Norbert Slenzok and Walter E. Block, “On Public Property: Response to Dominiak, Israel, and Fegley,” Journal of Libertarian Studies 30 (1) (2026): 1–16.
Abstract:
In this rejoinder, we return to the question of the ownership status of public property by criticizing Dominiak, Israel, and Fegley (2025). According to these authors, the public domain is legitimately owned collectively by domestic taxpayers in virtue of the so-called accession principle. The present paper demonstrates that the use Dominiak, Israel, and Fegley make of the accession principle is untenable since it (a) runs counter to the very purpose of introducing accession to libertarian theory as another mode of title acquisition, and (b) predicts conflict-generating property claims. We also argue that even if the approach under criticism were correct, it would fail to offer what DIF believe it does: a non-ideal theory comprising policy recommendations for politicians in power. In addition, the paper challenges the second pillar of the approach of these three scholars: their ideas for public property management. As we show, those nostrums are at odds with some elementary insights of Austrian economics.
I may reply in further detail later, but quickly, here is ChatGPT and Grok’s response to this query:
Query: Analyze https://jls.mises.org/article/157668-on-public-property-response-to-dominiak-israel-and-fegley and compare to kinsella attached [Legal Foundations of a Free Society] and https://stephankinsella.com/2025/05/unowned-state-property-legal-positivism-immigration/ https://stephankinsella.com/2010/04/im-pro-immigration-and-pro-open-borders/ https://stephankinsella.com/2005/09/a-simple-libertarian-argument-against-unrestricted-immigration-and-open-borders-2/
ChatGPT:
Here is the basic picture.
Slenzok and Block’s new JLS rejoinder argues against the Dominiak–Israel–Fegley view that public property is collectively owned by taxpayers via an “accession” theory. Their core claim is that DIF’s use of accession is a category mistake: accession is supposed to resolve competing claims to a single output by assigning a determinate owner, whereas DIF’s application generates involuntary co-ownership by millions of taxpayers and thus creates, rather than resolves, conflict. They also argue that the taxpayer-coownership model collapses into majoritarian or franchise-based political management and therefore cannot supply a genuine libertarian “non-ideal” policy guide for things like immigration or pandemic rules. They explicitly contrast their own “no-man’s-land” view with Hoppe’s taxpayer-ownership view and say that forced integration / forced disintegration problems arise only if one first assumes collective taxpayer ownership of the public domain. (jls.mises.org)
That position is sharply at odds with your 2005 and 2025 posts. In the 2005 piece, you distinguish legal ownership from moral or justified ownership and say that the state does legally own many things even though its title is unjust; the “real” owners are taxpayers or expropriated victims, and therefore it is not necessarily unlibertarian for the state to impose usage rules on public property, including immigration restrictions. In the 2025 post, you refine that further: some state-controlled assets are best understood as rightfully owed back to taxpayers or victims through restitution and privatization, while some other lands, especially undeveloped federal lands, may indeed be genuinely unowned and open to homesteading. You also reject the easy equation “state property = unowned property,” and tie that mistake to confusion over ownership versus possession and over positive law versus justified law. (StephanKinsella.com)
So on the central question, your current view is closer to Hoppe than to Slenzok/Block, but with an important qualification. Hoppe tends to speak as if public property is owned by taxpayers because they financed it. Your 2025 formulation is more discriminating: some state property is unowned; much of it is not. Some is best seen as legally possessed by the state but normatively owed to taxpayers, prior owners, or victims of expropriation; that is why the state should manage it, pending privatization, for their benefit. This is not the same as saying that every state asset is collectively owned in the full ordinary sense by all taxpayers right now. (StephanKinsella.com)
In that respect, the new JLS piece attacks a stronger claim than the one you now seem to hold. Slenzok and Block target the thesis that taxpayers are present co-owners of the public domain by accession, with the ordinary incidents of collective ownership. Your 2025 post is closer to a restitution/claimant model: the state has legal control, but its title is morally defective; certain citizens or prior owners have better claims than outsiders; and until privatization or rectification occurs, it is not absurd to let policy track those better claims. That is a materially different theory from DIF’s accession-based co-ownership. (jls.mises.org)
The deepest disagreement is methodological. Slenzok and Block want to preserve the anti-collectivist purity of libertarian property theory by denying any ownership title to the public domain; on their account, once one abandons individualized title and starts speaking of “the taxpayers” as owners, one has already created an inherently conflictual, collectivist arrangement. Your approach instead tolerates a dual-register analysis: positive-law ownership on one plane, justified ownership or better restitution claims on another. That is why you can say the state legally owns roads while also saying outsiders do not necessarily have a right to use them, because the morally superior claims run to citizens/taxpayers or prior owners rather than to random third parties. (jls.mises.org)
That same divide explains the immigration disagreement. In the new JLS article, the no-man’s-land theory implies that peaceful movement across public land should generally be permitted, because no taxpayer title exists that immigrants could be violating. In your 2005 and 2025 pieces, by contrast, immigration through or onto state-controlled resources is not automatically a rights-issue in favor of outsiders, because those resources are not simply unowned commons available to everyone. That is why you say restricting outsiders’ use of roads does not necessarily violate their rights, while still insisting that modern immigration policy also violates citizens’ rights through forced exclusion. The result is your familiar “there is no clean solution under democracy/welfare-statism” position: both tighter controls and wider admission can violate rights, in different ways. (jls.mises.org)
Your 2010 clarification fits neatly with this later view. There you say the “open borders” label is misleading, because under an actual libertarian order there would be only privately owned land and some unowned land available for homesteading; but in the present world the state’s control of public property means any immigration policy will produce either forced exclusion or forced integration. You also explicitly say that some public lands are better treated as genuinely unowned, while other state-controlled assets are rightfully owned by taxpayers and others who paid for them via taxes. That is almost exactly the hybrid position the Slenzok/Block rejoinder denies. (StephanKinsella.com)
Your attached LFFS material supports the background framework you are using. It presents libertarian property theory in the usual triad of original appropriation, transfer, and rectification, and Hoppe’s foreword emphasizes that justice requires every scarce resource to be privately ownable, that original appropriation creates the initial objective link, and that later acquisition must proceed by voluntary transfer or rectification. It also notes, in your own discussion, that modern positive law tends to ignore the possibility of unowned or abandoned land, likely because of statism and legal positivism. Those themes fit your 2025 post exactly: some state land may truly be unowned, but other state-held assets are better understood through rectification, restitution, or better claims, not through the blanket slogan that “public property is unowned.”
My bottom-line comparison is this: the new Slenzok/Block article is a powerful critique of the specific accession-based collective-ownership thesis of Dominiak–Israel–Fegley, and it would also undermine any crude Hoppean or paleo claim that “taxpayers just own all public property” in a straightforward co-ownership sense. But it does not fully dispose of your more careful position, because your recent view is not simply “all taxpayers are current co-owners by accession.” It is a differentiated theory of state control, restitution claims, legal vs. justified ownership, and the mixed status of different public assets. In that sense, your 2025 position looks like a middle course between Hoppe’s taxpayer-ownership rhetoric and Block/Slenzok’s no-man’s-land thesis. (jls.mises.org)
The one pressure point the new article does create for your view is this: if you want to say that some public assets should be managed for taxpayers or citizens pending privatization, you still need a cleaner theory of who exactly the claimant class is, how its claims are individuated, and why that does not recreate the same conflict-generating collectivism Slenzok and Block criticize. Their article is strongest exactly there. It presses the question whether “owed to taxpayers” can be made juridically concrete without collapsing into involuntary co-ownership and political decisionism. (jls.mises.org)
If you want, I can turn this into a more formal mini-essay in your voice, with explicit sections on Hoppe, Block/Slenzok, Dominiak/Israel/Fegley, and your own current position.
Grok:
Analysis of the JLS Article: “On Public Property: Response to Dominiak, Israel, and Fegley”
The article, authored by Norbert Slenzok and Walter E. Block and published in the Journal of Libertarian Studies (2025), is a direct rebuttal to the collective ownership theory of public property proposed by Łukasz Dominiak, Matthew Israel, and J.C. Lester Fegley (DIF). DIF argue that public property—such as roads, parks, and facilities funded by taxes—accrues to taxpayers collectively through a principle of “aggressive accession.” In this view, the state acts as an aggressor by stealing taxes to create or maintain these resources, but the resulting property “accrues” to the taxpayers as joint owners, similar to how improvements on land might transfer ownership in libertarian theory. This collective ownership, per DIF, justifies taxpayer preferences in managing public property, potentially including restrictions on immigration or universal anti-pandemic measures (UAPR), as a form of non-ideal libertarian policy in an imperfect world.
Slenzok and Block reject this framework on multiple grounds, aligning with a strict Rothbardian-Hoppean libertarianism emphasizing self-ownership, homesteading, and non-aggression:
- Critique of Accession and Collective Ownership: They argue that accession is meant to resolve conflicts over scarce, indivisible resources (e.g., a statue made from stolen materials), but public property is largely divisible (e.g., specific roads or buildings). Imposing collective ownership creates unnecessary conflicts and decision-making deadlocks, contradicting accession’s purpose of avoiding disputes. They cite Dominiak’s own prior work to highlight this inconsistency: property rights should distribute “individual domains of freedom,” but co-ownership fails at this, especially in involuntary scenarios like taxation.
- Public Property as No-Man’s-Land: Instead, public property is deemed unowned—a “no-man’s-land” open to peaceful, non-aggressive use by anyone, including immigrants or the general public. Since the state has no legitimate title (due to theft), and taxpayers’ claims conflict with each other (e.g., via intergenerational or varying tax contributions), no coherent ownership emerges. This unowned status means no rights are violated by open access, as there are no owners to aggress against.
- Implications for Immigration and Policy: In this model, states cannot legitimately restrict immigration on public property, as it lacks owners whose preferences could justify exclusion. DIF’s approach, by contrast, enables coercive majoritarianism (e.g., majority taxpayers voting to curb immigration to avoid “forced integration”), which the authors see as unlibertarian. They also critique DIF for ignoring Austrian economic insights: collective ownership precludes rational calculation (per Mises and Rothbard), leading to inefficiencies and state expansion. As a non-ideal theory, DIF’s model fails practically—states won’t implement proportional voting or disenfranchise non-taxpayers—and ideologically, by compromising on voluntary association.
- Broader Libertarian Alignment: The article upholds non-aggression and self-ownership, rejecting state coercion. It implicitly critiques legal positivism by prioritizing natural law over state-decreed titles, arguing for privatization or abolition over reformed management. Key quote: “Claims of all those who were expropriated for the creation of the public domain come into immanent and permanent conflict with each other” (citing Wiśniewski), underscoring why collective claims dissolve into unownership.
Overall, the article defends a radical libertarian stance where public property’s illegitimacy renders it open, promoting free movement and use while condemning state interventions as aggression.
Comparison to Kinsella’s Works
Stephan Kinsella’s positions, as expressed in the attached PDF (Legal Foundations of a Free Society [LFFS], theory chapters only, draft dated April 2025) and the three specified blog posts, provide a contrasting yet overlapping libertarian framework. LFFS is a compilation of revised articles on libertarian legal theory, focusing on foundations like self-ownership, contract (title transfer), causation, punishment, and property rights. While the provided PDF excerpt is limited (title pages and dedication), web-sourced details confirm it includes core chapters (e.g., “How We Come To Own Ourselves”) that ground property in homesteading, physical integrity, and restitution—rejecting state legitimacy but treating public property as restitution-owed to victims (taxpayers). This differs from Slenzok and Block’s “unowned” view, as Kinsella sees state-controlled resources as rightfully belonging to taxpayers, with the state as an illegitimate but legal “caretaker” or trustee. His blog posts evolve this nuance, particularly on immigration, showing a shift from early skepticism of unrestricted access to a conditional pro-immigration stance.
Key Similarities Across Kinsella’s Works and the JLS Article
- Rejection of State Legitimacy: All emphasize libertarian principles like non-aggression, self-ownership, and homesteading. Kinsella, like Slenzok/Block, views the state as a criminal entity without moral title to property, rooted in theft (taxation). Both critique legal positivism for conflating state-decreed “law” with natural rights—Kinsella explicitly in his 2025 post (referencing LFFS), arguing property derives from action and conflict avoidance, not legislation.
- Critique of Collective or Open Access Risks: They agree unrestricted access to public resources risks inefficiencies, “forced integration” (per Hoppe, cited in both), and calculational chaos (Austrian economics). Immigration debates highlight this: both see open borders in welfare states as potentially leading to cultural erosion, welfare burdens, or civil unrest.
- Ideal of Privatization: The ultimate libertarian solution is privatizing or abolishing state holdings, returning them to rightful owners via restitution or homesteading unowned lands.
Key Differences
- Nature of Public/State Property:
- JLS Article (Slenzok/Block): Public property is unowned and open to all peaceful users, akin to virgin land. This “bum in the library” analogy (Block’s signature view) allows anyone (e.g., immigrants) to homestead or use it without aggression, as no ownership claims hold.
- Kinsella’s LFFS and Posts: Kinsella rejects the “unowned” label for most state property, arguing it’s stolen from taxpayers/victims, thus rightfully theirs (via restitution). The state holds legal possession but not moral ownership, acting as a “trustee” or “caretaker.” In LFFS’s foundational chapters (e.g., on self-ownership and property), this ties to homesteading: transformed resources (e.g., built roads) aren’t virgin/unowned but owe restitution. His 2025 post directly critiques the unowned view: “Ancaps do not treat property held by criminal gangs as unowned. It’s owned by whoever it was stolen from.” This contrasts sharply with Slenzok/Block, as Kinsella sees open access as further victimizing taxpayers (e.g., reducing resource value).
- Implications for Immigration and Open Borders:
- JLS Article: Supports unrestricted immigration on unowned public property, as exclusion would be aggression without owners. Rejects DIF’s restrictions based on taxpayer preferences.
- Kinsella’s 2005 Post: Argues against unrestricted immigration/open borders, as the state (as caretaker) can set discriminatory rules on public property (e.g., roads) to maximize restitution for taxpayers, without violating outsiders’ rights (who have no claim). This aligns somewhat with DIF’s collective view but grounds it in restitution, not accession.
- Kinsella’s 2010 Post: Nuances to “pro-immigration” but anti-open borders in welfare states, advocating an invitation/sponsorship system where citizens/employers invite immigrants (with liability bonds, welfare exclusions). This reduces “forced exclusion” (denying invitations) and “forced integration” (imposing costs). Public property is citizen-owned, so non-invited access aggresses against owners.
- Kinsella’s 2025 Post: Reinforces the 2010 stance, critiquing “unowned” theories (implicitly Block’s) for enabling squatting or rape analogies if state control implies unownership. Ties to LFFS: Property rights stem from self-ownership; state property should benefit natural owners (taxpayers) as in-kind restitution. Supports Hoppean restrictions: “The government, as trustee of its citizens, must check all newly arriving persons for an entrance ticket.”
- LFFS (Attached PDF Context): As a theory-focused work, it provides the bedrock—property as exclusionary rights from homesteading/contract/restitution. Web references (e.g., to LFFS in immigration debates) suggest it supports Kinsella’s “second-best” restrictions: in imperfect states, discriminatory policies minimize aggression more than open access, which socializes costs.
- Legal Positivism and Non-Ideal Theory:
- JLS Article: Implicitly rejects positivism by favoring natural law; critiques DIF’s non-ideal policy as enabling coercion/majoritarianism.
- Kinsella’s Works: Explicitly critiques positivism (2025 post, LFFS chapters on law discovery vs. legislation). In non-ideal worlds, prefers rules benefiting victims (e.g., immigration invitations) over radical openness, which he sees as ignoring possession/ownership distinctions. Evolution: Early (2005) focuses on rules for efficiency/restitution; later (2010/2025, LFFS) integrates with broader theory, emphasizing invitations to balance rights.
In summary, Slenzok and Block’s article advocates a purist “unowned” model promoting open access and immigration, while Kinsella’s body of work (LFFS and posts) evolves toward a restitution-based ownership by taxpayers, justifying state-as-trustee restrictions as a pragmatic second-best. This positions Kinsella closer to Hoppe and DIF in practice, though grounded in distinct title-transfer and self-ownership arguments from LFFS. His views have nuanced over time, moving from outright opposition to unrestricted immigration (2005) to conditional support (2010/2025), always prioritizing victim restitution over unowned openness.
