≡ Menu

On “Unowned” State Property, Legal Positivism, Ownership vs. Possession, Immigration, Public Roads, and the Bum in the Library

by on May 26, 2025

Dave Smith Immigration soho forum May 2025[From my Webnote series]

I was having a discussion with a friend about immigration and related matters, sparked by the recent Soho Forum debate between Dave Smith and Alex Nowrasteh.

I’ve argued that Hoppe has a point that in today’s democratic system, immigration, whatever the state policy is, some rights are violated: either those of the would-be host/employer (forced exclusion) or those of citizens (forced integration).

I’ve also pointed out that I have trouble supporting the criminal Federal Government, via its INS, policing immigration at all. And also, that when would-be immigrants—outsiders, foreigners—are prevented by the federal government from using public property such as roads, their rights are not necessarily violated (though would-be hosts and employers might have a different complaint). 1

Immigration Invitations: A Marginal Improvement

Given this, as Hoppe and I agree, the only real solution is to abolish the state—at least large, democratic, modern welfare states. Milton Friedman had a point when he said “You cannot simultaneously have a welfare state and free immigration. I am in favor of free immigration, but not if you have a welfare state.” 2

As long as we have the our current large democratic states, one significant improvement would be to change the immigration system so as to permit anyone so long as they are invited or sponsored by an existing citizen or local employer. This would (a) reduce the amount of forced exclusion and also probably greatly increase the (absolute) numbers of (legal) immigration, and also (b) reduce the degree of harm caused by forced integration. (See my various tweets on this in the Appendix I below.)

In order to reduce the effects of forced integration while still reducing the degree of forced exclusion of our current system, the sponsorship or invitation program would have the following features:

  • exclusion of the immigrant from all publicly funded welfare
  • exclusion of the immigrant from all existing antidiscrimination,  affirmative action, and similar laws and policies
  • exclusion of the immigrant from any birthright citizenship policies
  • a valid invitation and personal sponsorship by a resident citizen and his assumption of liability for all property damage or crimes by the invitee committed against the person or property of any third party and a requirement for the invitor to carry liability insurance for such guests/invitees. (For more on this, see Hoppe’s comments on what constitutes an “invitation” or “sponsorship” in Appendix II below.)

This would not be an ideal solution—short of an anarchist libertarian society, there is no real solution especially in a modern large, western, rich democratic welfare state. Hoppe and libertarians who oppose open borders do not deny that current government welfare policies violate some citizens’ rights, as in the case of forced exclusion. An invitation system would greatly ameliorate this harm and also expand legal immigration. But the open borders side seems not to want to acknowledge that state control of immigration necessarily leads to some harm, not only forced exclusion, but also forced integration.

Economic Data, Subjective Value, and Long Run Harm

One argument made by the open borders side is that data suggests that immigrants (in the US anyway) cause less crime and are productive. One flaw in this data is that it is based on data collected in a system that does have immigration limits; it assumes this would hold true for a less restrictive immigration system. If the borders were more or less opened and the US experienced 10x or 100x the current immigration numbers, it is no so clear that this would still be a net gain in these terms.

Another flaw in this argument is that it makes the mistake of focusing only on empirically measurable data, because this is the only type of data that can be measured. This is a version of the fallacy exhibited in the “streetlight effect“:

The streetlight effect, or the drunkard’s search principle, is a type of observational bias that occurs when people only search for something where it is easiest to look.[1] Both names refer to a well-known joke:

A policeman sees a drunk man searching for something under a streetlight and asks what the drunk has lost. He says he lost his keys and they both look under the streetlight together. After a few minutes the policeman asks if he is sure he lost them here, and the drunk replies, no, and that he lost them in the park. The policeman asks why he is searching here, and the drunk replies, “this is where the light is”.

But of course all values are subjective, as Austrians realize, and not cardinal and not reducible to measurable economic statistics. (No offense, David Friedman.) 3 Moreover, humans value things and ends other than money and material goods—otherwise they would never spend money!

If some existing countries were to adopt open borders, existing citizens might reasonably fear the loss of their country—such as Switzerland, Japan, or others like Israel, the Vatican, Monaco. Many citizens might prefer to lower GDP per capita to preserve their country, for example. As I noted in Switzerland, Immigration, Hoppe, Raico, Callahan:

Raico argued:

Free immigration would appear to be in a different category from other policy decisions, in that its consequences permanently and radically alter the very composition of the democratic political body that makes those decisions. In fact, the liberal order, where and to the degree that it exists, is the product of a highly complex cultural development. One wonders, for instance, what would become of the liberal society of Switzerland under a regime of “open borders.”

In other words, the argument is that relatively liberal societies would certainly soon become less libertarian if they opened their borders.

And Hoppe argues:

It is not difficult to predict the consequences of an open border policy in the present world. If Switzerland, Austria, Germany or Italy, for instance, freely admitted everyone who made it to their borders and demanded entry, these countries would quickly be overrun by millions of third-world immigrants from Albania, Bangladesh, India, and Nigeria, for example. As the more perceptive open-border advocates realize, the domestic state-welfare programs and provisions would collapse as a consequence. This would not be a reason for concern, for surely, in order to regain effective protection of person and property the welfare state must be abolished. But then there is the great leap—or the gaping hole—in the open border argument: out of the ruins of the democratic welfare states, we are led to believe, a new natural order will somehow emerge.

The first error in this line of reasoning can be readily identified. Once the welfare states have collapsed under their own weight, the masses of immigrants who have brought this about are still there. They have not been miraculously transformed into Swiss, Austrians, Bavarians or Lombards, but remain what they are: Zulus, Hindus, Ibos, Albanians, or Bangladeshis. Assimilation can work when the number of immigrants is small. It is entirely impossible, however, if immigration occurs on a mass scale. In that case, immigrants will simply transport their own ethno-culture onto the new territory. Accordingly, when the welfare state has imploded there will be a multitude of “little” (or not so little) Calcuttas, Daccas, Lagoses, and Tiranas strewn all over Switzerland, Austria, and Italy. It betrays a breathtaking sociological naiveté to believe that a natural order will emerge out of this admixture. Based on all historical experience with such forms of multiculturalism, it can safely be predicted that in fact the result will be civil war. There will be widespread plundering and squatterism leading to massive capital consumption, and civilization as we know it will disappear from Switzerland, Austria and Italy. Furthermore, the host population will quickly be outbred and, ultimately, physically displaced by their “guests.” There will still be Alps in Switzerland and Austria, but no Swiss or Austrians. here. Hoppe, Natural Order, the State, and the Immigration Problem, in The Great Fiction), emphasis added.

And consider Monaco, a small nation-state of about 40,000 people, very rich ($240k GDP per capita), very low crime rate, and a strict and selective immigration policy. Imagine approaching a citizen of Monaco, probably one of the best places to live in the world, and suggesting that it adopt open borders—no matter the cost, or the lost of Monaco’s identity and status and the lives of all the existing citizens, their posterity’s heritage and lives, and so on. Methinks the Monegasque would dismiss you as a raving madman and tell you to return to your crime-ridden democratic wasteland.

State Ownership and Desocialization of Property, Owned and Unowned 4

In any case. As I noted above, when the US federal government prevents foreigners from using public property such as roads, their rights are not necessarily violated. 5 I observed to my friend that some anarchist-libertarians, such as Walter Block, would disagree, essentially because they view state-“owned” property as really unowned. 6 This is inherent in their view that this property is “up for grabs” and can be re-homesteaded by anyone, such as the bum in the public library, who cannot be kicked out by state agents since they do not legitimately own the resource; and since it is unowned, no one can complain about the bum’s new use; he in effect “re-homesteads” it. Walter Block, for example, argues just this (from the summary):

Take the case of the bum in the library. What, if anything, should be done about him? If this is a private library, then the plumb-line or pure libertarian would agree fully with his paleo cousin: throw the bum out! More specifically, the law should allow the owner of the library to forcibly evict such a person, if need be, at his own discretion. Cognizance would be taken of the fact that if the proprietor allowed this smelly person to occupy his premises, he would soon be forced into bankruptcy, as normal paying customers would avoid his establishment like the plague.

But what if it is a public library? Here, the paleos and their libertarian colleagues part company. The latter would argue that the public libraries are per se illegitimate. As such, they are akin to an unowned good. Any occupant has as much right to them as any other. If we are in a revolutionary state of war, then the first homesteader may seize control. But if not, as at present, then, given “just war” considerations, any reasonable interference with public property would be legitimate. The paleos or postponement libertarians take a sharply divergent view: one should treat these libraries in as close an approximation as possible to how they would be used in the fully free society. Since, on that happy day, the overwhelmingly likely scenario is that they will be owned by a profit maximizer who will have a “no bums” policy, this is exactly how the public library should be treated right now. Namely, what we should do to the bum in the public library today is exactly what would be done to him by the private owner: kick him out. 7

But not all state property is unowned, though much of it is. As I wrote previously:

For someone to object to my ownership of a plot of land is for them to assert a property right in the land. For only an owner of the resource has a ground for objecting to my use of it. But if they claim to own it, they have to have a basis. Yet per assumption, I was the first owner or user, not them. So I have a better claim to the land. This is the essential flaw in the state ownership of national forests and other undeveloped resources: state agents have not used or appropriated the resource, they have not done anything to establish a legitimate claim to the land (and I would argue no state ever can, since by its nature it is criminal, so that any property rights it ever acquires, either by contract, expropriation, or even homesteading, are owed as restitution to the state’s victims), yet they prevent others from homesteading the resource. They are acting as the owner even though they are not a legitimate owner. (Legal Foundations of a Free Society, ch. 23, text at note 31.)

But other state property is not virgin land. It is land that was already transformed, either by the state itself, using resources expropriated from taxpayers, or land or other property taken from or purchased from previous private owners. In this case, the land is not unowned. This is why it would be more just to return state-owned land to the natural or rightful owners or claimants than to outsiders or random people. 8

For example, as argued by Hoppe in “Of Common, Public, and Private Property and the Rationale for Total Privatization,” in The Great Fiction:

Yet who are the streets’ owners? Who can claim, and validate his claim, that he owns the local, provincial, or federal streets? These streets are not the result of some sort of community effort, nor are they the result of the work of some clearly identifiable person or group of persons. True, literally speaking, the street workers built the streets. But that does not make them the streets’ owners because these workers had to be paid to do their work. Without funding, there would be no street. Yet the funds paid to the workers are the result of tax payments by various taxpayers. Accordingly, streets should be regarded as these taxpayers’ property. The former taxpayers, in accordance with their amount of local, state, and federal taxes paid, should be awarded tradable property titles in local, state, and federal streets. They then can either keep these titles as an investment, or they can divest themselves of their street property and sell it, all the while retaining their unrestricted right-of-way.

… public goods should become the private property of those who fi nanced or otherwise funded these goods and who can establish an objective—intersubjectively ascertainable—claim to this effect.

Applying this principle to the existing world is often complicated and requires considerable legal effort. I shall only consider three realistic privatization cases in order to address some central questions and decisions. [p. 94]

Hoppe then considers three cases:

The first case, most closely approximated by the former Soviet Union, is that of a society where each and every property is public property, administered by a state government.

… In this case, the principle that every claim to public property must be based on objective, inter-subjectively ascertainable “data” would lead one to award private ownership (and saleable property titles) based on present or past occupancy: the bureaus go to the bureaucrats who occupy them, the factories to the workers, the fields to the farmers, and the houses to the residents. Retired workers are awarded property titles in their former work-places in accordance with the duration of their employment. As present or past occupants of the property in question, only they have an objective tie to this property. They are the ones who have maintained the property as it is while others were working elsewhere at other public workplaces.

Everything else, i.e., all public property that is not currently occupied and maintained by anyone (e.g., the “wilderness”) becomes “common” property and is opened up to all members of the society for privatization by way of original appropriation. [p. 94]

Note Hoppe here distinguishes between unowned “virgin” land “owned” by the state, which can be considered “unowned” and thus re-homesteaded, and transformed and used already-homesteaded resources, which should not be treated as unowned but returned to specified citizens. I would also suggest that, for some state property, of either type, it might be reasonable also to sell the resource in an auction and distribute the net proceeds to appropriate taxpayer-citizens.

The second case differs from the first one in only one respect: the legal past has not been wiped out. Documents and records exist to prove past expropriations, and based on such documents specific people can lay objective claim to specific pieces of public property. This was essentially the case in the Soviet Union’s former vassal states, such as East Germany, Czechoslovakia, Poland, etc., where the Communist takeover had taken place only some 40 years or about one generation before (rather than more than 70 years, as in the Soviet Union).

In this case, the original, expropriated owners or their legal heirs should be restored as private owners to the public property in question. [p. 95]

The third case is that of the so-called mixed economies. In these societies a public sector exists side by side with a nominally private sector. There are public goods and public employees next to nominally private property and the owners and employees of private business. Typically, the public employees who administer public property do not produce goods or services that are sold on the market. (For the atypical case of value-productive public enterprises, see below.) Their sales revenue and their market income are zero. Their salaries and all other costs involved in the operation of public goods are instead paid for by others. These others are the owners and employees of private business. Private business and employees, in contrast to their public counterparts, produce goods and services that are sold in the market and thus earn an income. Out of this income, private business does not merely pay the salaries of its own employees and provide for the maintenance of its own property; it also pays—in the form of income and property taxes—the (net) salaries of all public employees and the operating costs of all public property.

In this case, the principle that public property should be restored qua private property to those who actually funded it would lead one to assign ownership titles exclusively to private owners, producers, and employees in accordance with their past property and income tax payments, while public managers and employees would be excluded. All government offices and palaces, for instance, would have to be vacated by their current occupants. Public-sector salaries were paid only—and public property exists only—because of the funding provided by private-business owners and their employees. Hence, while public employees may keep their private property, they have no claim to the public property that they used and administered. [pp. 95–96]

This article discusses other nuances of the process of desocialization. See also Hoppe’s remarks in Democracy: The God That Failed, p. 125:

All socialist property, ill-begotten from the very start, should be forfeited… All original property titles should be recognized immediately… Insofar as the claims of original private owners or their heirs clash with those of the current assets’ users, the former should override the latter. 9

On the Use of State-Owned Streets

In my view, so long as the state maintains legal ownership of resources such as roads and streets, it ought to use them to as to benefit the victimized taxpayers who were confiscated to pay for this infrastructure, to reduce the harm done to them by providing a type of partial in-kind restitution. 10 As Richard Epstein notes in his brilliant book Takings: Private Property and the Power of Eminent Domain (which, despite its title, is no less than an original argument for limited government),

The Constitution speaks only of “just” compensation, not of the form it must take. In principle, therefore, the state may provide compensation in whatever form it chooses. This proposition indicates the importance of implicit in-kind compensation. 11

But as noted above, this implies that when the state prevents foreigners from using public property such as roads, their rights are not necessarily violated.

Consider. If and when the state were to privatize streets and return ownership to the taxpayers, they would be the private owners, but the right to use could not be denied, however, to other citizens, due to their pre-existing easement, as discussed at p. 88–89. As Hoppe writes:

The privatization of “public” goods must occur in such a way that does not infringe on the preestablished rights of private-property owners (in the same way as the first appropriator of a formerly unowned common street did not infringe on anyone’s rights if and insofar as he recognized every resident’s unrestricted right-of-way). [p. 91] … Applied to the world of local, provincial, and federal streets, this means that as the result of the privatization of streets every resident must be permitted to travel freely on every local, provincial, and federal street or highway as before. [p. 92]

However, notice that on state-owned roads, the right to use applies to citizens and taxpayers, but not necessarily to outsiders. Similarly, after privatization, if the now-private streets were to limit access only to citizens and only to invited foreign guests of citizens, it would not violate the rights of other outsiders to prevent them from using these roads.

As I noted above, when the US federal government prevents foreigners from using public property such as roads, their rights are not necessarily violated. 12

Thus, for state-owned resources, such as swimming pools, libraries, public schools, roads, and so on, these are not unowned but naturally or justly owned by those taxpayer-citizens to whom the state owes restitution and/or return of the resource in a process of privatization. The state ought to privatize these resources but so long as it maintains legal ownership it ought to use these resources for the benefit of the natural owners of or claimants to restitution by the state.

Legal Positivism and Ownership vs. Possession

I asked my friend:

“Suppose I own a private elementary school, but I decide to close it down. The state offers to buy it from me for $1M, and so I sell it to them. The state uses the facility as a local public elementary school.

Would you describe the property as unowned?”

He responded that the state cannot be regarded as having any ownership rights at all since it acquired this property by either confiscation, or by purchase using confiscated taxpayer money. But this does not follow. I believe it is based on a confusion about natural or moral or justified libertarian rights, and legal rights, a confusion about the difference between might and right, between possession and ownership, between legal rights and justified rights.

None of this trips me up since I distinguish positive law from what you could call moral or justified or libertarian law. The refusal to acknowledge state ownership of property is based on an implicit acceptance of a type of legal positivism. In the debates between legal positivists and natural law types (e.g., between Lon Fuller and H.L.A. Hart in the famous Hart-Fuller debate), both sides accept the premise that calling a state or positive law “law” has some power, some puissance.

The legal positivists think that law can be only what some secular “source” decrees–the majority (democracy) or its representatives via legislation. I.e., the state. There can be no “higher standard” by which to judge the positive law, such as natural law, and thus decrees by power or authority are all that we have—i.e., the state and in today’s conception, the legislature enacting the preferences or will of the majority.

On the other hand, the natural law types refuse to even call positive law “law” if it unjust–hence the fairly silly and mindless (to my mind) expression “an unjust law is no law at all.” This is ridiculous. Of course an unjust law is law if it meets the criteria for law (see, on this, Hart’s brilliant The Concept of Law).

Libertarians, unlike statist-legal positivists, believe there can be a higher standard of law–libertarian principles of justice. See e.g. my post Logical and Legal Positivism.

The natural law types, who root their beliefs in vague appeals to God or nature or democracy thus have to put some mystical Power or puissance into the force of talismanic or magical Words of Power–they refuse to recognize positive law law because they have already accepted just another type of legal positivism by saying that if God decrees it, it’s inherently and automatically just and good. So they can’t admit state law is law because it is decreed, as God decrees his natural law, because that would be to equate the State the God. But they still view law as being decreed. In essence, they reject dualism; they view God’s will and actions as magical and thus as causal, and thus they cannot distinguish prescription from description. The legal positivists see only force, the force of a powerful secular will: so they collapse right into might. The natural law advocates collapse might into right.

This is one reason some skeptics of libertarianism reject it because merely invoking words like “you have no right to hurt me” does not always work. They are childish. They think that violating a right proves it did not exist, just like a physics experiment can falsify a theory. They think of laws as all being descriptive; it the end, they reject normativity. Some libertarian activists make the same mistake by criticizing arguments for liberty that do not work; they seem to think that Words can be Power and if you do not persuade people to adopt libertarian principles it’s your fault, it’s the messenger’s fault; your incantation or spell must be faulty. They forget that rights and norms are prescriptive, that unlike causal laws they can be broken. 13

We libertarians do not need to make the mistake made by state-worshipping monist legal positivists, nor of (inadvertent) natural law monists who do not have a sound understanding of a reason-based view of rights, norms, dualism, and so on.

Libertarians believe there is an objective, higher law but it does not rest in decrees of a powerful God or in mysticism but in reason and man’s nature. Therefore we ought to have no compunction (unlike natural law advocates) at recognizing state law as real law because being decreed by some lawgiver—whether the state or God—is neither necessary nor sufficient for justification. And unlike a legal positivist/statist/majoritarian, who only can appeal to these sources of law and thus essentially has no objective “higher law” to appeal to, to compare the positive law to, we do not admit that a law is just, merely by identifying it as a law, by recognizing that it is law.

All this is to say that we libertarians adopt a dualistic distinction between is and ought; between description and prescription; between facts and causal laws, on the pone hand, and norms/morals/rights, on the other.

And that is why we ought to recognize property possessed by and legally owned by the state not as unowned but as legally owned by the state but rightfully owned by the citizens to whom it owes the property and/or restitution made from privatizing and/or selling off the property.

Once you sort this out, then you see that it is not unreasonable for the state, as legal owner of resources naturally owned by its citizens, to set rules for the use of those resources in ways that benefit (provide partial restitution in kind to) those citizens; and that the state, as caretaker-owner, does not necessarily violate the rights of outsiders if they are not permitted to use these resources, since, unlike citizens, they have no ownership or other claim on the these resources. It is also why a state policy of permitting all citizens to use roads owned—yes, owned—by the state, and permitting use thereof by any citizens who invite an outsider to the owners’ invitees (guests, employees, etc.) but not permitting access by others, does not violate anyone’s rights.

Which is why my 20-year-old article, “A Simple Libertarian Argument Against Unrestricted Immigration and Open Borders,” concludes:

… given the existence of significant public property in a certain country, it is not necessarily unlibertarian for immigration to be restricted by means of usage-rules established on public property by the state-owner. … 99% of my fellow taxpayers would simply prefer some immigration restrictions, and therefore probably would prefer some kinds of rules of the road that discriminate against outsiders — given this preference, which does not seem per se unlibertarian — it is obvious that far more restitution is made overall if such rules are enacted.

Majoritarian Preferences and Restitution-in-Kind Concerns

Let me address one more complaint about the idea of the state setting rules on the use of state owned resources. And it is that if the state is regarded as caretaker of property it legally owns that is rightfully owned by citizens, and if the preferences of the citizen-owners is taken into account, then this opens the door to a type of tyrannical democratic or majoritarian system. For example, instead of saying that the roads may be used only by citizens and their guests/invitees, what if the state says that roads may only be used by Protestants, or Christians, or white people, or people who do not own guns or drink alcohol.

I do not believe this is a justified complaint against the idea that so long as the state controls and claims to legally own property rightfully owned by its subjects, it ought to use these resources for the benefit of those victims. We would agree that the best solution would be to return the property to the owners, or sell it and return the proceeds to them. But it also cannot be denied that reducing the harm done is better, and that in-kind restitution is one way of doing this. So yes, the state should “privatize” all of the property it legally owns by returning the owned property to the relevant taxpayers, and should permit anyone to homestead the unowned land (perhaps citizens would have the first right to homestead since returning owned state land to them will not fully compensate them for past harms, but this is a detail).

But in the meantime, the state ought to set rules for the use of state owned resources to provide as much in-kind restitution to the citizen-taxpayers as possible. Of course this takes practical considerations into account just as juries have to assign monetary awards to victims of torts in lawsuits even though true value is subjective and true restitution is impossible. (See: Perfect Restitution is Impossible; An Unreachable Goal.) As I wrote years ago,

A victim who has been shot in the arm by a robber and who consequently loses his arm is clearly entitled, if he wishes, to amputate the robber’s own arm. But this, of course, does not restore the victim’s arm; it does not make him whole. Perfect restitution is always an unreachable goal, for crimes cannot be undone. This is not to say that the right to punish is therefore useless, but we must recognize that the victim remains a victim even after retaliating against the wrongdoer. No punishment can undo the harm done. For this reason, the victim’s range of punishment options should not be artificially or easily restricted. This would further victimize him. 14

And:

just because punishment does not restore rights, it is not clear why restitution is automatically superior, since restitution does not restore rights either. It is true that the consequences and fact of an act of aggression can never be undone. The indignity will always have been suffered. Any response by a victim, including restitution and retribution, will always be an imperfect remedy. Indeed, this is one reason why aggression is impermissible: because the harm done thereby is literally undoable, incalculable, and not subject to an adequate remedy.25 A victim will always remain, to some extent, a victim. 15

This would mean the right of citizens to use state roads, for example, and imposing normal rules for use of the roads like speed limits and so on, to make the roads actually useful to the citizens. Similar rules for other resources like state owned libraries, and so on. Because foreigners have no claim on these resources it does not violate their rights for the state to deny them access to state roads. If the state did not grant permission to every outsider to use state roads, this would not violate their rights. However, it would reduce the amount of harm done to citizens in two ways: (a) it would provide them some valuable service (transportation services) and (b) it would reduce to some extent the forced integration otherwise caused by immigration.

However, in some cases—namely, where a given resident wants to invite an outsider to his home or business, for employment, say, or to marry someone, or to have a relative or friend come live with them—a state rule banning all non-citizens from using the roads would amount to forced exclusion and thus violate the rights of some citizens (not the outsiders, though). Thus, the state ought to permit use of the roads by an outsider who has such an invitation from a citizen. This policy would increase the absolute numbers of immigration, reduce the amount of forced exclusion caused by state ownership of public property, and also reduce the amount of forced integration.

Is this likely? No. As Hoppe explains:

What should one hope for and advocate as the relatively correct immigration policy, however, as long as the democratic central state is still in place and successfully arrogates the power to determine a uniform national immigration policy? The best one may hope for, even if it goes against the “nature” of a democracy and thus is not very likely to happen, is that the democratic rulers act as if they were the personal owners of the country and as if they had to decide who to include and who to exclude from their own personal property (into their very own houses). This means following a policy of utmost discrimination: of strict discrimination in favor of the human qualities of skill, character, and cultural compatibility. [Hoppe, Democracy, p. 148]

Still, I would argue it would be a big improvement.

But what about the worry that if the state is allowed to set rules on public property it might discriminate against citizens, for example by shutting out non-Protestants. Remember, we are talking about a second-best solution, and one that is not likely anyway (see Hoppe’s comments quoted above about it being unlikely that democratic government would act in the way a monarch or private owner, subject to different incentives, would). We are not saying the state is justified in owning state property. We are saying it should return it but that to long as it runs property rightly owned by the citizens it should do to for their benefit, in a way that provides some in-kind benefit that reduces, not increases, the harm already done to them but the initial acts of expropriation that gave the state control of these resources in this first place. This is why the state must permit citizens to use the resources and even to permit them to allow their invitees or guests to use them—to reduce the harm done to them in the form of forced exclusion.

Now if the state has no right to own state property in the first place, and no right to even exist, it also has no right to enact a law that requires membership in a given faith or that prohibits narcotics or alcohol consumption. Thus, it also has no right to accomplish this by alternative means, such as by using its already-unjust ownership of state property to condition use of this on compliance with drug or religion standards. If the state taxes citizens to fund roads and in effect outlaws or crowds out private roads, leaving the citizens with almost no other transportation options, and then it deprives citizens of the right to use these (inferior) state roads unless they adopt the preferred religion, far from reducing the amount of damage done to the citizens by providing a type of in-kind restitution, this would make the damage worse; it would be to add not insult to injury, but injury to injury.

Thus, the state, acting as owner-caretaker of state property, may set reasonable restrictions that benefit the general citizenry so as to provide restitution to them, but it may not deprive them of the right to use based on arbitrary grounds (such as race, religion, and so on). And it is still the case that if the rules prevent uninvited outsiders from using the roads or other public property, their rights are not violated.

Update: See also Simon Guenzl, “Public Property and the Libertarian Immigration Debate,” which I published in my journal Libertarian Papers, 8(1) (2016): 153–177, and Simon Guenzl vs. Dave Smith on Open Borders:

And Bob’s previous discussion about immigration with Dave Smith, “Does Libertarianism Require Support for Open Borders?”:

Bob Murphy’s recent Human Action Podcast episode, The Crucial Principle and Data at Stake in the Soho Immigration Debate:

A few comments about Bob’s comments.

Around 28 minutes, Bob talks about land owned by the federal government that some taxpayers might have a better claim to, and mentions offhand maybe someone’s home had been seized to make a checkpoint for border crossings. But of course in this case the homeowner would have already been compensated already, as this is required by the takings clause of the Fifth Amendment. He would have been paid for the property by the state either taxing the citizens or printing money. In this case, it is the general citizen or taxpayer who has a claim on the state property, not the expropriated former owner.

Also, regarding the stolen wallet example, where Sally discovers a wallet stolen by a mugger, she does not own it unless the owner cannot be identified. But she has permission to “liberate” it based on the presumed consent of the original owner, who presumably would welcome her liberating it from the mugger, or even keeping it if the owner cannot be found because the original owner would prefer an innocent person, who has “clean hands,” to have it rather than the mugger, who has unclean hands. This is, by the way, another problem with one argument Walter Block makes to argue that state property is unowned as it may be “liberated”. The example he gives is that of Ragnar Danneskjold, the pirate from Atlas Shrugged:

it is not exactly theft to take from a thief;17 rather, such an act is best characterized as relieving a criminal of his ill gotten gains. So, even if a post office worker takes a salary from the government, this does not mean he is guilty of a libertarian legal code violation; far better that he, a non thief, now has this money than that the government,18 which stole it in the first place, gets to keep it. Ragnar Danneskjold, a fictional hero in Rand (1957), made a career out of liberating (not stealing!) government property and returning it to its rightful owners. This was a two stage act: first, taking money from the state, and second, giving it back to those from whom the state had stolen it from in the first place. If this complex act consisting of two separate parts was a righteous one, then each and every part of it, too, had to be licit; there cannot be a totally legitimate act one part of which is improper. But this means that not only returning stolen money to rightful owners should be lawful, but also taking it away from those with no valid title to it. 16

Walter is right that taking property from a thief is justified, and for two reasons. First, the criminal has no right to it as he has unclean hands. 17 Even if a criminal or a criminal organization such as the state is in possession of property whose owner cannot be found (fungible gold coins, say) then he cannot complain about being robbed. 18

However, unless the property is fungible and the original owner cannot be determined, in which case the liberator is the owner and not the thief, 19 the reason Ragnar is entitled to “liberate” it is the same reason someone is entitled to assist the victim of an ongoing act of aggression: we presume the victim consents to assistance since nobody wants to be aggressed against; there is implied consent. Likewise, we presume the victim of a robbery would consent to an innocent person taking his property from the thief, either to return it to the owner, or, if this is impossible, to own it and use it, since that is preferable, to most victims of theft, to the thief keeping it. (Similarly, if you lose your property we can imply consent is given to a stranger to pick it up if only to try to return it to the owner. It is not trespass or theft if I pick up a lost coin or wallet if my intent it to return it to the owner, since most reasonable owners would want this to happen as it is a necessary step for him to ever this lost property back!) As I wrote previously:

the IRS and all state agencies are criminal gangs and while they have legal control of certain assets they have no rightful ownership of it. Anyone they have wronged has a right to try to reclaim some of this fungible mass of property to make themselves whole. I suppose in the rare and fantastical case where A can seize control of $1T worth of federal assets but his realistic claims are only $100M, then he needs to find a way to return the excess to other victims. But in liberating the property from the control of the state he is not violating anyone’s rights. If there is a genuine victims B of the state, who has a rightful claim to a stolen house, or to a claim on $1M worth of money/value, would you really think B, the rightful owner, would prefer this property stay in the hands and control of the state, or of someone who liberates it?  If I’m not mistaken there is a similar thing in Atlas Shrugged where Ragnar is taking government ships of goods and not seizing the merchandise for his own use but only to return it or its value to its rightful owners. I think we can presume that the victim of theft would prefer an innocent person have his stuff than the thief who stole it, especially if the thief would try to return it. For example suppose a thief takes my bicycle. If some good samaritan realizes the thief has my bike, then I would rather the good samaritan have my bike than the thief, even if the good samaritan cannot find me and return it! I.e., we presume he has permission or license from me, the natural owner, to (a) liberate the bike from the thief, and (b) try to return it to me, but (c) if he can’t, better for him to keep it, or donate it to charity, than for the thief to have it. 20

So Block’s argument is somewhat confused when he writes:

If this complex act consisting of two separate parts was a righteous one, then each and every part of it, too, had to be licit; there cannot be a totally legitimate act one part of which is improper. But this means that not only returning stolen money to rightful owners should be lawful, but also taking it away from those with no valid title to it.

The taking of property from the state in the case of identifiable, still-owned property is “licit” because the true owner implicitly consents to this liberation, conditioned on the liberator’s intention to return it to the owner. In the case of  resources whose owners cannot be identified, the reason the libertarian is “licit” is (a) we presume the owner would consent and, (b) anyway, the state/criminal has unclean hands and has no right to it. In this case, even though the property is not unowned, it is similar to unowned property in that it can be claimed and thus owned by a new owner much as unowned property could be homesteaded by an actor.

Around 29–30 min, Murphy slightly mangles this one too. He says:

it’s not as if Sally was just out walking in the woods and found some cash sitting there [in a wallet stolen previously from Joe by a mugger]. “hey no one else has a legitimate claim to this, I’m going to take it…” No, she knows whose wallet it is, and clearly Joe has a more rightful claim to that wallet than she does.

Yes. Meaning it is not unowned. But she is justified in taking it because the thief does not and never owned it (and has unclean hands) and we can imply consent from Joe for her to take it and try to return it or keep it, failing that.

You could still say you know she’s not making the situation worse by taking it from the mugger, but the point being that it it’s not as if the mugger by stealing the wallet transforms the wallet and its contents into virgin unowned resources that the next person who stumbles upon them could homestead, right. By the way this just occurred to me now as I’m walking through this— partly it’s because, well then why couldn’t the government agent homestead it too right? Like, if the if the the act of the mugger stealing the wallet makes it now virgin unowned property or resources, why couldn’t the mugger just say “Hey, look everyone, there’s this wallet that’s in my hand now and I’m going to mix my labor with it.”

Right. Murphy is right that the wallet is not unowned, and the mugger knows this. But even if it was going to be treated as unowned (if we assume it is impossible to identify the owner) then still, any innocent third party has as a better claim to “take” or “homestead” the wallet than the mugger does because any victimized owner would prefer this.

So, like that would be weird if in general there was this plot of unowned virgin territory somewhere that a certain group of people couldn’t in principle homestead because of who they were in their past right. Like, that’s not a normal aspect of homesteading theory, but yet you’d have to say that, to prevent the mugger from being able to homestead the wallet that he just made revert to unowned status.

Murphy is mostly right here, except no, it’s not weird for an innocent third party to have superior rights to the thief either take or “re-homestead” the stolen property than the thief. I am not sure if it’s “a normal aspect of homesteading theory” but homesteading is about who has the best or most just claim as the equitable doctrine of unclean hands ties into and supports this notion, as well as Rothbard’s view quoted previously that “if the current titleholder is himself the criminal or one of the criminals who stole the property, then clearly he is properly to be deprived of it, and it then reverts to the first man who takes it out of its unowned state and appropriates it for his use.”

Related:

Appendix I: Recent Tweets

Appendix II: Hoppe’s Views on What Constitutes an “Invitation” or “Sponsorship”

It is incorrect to infer from the fact that an immigrant has found someone willing to employ him that his presence on a given territory must henceforth be considered “invited.” Strictly speaking, this conclusion is true only if the employer also assumes the full costs associated with the importation of his immigrant-employee. This is the case under the much-maligned arrangement of a “factory town” owned and operated by a proprietor. Here, the full cost of employment, the cost of housing, healthcare, and all other amenities associated with the immigrant’s presence, is paid for by the proprietor. No one else’s property is involved in the immigrant-worker settlement. Less perfectly (and increasingly less so), this full-cost-principle of immigration is realized in Swiss immigration policy. In Switzerland immigration matters are decided on the local rather than federal government level, by the local owner-resident community in which the immigrant wants to reside. These owners are interested that the immigrant’s presence in their community increase rather than decrease their property values. In places as attractive as Switzerland, this typically means that the immigrant (or his employer) is expected to buy his way into a community, which often requires multimillion-dollar donations.

Hans-Hermann Hoppe, In the Free Market, May a Businessman Hire Any Immigrant He Chooses?. Also:

What should one advocate as the relatively correct immigration policy, however, as long as the democratic central state is still in place and successfully arrogates the power to determine a uniform national immigration policy? The best one may hope for, even if it goes against the “nature” of a democracy and thus is not very likely to happen, is that the democratic rulers act as if they were the personal owners of the country and as if they had to decide who to include and who to exclude from their own personal property (into their very own houses). This means following a policy of the strictest discrimination in favor of the human qualities of skill, character, and cultural compatibility.

More specifically, it means distinguishing strictly between “citizens” (naturalized immigrants) and “resident aliens” and excluding the latter from all welfare entitlements. It means requiring, for resident alien status as well as for citizenship, the personal sponsorship by a resident citizen and his assumption of liability for all property damage caused by the immigrant. It implies requiring an existing employment contract with a resident citizen; moreover, for both categories but especially that of citizenship, it implies that all immigrants must demonstrate through tests not only English language proficiency, but all-around superior (above-average) intellectual performance and character structure as well as a compatible system of values—with the predictable result of a systematic pro-European immigration bias.”

Hoppe, “On Free Immigration and Forced Integration,” in Democracy, p. 148-149. See also:

Note, that even if immigrants were excluded from all tax-funded welfare entitlements as well as the democratic “right” to vote, they would still be “protected” and covered by all currently existing antidiscrimination affirmative action laws, which would prevent domestic residents from “arbitrarily” excluding them from employment, housing, and any other form of “public” accommodation.”

… Hence, in order to fulfill its basic protective function, a high-wage area government must also engage in preventive measures. At all ports of entry and along its borders, the government, as trustee of its citizens, must check all newly arriving persons for an entrance ticket; that is, a valid invitation by a domestic property owner; and anyone not in possession of such a ticket must be expelled at his own expense.

Valid invitations are contracts between one or more private domestic recipients, residential or commercial, and the arriving person. Qua contractual admission, the inviting party can only dispose of his own private property. Hence, similar to the scenario of conditional free immigration the admission implies that the immigrant will be excluded from all publicly funded welfare. On the other hand, it implies that the receiving party must assume legal responsibility for the actions of his invitee for the duration of his stay. The invitor is held liable to the full extent of his property for any crimes by the invitee committed against the person or property of any third party (as parents are held accountable for crimes committed by their offspring as long as these are members of the parental household). This obligation, which implies that invitors will have to carry liability insurance for all of their guests, ends once the invitee has left the country, or once another domestic property owner has assumed liability for the person in question by admitting him onto his property.

The invitation may be private (personal) or commercial, temporary or permanent, concerning only housing (accommodation, residency) or housing and employment, but there cannot be a valid contract involving only employment and no housing.17 In any case, however, as a contractual relationship, every invitation may be revoked or terminated by the host; and upon termination, the invitee—whether tourist, visiting businessman, or resident alien—will be required to leave the country (unless another resident citizen enters into an invitation-contract with him).

Hoppe, “On Free Trade and Restricted Immigration,” in Democracy, at p. 162. n.11 & pp. 167-168.

Update: Jacob “Bumper” Hornberger also weighs in:

From my comments to Adam Haman:

Hornberger thinks you guys favor a majoritarian rule. It’s not quite that. It’s that the prefernces of the owenrs can be taken into accont and outsiders are not owners. Just because you can ban outsiders from the school does not mean it can discriminate against citizens based on race. As he argues around 30 minutes. I already address this [above, “Majoritarian Preferences and Restitution-in-Kind Concerns”].

Also, “Bumper” admits it’s reasonable to bar men from the girls’ bathroom. Why? Once you concede that now we are just talking about what is reasonable. Also, he says no one objects to that. He’s wrong. Walter Block and others do, and this is an implication of the view that state property is UNOWNED. Bumper refuses to deal with the issue of whether the schools and roads are owned or not. If they are, and if they can set rules as he concedes in the bathroom case above, then why does the state have to let outsiders use the roads? Why? That’s not violating the “equal protection cause,” and why that is relevant anyway is not clear. It’s not harming any American citizens who are the rightful owners. Unless they want to invite people to use the roads to get to them, but then you can fix that by allowing roads to be used by citizens AND their (meaningfully) invited guests, to eliminate cases of forced exclusion. Right? What am I missing?

Bumper also does this centralist thing where he refers to “the government” without distinguishing between states and the fed. Typical of minarchist constitutionalists and Randians. He’s always been confused. A minarchist-constitutionalist—i.e., a mini-statist–who wants to take a principled stand on immigration! (And no surprise–he’s also bad on IP law! Thou hypocrite, cast out first the beam out of thine own eye!)

He also focuses on the NAP but he doesn’t seem to realize aggression is not a primary principle, it depends on what our property rights are. That you have to know and identify who owns what to determine what is aggression. If citizens are the (rightful) owners and the state is “caretaker” (legal owner), it does not violate the NAP to stop outsiders/immigrants from using the property.

Update: https://www.youtube.com/watch?v=vYqttuG3LlQ

  1. See A Simple Libertarian Argument Against Unrestricted Immigration and Open Borders; I’m Pro-Immigration and Pro-Open Borders. [↩]
  2. Friedman Contra Open Borders (1999): A Line-by-Line Critique. See also Look to Milton: Open borders and the welfare state; Milton Friedman’s objection to immigration. [↩]
  3. See Kinsella, “Against Intellectual Property After Twenty Years: Looking Back and Looking Forward,”in Legal Foundations of a Free Society, at n. 35. [↩]
  4.  Note: I prefer the term “property” be used for property rights, not for objects of property rights, but I will let this slide here to avoid pedantry. But see Legal Foundations of a Free Society, ch. 2, App. I: “As Professor Yiannopoulos explains: ‘Property is a word with high emotional overtones and so many meanings that it has defied attempts at accurate all-inclusive definition. The English word property derives from the Latin proprietas, a noun form of proprius, which means one’s own. In the United States, the word property is frequently used to denote indiscriminately either the objects of rights … or the rights that persons have with respect to things. Thus, lands, automobiles, and jewels are said to be property; and rights, such as ownership, servitudes, and leases, are likewise said to be property. This latent confusion between rights and their objects has its roots in texts of Roman law and is also encountered in other legal systems of the western world. Accurate analysis should reserve the use of the word property for the designation of rights that persons have with respect to things.’” [↩]
  5. A Simple Libertarian Argument Against Unrestricted Immigration and Open Borders. [↩]
  6. See also Simon Guenzl, “Public Property and the Libertarian Immigration Debate,” Libertarian Papers, 8(1) (2016): 153–177. [↩]
  7. A Strange Liberty: Politics Drops Its Pretenses: 21. An Immigration Roundtable with Ludwig von Mises, Murray Rothbard, Walter Block, and Hans-Hermann Hoppe. See also Anthony Gregory and Walter Block, “On Immigration: Reply to Hoppe,” J. Libertarian Stud. 21, no. 3 (Fall 2007): 25–42, p. 28; Walter E. Block and Gene Callahan, “Is There a Right to Immigration? A Libertarian Perspective,” Human Rights Review (2003), p. 50 et seq.; but see Callahan’s volte-face noted in Switzerland, Immigration, Hoppe, Raico, Callahan. [↩]
  8. Guenzl writes: “It is worth noting that Hoppe and Kinsella do not draw a hard distinction between state-claimed land and state-seized land. It therefore appears that they are asserting that the state ought to manage both types of land according to the same immigration policy, as opposed, for instance, to inquiring of former private owners of state-seized land exactly which immigration policy they would favor for the respective pieces of land of which they have been deprived.” p. 157. I do not recall if I ever specifically distinguished in past writings, but it is in fact my view that there is a difference, as I think I make clear in this post, and also in I’m Pro-Immigration and Pro-Open Borders: “In my view, the state controls two types of property: state-owned property that is rightfully owned by taxpayers and others who paid for it via taxes, and unowned property such as most of the federal public lands, including about 245 million acres of surface land and 700 million acres of subsurface mineral estate across the U.S., administered by the Bureau of Land Management (BLM). … The state should “privatize” all of this by returning the owned property to the relevant taxpayers, and should permit anyone to homestead the unowned land (perhaps citizens would have the first right to homestead since returning owned state land to them will not fully compensate them for past harms, but this is a detail).” [↩]
  9. See also Hans-Hermann Hoppe, “De-Socialization in a United Germany,” Rev. Austrian Econ. 5, no. 2 (1991): 77–104; and PFP292 | Karl-Peter Schwarz, Between Restitution and Re-Expropriation: Desocialization in Eastern Europe (PFS 2012). [↩]
  10. See A Simple Libertarian Argument Against Unrestricted Immigration and Open Borders. [↩]
  11. See Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain (Cambridge, Mass.: Harvard University Press, 1985), p. 195, and ch. 14,  “Implicit In-Kind Compensation,” in general; see also Jus Mundi, Restitution, 1.1. I do not agree, in the end, with Epstein’s utilitarian-based case for minarchy, but one cannot deny its brilliance, even if he fails to properly apply his own “takings” theory justification for minimal government to the issue of intellectual property, which he supports. See Richard Epstein’s Takings Political Theory versus Epstein’s Intellectual Property Views; KOL364 | Soho Forum Debate vs. Richard Epstein: Patent and Copyright Law Should Be Abolished. [↩]
  12. A Simple Libertarian Argument Against Unrestricted Immigration and Open Borders. [↩]
  13. Natural Law, Positive Law, Tax Evasion, Rituals and Incantations; Conspiracy Libertarians, Waystation Libertarians, Activists vs. Principled Libertarians. [↩]
  14. Legal Foundations of a Free Society, ch. 5, Part IV.B. For more on restitution, see Estoppel and Restitution debate on Mises.org; Fraud, Restitution, and Retaliation: The Libertarian Approach. [↩]
  15. Legal Foundations of a Free Society, ch. 10, at n.25. [↩]
  16. Walter Block, “Toward a Libertarian Theory of Guilt and Punishment for the Crime of Statism,” J. Libertarian Stud. 22, no. 1 (2011): 665–75, pp. 671–72. See also idem, “Expiration of private property rights: a note,” The Journal of Philosophical Economics VIII: 2 (2015): 43–65, pp. 51–53. [↩]
  17. See Kinsella, KOL302 | Human Action Podcast with Jeff Deist: Hoppe’s Democracy:

    in a system as in Eastern Europe in the former Soviet Union where you can’t tell who used to own what, you might as well just give the stuff to the people that are using it now, something like that except for the people that are the government cronies who have unclean hands. … I think Rothbard even has said, and Rothbard at different phases in his life, he had some even more leftist sort of comments about universities being handed over to the students and things like that in his earlier days.  But I think the idea is that it’s going to be messy once you have the government mess things up, and there’s no way to have 100% restitution because wealth is destroyed by government action.  And so the goal is to end government continuing control of things and harm and return things to private control, preferably in the more just manner but preferably return it to private control.  And then that’s better than having it in public control.

    Rothbard adopts a similar view when he writes:

    To sum up, for any property currently claimed and used: (a) if we know clearly that there was no criminal origin to its current title, then obviously the current title is legitimate, just and valid; (b) if we don’t know whether the current title had any criminal origins, but can’t find out either way, then the hypothetically “unowned” property reverts instantaneously and justly to its current possessor; (c) if we do know that the title is originally criminal, but can’t find the victim or his heirs, then (c1) if the current title-holder was not the criminal aggressor against the property, then it reverts to him justly as the first owner of a hypothetically unowned property. But (c2) if the current titleholder is himself the criminal or one of the criminals who stole the property, then clearly he is properly to be deprived of it, and it then reverts to the first man who takes it out of its unowned state and appropriates it for his use.

    Kinsella, [↩]

  18. Even if thieves themselves must, in a sense, endorse a form of property rights. As Adam Smith observed: “If there is any society among robbers and murderers, they must at least, according to the trite observation, abstain from robbing and murdering one another.” Adam Smith, The Theory of Moral Sentiments (Indianapolis: Liberty Fund, [1759] 1982), II.II.3. [↩]
  19. See the quotes from Rothbard in the preceding note. [↩]
  20. Libertarian Answer Man: Eminent Domain and Ownership of State Monetary Payments. [↩]
Share
{ 0 comments… add one }

Leave a Reply

Next post:

Previous post:

Archives

Kinsella profile-head - 1Stephan Kinsella is a libertarian writer and patent attorney in Houston, Texas. He has published widely on various areas of libertarian legal theory and on legal topics such as intellectual property law and international law. His  publications include Legal Foundations of a Free Society (Papinian Press, 2023), Against Intellectual Property (Mises Institute, 2008), and International Investment, Political Risk, and Dispute Resolution: A Practitioner’s Guide (Oxford, 2020).

Hoppe A Life in Liberty, cover

Hoppe Festschrift cover

Kinsella Adopting Liberty cover

Kinsella Against Intellectual Property cover

Kinsella Louisiana Civil Law Dictionary

International Investment, Political Risk, and Dispute Resolution: A Practitioner’s Guide, Second Edition cover
My Failed Libertarian Speaking Hiatus; Memories of Mises Institute and Other Events, 1988–20192025

[From my Webnote series]

Webnotes

Libertarian Answer Man

This site rocks the Classic Responsive Skin for Thesis.

WP Admin

© 2012-2025 StephanKinsella.com CC0 To the extent possible under law, Stephan Kinsella has waived all copyright and related or neighboring rights to material on this Site, unless indicated otherwise. In the event the CC0 license is unenforceable a  Creative Commons License Creative Commons Attribution 3.0 License is hereby granted.

-- Copyright notice by Blog Copyright