On the Core Principles of Libertarian Property Rights

[From my Webnote series]

Stephan Kinsella, Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023), ch. 11:

Those types of arguments and reasons are not justifications. There has to be an objective best link.^[15] So how does that work out? In Western private law and in libertarianism, which is a far more consistent working out of this, there are basically two types of links—the type of link applied to your body, which is a unique scarce resource; and the type of link applied to external resources in the world, which were previously unowned scarce resources. For the body, the link is a self-ownership link. You own your body, and the reason is because of your direct control over it, which I will get to in a minute.

And then for scarce resources in the world, they’re always owned first by someone first using them from their unowned state. That’s called homesteading or original appropriation. And then ownership can be transferred for two reasons: contractually—that’s a voluntary transfer of your ownership title of the resource to someone else, either by sale or by gift; or for purposes of rectification, which can be seen as a subset of contract because it’s also a transfer of title from an owner to someone, but it’s because the owner committed a tort against the victim and thus gave him a right to recover some of the aggressor’s property as damages.

So original appropriation, contract, and rectification are basically the only three principles to determine ownership of external resources in case of a dispute. So these four principles—body-ownership due to direct control, with an exception made for forfeiture of this right due to committing aggression,^[16] plus the three principles for external resources—are how we determine the best link, and this is the core of all property rights, and of all just law. A developed body of private law, to be just, has to be based on these core principles, and just entails working out the details as the law develops.^[17] And every socialist system, and every law not based on these core principles, including IP law, always ends up deviating from these core private property law principles in one way or another.

^[15] See “How We Come to Own Ourselves” (ch. 4).

^[16] See “Inalienability and Punishment: A Reply to George Smith” (ch. 10) and note 18, below. See also the Libertarian Party Platform language quoted in note 27, below.

^[17] See “Legislation and the Discovery of Law in a Free Society” (ch. 13), in general, and “Knowledge, Calculation, Conflict, and Law” (ch. 19), the section “Abstract Rights and Legal Precepts.” See also Hoppe’s pithy summary of these basic rules, in “A Realistic Libertarianism,” LewRockwell.com (Sept. 30, 2013; https://www.hanshoppe.com/2014/10/a-realistic-libertarianism/) and in “Of Common, Public, and Private Property and the Rationale for Total Privatization,” at pp. 85–87, and the LP Platform language mentioned in note 27, below. As Hoppe writes in “A Realistic Libertarianism”:

But who owns what scarce resource as his private property and who does not? First: Each person owns his physical body that only he and no one else controls directly (I can control your body only in-directly, by first directly controlling my body, and vice versa) and that only he directly controls also in particular when discussing and arguing the question at hand.… [A]s for scarce resources that can be controlled only indirectly (that must be appropriated with our own nature-given, i.e., un-appropriated, body): Exclusive control (property) is acquired by and assigned to that person, who appropriated the resource in question first or who acquired it through voluntary (conflict-free) exchange from its previous owner. For only the first appropriator of a resource (and all later owners connected to him through a chain of voluntary exchanges) can possibly acquire and gain control over it without conflict, i.e., peacefully.

For elaboration of the basis for the property acquisition rules, see Against Intellectual Property After Twenty Years: Looking Back and Looking Forward, in Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023), n. [42] and accompanying text, including references such as: Kinsella, “How To Think About Property,” StephanKinsella.com (April 25, 2021); Kinsella, “The Limits of Libertarianism?: A Dissenting View” (citing Roderick Long and Robert Nozick); also idem, “KOL345 | Kinsella’s Libertarian “Constitution” or: State Constitutions vs. the Libertarian Private Law Code (PorcFest 2021),” Kinsella on Liberty Podcast (June 26, 2021); and “Nobody Owns Bitcoin,” StephanKinsella.com (April 21, 2021). See also Gary Chartier, Anarchy and Legal Order: Law and Politics for a Stateless Society (Cambridge, 2012), at ch. 2.E, pp. 64–65 , et seq., elaborating on the “baseline possessory rules” corresponding to original appropriation and contractual title transfer.

See also Gary Chartier, “Intellectual Property and Natural Law”; The Essence of Libertarianism? “Finders Keepers,” “Better Title,” and Other Possibilities

Update: Simon Guenzl, “Public Property and the Libertarian Immigration Debate,” Libertarian Papers, 8(1) (2016): 153–177, at p. 165 & n.15, writes:

Pursuant to Rothbardian philosophy, property can only come to be justly owned in one of three ways.

First, someone can homestead previously unowned property using legitimate means. Here, the individuals who compose the state cannot be held to have properly homesteaded state-claimed land because they used illegitimate means (at a minimum, stolen income) and the taxpayers have not performed any homesteading acts of their own.

Second, a person can receive property through consensual transfer from a prior legitimate owner (such as through a gift or purchase). In this case, neither individuals within the state nor the taxpayers received the state-claimed land from a prior legitimate owner, because there was none.

Third, a victim may exercise remedial claims, by force if necessary, to an aggressor’s legitimately-owned property. Here, the aggressors (individuals within the state) do not legitimately own the state-claimed land, and thus the victims’ (the taxpayers’) rights cannot extend to such property (nor can the aggressors offer the victims such property or any benefits arising from it in lieu of other enforcement action).¹⁵

^15. This method of acquiring legitimate ownership of property is not commonly articulated as the third limb of Rothbardian property rights theory, except perhaps by Kinsella (for instance, Kinsella [2014]). This may be because Kinsella has written extensively on both property rights and punishment, and thus has been able to integrate the two fields. Note that the libertarian literature characterizes remedial rights in various ways. See for instance, Randy Barnett (1977), Roger Pilon (1978), Kinsella (1997; 1998-99), and Rothbard (2002, chapter 13). In all cases, however, the literature is clear that the victim’s enforcement rights are against only the aggressor’s legitimate property (or person). Note also that the reason these remedial rights can be characterized as a third means of acquiring legitimate title to property is because, unlike homesteading and consensual transfer, this method relies on force—the aggressor would not normally yield his property rights absent the threat of force from the victim—with the distinction being that such force in response to initiated aggression is justified.

It is true that most libertarian commentators are not explicit about this “third limb,” and in recent years I have been explicit about this. But this insight is not original to me. For example:

Nozick:

The subject of justice in holdings consists of three major topics. The first is the original acquisition of holdings, the appropriation of unheld things. This includes the issues of how unheld things may come to be held, the process, or processes, by which unheld things may come to be held, the things that may come to be held by these processes, the extent of what comes to be held by a particular process, and so on. We shall refer to the complicated truth about this topic, which we shall not formulate here, as the principle of justice in acquisition. The second topic concerns the transfer of holdings from one person to another. By what processes may a person transfer holdings to another? How may a person acquire a holding from another who holds it? Under this topic come general descriptions of voluntary exchange, and gift and (on the other hand) fraud, as well as reference to particular conventional details fixed upon in a given society.

… If the world were wholly just, the following inductive definition would exhaustively cover the subject of justice in holdings.

1. A person who acquires a holding in accordance with the principle of justice in acquisition is entitled to that holding.
2. A person who acquires a holding in accordance with the principle of justice in transfer, from someone else entitled to the holding, is entitled to the holding.
3. No one is entitled to a holding except by (repeated) applications of 1 and 2.

… Not all actual situations are generated in accordance with the two principles of justice in holdings: the principle of justice in acquisition and the principle of justice in transfer. Some people steal from others, or defraud them, or enslave them, seizing their product and preventing them from living as they choose, or forcibly exclude others from competing in exchanges. None of these are permissible modes of transition from one situation to another. And some persons acquire holdings by means not sanctioned by the principle of justice in acquisition. The existence of past injustice (previous violations of the first two principles of justice in holdings) raises the third major topic under justice in holdings: the rectification of injustice in holdings. If past injustice has shaped present holdings in various ways, some identifiable and some not, what now, if anything, ought to be done to rectify these injustices? What obligations do the performers of injustice have toward those whose position is worse than it would have been had the injustice not been done? Or, than it would have been had compensation been paid promptly? How, if at all, do things change if the beneficiaries and those made worse off are not the direct parties in the act of injustice, but, for example, their descendants? Is an injustice done to someone whose holding was itself based upon an unrectified injustice? How far back must one go in wiping clean the historical slate of injustices? What may victims of injustice permissibly do in order to rectify the injustices being done to them, including the many injustices done by persons acting through their government? I do not know of a thorough or theoretically sophisticated treatment of such issues.² Idealizing greatly, let us suppose theoretical investigation will produce a principle of rectification. This principle uses historical information about previous situations and injustices done in them (as defined by the first two principles of justice and rights against interference), and information about the actual course of events that flowed from these injustices, until the present, and it yields a description (or descriptions) of holdings in the society. The principle of rectification presumably will make use of its best estimate of subjunctive information about what would have occurred (or a probability distribution over what might have occurred, using the expected value) if the injustice had not taken place. If the actual description of holdings turns out not to be one of the descriptions yielded by the principle, then one of the descriptions yielded must be realized.^*

^2. See, however, the useful book by Boris Bittker, The Case for Black Reparations (New York: Random House, 1973).

^* If the principle of rectification of violations of the first two principles yields more than one description of holdings, then some choice must be made as to which of these is to be realized. Perhaps the sort of considerations about distributive justice and equality that I argue against play a legitimate role in this subsidiary choice. Similarly, there may be room for such considerations in deciding which otherwise arbitrary features a statute will embody, when such features are unavoidable because other considerations do not specify a precise line; yet a line must be drawn. ¹

Roderick Long (citing Nozick): Libertarian property rights are, famously, governed by principles of justice in initial appropriation (mixing one’s labour with previously unowned resources), justice in transfer (mutual consent), and justice in rectification (say, restitution plus damages). ²

Gary Chartier also elaborates on the “baseline possessory rules” corresponding to original appropriation and contractual title transfer. ³ In a separate section he argues in favor of restitution in the case of injuries resulting from aggression. ⁴

***

Stephan Kinsella, Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023), ch. 9:

“In other chapters I argued that rights in our bodies stem from the fact of our direct control of our bodies, drawing on Hoppe’s arguments, while property rights in external, previously unowned resources arise from original appropriation or title transfer from a previous owner by contract or for purposes of rectification.51

51. See “How We Come to Own Ourselves” (ch. 4) and “Goods, Scarce and Nonscarce” (ch. 18). See also Hoppe’s pithy summary of these basic rules, in “A Realistic Libertarianism,” LewRockwell.com (Sept. 30, 2013; https://www.hanshoppe.com/2014/10/a-realistic-libertarianism/) and in idem, “Of Common, Public, and Private Property and the Rationale for Total Privatization,” pp. 85–87.”

The Problem with Intellectual Property, Part II.C:

The purpose of property rights is to support actors in the pursuit of their goals by enabling them to employ resources, including their own bodies, free of physical conflict and interference from other actors. Property rights are inherently practical. For this reason legal systems and their corresponding property rights from time immemorial have always exhibited certain core features in the private law, to one degree or another: self-ownership, original appropriation, contractual transfer, and transfers for rectification.

Stephan Kinsella, Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023), ch. 2:

“The libertarian view is that individual rights—property rights—are assigned according to a few simple principles: self-ownership, in the case of human bodies; and, in the case of previously-unowned external things (conflictable resources), in accordance with principles of original appropriation, contractual title transfer, and rectification.11”

Stephan Kinsella, Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023), ch. 4:

“FIRST USE AND HOMESTEADING OF UNOWNED RESOURCES”,

ch. 4:

“The libertarian view is that individual rights—property rights—are assigned according to a few simple principles: self-ownership, in the case of human bodies; and, in the case of previously-unowned external things (conflictable resources), in accordance with principles of original appropriation, contractual title transfer, and rectification.”

note 11:

also

“ “KOL259 | ‘How To Think About Property,’ New Hampshire Liberty Forum 2019,” Kinsella on Liberty Podcast (Feb. 9, 2019).”

“Aggression and Property Rights Plank in the Libertarian Party Platform,” StephanKinsella.com (May 30, 2022);”

1.  Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), ch. 7, §1, pp. 150–153. [↩]
2. See my post The Limits of Libertarianism?: A Dissenting View; Long, Why Libertarians Believe There is Only One Right. [↩]
3. Gary Chartier, Anarchy and Legal Order: Law and Politics for a Stateless Society (Cambridge, 2012), at ch. 2.E, pp. 64–65, et seq. [↩]
4. Ibid., ch. 5.I, 5.C.1, 5.C.2, pp. 263, 265, 266 et seq. [↩]