Chapter 5. Who owns what?

Here are the topics in this chapter after this introductory section: Now that we have discovered three formulations that qualify as basic rights for all moral agents, it is time to look for the specific rights that distinguish one moral agent's legitimate jurisdiction from another's. The specific rights are the "legitimate property rights" that I referred to in Chapter 4.

Human Rights and Property Rights

Some people speak as if property rights are different from human rights. They warn us not to make the mistake of putting property rights ahead of human rights, because human rights are more important. They speak as if "property right" means the right of property to control us rather than the other way around. This is a misunderstanding. Actually, property rights are rights of moral agents like us to possess and use things, not the rights of things to possess and use us. I think of human rights as including property rights and basic rights. But even if we define "human rights" so that it means only the basic rights that all human moral agents have, "human rights" still would not conflict with legitimate property rights. This is not an opinion that must be validated by empirical evidence. It is a statement about the meanings of these words. For specific property rights to be legitimate, they must be compatible with the basic rights. If an alleged property right conflicts with the basic rights, that proves the property claim is not legitimate.

Suppose I own a baseball bat, and suppose you own your skull. Now suppose I claim that, because I own the bat, I have the right to do anything with it, including bashing your skull. This claim conflicts with your property right to your skull and, therefore, with your basic right to be free from invasion. The fact that the property right I claim conflicts with a basic right means that my property right to the baseball bat is either entirely invalid or, at least, overstated in some respect. I may, indeed, own the bat, but that only entitles me to use the bat peacefully or in self-defense. It does not entitle me to use it invasively.

The basic rights circumscribe the specific property rights, while the specific property rights give concrete meaning to the basic rights.

Basic Rights, Property Rights, and Invasion

The basic rights apply to all moral agents at all times. The three basic rights that we have discovered so far are: (1) the right to self-defense against invaders, (2) the right to be free from invasion, and (3) the right to do anything that is peaceful (non-invasive). Each of these rights incorporates the concept of invasion. Invasion, in turn, is defined in terms of legitimate property rights to specific things that belong to particular moral agents at particular times.

So far we have not defined what legitimate property is or how it comes into existence. To understand how the basic rights apply in a particular case, we must know the relevant property rights of the parties involved. For example, the right to self-defense against invaders would be clarified if we knew what particular property a specific individual has the right to defend. Our right to be free from invasion obligates others to know what legitimate property rights we have, so they can decide whether to violate those rights. Similarly, our ability to do anything that is peaceful depends on our knowing the property rights of others, because those specific property rights define the boundaries of our peaceful actions.

Before we can apply our basic rights, we must have a way to determine who owns what. We need a theory of property rights.

Criteria for Property Rights

Property rights distinguish one moral agent from another. In this respect property rights are the opposite of basic rights, which apply to all moral agents. So one criterion for property rights is that they must be particular rather than general. Property rights tell us which particular agents have the moral authority to use particular resources.

The other criteria for property rights are the same as the other criteria for basic rights:

  1. Particularity: Property rights are entitlements of particular moral agents to particular resources. These rights are not the same for every moral agent. Unlike the basic rights, property rights distinguish one moral agent's jurisdiction from another's.
  2. Logical Consistency: Property rights must not contradict each other. For example, two or more moral agents cannot have full ownership of the same physical property at the same time, because, if one of them decides to use up the property (as he has a right to if he owns 100% of it), he thereby prevents the other owners from using it, which violates their equal right to it. It is contradictory and nonsensical to say that moral agents can have the right to violate each other's rights. Consequently, if two or more moral agents claim to fully own the same physical property, at least one of the claims is not legitimate.
  3. Compatibility with the Nature of Moral Agents: Property rights must be consistent with the nature of moral agents. I described this criterion already as a criterion for basic rights.
  4. Clarity: Property rights must be clear so that we can know our duty. I described this criterion already as a criterion for basic rights.
How are property rights established? How are they lost? To answer these questions we will start with the simplest cases and proceed to more complex ones.

Do you have the right to own yourself?

At some time in the distant past, the first moral agents appeared. What property, if any, was each of them initially entitled to?

First of all, they must have had the exclusive property right to their own bodies. To be a moral agent means, among other things, to be able to think rationally and to act. For a human being, it is not possible to think or to act without the use of a living mind and body. Therefore, for a person to be a moral agent, he must be alive and he must have the private property right to his own mind and body. Everyone naturally assumes he has this right. It is the basis of all other rights to specific property. The only other logical possibilities are: (1) no one has a right to his own body, in which case moral life and moral action are impossible, (2) some moral agents have a right to use their bodies and others don't, which leads to the contradiction that some moral agents are not moral agents, (3) all moral agents have a right to use the bodies of all moral agents, which is unworkable and self-contradictory, because a moral agent cannot use his own or any other moral agent's body without violating every other moral agent's right to use that body, and (4) some moral agents such as Siamese twins have to share some of their body parts. Even when moral agents are physically joined and share some organs, they must each have their own brain. Otherwise they cannot be considered to be two different moral agents. If their movements are mutually controlled so that they can only do things that they both agree to do, it would make sense to regard them as equally responsible for their actions. To the extent that agents are able to make independent moral decisions and to act independently on those decisions, they are independent moral agents. Siamese twins aside, moral agents initially must have the exclusive property right to their own bodies.

If someone believes he doesn't even have the right to his own body, it would be hypocritical for him to say so, because he would have to use his body to make the statement. Furthermore, the very condition of believing something requires the possession of a brain. It is physically impossible to believe that you don't own yourself, if you don't own a brain. In what sense can the belief that you don't own yourself be your belief if you don't own a brain that thinks such a silly thought?

Nature has formed us so that as soon as we are born we use our bodies without asking permission from anyone. Nothing could be more natural than this freedom. Any scheme of communal ownership that does not allow at least this much private property is absurd.1

However, as I stated in Chapter 4, you can temporarily lose the right to your body by committing an act of invasion that requires someone to use violence to defend themselves from you. This must be true, because if the right to one's own body were completely inalienable, there would be an irreconcilable conflict between the rights of an invader and his victim. The right of the victim to defend himself against the invader would conflict with the inalienable right of the invader to his own body. There can be no such conflicting rights. One of these rights has to go. If we give up the right of the victim in favor of the right of the invader, we will soon have a society ruled by criminals who will prevent peaceful people from acting as moral agents by either killing them or enslaving them. The rules of justice cannot be such that they favor an unjust society. So we must have the right to use brute force in defense against those who are invading us, which means that a person's right to his own body is conditional, and it depends upon his behavior. A person has this right when he is not trespassing on someone else's rights. But when a person is invading, he loses this right and others gain the authority to force him to stop.

The first of all alienable property rights, the right to one's own body, helps to define the right to self-defense, the right to be free from invasion, and the right to do anything that is peaceful. We can use this property right to define some of the most serious crimes.

The right to one's own body means that assault and battery are crimes. Assault is a threat to use brute force and battery is the actual use of brute force against either of the following types of moral agents without their consent:

  1. Those who are not using brute force or threatening to use brute force against anyone.
  2. Those who are using or threatening to use brute force only against invaders for the purpose of stopping their invasions.
The first category includes most people most of the time. The ordinary person is peaceful most of his life. Even many people we disapprove of are in this category. Cowards, for example, who see others in distress and do nothing to help are not peacebreakers. It would be an abuse of language to say that failure to help is equivalent to an invasion. People who witness crimes and do nothing to help the victims may be cowards, but they are not invaders, so they have the right to defend themselves against those who would force them to be heroes.

Others who are not invaders include slanderers and name-callers who use only words to attack people. Verbal abuse, unaccompanied by physical threats, is no crime.2

Because moral agents own their bodies and have a basic right to defend what they own, they don't need permission from anyone else to defend themselves against physical attack. Except in the case of legitimate self-defense, it is a violation of a person's right to his own body to kill, mutilate, torture, kidnap, imprison, or have sexual contact with him without his consent. Most societies prohibit these activities in the private sector, but the right of each person to his own body also means that some widely condoned actions of police, prison guards, and soldiers are crimes. Military conscription, for example, is a crime that entails kidnapping and slavery. The war against drug users often entails the crimes of kidnapping and imprisonment. The real wars that states periodically wage often involve mass murders on both sides.

The right to one's own mind and body, like all other property rights, is alienable. You may voluntarily risk your life or even kill yourself. You may also voluntarily alienate parts of your body such as your blood, kidneys, and other organs. You may bite your fingernails, suck your thumb, disfigure yourself, let you hair grow down to your waist, or pull it out by the roots. Your body is yours.

Since you own your body, you have the right to do anything with it that does not violate anyone else's rights. For example, you can choose to sleep, work, play, sing, dance, make love, or commit suicide. It is up to you to decide whether to do things that are pleasurable or painful, healthy or harmful, wise or foolish. As a moral agent, you have the right to choose for yourself and a duty to let other moral agents choose for themselves.

If we assume that to make moral decisions a moral agent needs to have a mind and that to act on moral decisions a moral agent needs to have a body, then the private property right to one's own mind and body applies to all moral agents and is not limited to mankind. Nonhuman moral agents have the right to keep and enjoy or sell or give away their tails, wings, horns, and halos.

What else can you own?

Now that we have seen that every moral agent has a private property right to his own mind and body, we need to know what else we can own and how we can establish legitimate title to something.

To be physically ownable, a thing must be appropriable and controllable. Some things by their nature, or because of our limited technology, cannot be appropriated and, therefore, cannot be owned by anyone: the sun, the stars, the laws of nature. We can all use and benefit from these things, but we cannot individually or collectively own them. (Since we can never own or control them, the laws of nature place permanent limits on our freedom. No nation, not even the one with the most freedom, can liberate us from these laws.) Also, to be ownable a thing must exist and be known to exist. We cannot now own next year's crops or an undiscovered island.

Before something can be owned, someone has to want to own it, which means it must be the sort of thing that has value to someone and it must be scarce enough for it to make sense for someone to want to economize or optimize its use. If it is so abundant that no matter how much of it is used there is still plenty more to be had without effort, then no one will care who uses it and it won't cause any disputes. Scarce things that people want are called economic goods. These are the things that can be owned.

There must be a legitimate way to obtain ownership of economic goods such as food and water that we need for life. Otherwise, we cannot be moral agents, and morality has no meaning for us. If there is no way for anyone to ever legitimately own economic goods, then it is a crime to drink, eat, or even go on living. But, if we don't do these things, we can't be moral agents, because morality consists of taking actions based on moral decisions, and we can't do that unless we are alive. It is contradictory to say that morality requires moral agents to not be moral agents.

Since we know there must be some legitimate way for moral agents to acquire property rights to economic goods, let's consider next whether the legitimate right to own one of these goods pertains to individual moral agents or to groups of them. There are three possibilities for ownership of any particular economic good that is legitimately owned: (1) All moral agents share ownership, (2) a particular group of moral agents owns it exclusively, or (3) a particular individual owns it exclusively.

If (1) everybody in the universe or (2) everybody in a particular group has a right to use the same economic good at the same time, moral judgments about it become illogical. If you and I have the full right to use and control the same thing, then each of us has a duty to allow the other to use and control it, which means we have a duty not to use or control it ourselves, which contradicts the premise that started this sentence.3 So options (1) and (2) require additional protocols for allocating control of economic goods within the group. This is a big problem for option (1), but it is a manageable problem for small groups.

If the problem of allocation within the owning group is not solved so that one individual in the group gets the exclusive right to use a particular item, then options (1) and (2) are incompatible with life. For example, if all food is fully owned by all moral agents or by everyone in a particular group, then each moral agent has to abstain from eating food, because if one of them eats it, the others can't have it, which violates their rights. They would all have a moral obligation to starve to death.4 This is absurd.

Therefore, (3) private property, at least for some consumable goods, is logically necessary (for moral judgments to make sense) and physically necessary (for moral agents to live). Examples of things that must be appropriated by the individual to the exclusion of everybody else, and which must be allowed as private property if human life is to be justifiable, include one's own mind and body, food, air, water, and standing room.

This argument uses some specifically human needs to justify private ownership of things. Other species of moral agents might not require food, air, and water. However, a moral agent must act, and action requires energy, so each moral agent, regardless of his species, must have the exclusive right to use some particular energy or fuel.

Can you own land?

If all men have an equal right to all the earth's land and resources, it would be wrong for anyone to use any part of the earth without the prior approval of every other living person. If a man in Ohio wanted to start a farm, he would have to get the approval of his neighbors in Ohio, his fellow countrymen, and all the residents of South America, Europe, Asia, Africa, Australia, and everywhere else. Remember, the assumption is that they all have an equal right to the land he wants to use.

Even if we accept the doubtful premise that the State of Ohio represents the rights of all the residents in Ohio, and that it has the right to collect from the would-be farmer the rent due to the citizens of Ohio for their share of the land, the farmer's payment to the State of Ohio would hardly begin to discharge his obligation to the rest of the world's population. He would still owe rent to everyone living outside Ohio. And, if anyone in the world did not approve of his using the land as a farm, by what right could he appropriate the land?

So, until we have a mechanism for obtaining permission from everybody in the world to use a piece of land, we have no authority to use any land and we are morally obligated to get off the land and disappear.

Equal rights to land requires that the state must exist before the first inhabitants of the Earth exist, so that the first inhabitants can have a mechanism to pay rent to society and thereby obtain the right to stand on the ground. But the state cannot exist until individuals who are already on the ground get together to create it. So the view that land belongs to everybody is illogical, unworkable, and impossible.

This line of reasoning could be applied to all other natural resources, with the result that universal ownership makes it impossible to morally use any natural resources and makes moral action and moral life unachievable.

Universal Ownership versus Private Property

As nature has made it impossible for one man to think for another by giving each man his own independent mind, nature has also privatized other property rights. Food, for example, is of no use unless it can be eaten, that is, appropriated in such a way as to be the exclusive, private property of an individual. Except when a woman's body nourishes a fetus in her womb and perhaps in some cases of Siamese twins, nature has made it impossible to share the direct benefits of ingestion and digestion. We are separate individuals with our own digestive systems. We are not part of one political, social, or collective body. What is true of food applies equally to many other goods that are consumed.

Fortunately, hardly anyone believes in universal ownership of everything. Any group that practiced it would soon cease to exist. Almost everybody recognizes the need for private ownership of some consumer goods. Those who do not verbally acknowledge such private property rights, nevertheless, act as though they believe in them. Anyone who eats without shame affirms private property rights. We should admit that we reject the idea of universal ownership of consumer goods, because we reject the idea by our actions every day.5

Universal ownership of capital goods (goods used to produce other goods) is also impossible. As we have seen in the case of the Ohio farmer, universal ownership of land makes it impossible to get permission to use land. The same is true about universal ownership of anything.

If we substitute "societal ownership" for "universal ownership," it doesn't solve the problem. This substitution might be a good debating tactic to try to trick a person into thinking that something other than an individual can have rights, but when you realize that society is nothing more than a set of individuals, you will not fall for this trick. Father James Sadowsky showed that the idea of societal ownership is nonsense:

Consider first the ownership of the individuals. In so doing we shall suppose a society made up of two individuals, A and B. There are but two possibilities: A owns A, B owns B, or A owns B, or B owns A. There is no third entity that can own them both. But there must be a third if both of them are to be owned; that is, for them to belong in the literal sense to society. If we suppose that A owns B or the opposite, we still do not have societal ownership but individual ownership. Now since the appropriation of nonhuman goods takes place via the activities of people, it follows that what is appropriated by the individuals will belong to the owners of the individuals. Since it is impossible that society owns the individuals, it cannot own what they appropriate.

It is true that the two members of our little society can agree jointly to appropriate land of which they will be co-owners. But in this case the initial decision is entirely voluntary, and each one is an individual owner of that property and may abandon his share of ownership at his own pleasure.

Thus we see that the thesis that society is the original owner of land cannot stand up under analysis.6

So, individual moral agents can have rights and can share rights, but society, as a separate entity apart from the individuals in it, does not exist, so it cannot have any rights. This means that between individualism and collectivism, individualism is the only realistic basis for moral philosophy.

Communal Ownership versus Private Property

If we make a distinction between universal ownership and communal ownership such that universal ownership means that every moral agent in the universe shares ownership of something and communal ownership means that only the moral agents in a specific community share ownership, then communal ownership of capital goods is not impossible. Some people could survive under a system of communal ownership of all capital goods, although most of those living today would starve to death if a single commune was instituted worldwide, because such a system would be so inefficient that it could not produce enough food to go around.

A major problem with communal ownership of capital goods is that when the commune gets too large for everyone to keep tabs on everything, it often changes into a dictatorship. Instead of a commune in which everyone participates in controlling the common capital resources, we end up with a tyranny in which the state controls the people. It is not private property rights that conflict with human rights, it is communal property rights, administered by so-called representatives of the people, that conflict with human rights.

Freedom of the press, freedom of religion, freedom of assembly, and freedom of speech cannot be fully realized without private property. For example, there cannot be freedom of the press in a society where all printing presses are owned and controlled by the state. Even if the rulers do not want to practice censorship, unless they are willing to publish absolutely everything, which could require them to devote almost all resources to the publishing industry, they must decide, somehow, what to publish and what not to publish. They must also decide how many copies they will print of each publication, how to distribute them, what price to charge (if any) for each copy, and many other things that can affect the impact that the publication will have on society.7

There cannot be complete freedom of religion in any society. Some religious sects require holy wars to eliminate nonbelievers. If one of these sects is allowed to be practiced, then no other religion can be freely practiced in the same society. Antisocial, criminal religions that interfere with peaceful religious (or non-religious) practices must be suppressed in order to maximize religious freedom.

But in a communist society, freedom of religious expression is restricted even for peaceful religious practices. In a communist society, the government owns and controls all the capital that could be used to construct temples, churches, mosques, golden calves, shrines, and other material expressions of religious beliefs. The state rather than the religious devotees determines what to build.

Even so-called free countries, whose governments do not directly interfere with religious practices and which permit private property, impose general regulations and taxes that limit religious activity more than a truly free nation would. Local governments restrict religious freedom indirectly through zoning laws and building codes. All levels of government that collect taxes thereby limit the resources that taxpayers can spend on religion. By demanding payment under penalty of the law, all states imply that what they want is more important than what any god or religion community or individual wants.

Freedom of speech is the right to say whatever you want on your own property and the right to stipulate the rules that others must obey when they speak on your property. It is not the right to speak at the same time as everyone else, to interrupt, to shout down, or to disregard the rights of others.

You should always get permission from the owner before using his property as your stage. If the streets and parks and town halls and theaters and all other meeting places are owned by the state, the state must decide whether to allow assemblies, protest marches, and speeches, and the state has the right to say how the public property may be used, including who may speak there and what they may say. Under communism there is likely to be less freedom of expression and freedom of religion than in a private property system. Any freedom in these areas under communism is at the pleasure of the ruling class, and they can end it whenever they choose.

Those who believe that each individual has the right to try to communicate his ideas should advocate freedom of the press, freedom of speech, freedom of religion, freedom of assembly, and private ownership of the material means for exercising these freedoms.

We have not established that such freedoms are necessary for moral agents, so the fact that public expression has to be controlled by the state if the state owns all capital goods does not in itself mean that such ownership is illegitimate.

Communal ownership of capital goods on a small scale such as within a family, a business partnership, or a joint-stock company can economize on transaction costs and be efficient under the right circumstances (that is, within an overall framework of private property and a free market). Communal ownership of some capital goods is certainly possible and even desirable, but it does not necessarily trump or preclude the possibility of private ownership of other capital goods. Consider this argument:

Now let us suppose that in various manners I deploy my activity upon material nonhuman goods that are previously unowned. By what right does anyone stop me? There are but two possible justifications: either he has the right to direct my activities by using violence (in other words he owns me) or else he owns the material goods in question. But this contradicts the assumptions we have already made: that each human being is self-owned and that the material goods in question are not previously owned. This man is claiming either to own me or the property I think I have acquired. The only factor open to question is whether the other man had peacefully acquired the land before me. But to raise this question is to concede the right of private property which is the thing we are trying to establish. Now, if no one man has the right to do this, it follows that no greater number may do so, for the same question that was asked of A may be asked concerning C, and so of all the others. Surely, if this is true of any of them taken singly, there is no reason to suppose that they could properly do this if they banded together.8
So a community has no greater right to stop an individual from appropriating unowned economic resources than the individual has to stop the community. How then do we decide who has the right to use these economic resources?

How is ownership established?

We have already seen that when the first moral agents appeared they must have owned their own minds and bodies. Everything else must have been unowned. Therefore, the first moral agents were free to use the earth's resources without fear of violating anyone's property rights. They could appropriate anything that was not already appropriated by someone else.

The natural law by which unowned resources become private property is called the homestead principle. The homestead principle can be stated as follows:

By mixing your labor with unowned natural resources those transformed resources become your property.
The reasoning behind the homestead principle is that if you use property that you already own, such as your labor, to transform an economic resource that belongs to no one, the transformed resource becomes a mixture of your property and nobody else's property, so it becomes yours.

For example, suppose a family of primitive people are foraging for food and they come upon a patch of wild berries. The berries, being wild, are no one's property and are therefore available to this family. As each member of the family picks a berry and eats it, that berry becomes the property of that person and no one else. Who could deny the justice of this? Now suppose the mother is able to reach more berries than her little child and she picks a handful of berries. Are these berries not hers to consume or give away as she chooses? When she gives some berries to her child and keeps the others in her hand, are not the berries the child eats now his property and the berries in her hand still hers? What principle other than the homestead principle can explain her right to keep or give away the berries in her hand?

Consider another example. Suppose the father in this family discovers that by smashing stones against each other they shatter and sometimes break into pieces that have sharp edges. Suppose he does this and uses one of the sharp pieces as a cutting tool. Wouldn't this tool, this capital good, be his property? What principle could explain this better than the homestead principle?

So we see that the homestead principle explains how the first consumer goods (berries for example) and the first capital goods (knives for example) could become legitimate private property. The homestead principle is the most natural way as well as the most logical way to earn property rights. Prehistoric people took it for granted that they owned themselves and the things they appropriated by their own labor.9

The homestead principle can also be defended on ground of orderliness and efficiency:

The right of the first possessor of a resource does not jeopardize the existing order of actions by dispossessing a previously lodged claim of any other person. If someone dispossess someone of a resource, that entails a loss of that person's prior investment of time and effort and defeats that person's previously formulated plans that depend on his continued use of the resource. In this respect, favoring the claim of the first possessor is less disruptive to the order of actions that permits persons and associations to act on the basis of their knowledge.10
Alternatives to the homestead principle won't work well because:
The first possessor of a resource will have incentive to apply his knowledge to use the resource only if he can be assured that he will not be dispossessed by latecomers.11
All legitimate property rights are ultimately derived by the homestead principle. Even the right to one's own body is consistent with it. Most people who have thought about it at all have assumed that the homestead principle applies only to property external to the individual. But it need not be limited in this way. It is not strictly true that the individual does nothing to earn his natural endowments. The individual is the first person to mix his labor with these previously unowned endowments. Therefore, he is the homesteader and owner of them. The first unowned thing that each person uses, the first thing that each individual homesteads and makes private property of, is his own body. For human beings, this starts while the person is still in his mother's womb.12 Nothing could be more natural than to grant ownership of a kidney, a heart, a brain, a limb, a tongue, or any other part of the human anatomy to the first user—the individual himself. The private property right to one's own mind and body is logically and chronologically the first right that every human being acquires by the homestead principle.

The most obvious example of the homestead principle, and the reason for its name, is the clearing of land by settlers for the purpose of building a homestead. The cleared land becomes the property of the person or family who clears it, because they mixed their labor, their private property, with the unowned land.

Discovering and claiming are not enough.

Exactly how much and what kind of labor must be used to establish title to previously unowned natural resources? I cannot give one simple answer that would cover all situations. This needs to be decided in common law courts, case by case, as new situations and new forms of property arise. But I can list some kinds of claims that are too weak and that should not be upheld in courts of justice.

The principles that have been offered historically as alternatives to the homestead principle are too weak. For example, it is not enough to simply discover unowned land and claim it for yourself. Discovering and claiming do nothing to transform the natural resources. Discovering something is not as strong a claim as mixing your labor with it, it is merely seeing it. Claiming something is not as strong a claim as mixing your labor with it either, it is merely saying something about it. When Balboa "discovered" the Pacific Ocean and claimed title to all the land that it touched in the name of Spain, he established no property rights at all.

The historian Wilcomb E. Washburn informs us that the discovery theory of property rights was ridiculed in the 17th century:

The absurdity of gaining possession of a continent by sailing along its coast line was so obvious that some writers facetiously suggested that Europe would have to be conceded to any Indian prince who happened to send a ship to "discover" it.13
Even if Balboa had actually been the first person to discover it, Balboa did nothing to transform the entire Pacific Ocean and make its shores his own or Spain's.

Nor can legitimate property claims be established by decree or edict. A king or a pope or a congress cannot legitimately acquire or grant title to resources merely by proclamation. Unless someone has mixed his labor with them, the king's deer are unowned and so is the royal forest.

In 1493, at the insistence of King Ferdinand of Spain, pope Alexander VI issued a bull to give to Spain the exclusive right to explore the land and sea to the west of an imaginary line of demarcation drawn from north to south 100 leagues west of the Azores and Cape Verde islands. This gave Spain the right to claim title to all lands in the area not occupied by Christians. In 1494, John II of Portugal negotiated a treaty with the Spanish monarchs to move the line of demarcation 277 leagues farther west and to give Portugal exclusive rights to any non-Christian lands to the east of the new line. The Spanish rulers agreed to this treaty rather than risk a war with Portugal, because they did not realize that they were giving up the right to explore Brazil and the right to navigate around Africa and discover the true route to India. None of the so-called Christian monarchs of Europe recognized the property rights of non-Christians in the newly discovered parts of the world, and none of them outside of Spain and Portugal recognized the authority of the corrupt pope Alexander VI to decide which Christian nations should have sovereignty over lands in the new world.

When the Spanish ambassador in England complained of Drake's piratical voyage around the world in 1577-1580, he was told that "the queen does not acknowledge that her subjects and those of other nations may be excluded from the Indies on the claim that these have been donated to the king of Spain by the pope, whose authority to invest the Spanish king with the New World as with a fief she does not recognise." "The Spaniards," in Elizabeth's view, had "no claim to property there except that they have established a few settlements and named rivers and capes. ... Prescription without possession is not valid."14
European monarchs were generally correct in regarding their competitors on the high seas as pirates. In order to prevent raids of each others' ships from leading to wars between their nations, the monarchs of Europe adopted a convention by which they agreed "not to consider acts of violence occurring beyond the papal line of demarcation in the Atlantic as breaking the peace in Europe. ... The special legal and moral character of acts committed in the area thus set aside suggests that the European monarchs realized that their territorial claims in the newly discovered areas had little basis in law or morality and could be increased, diminished, or surrendered, as expedient, without seriously threatening the vital interests of the mother country."15

In 1823, John Marshall, chief justice of the US Supreme Court, ruled that the combination of "discovery" of new land and conquest of the people who occupy the land are sufficient to establish legal title to land. This decision became the legal basis for subsequent expropriations of land from native-American "Indians." He wrote in his decision:

However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear, if the principle has been asserted in the first instance, and afterward sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it, it becomes the law of the land and cannot be questioned.16
Marshall made three unwarranted assumptions in this decision: (1) he assumed without proof that most of the land holdings in the United States had no other justification than discovery and conquest, (2) he assumed that it would cause too much disruption to give legal consideration to Indian claims that are based on prior occupancy and homesteading (even though white citizen's had the right to use the homestead principle to bring suits against those who stole their lands), and (3) he assumed that because conquest justified taking land from Indians in the past it also justifies taking land from them in the future (although it does not justify taking land from white citizens). Marshall's decision was wrong on historical grounds, because it is not true that most of the land holdings in the United States at the time were based on conquest, it was wrong on moral grounds, because its inherent racism denied equal rights to Indians, and it was wrong on logical grounds.

Conquest cannot be a legitimate basis for rights, because conquest is a denial of rights. If A holds property as a result of conquest and B conquers him, then B has the same basis to claim the property that A had to claim it. But B's claim denies the legitimacy of A's claim, which means that B's claim, which is based on the same principle as A's, must also be illegitimate. Conquest as a principle for establishing rights is self-contradictory.

In 1803, parts of the Louisiana Territory were owned by aborigines, parts were owned by settlers of European descent, and most of it was not owned by anybody. Napoleon never owned any of it. So when President Jefferson negotiated to pay Emperor Napoleon millions of dollars for it, no legitimate property titles were transferred. What Jefferson got from Napoleon was not property but a promise not to interfere with American homesteaders in the Louisiana Territory. But Napoleon had no right to interfere with homesteaders in the first place, so he gave up no rights.

The aborigines in America did not own the entire continents of North America and South America, but they did own the parts where they built their towns and villages and where they had their farms. It is a myth that they were all nomadic savages who owned no land. Except for his disparaging tone, Theodore Roosevelt, was correct when he wrote that, "the settler and pioneer have at bottom had justice on their side; this great continent could not have been kept as nothing but a game preserve for squalid savages."

Being the first to live in America did not give the aborigines the right to keep Europeans out. They did not even believe this themselves. In fact, they were generally friendly and hospitable to the first European settlers. They taught farming techniques to the settlers in Virginia and gave them the food needed to survive in the early years. In general, the aborigines treated the European-Americans better than the European-Americans treated the aborigines.

Legitimate property titles cannot be established by mere discovery, or by making proclamations, or by fraud, or by conquest, or by making protection payments to would-be conquerors. The simplest way to establish a legitimate property title to unowned resources is by being the first one to use and develop those resources with your own labor. This can be done by an individual, or, in some cases, by a family or by a small group. The larger the group, the more difficult it is to make decisions about what to do with the property and the more likely it is that disputes will erupt over control of the property.

A more complicated alternative for an entrepreneur who already has property that he is willing to trade, is to hire others to do the homesteading labor under terms whereby the laborers agree to give the entrepreneur title to the fruits of their labor, including their homestead title, in exchange for some of the property that the entrepreneur already owns. This can have advantages for the laborers and the entrepreneur. The laborers get paid without having to wait until the crop (or whatever product) is sold, and they get paid even if the crop (or whatever) fails. The entrepreneur takes all the risk. The advantages for the entrepreneur are: (1) He can employ more labor and acquire more property this way than if he had to do all the homesteading labor himself. (2) If the enterprise is successful, he will be able to sell the product for more than it cost him.

There are other contractual arrangements that could be made, but to be legitimate, they must resolve to voluntary exchanges of property titles that ultimately are established by the homestead principle.

Someone has to exercise control over particular goods and services if they are to be used at all. Justice is one method of allocating this control. Theft is another. The third possibility is a mixed economy. Justice is the condition when the legitimate owners have control of economic goods and services. Theft is when control of property is seized from the legitimate owners. A mixed economy is one in which the legitimate owners have some control and thieves have some control. In each of these systems someone always exercises control.

Legitimate Ways to Get Property

The homestead principle explains how we can obtain the private property right to previously unowned things such as our minds, bodies, labor, land, and other natural resources. After someone has established legitimate title to something, he can transfer the whole title or part of it to another moral agent by giving it away for free or by making a voluntary exchange for someone else's property. Private property may be acquired in any way that does not violate the rights of any moral agents, that is:
  1. By the homestead principle: being the first to transform an unowned natural resource, or by using your property and labor to create something new, or by being the first to homestead something that the previous owner has abandoned.
  2. By receiving a gift.17
  3. By voluntary exchange.
Legitimately acquired possessions are yours to do with as you please as long as you do not violate someone else's rights in the process. Things that you may do with your property include: using it up, giving it away, destroying it, gambling with it, trading it, lending it to someone, and using it as capital to produce other property with which, in turn, you can do any of these same things.

Others have the same right to do things with their property that you have with respect to your property. Consequently, it is your duty to allow them to exercise their property rights, and it would be a crime for you to destroy or take their property without their permission, or to forcibly prevent them from peacefully using it.

Applying the homestead principle is not always simple. Hundreds of special questions could be raised about it. For example, is there any way to establish title to a scenic wonder such as the Grand Canyon so that it can be preserved in its natural beauty? Can endangered species of animals be owned in such a way as to protect them from hunters?

It is too great a task to answer all such questions ex ante. These issues must be resolved case by case, as they come up in real situations. It is only the principles that need be established in advance. When the need arises, the principles can be applied to specific cases by the interested parties.

We have found more basic rights.

The right to do anything that is peaceful includes the right to acquire property via the homestead principle, as a gift, or by trading. These rights can be expressed as universal, basic rights:
Everyone has the right to acquire jurisdiction over an unowned or abandoned natural resource by using his own property and labor to appropriate and transform it.

Everyone has the right to exercise jurisdiction over alienable resources that they receive as free gifts from those who had legitimate title to the resources.

Everyone has the right to exercise jurisdiction over resources that they receive as a result of legitimate trades as specified and agreed to in the trade contract until they voluntarily give up ownership of those resources.

To gain control over resources in any other way is not legitimate. If someone acquires control over a resource by stealing it from the legitimate owner, the right to control it does not change. Therefore, the legitimate owner still has the right to repossess it. This repossession right can be generalized into a basic right as follows:
Everyone has the right to repossess their legitimate property by forcibly taking it from someone who has obtained it without their consent.
The right to do anything that is peaceful includes the right to do anything with your legitimate property that does not physically interfere with another person's use and enjoyment of their property. This includes the right to give your property away (if it is alienable) and the right to make or to refuse to make contracts to transfer alienable property rights. These rights can be expressed as basic rights:
Everyone has the right to give away their alienable property rights to willing recipients.

Everyone has the right to consent or to refuse to consent to a contract to exchange some of their legitimate, alienable property rights for some of the legitimate, alienable property rights of someone else who consents to the trade. The rights exchanged can be partial, conditional, and temporary or they can be total, unconditional, and permanent, or any combination of these as specified and agreed to in the contract.

The right to own property entails the right to allow or refuse to allow other people to use that property. In other words, it includes the right to discriminate. You can discriminate based on whatever criteria you prefer. The right to discriminate can be stated as follows:
Everybody, regardless of race, religion, ethnic origin, gender, age, and so on, has the right to discriminate based on race, religion, ethnic origin, gender, age, and so on.

Selected Applications and Implications of Property Rights

The remainder of this chapter consists of several topics that illustrate some of the implications of property rights.

Ideas can be property.

The right to one's own mind gives each individual the right to the products of his mind—ideas, inventions, plans, and so forth. The individual therefore, has the right to use his ideas, inventions, and plans in any noncriminal way. For example, suppose farmer Demeter invents a way to increase his crops a thousandfold for the same cost. He has the right to use this invention, peacefully, for his own benefit and not tell anyone else about his discovery. He could offer to sell his crops at lower prices than all the neighboring farmers. It is most likely that people would prefer to pay less for farm produce, even if it means that other neighboring farmers lose business. This would annoy the farmers who lose business, and it would make many people envious of farmer Demeter. It would also please farmer Demeter's customers who get what they have chosen—less expensive food. Some people who previously couldn't afford to buy as much food as they wanted may now be able to. Farmer Demeter could, legitimately, end up with a monopoly of the local farming industry.

It is not possible to know whether the total happiness or welfare of society would be increased by Demeter's exclusive use of his invention. Utilitarianism is useless here, because we cannot measure envy, inconvenience, and annoyance, and we cannot compare these disadvantages with the advantages of abundant food. Fortunately, it doesn't matter that we can't do interpersonal utilitarian calculations, because they have no bearing on the moral issues involved. All we need to know to justify farmer Demeter's decision is that he acted within his rights, committed no crimes, and is entitled to his property.

Suppose Demeter does not care about increasing his own wealth or the wealth of his family and is more interested in seeing that everyone can have inexpensive food. He could publicize his invention so that all farmers could use it. This would please consumers of farm products, but it would probably mean that fewer farmers are needed. The excess farmers would be unhappy, because they would have to find other ways to make their livings. Again, it is impossible to say whether the unhappiness of the excess farmers is less than or greater than the happiness of the food-buying public. Again, it doesn't matter. All we need to know is that farmer Demeter had the right to publicize his invention and that by doing so he gave everyone the right to use it.

Demeter has the right to keep his idea to himself and to use it in secret. He also has the right to publicize and give his idea to the world. He has another legitimate option. He can conditionally divulge his idea to selected individuals for a price. Some of the conditions that he could stipulate by contract with any second party (B) are: (1) that B not divulge the idea to anyone, (2) that if anyone learns the idea from B, then B forfeits all his wealth to Demeter, (3) that Demeter will not reveal his idea to anyone except by a contract that includes the same provisions as this contract. In this way, Demeter could use private contracts to derive income from sharing his idea with others. This could result in more abundant crops, lower prices for crops, profits for those who implement Demeter's idea, and happier consumers. It could also result in financial failure for farmers who are not privy to Demeter's idea. Again, I see no way to determine whether this is the choice that maximizes happiness overall. Again, it is irrelevant to Demeter's right to make this choice.

The legitimate options available to Demeter are also available to anyone who makes a discovery or has a bright idea. Private contracts, or licenses, like the one outlined for Demeter and B could provide some of the same benefits that are now aimed at by patent laws. The biggest difference between free-market contract law and current patent law is that, in the free market, anyone who comes up with an invention independently would have the right to use it, sell it, or give it away just as the original inventor had the right to do.

Protection of intellectual property rights similar to what is now provided by copyright laws could also be provided legitimately. If someone writes a book, story, play, poem, song, computer program, or other reproducible creation, he can keep it to himself, he can give it away, he can publish it himself and sell copies of it, or he can make a contract with someone else to publish it. Depending on the contract between the author and publisher, the author's creation can be sold to retailers or customers under terms and conditions that include a requirement to obtain written permission from the author or publisher before making copies of substantial parts of it. Because of well-established conventions, it is not necessary to have a formal, written and signed contract with each person who obtains a copy of the author's creation. It is enough to simply display the copyright symbol or the word copyright on each published copy of the work. Virtually all literate people understand the word copyright and the copyright symbol. Courts can certainly assume that anyone who is in the business of publishing the creations of authors would understand the word copyright and its symbol. So, unless the work is so small and simple that it could be composed independently without being copied, anyone who publishes copies of a work that is copyrighted without getting permission cannot be innocent of intent to violate the author's rights. Violation of a copyright, like counterfeiting, is implicit theft.

In a free-market society, intellectual property law would be subsumed under the law of contracts. Patent laws, which prohibit even independent discoverers from using their own ideas, would be scrapped. Instead of patents, inventors who want to protect their ideas from unlawful expropriation would mark them with copyright symbols and only distribute them to those who sign license agreements or contracts that stipulate the allowed terms and conditions of their use. Unlike under current law, intellectual property would not have an arbitrary expiration date, unless a date is stipulated in the license agreement or contract, and the right to intellectual property could be traded and inherited in the same way as other private property.18

The same kinds of choices apply to all other inventions, discoveries, knowledge, and other sorts of ideas. We need not go into them all. However, a few consequences of the right to own your ideas and to keep them to yourself or to publicize them need to be mentioned, because they contradict commonly held views. For example, our opinions about other people are ideas that we own. We have the right to peacefully express them. Corresponding to this right, we have a duty to allow other people to peacefully express their opinions. This is not very controversial, but it becomes so when you realize that your reputation, your "good name," consists of other people's opinions about you, and that you don't own your reputation. So, if somebody publicly expresses an opinion that destroys your reputation, he does not violate your rights. This means that libel and slander are not crimes. Even blackmail, which is an offer to refrain from publicizing one's knowledge or opinion in exchange for something, is not a crime.

The Case for Voluntary Slavery

If you own something, you have the right to sell it, rent it, give it away, risk it, or make any other arrangements regarding the disposition of it, as long as you don't violate the rights of others. It seems to follow from this that if you own your own body, you may unconditionally transfer ownership of it to another person. That person would then be the rightful owner of your body, and he could rent it, sell it, dismember it, destroy it, or, if you are still alive, he could make you his slave. Anything that person wanted to do to you would be his right, and you would be a criminal if you resisted.

Why can't you legitimately transfer ownership of your labor to another person and become a slave such that you would have a legal obligation to obey all your master's noncriminal commands? Suppose you voluntarily sell yourself into slavery and, after a while, you run away because you are tired of the drudgery. Should law-enforcement agencies try to catch you and return you to your master?

An Indian could trade an eagle feather to you for a dollar and later regret the deal. He has the right to change his mind, but, after the trade has been made, he has no right to take back the eagle feather without your permission. Why isn't the voluntary slave who fails to obey his master a criminal in the same way as the proverbial Indian giver? If we allow voluntary slaves to break their service contracts, for example, if we allow soldiers to desert their stations or to go AWOL, wouldn't that undermine all contractual obligations?

Why You Have No Right to Sell Yourself

If voluntary slavery is legitimate, it is the ultimate example of placing property rights (of the slave owner) above human rights (of the slaves). Fortunately, it is logically and morally impossible for you to sell your future intentions or the actions and services that may be controlled by those intentions. So, if you make a contract to become a slave, you are perpetrating fraud.
... if control cannot be transferred, then a right to control cannot be transferred. One may as well consent to transfer a right to control the movement of the stars.19
Even though people do make long-range plans and, in many cases, demonstrate continuity in their intentions over time, there are so many instances of people changing their minds that it should be clear that we do not now control our future intentions sufficiently to claim ownership of them. If we do not now own our future intentions, we have no right to sell or lease them, nor do we now have the right to sell the labor that may result from our future intentions.

At any particular moment you are the owner of your body and, consequently, you have the right to alienate parts of it. For example, you could donate an eye or a kidney or some blood to someone who needs it. After you are dead, your mind does not control any parts of your body, so you have no rights to any part of it. However, your body as a whole, while you are alive, is different from other kinds of property in ways that are not taken into account by the argument for voluntary slavery. The actions of your body are controlled by the decision of your mind (your will). Your mind, therefore, owns your body. This ownership and control cannot be transferred. It is truly an inalienable right. Your body, while you are conscious, is different from all other property, because control of it cannot physically be alienated from your will. When you sell your car, the new owner can drive it without your cooperation—you do not have to steer it or even be in it. But when you sell your body, the new owner cannot get any work out of it without your willing cooperation.

To sell something is to give up ownership and control of it. To sell your body while you are still alive is to sell ownership and control of your body, which means selling your will along with your body. Because a voluntary slave contract entails selling your will and your body, it can only be legitimate if you own and control your will. This brings up the issue of free will versus determinism, which philosophers have been debating since the beginning of recorded history. If the will is completely self-determining, it owns and controls itself and, therefore, it can sell itself. But, if the will is not completely self-determining, it does not own itself, and it cannot sell itself.

If the will does not own itself, who owns it? Like anything else, the will is unowned until it exists. As soon as it exists, if it can be said to be owned at all, it is owned by the first user. The first user, of course, is always the individual himself. His resolution belongs to him while it lasts. When his resolution changes, a new resolution takes the place of the old one, and the individual becomes the first user and, in a manner of speaking, the owner of the new resolution. The old resolution no longer exists and is unowned. You cannot now own your past-will or your future-will, because they do not exist.

The evidence suggests that most people do not have enough willpower to guarantee that they won't change their minds in the future. For one thing, we don't have the same knowledge now that we may have in the future. Future knowledge and experiences may cause us to change our minds. We don't know for sure what we will think in the future or how we will feel.

For example, suppose you are in love with someone and you honestly believe that you want to love, honor, and obey that person for the rest of your life, and you sign a contract to that effect. You make the contract in good faith, fully intending to continue to love and serve that person. But after a while, despite your resolve, your love wanes and you regret the contract. This kind of thing happens all the time, but, if the will is completely self-determining, it can't happen. Because, in fact, people's minds do change, it must be true that the human will is not always self-determining.

Your mind owns and controls your body, but it does not completely own and control itself, that is, you do not now control the future decisions of your mind (your future-will). Because you do not own or control your future-will, you can't make a valid contract to sell it. And, because you can't sell control of your body while you are alive without selling your future-will, you can't sell yourself into slavery.

It sounds paradoxical, but because your will is not free in the metaphysical, self-determining, sense, it must always be free in the moral and political sense. You can never voluntarily give up moral responsibility for your actions, because you can never sell or give away control of your will.

One objection to this argument is that it seems to invalidate owning or selling anything that has a will, including animals. Animals have wills of their own which control their actions. The old saying, "You can lead a horse to water, but you can't make him drink" captures this truth. My antislavery argument seems to imply that because you don't really control your animals, you don't really own them, and, therefore, you have no right to sell their future services.

If an animal is a moral agent, then it has rights, and my antislavery argument applies to it. However, animals that are not able to understand moral principles are not moral agents, and, presumably, they have no rights. Consequently, if you sell such an animal "as is" with no promises about its future behavior, the trade is legitimate.

The case is different when you sell a moral agent, because moral agents have rights. Even if you sell yourself "as is" with no promises about your future behavior, the sale is not valid because, as a human being, you are constantly acquiring the right to own yourself by being the first person to use your body. Your mind at any particular moment is the first user and, by the homestead principle, the owner of your body. Tomorrow your body and its services will be owned and controlled by whatever your thoughts are tomorrow, not by your will today. To sell your body and its services is fraudulent. Tomorrow the person who thought he bought you will find that he has to deal with a person controlled by the decisions that your mind makes tomorrow, which may be quite different from your will today. And your mind, unlike the mind of a dumb animal, has property rights, because it is the mind of a moral agent.

To recapitulate: Your future services will be owned by your future-will. Your future thoughts and feelings and your future-will are not now owned by anyone. Selling yourself into slavery means selling your future services and your future-will. This is not legitimate, because you have no right to sell anything that you don't own.

This argument applies not only to voluntary labor contracts, but to any other contracts involving promises to think, feel, or act in a specified way. Promises to love, honor, and obey, or promises to marry or stay married to someone, and promises to work for someone or to serve in the armed forces, and solemn oaths to tell the truth on the witness stand are all promises involving our future thoughts and emotions, which we do not now own or control. No matter how well-intended these promises may be, they cannot transfer rights from one person to another. A person always retains the right to quit a job, desert the army, get a divorce, or renege on a promise.

We have as much right to make promises as we have to make any other statements. But promises to act or feel a certain way in the future are not enforceable, and we have the right to break them. For example, in a moment of romantic passion you may promise to love someone for the rest of your life, and you may mean it. But an objective observer with some experience in human affairs would realize that such promises cannot be guaranteed, and that people cannot control their future emotions and feelings or even predict them very accurately.

Few people, if any, are so strong-willed that they never change their minds. Only an exceptionally strong-willed person could have a completely self-determining will, and only he could make a valid contract to become a slave. Why such a strong-willed person would agree to become a slave is hard to imagine. In any case, a person who makes a contract to be a slave can be subservient for as long as he likes, but as soon as he changes his mind, he proves that his will is not completely self-determining and that the slavery contract is not valid.

How does this affect contracts?

Because slavery contracts are not valid, no one should ever be required to work for or to support anyone else. Infants, children, and disabled people who cannot support themselves must rely on the voluntary charity of productive adults. Even though bourgeois family values may be correct, they should not be imposed by violence. Parents should not be forced to support their young children, and adults should not be forced to support their elderly parents or their former spouses.

If you agree to work for Mr. Scrooge as his servant, but you change your mind after working for him for a while, he has no right to force you to keep working for him. Strictly speaking, you cannot sell your services at all, so Mr. Scrooge can never have a valid claim to your services. This might seem to imply that contract labor is on shaky ground, but it really isn't. Only forced labor is illegitimate. "Selling" services pretty much the way it is done now in civilized societies can be justified.

To justify service contracts, we need to look at them from a new point of view. We need to see them as wagers.

For example, you do not exchange title to your services for money. Instead, you make a bet with your employer. You bet that you will work for the employer and he bets that you won't. You risk nothing except your reputation for promise-keeping (which you don't own anyway), and the employer risks paying you wages and other benefits, and capital investment. If you perform the services as prescribed by the terms of the bet (employment contract) then the employer loses, and the wages and other benefits he risked become your property. If you decide not to work for the employer (if you quit your job) then you lose (or fail to gain) title to whatever wages and benefits were detailed in the terms of the bet.

Gambling is the model for the legitimate way to make service contracts. Bets can be used innovatively to make our future more secure. For example, you could make a bet with your spouse that for the next 10 years the two of you will continue to live together. If you stop living together during that time, title to whatever property you wagered belongs to your spouse. The stakes might be called alimony. Either spouse might risk paying the alimony, depending on the terms of the bet.

Performance bonds are another variation of this solution. A performance bond is the stake that you put up when you bet that you will perform services for someone in the future. Performance bonds are often used in the entertainment industry to encourage stars to show up and perform as advertised. The star does not exchange title to his services. Instead, the star makes a bet that he will perform as specified in the contract (the terms of the bet). The general form of the bet is: the performer bets something that he owns (a performance bond—usually money) and the booking party (theater owner, movie producer, or whatever) bets something he owns (a performance fee—usually money). The title to the performance bond and the performance fee will belong to the performer if he wins the bet or to the booking party if he wins the bet. The subject of the bet is whether the performer will perform as specified in the contract.

Accidental Liability

If a person cannot voluntarily make a binding contract to perform services for another person, he surely cannot involuntarily incur an obligation to perform services for another person. Unless the parties entered into a prior contract or wager that covers the situation, no property titles are transferred by an accident.

Suppose O'Leary burns down Ember's house. In fairness, O'Leary should replace Ember's house or compensate Ember in some way. Who decides what the compensation should be? If O'Leary and Ember agree on what the compensation should be, does anyone else have the right to demand O'Leary to pay more compensation? or less? If O'Leary and Ember do not reach agreement on compensation, does someone else then acquire the right to decide what the compensation should be? How could someone else acquire this right unless O'Leary and Ember delegate it to them? What if O'Leary and Ember do not delegate the right to decide? Does Ember have the right to determine by himself what the compensation should be and to take it by brute force? Does O'Leary have the right to defend his property from Ember?

Is there an objective method for determining the proper compensation? It is hard to calculate the market value of Ember's house. It is immeasurably more difficult to calculate the sentimental value of Ember's house. Ember's evaluation of his home may be much greater than (or less than) its market value or its insured value. Is Ember entitled to compensation up to his sentimental evaluation of his home? If so, how can it be measured? How can Ember possibly be compensated, except by a miraculous restoration of his house from the ashes? Subjective values cannot be measured or compared interpersonally. But if compensation cannot be exactly determined, we do not know the exact property titles that O'Leary must transfer to Ember. Without knowing this, O'Leary and Ember cannot know how to interact.

Intangible losses are real, but they can't be measured and compensated for with the exactitude that justice requires. The difficulty of measuring losses and corresponding compensations has serious implications for punishment and restitution theories of justice.

If we concede that the accidental rights violator (O'Leary) does not lose all his property rights, then it is essential that we be able to determine exactly what rights he retains, so we can decide whether to violate them or defend them. In cases that are not clear-cut, and, unfortunately, this is a high percentage of the cases, we are in danger of violating the culprit's rights if we coerce him into compensating the victim. On the other hand, if we defend the culprit's right to resist paying what he believes is excessive compensation, then we run the risk of violating the victim's right to just compensation.

The only safe course of action (in the sense of being sure that you violate no one's rights) is to not interfere in the dispute. But, if outsiders cannot safely interfere, Ember cannot subrogate his right to compensation, and institutions cannot garnish wages or set up employment programs, or in any other way coerce O'Leary to make restitution. Also, if O'Leary owes compensation to Ember or anyone else, then O'Leary cannot subrogate his right to self-defense, because it is not clear what property O'Leary or his agent has the right to defend.

Suppose we have a system for objectively calculating compensations and we apply it to the case of O'Leary and Ember, but O'Leary does not have enough money or resources to pay the full compensation. Does the process of calculating compensation somehow transfer some of O'Leary's future earnings to Ember? How can title to things that do not even exist be transferred now?

Does the accident by which O'Leary destroyed Ember's house, in itself, transfer any property titles from O'Leary to Ember? If O'Leary had an insurance policy that covered this situation, then title to $X might be transferred from O'Leary's insurance company to Ember as the result of the house burning. Similarly, if Ember had an appropriate insurance policy, title to $Y might be transferred from Ember's insurance company to Ember as a result of the house burning. The terms of the specific insurance policies determine what property titles are transferred when Ember's house burns. The market value of the house, or its sentimental or historic value, or its value in God's eyes, may have little relation to the insured value ($X or $Y). The burning of the house is the occasion for the transfer of $X or $Y because of the terms of O'Leary's or Ember's insurance policy. In the absence of such insurance policies and any private bets that may have been made about the burning of Ember's house, no property title transfers are occasioned by the burning of Ember's house.

Criminal Liability

The case for an enforceable right to compensation does not even hold up when we switch the focus from accidental liability to criminal liability. Even in simple criminal cases it is not clear what the correct compensation is. Suppose Hijak steals Worthy's car. The car still is Worthy's property, so he can take it back from Hijak or he can hire someone to do this for him. If Hijak refuses to give up the car peacefully, it is legitimate to use brute force against him to repossess it. This much restitution is allowed by the right to self-defense against invasion. Can any more compensation legitimately be demanded by brute force?

Suppose Worthy hires someone to repossess the car. Does Worthy have the right to coerce Hijak to pay the repossession costs? If the case comes to trial, and Worthy proves that Hijak stole his car, can the court demand any more than that Hijak return the car to Worthy? The answer depends on the policy of the court that Hijak and Worthy agree to use.

Suppose we deny that Hijak can be compelled to do any more than return the car. Then, if Worthy hires someone to repossess the car, Worthy would have to bear the costs. If Worthy has auto-theft insurance, his insurance company might take action to repossess the car and provide Worthy with a substitute car in the interim at no additional cost to Worthy. If Worthy's insurance company operated in this way, it would include these kinds of costs as part of its operating expenses and take them into account when establishing the prices for its policies. Hijak's theft would have no significant impact on Worthy's insurance company or on Worthy's insurance premiums. So, it is possible for the market to provide some restitution beyond mere repossession, without having to coerce criminals more than is clearly warranted.

Similarly, insurance policies could provide the same kind of voluntary compensation for other aspects of crime. Insurance policies could pay the court costs and pay the victim for his inconvenience.

Suppose God were on hand to determine the appropriate monetary compensation, and suppose Hijak has enough money to pay the prescribed compensation, but he is unwilling to pay it. Does Worthy have the right to take the money from Hijak? In other words, suppose we have a foolproof system for objectively calculating the exact amount of compensation commensurate with a particular crime, but the culprit is unwilling to pay it. How does the victim or his agent get the right to take the compensation by brute force? Does the process of calculating compensation somehow transfer property titles from the culprit to the victim without requiring the culprit's consent?

The right to repossess stolen goods follows from the entitlement to one's own property. Punishment, on the other hand, is outlawed by the right to self-defense. This leads to apparent paradoxes. What is to be done with murderers? Are they to go free? Isn't there an imbalance in this scheme that allows murderers to pay nothing while thieves are required to return what they have taken?

If someone destroys your property without your permission, it is reasonable to seek compensation from him. If a criminal steals your car and wrecks it, a reasonable compensation might be a car equivalent in market value to the stolen car before it was wrecked, or enough money to buy such a car. Such compensation would help to restore your wealth to what it was before the theft. It would be unreasonable to demand that the thief's car, if he has one, be wrecked in order to establish a balance. Wrecking the thief's car does nor restore the situation to what it was before the crime. It only makes the thief's situation worse than it was. Such punishment cannot be justified as compensation or restitution.

Suppose one man destroys another man's eye. Suppose also that a doctor could replace the destroyed eye with a transplanted human eye. It could reasonably be decided that the culprit ought to provide a suitable eye for the transplant operation as compensation to the victim. In such a case, the culprit might even donate his own eye if it was of the right type. If so, it would be fair to give an eye for an eye. But this would differ from the Old Testament idea, because, in this case, the culprit's eye is not destroyed to punish him. Instead, the culprit's eye is preserved and transplanted to compensate the victim. It is immaterial whether the culprit donates his own eye or arranges for someone else to voluntarily donate one.

Suppose medical science cannot restore sight to the victim of the eye gouger. Then the culprit could not make full restitution. Nonetheless, procedures could be developed whereby impartial people could recommend some other form of compensation. Not everything has to be stipulated in advance by a signed document. Social customs can play a role in situations where it is reasonable to assume that the custom was accepted by the parties involved. Those who make recommendations for compensations should be guided by the principle that the purpose of compensation is to restore the victim's property rights, as much as possible, to what they were before the crime or accident. In cases like this, only partial compensation is possible. If the culprit has enough money or credit, he should pay for any medical treatment resulting from his actions and any loss of income that can be directly attributed to him. However, the compensation must be paid voluntarily, because involuntary compensation violates the rights of the involuntary compensator.

In the case of murder or manslaughter, the property destroyed is a person. There is no way to compensate the victim at all. You can't transfer any rights to a dead man. He is no longer a moral agent. Yet surely, a killer owes more compensation for his deed than an eye gouger owes for his. Death is the ultimate deprivation. It destroys the victim's eyes, arms, legs, brain—everything that was his.

But to whom does the killer owe compensation? If the victim has heirs, the killer may try to compensate them by paying the victim's medical and funeral expenses and any other financial costs that can be directly attributed to the death. Beyond these costs it is impossible to determine any suitable compensation in the general case. Particular cases may entail obvious specific modes of compensation, but we cannot analyze them all ahead of time.

It does no good to kill a killer (assuming he is not threatening to kill again) or to put him in prison. Such punishments violate the killer's rights. We may hate killers and we may show it in many imaginative ways. We can be nasty to them. We can publicize their deeds and humiliate them. We may disassociate ourselves from them. If everyone so chooses, killers may effectively be banished from society. But we have no right to physically punish them.

Determining the amount of liability for an accident and the amount of compensation due for a crime involve trying to calculate damages and trying to correlate them with payments. Consequently, they have some of the same problems as punishment. (See Appendix B.)

Can I make a bet with you that my worst enemy will not die before the end of this month? Suppose I bet you $10,000 and you happen to be an assassin. Is the bet legitimate, or is it suborning murder? I leave this as an exercise for the reader.

Is fraud a crime?

Fraud can be used to achieve results similar to theft. The legitimate property of one person can come under the unjust control of another by fraud or by theft. Neither fraud nor theft can entitle its user to ownership of property obtained by these means. The ownership remains the same as it was before the fraud or theft.

If a defrauder uses brute force or threatens to use brute force against the rightful owner to obtain or to keep possession of ill-gotten goods, then the defrauder becomes a criminal, and it is legitimate to use brute force against him to repossess the goods.

Rights cannot be obtained or lost through aggression or fraud. If a thief steals your car, the car remains your property. He has no right to use or sell the car. If the thief sells the car to a car dealer who knows the car is stolen, the car dealer is a thief too. If the car dealer sells the car to a customer who does not realize that the car is stolen, the car dealer commits fraud. Because no rights can be lost or obtained by fraud, the car dealer has no right to the money that he obtained fraudulently from the customer, and the victim of the fraud has no right to the car. If the customer then sells the car without realizing that it is stolen property, this is a mistake due to misinformation, rather than a dishonest act. Nevertheless, the sale is not legitimate.

The thief, his accomplices, and the defrauder are all aware of what they are doing. They are not likely to return the stolen property to its rightful owner voluntarily. It would, therefore, be legitimate to forcibly seize the stolen property from them and return it to the owner. No compensation is due to them.

Someone who deals in stolen goods unwittingly should be informed of the fact and given the opportunity to return the property voluntarily. If he refuses to do so, then it is legitimate to use brute force against him to restore the property to its rightful owner. The victim of fraud retains title to the money he paid for the stolen property. He has the right to use brute force to take it back. Consequently, there is a market for insurance against fraud similar to insurance against theft.

Land reform may be morally required.

Suppose a group of libertarians takes control of the legal system in a country that has a feudalistic system of land ownership. In this feudalistic system, all the land, including the undeveloped land, is "owned" by a small class of noble lords, and all the labor done on the land is done by a large class of ignoble serfs who, traditionally, are not free to leave and who are required to pay an annual fee to their lords for the privilege of laboring and living on their lords' land. Under this system there is no market in land or in labor. The "ownership" of the land by the noble lords does not include the right to sell or bequeath the land at will. The king is the ultimate dispenser of all land. The nobles are overlords who have been granted holdings by the king or by other overlords whose authority is derived from the king. The serfs, or tenant farmers, provide material support to their overlords. The overlords, in turn, provide military and material support to the king.

The relationships among the overlords, and between the king and the overlords, and between the overlords and the serfs are based on status rather than contract. This status is largely based on land holdings, which, in turn under feudalism are derived from conquest and land-grants from the king. The system is as complicated as the IRS tax code. There are many different forms of tenure with fancy Latin and French names, and many different kinds of courts for people of different status. Sometimes the jurisdictions of courts overlap. Sometimes new status levels and new kinds of courts are created. Sometimes they change the names in case anyone was beginning to understand the old names. The average, illiterate peasant doesn't stand a chance in this system. The complexity of it is used to defraud the peasants of their rightful property by making law incomprehensible and masking the simple truth that the king's authority, being based on conquest, is not legitimate.

What changes should libertarians make to this system? First of all, the serfs should be granted freedom to leave their homes. This by itself would make little difference to them in a country with no available farm land, when farming is the only way they know to make a living. Second, owners of land should be allowed to sell, trade, rent, or bequeath their land to whoever they choose. These measures would allow labor markets and land markets to develop. This is about as far as most free-market economists can go, because they don't have any moral theory about the justice of original property holdings.

For the most part, those who pay lip service to the market show little desire to question the property arrangements in these areas. This is why they have little to say that would interest the poor and downtrodden in these countries. These people have come to associate the free-market system with the approval of the status quo. They will not be greatly helped by the fact that from now on their oppressors will be able to exchange with each other on an unhampered basis.20
However, there is more to libertarianism than economics. As we have seen, the prohibition of invasion rests on a moral theory of entitlements to private property, which, in turn, rests on the homestead principle. If libertarians took over the legal system in a feudalistic country, they would use the homestead principle to bring about land reform.

The king's and overlords' claims to own undeveloped land would not be upheld in libertarian courts. All such land would be treated as unowned land that is available for homesteading.

Furthermore, peasants would be able to sue the king and the overlords for title to the land the peasants or their ancestors developed. The king's claim is based on conquest. The overlords' claims are based on land-grands from the king. These claims would carry no weight in libertarian courts. The peasants' claims are based on the homestead principle and inheritance. Libertarian courts would rule in favor of the peasants. If the peasants can prove that they are the heirs of the original homesteaders, the peasants will prevail on that basis. If the identities of the original homesteaders are unknown, the court will rule that the lands belong to the people who live and work on the lands now—the peasants. The result would be that the rightful owners, the peasants, will become the legal owners of their farms. The king and his overlords will lose title to their ill-gotten lands, and they will receive no compensation. If anyone deserves to be compensated, it is the peasants.21

Is it wrong to help a criminal?

Is the driver of the getaway car a criminal? Maybe. It depends on what the driver knows about the situation and on the nature of the particular crime. If the driver is unaware that he is giving a ride to a criminal, the driver is clearly not guilty of a crime. If the driver knows that he is helping a criminal to escape the scene of a crime and was there for that purpose as part of a prearranged plot, then the driver may be guilty of a crime. It depends on what crime the passenger committed and whether the crime is prolonged by the ride. If the crime is a robbery and the passenger has the stolen goods with him in the car, then the driver is guilty of helping to prevent the rightful owner from repossessing his goods. If the crime is of the sort that is not prolonged by the ride away from the scene, then the driver is not guilty of a crime. For example, suppose the criminal broke into someone's house without the owner's permission (a crime) and erased the messages on the owner's answering machine (another crime) and then left without taking anything. Then the crimes are over and they are not prolonged by the criminal's escape. So the driver is not guilty of committing a crime, although he may deserve condemnation on other moral grounds outside the scope of justice.

Are threats crimes?

If a man forces another man to commit a crime, both men are criminals. For example, if A threatens to do violence to B unless B steals the property of C, and, as a result, B steals the property, then both A and B are criminals, but they are guilty of different crimes. A is guilty of assaulting B. B is a thief.

Suppose someone unintentionally threatens to cause physical damage to you or your property. Do you have the right to use brute force to stop him? We may be inclined to think we never have the right to use brute force against people who intend no harm. Our intentions matter when we decide to use brute force against an invader to stop his invasion, so we may be inclined to believe that the intentions of the threatener are also relevant. The intentions of the threatener have a bearing on our opinion of his character and on the methods of self-defense that might work in his case, but his intention or lack of intention does not change the fact that he is endangering you. No one has the right to physically hurt you or your property without your permission, except in self-defense against your invasion.

In Anarchy, State and Utopia, Robert Nozick describes a situation where we sympathize with the plight of the unintentional threatener. You are at the bottom of a deep well and someone throws another person into it at a trajectory that will cause the hapless faller to crush you. You happen to have a ray gun, and your only defense is to use it to vaporize the threatener before he lands on you. Do you have the right to vaporize him? 22

I hate it when this happens. There isn't much time to think. Fortunately, my philosophy allows me to decide right away that I do have the right, and, even though I hate to do it, I always vaporize them. Sometimes there is more room in the pit and I can jump out of the way. In these cases I always jump rather than hurt the other person.

Another situation in which I feel sorry for the unintentional threatener is when he is a fetus inside a woman who doesn't want him to be there. It happens to millions of women, and it is a serious issue. The fetus, even if we assume he has all the basic rights of a moral agent, has no right to live as a parasite in someone else's body without their consent. So, even though the fetus has no choice and is completely innocent of any intention to violate his mother's property rights, the mother has the right to hire a doctor or someone else to tear the fetus apart and pull him out piece by piece. Abortion is a deplorable, but legitimate, means of self-defense against an innocent trespasser. Surely, if a woman has the right to kill her baby for trespassing, I have the right to vaporize a person who is about to crush me.

Not all unintentional threateners or trespassers require such drastic methods of self-defense. For example, when someone at a restaurant inadvertently walks off with your coat, thinking it is his, you can often resolve the situation and get your coat back by simply pointing out to him that he mistook your coat for his own. This usually works with unintentional trespassers. (It sometimes works with common thieves too, because it gives them a graceful way out. They can pretend they took your coat by mistake, return it with apologies, and avoid having to fight or flee.)

Conspiracies and Discrimination

The right to control the use of your property includes the right to discriminate. The right to discriminate includes the right to conspire with others and coordinate discrimination for a mutually shared objective. A boycott, for example, is a conspiracy to abstain from voluntary trade with certain parties because of the conspirators' objection to the policies or practices of those parties. It is a legitimate, peaceful way to exert economic power.

A secondary boycott is a boycott for the purpose of pressuring the subjects of the secondary boycott to join a particular primary boycott. A secondary boycott is also a legitimate, peaceful conspiracy.

A strike is a conspiracy by employees of a company to withhold their labor from the company until the company satisfies the demands of the conspirators. Because the strikers own their own bodies, they have the right to withhold their labor for any reason. A strike is, therefore, a legitimate conspiracy.

Other examples of legitimate conspiracies are lockouts, red lining, and glass ceilings, which are ways of discriminating against unions, ethnic groups, women, or any other group. These practices may not be morally legitimate from the point of view of one's personal ethics, but they are within our rights, and it would be a crime for anyone to use brute force to prevent someone from engaging in these activities with their own property.

Other Applications of Property Law

Much more could be said about the application of property rights. I have only touched upon a few topics that happen to interest me. Many important implications of property rights have not and will not be mentioned, because I have not thought about them enough or, because my thinking on these topics has not led me to any surprising or interesting conclusions. Some topics such as pollution of the environment, contract law, and responsibility within corporations warrant extensive treatment, but I want to move on to another important topic that interests me more: political philosophy.

Go to Chapter 6. Is the state legitimate?

Go back to the table of contents.

Go back to Libertarian Essays by Roy Halliday.

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