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

by on July 8, 2025

Update: See various discussions on Twitter, e.g.

 

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?

***

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—such as property held by the state. A frankly silly and meritless view. 2

Others object to wills because the decedent/property owner is no longer alive at the moment of death. Another silly concern and argument. 3

Still others think co-ownership is impossible. But their “arguments,” such as they are, are all over the map. They fail to define terms or set forth a coherent theory of property. They use vague metaphorical talk like “but who is the ‘true owner.'” True?

Of course co-ownership is not impossible. One can give any number of examples, but to understand this one needs a coherent understanding of the nature of property rights:

  • that it is a right to exclude, not to use;
  • that multiple people can have and exercise this decisional power to exclude (or not), such as agents—or co-owners;
  • that the legal right of ownership is different and distinct from possession;
  • that contracts can be used in a variety of ways so that legal incidents of co-ownership match the interpersonal relationships of multiple people, such as when the personal relationship of marriage gives rise to the legal incidents of what is sometimes called the matrimonial regime. 4

But of course co-ownership is possible. 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; and from each co-owner’s perspective, they can have a contract creating in personam contractually specified rights with respect to each other.

Co-ownership can also arise not by contract but as part of the process of original appropriation (occupation, transformation, embordering, homesteading), a case of joint homesteading and joint ownership. After all, we recognize that joint crimes are possible, as well as productive, cooperative joint activity. 5 There can also be cooperative, joint homesteading behavior? (After all an actor can employ an agent to homestead on his behalf; 6 why can’t multiple people do it together as equal partners?)

Hoppe gives one example of where co-ownership (of an easement, which may be thought of as a partial property right) can exist in one paper, giving the example of villagers having an easement over a street. 7

Co-ownership is possible, 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 understand this is to realize that, as between the two owners and the rest of the world, they are conceptually one unit—”the owner”—the entity that can deny or grant permission to others to use the resource. (Same with corporations, by the way, another thing libertards get confused about.) 8

Why is this hard to imagine? Libertarians have no trouble imagining cases where there is an identifiable owner of a resource but someone else has the right or capacity to speak “on behalf” of the owner—to grant, or deny, others permission, which are exactly the incidents of an in rem property right. For example, a parent, the “natural guardian,” acts as the guardian or agent for the child, or in other cases, some other person serves as as guardian, sometimes called a tutor/tutrix. For interdicted or incapacitated adults, there may be a curator or other agent. So we have a variety of terms to describe the agency concept: agent, guardian, tutor, curator, attorney-in-fact (power of attorney), legal representative, (medical) representative, conservator, mandatary, and so on. 9 Just as the agent for a principal has the right to speak on behalf of the principal with regard to giving or denying third parties the right to use the principal’s owned resource (“property”), the same is true of co-owners, or can be: it depends on the terms of the co-ownership relationship whether the permission of one, or both, is needed for third parties to use the resource. (Although apparent authority 10 could exist in some cases, though I have a feeling this concept will also give some libertards heartburn as does the issue of wills or implied contracts (the agreement to pay for a meal at a restaurant without “signing” “a contract” blah blah blah). 11

In a contractual co-ownership arrangement, the co-owners jointly own the resource, since with respect to the rest of the world, they have an in rem property right. And as between each other, a contract specifies their rights.

Something similar explains why contractual title transfer works, where the owner in effect “abandons” his ownership interest in a resource “in favor” of someone else, thus transferring the resource by setting up a situation where the transferee is subrogated to the position of the previous owner so he has an in rem right good against the world and an estoppel or similar claim against the previous owner. 12 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. 13

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. 14

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) of  a 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.)

Note that I mentioned above the case of wills, and of agents, and of the mechanism of title transfer. This is all relevant to the case of co-ownership. Consider the case of wills. In response the (silly) concern that wills cannot be enforced because at the moment of death the owner is no longer alive, as I pointed out previously, the testator can simply use a third party and contratual/co-ownership arrangement to achieve the same thing. 15 I contractually give my home to Postmortem Distribution Company but retain (a) the right to use it until death, and (b) the right to transfer it back to myself if I change my mind. In the meantime I and PDC are co-owners.

This is similar to the case of a life estate or life usufruct where I give or sell to you the naked ownership of my home but retain the right to use it until I die. In this case the usufructuary and the naked owner are co-owners, each having defined rights. Just like a rental car company still owns the car he rents for the day to a customer, but the customer for that time has the right to use it; they are in effect in rem co-owners, with defined usage rights as between them established by their in personam contract.

If I lease an apartment to you for a year, you are the renter and tenant for a year and have defined rights to use it (defined by our in personam lease agreement), so we are co-owners.

Shareholders in a corporation are co-owners of the corporations property–co-owners with other shareholders and even with the managers and employees, since according to the in personam agreement between all these people (articles of incorporation, shareholders’ agreement, bylaws, employment agreements, and so on), each of these co-owners has defined usage rights: the President may use his office and may use the company jet and the shareholder may not use the HQ for a birthday party or the company jet to fly on a vacation.

Now it is true that the positive law usually does not regard people like the renter of the car as a co-owner but under libertarian property theory, as all rights are property rights and the nature of property rights is the right to exclude, and as this legal right is distinct from possession–the purpose of property rights is to provide normative support for possession 16—then from a libertarian standpoint anyone having any legal usage/exclusion right over a resource is the owner to that extent.

This is why co-ownership is possible: because owners have the right to exclude, or to grant permission, which is the basis for contract which is merely the exercise of the right to exclude by the owner, and this contractual “title” “transfer”—this grant of permission by the owner (or his agent!)—can be absolute, unconditional, and immediate, or partial and temporary and conditioned. (See, for example, “The Title-Transfer Theory of Contract,” giving various examples, such as “the loan agreement could be structured to contain conditional title transfers whereby the title to the loaned funds transfers back to the creditor at the moment the debtor attempts to spend the funds in an impermissible way, such as gambling”.) So the landlord owns the building but not the right to use the apartment during the lease; the naked owner (or remainderman) of property (house and land) subject to a life estate or life usufruct owns the naked ownership and the life usufructuary has the right to use. These are both (partial) ownership rights defined by an in personam contract between them, where each party has defined legal ownership-usage rights, which are distinct from possession but are ownership rights; just as joint owners of a road easement–also a type of partial property right—in Hoppe’s example are legal ownership rights where individual usage rights (forms of the right to exclude) are governed by the implied contractual regime between them.

And as indicated above, something similar explains why contractual title transfer works, where the owner in effect “abandons” his ownership interest in a resource “in favor” of someone else, thus transferring the resource by setting up a situation where the transferee is subrogated to the position of the previous owner so he has an in rem right good against the world and an estoppel or similar claim against the previous owner. 17

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. Understanding this distinction is essential to untangling the “gay marriage” issue. See The Libertarian Case for Gay Marriage (“in a private order the state would not be involved. Contracts would be enforced by the private legal system, including contracts incidental to consensual regimes such as marriage. Marriage would be a private status recognized socially, with contractual and related legal effects: co-ownership defaults, joint liability presumptions, guardianship assumptions, medical decision and visitation rights, alimony or related default considerations upon termination, and the like. Initially religions and societal custom would regard only heterosexual unions as marriage, but eventually, with secularization of society, gay couples would start being more open, and referring to their partners as spouses, and have “wedding ceremonies.” At first mainstream society would be reluctant to accept homosexual unions in the concept or term “marriage,” but I suspect that politeness, manners, increasing exposure to and familiarity with open homosexuals (co-workers, family members), and increasing cosmopolitanness and secularization of society would result in an initially grudging including, finally more complete inclusion, perhaps always with a bit of an asterisk among some quarters. Or maybe not, but I think so. In any case the contractual regimes associated with any type of consensual union would be recognized and enforced legally, whether between hetero couples, homosexual couples, spinster sisters, frat buddies, group unions, whatever. The hetero couples, and perhaps one-man-many-wife groupings, would be referred to as marriages, the members as husband and wife. Perhaps the partners in a homosexual union would be referred to as married and spouses; perhaps not. I think so, eventually, but it’s irrelevant. There would be no legal battle; capitalist acts among consenting adults would be given legal effect, no matter what the accessory union is named.”); Is Gay Marriage a Constitutional Right? (“But the state has not done this. It has not only coopted the legal system–in taking on the role of defining, approving, regulating, and licensing the status of marriage itself, it has stated that it will give effect to the contractual regime (hospital visitation rights, coownership, medical power of attorney, default inheritance rules, etc.) accompanying a romantic (or other) relationship only if it qualifies as “marriage” as the state defines it; and then the state restricts marriage to heterosexual couples. … The state must recognize and enforce the contractual regime set up by free individuals, if it is going to coopt that field. … In sum: the state should get out of marriage. If it remains in existence and monopolizes the legal system, it should enforce any contractual aspects of regimes entered into by consenting adults. What they call it is irrelevant. Ideally it would be unlabeled and private society would figure out naming conventions. But the state should not be allowed to hamper the rights of non-standard couples just because it insists on decreeing what is and what is not “marriage.” If the state insists on regulating unions and giving it the label “marriage,” then gays ought to be able to legally protect their relationships and associated regimes. The state infringes their rights to do this if it monopolizes the field then denies them entrance.”); Libertarian Answer Man: Promise and Marriage Contracts (“From a civil perspective or relationship perspective it’s a promise, or a binding commitment. From a legal perspective, the entering into of such a relationship can have legal effects which in the law is called the matrimonial regime. So if you live in an area where it’s assumed that married people (people who hold themselves out as being married) they want to co-own property, their incomes, and so on. So the existence of the private relationship can give rise to implications and assumptions and legal presumptions and results. The same of course could be true with two friends or sisters who co-habitate or even a polyamorous thruple or what not who choose to have a relationship that has legal implications–or gay people or whatever. If two men call themselves married, have a wedding ceremony, etc., it can be presumed they prefer the legal incidents of their relationship to be determined pursuant to this choice, unless they do a prenup to opt-out of local default legal presumptions. Doesn’t matter if the local citizenry is conservative and doens’t recognize two men as being “married”; you can call them what you want but the point is they have manifested their intent to be co-owners, to have hospital visitation and decision rights, and so on.”); Covid Emergency Declaration in Louisiana Strips Citizens of Right to Sue for Negligence (“if the state insists on monopolizing the enforcement of contracts and related rights, and insists that you have to be “married” by its standards to qualify, then it must treat gay couples as “married,” unless it provides some other mechanism, like “matrimonial regimes”—e.g. “domestic partner regimes”–to uphold the contractual and other rights of citizens”). [↩]
  5. See Kinsella, “Causation and Aggression,” ch. 8 in LFFS, the section “COMPLICATING THE PICTURE: CAUSATION, COOPERATION, AND HUMAN MEANS.” [↩]
  6. I am sure I’ve mentioned this possibility before, perhaps in argument about homesteading with Walter Block, or with mutualists. But it is implied by my property and contract views. See LFFS, ch. 4, n.6, citing “Defending Argumentation Ethics” (LFFS, ch. 7), especially the section “Objective Links: First Use, Verbal Claims, and the Prior-Later Distinction,” and the references in “A Libertarian Theory of Contract: Title Transfer, Binding Promises, Inalienability” (LFFS, ch. 9) to various writings by Hans-Hermann Hoppe on this issue; also Stephan Kinsella, “The Essence of Libertarianism? ‘Finders Keepers,’ ‘Better Title,’ and Other Possibilities,” StephanKinsella.com (Aug. 31, 2005); idem, “Thoughts on Intellectual Property, Scarcity, Labor-Ownership, Metaphors, and Lockean Homesteading,” Mises Economic Blog (May 26, 2006); “Selling Does Not Imply Ownership, and Vice-Versa: A Dissection” (ch. 11); idem, “KOL259 | ‘How To Think About Property,’ New Hampshire Liberty Forum 2019,” Kinsella on Liberty Podcast (Feb. 9, 2019). [↩]
  7. Hans-Hermann Hoppe, “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), at Part II. [↩]
  8. Libertarian Answer Man: Legal Entities and Corporations in a Free Society; Corporate Personhood, Limited Liability, and Double Taxation. [↩]
  9. See, for example, La. Civ. Code arts. 1918 (“All persons have capacity to contract, except unemancipated minors, interdicts, and persons deprived of reason at the time of contracting”); 389 (interdiction); 2989 (mandate); 246, 247, 250 (tutorship); La. Revised Statutes, R.S. 40:1159.4 (“Persons who may consent to surgical or medical treatment”—e.g., tutor, curator, agent, spouse, child, sibling, parent, descendant); R.S. 28:221 (directive appointing representative for behavioral health treatment). [↩]
  10. Apparent Authority (Wikipedia). [↩]
  11. Libertarian Answer Man: Future and Conditional Title Transfers Under the Title-Transfer Theory of Contract; Libertarian Answer Man: Service-Only Contracts and Exchanges. [↩]
  12. See LFFS, ch. 9, e.g. Part III.A; also Stephan Kinsella, “The Title-Transfer Theory of Contract,” Papinian Press Working Paper #1 (Sep. 7, 2024). [↩]
  13. 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. [↩]
  14. See LFFS, ch. 9, Part III.A; “The Title-Transfer Theory of Contract.” [↩]
  15. Libertarian Answer Man: The Efficacy of Wills. [↩]
  16. On Property Rights in Superabundant Bananas and Property Rights as Normative Support for Possession. [↩]
  17. See LFFS, ch. 9; “The Title-Transfer Theory of Contract,” in David Howden, ed., Palgrave Handbook of Misesian Austrian Economics (Palgrave, forthcoming 2025), part of the Palgrave Studies in Austrian Economics Book series, based on: Stephan Kinsella, “The Title-Transfer Theory of Contract,” Papinian Press Working Paper #1 (Sep. 7, 2024). [↩]
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{ 2 comments… add one }
  • Iulian July 9, 2025, 12:24 am

    And in a case of conflict between co-owners over something rivalrous/scarce, then who has the right to use that thing in such a situation?

    ↩ ∞
    • Stephan Kinsella July 9, 2025, 2:09 pm

      Whoever has the better claim. If they can’t resolve it, they sell it and split the proceeds. Who cares about the details? Do we need a deductive answer for every whiny question from the peanut gallery?

      ↩ ∞

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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).

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