[From my Webnote series]
From “What Libertarianism Is,” in Legal Foundations of a Free Society (Houston: Papinian Press, 2023), p25, n34:
Often the question is asked as to what types of acts constitute or are sufficient for homesteading (or “embordering” as Hoppe sometimes refers to it); what type of “labor” must be “mixed with” a thing; and to what property does the homesteading extend? What “counts” as “sufficient” homesteading? We can see that the answer to these questions is related to the issue of what is the thing in dispute. In other words, if B claims ownership of a thing possessed (or formerly possessed) by A, then the very framing of the dispute helps to identify what the thing is in dispute, and what counts as possession of it. If B claims ownership of a given resource, he wants the right to control it, to a certain extent, and according to its nature. Then the question becomes, did someone else previously control “it” (whatever is in dispute), according to its nature; i.e., did someone else already homestead it, so that B is only a latecomer? This ties in with de Jasay’s “let exclusion stand” principle, which rests on the idea that if someone is actually able to control a resource such that others are excluded, then this exclusion should “stand.” Of course, the physical nature of a given scarce resource and the way in which humans use such resources will determine the nature of actions needed to “control” it and exclude others.
“Law and Intellectual Property in a Stateless Society,” in Legal Foundations of a Free Society (Houston: Papinian Press, 2023), p. 373 n42:
See also de Jasay’s argument (note 34, above) that since an appropriated thing has no other owner, prima facie no one is entitled to object to the first possessor claiming ownership. De Jasay’s “let exclusion stand” idea, along with the Hoppean emphasis on the prior-later distinction, sheds light on the nature of homesteading itself. Often the question is asked as to what types of acts constitute or are sufficient for homesteading (or “embordering” as Hoppe sometimes refers to it); what type of “labor” must be “mixed with” a thing; and to what property does the homesteading extend? What “counts” as “sufficient” homesteading? We can see that the answer to these questions is related to the issue of what the thing in dispute is. In other words, if B claims ownership of a thing possessed (or formerly possessed) by A, then the very framing of the dispute helps to identify what the thing is that is in dispute and what counts as possession of it. If B claims ownership of a given resource, he wants the right to control it, to a certain extent, and according to its nature. Then the question becomes, did someone else previously control it (whatever is in dispute), according to its nature; i.e., did someone else already homestead it, so that B is only a latecomer? This ties in with de Jasay’s “let exclusion stand” principle, which rests on the idea that if someone is actually able to control a resource such that others are excluded, then this exclusion should “stand.” Of course, the physical nature of a given scarce resource and the way in which humans use such resources will determine the nature of actions needed to “control” it and exclude others.
In this connection, Pollock, in Maine’s Ancient Law, pp. 435–36, notes:
“Roman law knows nothing of any “occupation” which does not amount to full and actual control. Hence the learning of occupation had to be supplemented by that of possession. Roman law, like the Common Law, recognises the fact that a man cannot physically hold or control at the same time every square foot of a parcel of land, and therefore it allows legal possession to be acquired by entry on a part in the name of the whole and with intent to possess everything included in the boundaries. “Quod autem diximus et corpore et animo adquirere nos debere possessionem, non utique ita accipiendum est, ut qui fundum possidere velit omnes glebas circumambulet: sed sufficit quamlibet partem eius fundi introire, dum mente et cogitatione hac sit, uti totum fundum usque ad terminum velit possidere” (Paulus in D. 41, 2 de adq. vel amitt. poss. 3, §1). In order to apply this rule, however, we have to assume that the boundaries are known or ascertainable, and also that there is no effective opposition; and when the facts to which the application is to be made are those alleged to amount to a national occupation of unsettled territory, it is often far from easy to say whether these conditions Edition: current; Page: [436] are satisfied. In case of dispute whether possession has been established, we must resort to the rule of common sense, which is expressly adopted by the authorities of the Common Law, and does not contradict anything in the Roman Law, namely that regard must be had to the kind of use and control of which the subject-matter is capable (authorities collected in Pollock and Wright on Possession, pp. 31-5). On the question what is the “terminus” in the occupation of unsettled territory, certain conventional rules, which must be sought in the regular text-books of international law, have been more or less generally adopted by the custom of nations, and in some cases express agreements have been made (Hall, op. cit. p. 114). The doctrine that occupancy produces ownership is of course not of the highest antiquity.
See also the discussion of David Dürr’s related arguments in the section “On Disputes, Discourse, and Property Rights,” in Kinsella’s Sixth Epiphany: Means and Knowledge: to-wit: David Dürr, “The Inescapability of Law, and of Mises, Rothbard, and Hoppe“: “the final “source” of law is the conflict at the occasion of which the law is called upon. Or in short, the conflict creates its own legal solution.”
“Mises, Rothbard, Hoppe: An Indispensable Framework,” in Rothbard at 100: A Tribute and Assessment, Stephan Kinsella and Hans-Hermann Hoppe, eds. (Papinian Press and The Saif House, 2026):
in a dispute over scarce resources, the owner of the resource in dispute can be determined by objective rules since the resource in dispute has objective borders and its possessor and first user can be determined in accordance with these fundamental rules of property acquisition.
See also response to B.K. Marcus in The Blockean Proviso.
And see: Grok:
Both emphasize that the parties’ framing of the dispute is crucial. Your point is that how parties define the “thing in dispute” helps identify the boundaries of the property right. The party presentation principle says courts should stick to the issues the parties present, not invent new ones. So, both recognize that the parties’ framing shapes what gets decided.
