KOL479 | Co-Ownership Revisited: Property Rights, Exclusion, Contracts, and Edge Cases, with Nick Sinard

Show Notes: Stephan Kinsella & Nicholas Sinard on Co-Ownership, Property Rights, and Related Issues

(Full conversation – Parts 1 & 2 combined)

Opening Summary and Defense of Co-Ownership (0:00–4:41)

• Kinsella summarizes his long-standing view: co-ownership of scarce resources is unproblematic and historically unquestioned.
• Property rights exist to avoid interpersonal conflict over rivalrous (scarce) resources; contracts can split the “bundle of rights” in ways that still prevent conflict.
• Examples: state-owned property is actually co-owned by taxpayers/victims; homesteading-by-proxy creates temporary co-ownership; wills can be structured to achieve the same result even if death technically ends the testator’s existence.

Hoppe, Easements, and Collective Homesteading (4:41–8:22)

• Sinard: critics are taking Hoppe too literally when he says “only one owner per resource.”
• Hoppe himself recognizes easements, servitudes, and even collective homesteading (e.g., a commonly used village path).
• Practical co-ownership (spouses, roommates, joint heirs) already works via contracts and arbitration/divorce/sale when conflict arises.

Meta-Norms and the Duty to Avoid Conflict (8:22–9:53)

• Even when no perfect rule exists, parties still have a background duty to seek peaceful dispute resolution rather than immediate violence.
• Property rights are not self-enforcing; they presuppose arbitration.

Compossibility and the Essentialist Project (9:53–13:18)

• Sinard is working on an “essentialist” test: a proposed property-rights rule is only justifiable if it is logically compossible (no built-in conflicts).
• Kinsella links this to Hoppe’s and Hülsmann’s emphasis on compossible rights.

Do Critics Really Oppose the Substance or Just the Word? (11:43–17:50)

• Kinsella suspects the dispute is merely semantic: critics accept contractual arrangements that achieve the same result as co-ownership but refuse the label.
• Sinard thinks critics mistakenly believe Kinsella derives property rights from contract (rather than contract from prior property rights).
• Tangent on contractarianism, mutual recognition, and argumentation ethics: mutual respect for rights is a proto-agreement, but contracts remain downstream of property.

Consent, Revocability, and the Guest/Tenant Distinction (31:42–36:04)

• Bare consent (dinner guest, kissing) is revocable at will.
• Formal leases or life estates transfer real excludability rights (even against the original owner) → divided or co-ownership, not mere license.
• Example: tenant gains the right to exclude the landlord from the rented bedroom.

Justifiable Use vs. Actual Property Rights (36:04–36:54)

• A guest or licensee can justifiably use a resource without possessing a property right, because the owner has consented.
• Rights = the ability to exclude others; mere justified use does not require that ability.

Co-Ownership in Restitution and Punishment (36:54–41:45)

• Even anti-co-ownership hardliners must accept co-ownership when a single aggressor owes an indivisible object (e.g., a car) to two separate victims.
• Joint heirs, spouses, or co-restitution claimants all illustrate unavoidable co-ownership.
• Conflict is resolved the same way as with any neighboring owners: arbitration, forced sale, or partition.

Ties to State Property and Immigration Debates (42:25–44:58)

• The same people who reject co-ownership often claim state property is “unowned.”
• Kinsella: calling expropriated property “unowned” would erase the original victims’ better title; Liquid Zulu’s recent concession (homesteader may owe proceeds to prior victims) implicitly admits special claims → a form of co-ownership.

Forestalling, Unowned Resources, and “Conflictable” Goods (46:19–52:03)

• Critique of Walter Block’s forestalling argument: blocking access to unowned land is not aggression.
• Resources only become rivalrous/conflictable when multiple people actually value them.
• Crusoe alone on his island has possession and use, but no property rights (nothing/no one to exclude).

Voluntary Slavery and Inalienability (52:55–58:58)

• True irrevocable alienation of the body is impossible or at least not enforceable by mere promise.
• Temporary consent (boxing match, party guests) is fine because it remains revocable.
• Rights must remain compossible; a “right” that inherently aggresses is invalid.

Mid-Performance Obligations and Estoppel-Like Cases (58:58–1:06:51)

• Airplane pilot who wants to bail mid-flight, surgeon who has already opened the patient, soldier deserting in battle, tight-rope walker whose net-holder walks away.
• Kinsella’s solutions:
  1. Temporary co-ownership of the critical resource (e.g., passengers become co-owners of the exit door), or
  2. Genuine detrimental reliance that has already become irreversible → backing out now causes harm you are responsible for.

Closing Remarks (1:09:04–end)

• Libertarian theory, like every justice system, will have hard edge cases; the goal is to handle the peaceful cases better than rival theories.
• Kinsella plans to release the discussion as a Kinsella on Liberty podcast episode.

Key Takeaway: Co-ownership is not only practically unavoidable (joint heirs, restitution, leases, life estates, state-expropriated property), but fully compatible with the libertarian purpose of property rights: avoiding physical conflict over scarce resources through clear, excludable titles and contractual arrangements. Most criticism appears to be semantic rather than substantive.

[0:00 – Introduction and Summary of Co-Ownership Argument]

Stephan Kinsella [0:00]: Yeah. So, all I said was I just think that the… Let me just summarize what I said just in case I record this. I don’t think that co-ownership was ever questioned in the past because people sort of took for granted you could have the bundle of rights idea where you could split your rights up. And if you think of property rights as the right to exclude and if you think of property rights as those that emerge because of response to the problem of conflict and property rights tell you who can use the resource or more particularly who can exclude people from it then if you have a contract between people that split it up that also specifies who can use it as between them. So it’s sort of like a contract is always seen as the law between the parties. It’s not an in rem right good against the world like a normal property right is but it’s a right in personam right between the parties and you know if you combine the contract and the property right that specifies which of the two parties can use the resource at a given time and would still serve to prevent conflict.

[1:07 – State Property, Homesteading by Proxy, and Wills]

Stephan Kinsella [1:07]: I sort of wonder if part of their opposition is also rooted in not only in their opposition to co-ownership is rooted in their opposition to their idea of unowned property. The state-owned property is unowned because if you believe this the state property is not unowned but it’s owned by the taxpayers let’s say then clearly those taxpayers are co-owners of the property until you get it away from the state. So, you know, if the state steals A and B’s property and takes the money and sells it, let’s say, and takes the money and buys property C, you could argue that A and B together have a right to that property C. So, they would be co-owners of it in that way. Or you take another example. Let’s suppose you hire a worker to go homestead land for you and the land is unowned. When the worker homesteads it, the only reason that the employer owns it is because of the contractual obligation of the worker to transfer it to the employer. So even there you have a kind of temporary co-ownership situation.

Stephan Kinsella [2:53]: Let me give one more example too and then see what you think about this. Like David Gordon has argued with me that you can’t have there’s a problem with wills because if you leave your property to someone in the future that at the moment of death, you don’t exist anymore, so how can you leave it to them? And I pointed out, well, number one, you could just say, well, I leave it to you the moment before my death. You could always do that. And if you really have a legal system that is so anal about this and doesn’t let you do it because you’re dead by the time you give it away, you could come up with complicated arrangements to do the same thing. Like you could, for example, have a company that’s an estate disposition corporation and you transfer your property to the company, but they grant you back the right to use it while you’re living. And they also grant you the right to change your mind at any point in time, but they also direct that corporation to transfer it to your beneficiaries of your will upon your death. So there there’s lots of ways to get the same result. So I don’t really see why we have to be formalistic about it. If you can get the same result, then that’s the same substantive reality.

Stephan Kinsella [4:06]: And it seems to me that whether you call this arrangement between two people who are co-owners of a resource co-owners or that one of them really has to be the owner and the other one is just having a contract with the other one. If it’s a husband and wife and they co-own it, I don’t see why you say it’s the husband or the wife that’s the owner and the other one is just the user because it’s the same result. And I think the word co-ownership is an accurate way to describe that. So all right done my soliloquy.

[4:41 – Nicholas Sinard Responds: Hoppe, Easements, and Collective Homesteading]

Nicholas Sinard [4:41]: I mean with them in particular I think one they’re being a little bit too literal. At one point Hoppe does say, I forget exactly where, that only one resource can have an owner and stuff, but I mean, and I understand where Hoppe is coming from, but if the purpose of property rights is to be able to interact with people without conflict, correct? Physical conflict. So if we divvy up property rights in an object in a way that there isn’t conflict it is perfectly compatible with the libertarian conception of property rights. So, you know, just for easements, if I have an easement onto say my land from someone else, it’s just I can use this land to travel whenever I like and you would have a property right in that property, but it’s not like conflicts avoided because the person can’t block you from using it, can’t prevent you from using it.

Nicholas Sinard [5:58]: Well, I think that the response of the anti-co-ownership people to that would they might grant that you can have an easement, but they would say that that’s still the easement part is only owned by one person. But Hoppe himself, not only does he recognize things like easements, but he also recognizes co-owners because in that chapter, I think it’s in The Great Fiction and it’s from his article on, I forgot which article it is. It was the one that was in Libertarian Papers, my journal. But in the first section, he talks about if you have like a community, a town, and a group of people, and they use this path for a common purpose, they’ve collectively homesteaded that property, right? And if someone else builds a road on it, which they can do because as long as they don’t block the easement that was pre-existing, which is why you could argue that the land enclosure movement stole some property rights because it put walls up and prevented people from using forest land the way they were using it before.

Nicholas Sinard [7:04]: You know, you could say you could build your castle on this land and you might even start using the forest, but you have to let people keep using it the way they were using it before. So you would have not only divided ownership like you have a certain physical object like a tract of land and you have an easement over it or right of use or right of way or servitude and you have the basic ownership by someone else but also that easement could be owned by multiple people and like if you have two people who share an apartment or share a building and they buy it together obviously they can’t use the exact same space in the kitchen at the same time and they know that. So they have an arrangement where the first one to use it gets to use it. But if they come to a conflict then their contract usually says if we can’t come to an agreement then there’s one of two things you do. You have to go to dispute resolution and then the judge would look at the contract and decide who gets to use it in that way or they just have to sell it.

Nicholas Sinard [8:09]: Like husband and wife, that’s called divorce. That’s what divorce is. They have to basically divorce. So again, there’s a way the legal a legally recognized way that you can use to settle the dispute, which is what the purpose of property rights are.

[8:22 – Meta-Norms and Obligation to Avoid Conflict]

Stephan Kinsella [8:22]: Yeah. Well, I’m going to say one thing about that because I remember something that you were talking about, I guess a couple years ago, but also I kind of want to touch on rights in general because it’s obviously very interconnected.

Nicholas Sinard [8:42]: I forgot what you called it. It was like an obligation or duty of something where pretty much when there’s not intractable violence but inextricably linked something like that. No, it was where even if we can’t find a solution to a conflict regarding a conflict-able resource. I remember you said it may have been a couple years ago you were saying that either way they can’t engage in that conflict. They still have this like duty or obligation of avoiding the conflict even if everything else falls through.

Stephan Kinsella [9:21]: I don’t remember that but I have written about that there’s sort of a kind of a meta-norm or an obligation to do your best to try to avoid disputes and to engage in dispute resolution when there’s a conflict and to have some neutral arbitrator settle the dispute even if it’s just arbitrary because that’s still preferable to violence in most cases.

[9:53 – Purpose of the Inquiry and Compossibility]

Nicholas Sinard [9:53]: Let me ask you, what are you looking into this for? Are you working on some project or writing or what’s the purpose of inquiring into this?

Stephan Kinsella [10:00]: I mean it’s been something I’ve been thinking about for a few years off and on. I eventually am going to write an article. I have a lot of it in my head, but I need to just write it down. And it’s about the I’ve actually talked to you about it before. An essentialist take on rights. Essentially without justification just it’s going to be a big pretty much formal test where for a property rights theory of property rights to be justifiable conceivably it must not be in contradiction with that.

Nicholas Sinard [10:34]: Okay yeah that sounds a little bit like what it was it Hillsteiner talked about about rights having to be compossible. Like that’s sort of a logical any system of right and libertarians sort of mention this because like your mainstreamers say things like oh well rights conflict you have to balance them and all that but libertarians always say well no rights can’t conflict because you allocate them the whole purpose of rights is to stop conflict and you allocate them in such a way as that their nature is to allow people to avoid conflict. So rights can’t conflict. So if you identify a conflict between rights then you’ve identified a problem. All rights have to be compossible.

[11:22 – Do Critics Accept Contractual Equivalents?]

Stephan Kinsella [11:43]: Well, I think it would be interesting. Do you know these guys that are arguing with us about it? Do they concede that you can have a contract that gets you the same result like that allows say the husband owns the house but the wife has a contractual right to use it. So do they just object to the word? Like do they say, “Yeah, you can have the same result, but it’s a combination of contract and property rights, but one person owns it, but we shouldn’t use the word co-ownership. We should use some other word.” Is that really their dispute, or do they disagree with contract as well?

Nicholas Sinard [12:27]: Anytime I’ve seen them talk about contract in relation to this, it’s almost like they’re when you’ve talked about it with them and they replied and they’re pretty much acting like you’re saying co-ownership comes from originates from contract. Like you’re saying like the people that say rights are from contracts, which of course property rights have to precede contracts. I think that’s what they’re thinking you’re trying to do. Instead of saying we can have these arrangements, these agreements, whether explicit or implicit, that avoid conflict, that allow for co-ownership. I think maybe they’re thinking that you’re just trying to get rights from contracts and not have rights precede the contract.

[13:18 – Contractarianism, Mutual Recognition, and Splitting Rights]

Stephan Kinsella [13:18]: Well, and there this is a little bit of a tangent, but there’s an interesting and I don’t think libertarians have explored this as well as they should yet, but you know, there’s something called contractarianism, like David Gauthier, these guys. And there’s the mutualists who there’s an aspect of that there too. And the idea is that there’s an element in rights of mutual that’s what mutualism is about of mutual recognition which is true that rights as a legal matter as a socially recognized sort of custom or whatever you want to call it as a legally recognized enforceable set of obligations like to respect these property rights that does rely upon widespread social agreement and there’s a mutual aspect of that which is sort of touched on a way in argumentation ethics like the idea is that you have to agree to hold on a second let me pause this I got to go to the front door oh my wife’s got it okay no so the idea is that yeah in an argument you presuppose property rights with each other because I’m expecting you to recognize my property rights in sort of in exchange for me recognizing yours.

Stephan Kinsella [14:39]: Now, that’s not a contract in the sense that we mean contracts, but it’s like a mutual cons. It’s mutual agreement on each other’s rights. It’s mutual acknowledgement of respect for each other’s rights. Which is sort of like a proto-agreement you could call it, is sort of the base understanding of property rights of recognition of property rights which implies that you need someone’s consent to use their property. But the property right is the fundamental thing. The property right is recognized by all parties because they have to mutually agree to do that to have civilized society. But then contracts is what comes from property rights. A contract is just the exercise of control by the owner over the resource. You grant someone permission to use it or you don’t and you grant that permission temporarily or permanently, right? And if it’s permanent, then it’s a transfer of property rights completely. If it’s partial, then it’s like it would lead to co-ownership or the bundle of rights being split up.

Stephan Kinsella [15:37]: You know, if I have 10 acres and I can sell half to one guy and half to the other, I’ve split it up. Or I can sell a right of way over it like a driveway right of way over it to someone. I mean you can split these things up. Now in the law it is true that in the law there’s debate among legal scholars about how to treat those arrangements whether they’re called real property arrangements or whether they’re called contract arrangements or like in some states in the US in Louisiana it’s one way in Texas it’s another about how you treat the ownership of rights to the minerals underground. Is it a real property right that’s a contractual alienation of the property rights or is it a contract or like is it or a lease if you rent an apartment from someone if you lease an apartment is that a real property right or is that a contract right and I think the way the laws handle it is not really that interesting or relevant because they’ve just dealt with positive law categories how the libertarian code would deal with it I don’t think matters and I don’t think we have to decide that yet. That’s to me a classification matter, right?

Stephan Kinsella [16:48]: So again, that’s why I’m not too worried about the classification to me is just the label we attach to the normative legal reality of the rights to use of the parties of a co-owned resource. I’m calling it co-ownership because we know what ownership means. And if there’s two people that have similar rights because of their contract with each other, then it seems to me that the word co-ownership is a reasonable semantic way to express that legal reality, right? So I don’t know why these opponents of this idea, it seems like they’re fixated they think that the reality follows from the language like the way we describe it sets in motion this legal reality. To me, it’s the language just describes the legal reality, not the other way around.

Nicholas Sinard [17:42]: Yeah, I think they’re trying to be I don’t know, meticulous about it, but they’re getting lost in the weeds.

[17:50 – Whose Rights Are Violated by Co-Ownership?]

Stephan Kinsella [17:50]: The other thing to think about is when they object to co-ownership, the only thing a libertarian can object to is aggression, right? So for me having some kind of policy that I’m advocating that would violate someone’s rights. So like if I said, “Oh, there’s a right for me not to hear obscenity.” If that means I can use force against you to stop you from speaking obscenity, then you see that me positing that right would basically end up condoning aggression. But if I say that A and B have a contract with each other over a resource that specifies how they can use it and that with respect to everyone else, their co-owners, whose rights does that violate? They entered into it voluntarily. There’s a way that they can settle a dispute if they have a dispute between each other. So whose rights is being violated by this concept? It’s not clear whose rights are being violated. So it doesn’t violate someone’s rights to have a confusing concept, for example. I mean, they might not like the terminology, but having terminology they don’t like doesn’t violate anyone’s rights.

[19:10 – Definition of a Right and Refinements]

Nicholas Sinard [19:10]: A few years ago, maybe three years ago, we were talking on Facebook about the specific definition of a right. I didn’t see the way you phrased it in your newest book. So, I was kind of wanting to ask you a little bit about your thoughts on what you had said at the time where we were talking about what a right was specifically, right? Pretty much you were saying that a right to X is a status whereby the use of force to prevent another’s use of X cannot be coherently criticized.

Stephan Kinsella [19:41]: I guess that’s still Yes. Yeah. I actually don’t know if I have that in the book, but the closest I get to it is there is it in the book or not?

Nicholas Sinard [19:47]: Not when I was looking it up.

Stephan Kinsella [19:53]: Yeah. I mean, there’s a thing by Sadlowski which is close to it. I someday I may want to try to come up with a more elegant definition. That’s more the definition than the nature of what rights can be justified. I think the definition is more like a right is a legal claim that can be legitimately enforced. So that would include bad rights and good rights, you know, like laws that like patent rights or a legal right in that sense, but they’re just not a justified right. There wouldn’t be justified in that first sense because you couldn’t coherently argue in favor of it, right?

Stephan Kinsella [20:43]: Yeah, I think that’s the only thing I might at some point I’ve been toying with I’ve been trying to figure out the best way to settle this issue about this meta-norms issue and also this debate everyone’s been having lately about whether it’s necessarily immoral to violate a right, whether it’s a rule of personal behavior or just a rule that guides the formation of laws in society. And so then your personal behavior, it might not necessarily be a rights violation. It might not necessarily be immoral to violate rights, but it would still be a just law that could be legally enforced. I’m still trying to sort that out the best way I can. And that could affect that definition of rights because it would be not just the claim that you could that it couldn’t be coherently criticized that you use force to defend this resource, but that the legal system or the laws that endorse the use of force to protect that right that resource couldn’t be coherently criticized.

[22:26 – Right as Exclusion, Not Use; IP Implications]

Nicholas Sinard [22:46]: I guess with that though since right is more so about being able to exclude others. It’s not so much about the use of but more about the use of some property or resource to exclude others from using a resource.

Stephan Kinsella [23:00]: Yeah, the reason I sort of changed the emphasis of rights instead of right to use which is more casual to the right to exclude is because it emphasizes that I noticed that in arguments about intellectual property people would say that so when I pointed out that the problem with intellectual property is it gives the holder of the IP right the right to prevent me from using my resource as I see fit. In other words, it limits my property rights. And then their response would be, well, all property rights limit other property rights. So that there’s nothing wrong per se with IP rights also limiting your property rights because your and then they give the example, your right to swing your fist ends where my nose begins. But that’s not a limit on my property rights. That’s a limit on my actions.

Stephan Kinsella [24:18]: Because everyone says, you have the right to do whatever you want with your property as long as you don’t use it to hurt someone else’s rights. So, they add that caveat as if they think there’s a built-in limitation on your property rights that you can use it for peaceful things but not for other things. But that’s not a limitation on your property rights. It’s a limitation on your actions. Because what limits your ability to use your property in that way is the fact that someone else has a property right. But the fact that they have that property right means that I’m limited in any action that violates their property right. So if I own a gun and I shoot you with it, I can’t do that because it violates the property right in your body. But it’s not a limitation on my gun because if I stole the gun and I didn’t even own the gun, I still couldn’t do it. So the prohibition is a prohibition on my action because of your property rights.

Stephan Kinsella [25:23]: Which means that property rights are not limited by other property rights, but actions are limited by other property rights. Which means that what a property right is is it’s a right to prevent someone else from using it. Actually, ironically, what made me realize that was patent law specifically says that the patent right is the right to exclude people. That’s why it’s called an exclusive right. It’s the right to exclude people. It’s the right to prevent people from using your patented invention. But as every patent lawyer knows, that doesn’t give you the right to use the invention yourself because your use of the invention might violate a more an earlier or broader patent of which yours is a subset. And so that made me realize, well, it’s not only true of patent rights, it’s true of all property rights. All property rights are not the right to use, they’re the right to exclude.

[26:34 – Interpersonal Nature, Possession vs Ownership]

Nicholas Sinard [26:34]: I mean what I like about that really about that I think is probably the most important part is that it shows rights are interpersonal. If we only had one person, rights would not even make sense. It’s, you know, rights are practical and they deal with interpersonal stuff. So that exclusion shows it really puts emphasis on the exclusion because it’s not about the use of it. You can use it by yourself, not in relation to anybody.

Nicholas Sinard [27:06]: By the way, what you just said that also shows the importance of the distinction between possession and ownership because human action as an economic and descriptive category would apply to Crusoe alone on his island when there’s no one else around. And he doesn’t own things. He doesn’t have the right to use a thing. He doesn’t have the right to exclude anyone because there’s no one to apply that right to. He has the ability to possess and use the thing.

Stephan Kinsella [27:33]: Which is why, for example, if you own a house, you have the right to exclude people from it. It doesn’t mean that that right includes the right to sing a song or the right to take a hot bath because you could there’s an infinite enumeration of things you could do with the property. It just means you can prevent other people from entering the house. And once you have that ability and that right, then you have the freedom within that border to do whatever you want. Which is why we talk about the sphere of liberty means like a sphere of action. The reason we value freedom and liberty and the reason liberty and freedom are a consequence of property rights is because once you have property rights it gives you liberty, right? But it’s not like you have this primordial independent right to life or right to action or even freedom or liberty. Those are just consequences of your property rights being respected.

[28:35 – Guests, Permission, and the Essence of Contract]

Nicholas Sinard [28:35]: One thing I was thinking about while we were sitting here, I guess I was thinking through when you were talking about the interpersonal part. Because one thing I was having an issue with was okay if the right’s all about excluding others from using it. Could we really call it co-ownership when you know you let someone into your house? Maybe they don’t have maybe you say you can’t stop anyone from coming in. You know I can tell you to get out at any point. So, the guest cannot exclude anybody from using the property because they could be asked to leave or, you know, they could be like, “Well, someone else going to use it. I’ve got to leave.”

Stephan Kinsella [29:18]: Wait, wait, wait, wait, wait. Back up. What do you mean the guest?

Nicholas Sinard [29:26]: What I was thinking about was someone letting someone else use their resource, like letting someone into their house. Yeah. Let’s say in this case the homeowner is like if someone comes in, you can’t stop them from using this house just as an example and the homeowner can kick you out at any point and I was thinking then does the guest really have any right regarding the house? But well, okay. So, I was thinking is that really any meaningful right? But then when you were talking about was like well the real emphasis is the interpersonal then it’s still while usually it is the right to exclude I guess in this case it would be the right to use because it is still it has that interpersonal part to it.

Stephan Kinsella [30:16]: I think so I the way I would look at it is this I mean I look at contract as a sort of a subset of the more fundamental ownership right. The ownership right is a right to exclude. But what that means is that you can grant permission or deny permission to use the resource. Now you can do that in complicated ways. You can put conditions on it or you can make it temporary or limited in scope or permanent. So, I can allow you to if and if it’s informal and temporary and casual and revocable at will, like if a girl lets a guy kiss her or if you have dinner guests at your house for a dinner party, it’s understood that yeah, you’ve granted consent to them. So, they’re using your resource, but with your consent. That’s sort of the most bare case of contract because it’s not usually thought of as a contract because there’s nothing permanent about it and it could be revoked at will. But that is the essence of contract is like the consent of the owner.