouldn’t the bum get to use it. but this is not right. You could argue the rocky mountains that the feds prevent others from using is unowned since not yet transformed, but a given governemnt facility is transformed so it is not unowned. you could say the legal owner of the state building is the state but the rightful owner are its claimaints–say, its taxed citizens. But they own it not because it’s unowned, but because it was in effect stolen from rightful owners, and/or purchased with stolen funds.

Update: See also Gary Chartier, Anarchy and Legal Order: Law and Politics for a Stateless Society (Cambridge, 2012), ch. 5.C.2.iii, pp. 270 et seq., arguing for strict liability in cases of rectification. My email to him (June 8, 2025):

Not sure I agree w/ your view about strict liability. That view to me seems to be too mechanistic and based on too-simplistic concepts of causation, also sometimes on the idea that we are responsible not for our action but for our “property”

Gary said I might be right.

I replied:

a few things to keep in mind.

• there is responsibility yes, but it’s responsibility for actions. Not for property. The confusion about this leads people to say that property rights are limited by others’ property rights. This is an unnecessary concession.
  • “The Non-Aggression Principle as a Limit on Action, Not on Property Rights,”
  • “IP and Aggression as Limits on Property Rights: How They Differ,”
• Property is a right not a responsibility.
• Once you get that we are responsible for actions not property, then you are less vulnerable to the pro-IP (or pro-regulation) view that says the fact that IP limits property rights is not a problem because all property rights are limited by other property rights. Well, no, they are not. Property rights are not limited at all; it is actions that are limited by others’ property rights.
• Also we must recognize true restitution is impossible, in almost all cases. see On “Unowned” State Property, Legal Positivism, Ownership vs. Possession, Immigration, Public Roads, and the Bum in the Library and Perfect Restitution is Impossible; An Unreachable Goal
• Also we must realize responsibility comes from intentional action and there can be degrees thereof, even if we get rid of criminal law. Intentional killing is different than negligent killing so it is not obvious the damage or remedy should be the same esp. if we keep in mind that restitution is never possible. So maybe a sliding scale is more appropriate. See on this my book Legal Foundations of a Free Society, ch. 8, n.60: Notice that this analysis helps to explain why damages or punishment is greater for intentional crimes than for negligent torts that result in similar damage. Keep in mind that punishment is an action, and a fully intentional one; it is not negligent, or “partially intentional.” Punishment is an intentional action that aims at punishing the body of the aggressor or tortfeasor. In punishing a criminal, the punishment is justified because the criminal himself intentionally violated the borders of the victim; the punishment is therefore symmetrical (see “A Libertarian Theory of Punishment and Rights” (ch. 5)). However, in punishing a mere tortfeasor, the punishment is fully intentional, but the negligent action being punished is only “partially” intentional, so to speak. In order to make the punishment or response to a torfeasor proportionate, since the tort was only partly intentional but the punishment will be fully intentional, therefore, the damages (intentionally) inflicted (or extracted) have to be reduced to some degree to make the punishment more proportionate overall. As an example, if a criminal intentionally murders someone, it would (in principle) be symmetrical for the victim’s heirs to have him killed. But if a tortfeasor accidentally kills someone, the punishment inflicted on him would have to be an order of magnitude lower since his action was not fully intentional while that of the punisher would be. Walter Block argues that if it were technologically feasible to “suck the life out of” a criminal, or even a negligent tortfeasor, to bring the victim back to life, this would be justified. See Roy Whitehead & Walter Block, “Taking the Assets of Criminals to Compensate Victims of Violence: A Legal and Philosophical Approach,” J. Law in Society 5 (2003; http://www.walterblock.com/publications/): 229–253, p. 249 et seq. Since this is so far-fetched and probably would never be possible, I state no opinion on this argument but do not find it relevant.