Libertarian Answer Man: Co-ownership and Ownership and Punishment of Criminals

Dear Professor Kinsella,

Many libertarians online have come to reject Hoppe’s net taxpayer model for public property because they believe co-ownership is impossible. I was skeptical of this and felt co-ownership was essential to libertarianism, so I started looking and found this passage in your book Legal Foundations of a Free Society [LFFS], page 158:

But if someone commits aggression, of course the victim now is a partial “owner” of the aggressor’s body, because he has a right to use force against it.

I formulated my own defense of this link between co-ownership and retaliation, debated it with a few people, and found it to be solid. But do you still believe this, and if so can you explain your reasoning? (Or have I misinterpreted?)

As for the detractors, their claim is that if co-owners disagree on the use of a property, one of them must win the conflict, and the winner is therefore the owner. What would you respond to that?

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My reply:

Libertarians get hung on the weirdest things. For example they object to self-ownership, or body ownership, thinking it implies something mystical; it just means we oppose slavery. That each person is the owner of his body. That we oppose murder. Etc. Imagine libertarians objecting to self-ownership! ¹

And now some of them think that any stolen property is somehow unowned. Wrong. ²

Others object to wills because you are no longer alive at the moment of death. Another silly concern and argument. ³

Still others think co-ownership is impossible. For no reason at all.

Of course it’s not. Two people can have contract specifying joint ownership of a resource. From the point of view of the world, they own it together, an in rem property right good against the world; from each co-owner’s perspective, they can have a contract creating in personam contractually specified rights with respect to each other.

Hoppe gives one example of where co-ownership (of an easement, which may be thought of as a partial property right) can exist in “Of Common, Public, and Private Property and the Rationale for Total Privatization,” in The Great Fiction: Property, Economy, Society, and the Politics of Decline (Second Expanded Edition, Mises Institute, 2021) (see Part II, giving the example of villagers having an easement over a street).

So you can have co-ownership, of course. Often it’s contractual, as noted above. Spouses can own a home together. If I die and leave my home to my two children, they are co-owners of the home. Or 4 families have a time-share home. Two people renting an apartment have their own bedrooms but share the kitchen. And so on.

One way to look at it is that as between the two owners and the rest of the world, they are one unit. (Same with corporations, by the way, another thing libertards get confused about.) ⁴ And as between each other, a contract specifies their rights.

Something similar explains why contractual title transfer works. (See LFFS, ch. 9.) Suppose A owns Blackacre. This is an in rem property right, good against the world. Meaning: A’s permission is needed for any third party T to use Blackacre. Now suppose A sells Blackacre to B via contract. Now B can grant permission to T to use Blackacre, and A cannot object. So as to everyone in the world T (except for A), B is the owner, since all of them need B’s permission to use it—and can use it if B grants them permission. ⁵

Thus, B effectively has in rem rights in Blackacre. In effect, he stands in A’s shoes–like a form of subrogation (see e.g. La. Civ. Code arts. 1825 et pass.). In other words, A’s ownership cloaks B in the ownership authority of A so that he stands in A’s shoes and acts as the owner now, against the rest of the world T. Except as against A. But because A contractually transferred Blackacre to B, he is estopped from denying B is the owner and is contractually prohibited from preventing B from acting as owner. (See LFFS, ch. 9, Part III.A.)

If they cannot agree, the agreement may have dispute resolution procedures but in the end, the asset may have to be sold and the proceeds divided. In marriage the presumption is that they agree; the spouses are legally a unit. If they cannot, it probably implies the marriage is over and in the divorce, the matrimonial regime determines division of assets. If two children who inherit a home from a parent cannot agree how to use it, then they have to split it. For example La. Civ Code art 807:

Art. 807.  Right to partition; exclusion by agreement
No one may be compelled to hold a thing in indivision with another unless the contrary has been provided by law or juridical act.
Any co-owner has a right to demand partition of a thing held in indivision.

Now keep in mind that all rights are property rights, and all property rights are the right to the exclusive control (meaning: the right to exclude others) for a given scarce resource. Including bodies. The default principle is that each person is the owner of his body because he has direct control of it. (LFFS, ch. 4; ch. 9, Part III.B; also ch. 10.) But this right can be forfeited by committing an act of aggression. (LFFS, ch. 5, 9.) In effect this gives the victim a property right in the body of the aggressor. Since this is limited by considerations of proportionality (LFFS, ch. 5, Part IV.A), the victim does not have complete ownership over the aggressor’s body, meaning the victim and aggressor are in a sense co-owners over his body.

I don’t see what the problem is here. It is not “impossible.” And it is, in my view, justified—by the acts of aggression of the criminal. (See LFFS, ch. 2, n.17; ch. 9, Part III.B; ch. 10; and ch. 19, at n.81 and accompanying text.)

Update: See also this discussion with LiquidZulu:

1. See “Libertarians” Who Object to “Self-Ownership”; LFFS, ch. 4, n.1 and ch. 2, text at notes 12 and 13; also Libertarian Answer Man: Self-ownership for slaves and Crusoe; and Yiannopoulos on Accurate Analysis and the term “Property”; Mises distinguishing between juristic and economic categories of “ownership”. Against the Non-Aggression Principle and Self-Ownership? Run! [↩]
2. On “Unowned” State Property, Legal Positivism, Ownership vs. Possession,. [↩]
3. Libertarian Answer Man: The Efficacy of Wills. [↩]
4. Libertarian Answer Man: Legal Entities and Corporations in a Free Society;  Corporate Personhood, Limited Liability, and Double Taxation. [↩]
5. Assuming this use does not violate others’ rights; see LFFS, ch. 15, n.62 and Part IV.H et pass.; The Non-Aggression Principle as a Limit on Action, Not on Property Rights. [↩]