Re: Land rights

From: Russell Blackford (
Date: Fri Jul 27 2001 - 19:41:17 MDT

I. William Wiser said

>Here is a question that has bugged me off and on for years.

Me too.

>What ways of handling property rights and especially land rights
>seem most reasonable for people who value individual liberty
>and the well being of people in general?
>I like the idea that something becomes yours when it is laying
>around and you mix your labor with it or otherwise consistently
>make it a part of your possessions. Once something becomes
>yours it stays yours until you abandon it or transfer it in some
>way. Contracts can modify this as in work for hire, etc.

I think these are reasonable rules of thumb in *many* cases. However, as a
legal positivist, I would not say "something becomes yours". I would say "it
is morally reasonable to have a law norm (which may be traditional law,
enforceable social custom, etc not necesarily law explicitly created by the
state) that something becomes yours". I'd also say that it may not be
morally reasonable in *all* cases.

Saying that it *just does* become your property sounds metaphysical to me.
You've essentially described Locke's theory of property, which, in this
form, I find highly unconvincing, and Nozick's theory of justice. If Locke's
theory is simply stated as a politico-moral principle, without bringing in
ideas of reasonableness (and ultimately, I'm afraid, ethical intuitions), it
raises the question, "why?". As Nozick said in his early work (when he was
an unequivocal libertarian and wanted to accept the Lockean theory, or
something like it) why doesn't mingling my labour with something simply
disperse my labour, rather than make the something mine? The answer is
surely that in a lot of cases we think it reasonable for this to happen. Our
ideas of reasonableness may be based, in turn, on concepts such as desert,
though there's a trap here, I reckon. I have a tentative view that the
notion of "desert" is an illusion - that it has at least as much claim as
the notion of "the ego" to belong on J.R.'s list of useless hypotheses.

I've been thinking a lot about this during the week, trying to work out what
separates me from people whose views I respect but whom I think of as
hardline (choose some other adjective is this is thought to have negative
connotations, "consistent" perhaps) libertarians, such as Daniel and many
others on this list. In most company, I would be called a libertarian
thinker, perhaps pejoratively - I believe in both social liberty (lifestyle,
thoughts, belief, expression, etc) and economic liberty (I am emphatically
no socialist). I like the little slogan that I made up on another thread:
"Live long! Live free!" But I believe that it can be reasonable to have laws
allowing for government expenditure and the taxes that support it (even if I
often consider specific such laws to be a waste of money etc). I don't think
that property rights are inviolable. A lot of what prevents me going that
extra step is that I cannot accept that the supposed foundations of formal
large-L Libertarian thought are genuine foundations.

(I also think that my wishy-washy libertarian viewpoint is a lot more useful
for people like Damien, Samantha, Olga and Miriam - and a lot less
potentially alienating to most ordinary voters etc - than the various much
more purist viewpoints being pressed by Lee, Daniel, Mike, Ralf, Jerry, etc.
However, that does *not* mean I am correct and they are incorrect. If I have
managed to cast doubt on their views, it is in ealier paras of this post and
in the questions I asked Jerry in earlier posts.)

>This works fairly well for small items and stuff that involves
>a lot of labor. But what about large tracts of land, mineral
>rights, etc. If a small bit of land lays unclaimed and you claim
>it, work it, build a home on it etc. it makes sense to me that
>it becomes yours and stays yours as long as you do not forfeit
>it by abusing your neighbors in some way.

Again, I'd say it is often/usually reasonable to have a legal norm of this

>I don't see why people get to claim large amounts of land unless
>they do something with it which gets most people in the area to
>decide not to contest their claim. Obviously this can be done
>with military force but that only last as long as the force lasts.
>Contracts and agreements can last longer because most everyone
>needs a good reputation to thrive in this world.
>I don't want to speculate on this to much because it may have
>been worked out well by others but I would like to have some
>clear conception in my mind. I think this makes for an important
>political issue. Whose land rights do I see as valid and what sort
>of land rights ideas do I want to propagate.

I don't have clear answers to the questions your raising and suspect, as you
say below, that there are "no general solutions" (as opposed to actual legal
norms - but you're talking about what *should* be the norms, I take it).

There is a vast amount of political philosopy and jurisprudential analysis
which deals with these issues. One book that I recommend as a starting point
(though one that a lot of extrolisters would probably consider far too
socialist in its approach) is Stephen R. Munzer, _A Theory of Property_
(Cambridge Univ. Press, Cambridge, 1990). The citations in this will take
you deeply into the issues if you want to follow them up.

>There may be no general solutions but only rules of thumb and
>traditions people buy into. It may be more a matter of working
>out something everyone with power can live with.
>I can't expect that anything which violates and individual's survival
>or well being, will be accepted by that individual. Neither can I expect
>everyone or anyone to structure things for the benefit of particular
>individuals or groups. The ideal system gets everyone who is in
>a position to contest it meaningfully to buy in. Some people may
>not buy it at first but a good system will be one that sane people
>buy into given time.

This sounds sensible to me.

Best wishes


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