Property Rights are Natural

Antony — February 7, 2012

The book currently being read by the Victoria Libertarian Book Club is Will Kymlicka’s “Contemporary Political Philosophy”, and this week’s chapter discusses libertarianism. Not surprisingly, I have many problems with his treatment, and I think he has several misunderstandings of libertarian philosophy that lead to a mis-characterisation of libertarian positions. In particular I will address here his treatment of property rights, in which his muddled formulation leads down an incoherent rabbit hole.

Kymlicka’s description of property rights rests on Nozick’s treatment of Lockean concepts of homesteading. He uses the example of the “enclosure” movement in England, during which land previously held as “commons” was fenced off and use was restricted to the “owner”. There is a lengthy analysis of this “appropriation” from “general use”, and this is argued as Nozick’s justification of private property. Nozick apparently argues that this appropriation from previous users can be justified, even when it is against their will, as long as they end up “better off”. Of course this situation is unjust, and if it were indeed the libertarian position, then it would be a fatal flaw in the philosophy.

The problem is that his example starts too late in the process. By the time people are using the property in “general use” natural property rights have already been established. We must consider initial use of the land from nature.

Imagine a shepherd, “Bob”, finds a previously wild field and uses it to graze his ten sheep. By using this previously untouched land, he has a “natural right” to graze his ten sheep there. This is because, as long as no-one interferes with him, he would naturally be able to keep using the land to graze his sheep. Now imagine a second shepherd “Alice” comes along and also starts grazing her sheep there. It turns out that she is able to use the same field without any impact on Bob, so there is no problem with Alice also using the field to graze her sheep.

Seeing Bob and Alice using the field, “Fred” now comes along and also grazes his ten sheep on the field. But now there is a problem: the field only has the capacity to support twenty grazing sheep, so Fred’s use of the field harms Bob’s and Alice’s flocks. By using the field, Fred has infringed on Bob’s and Alice’s natural homesteaded property rights. If Bob and Alice are not able to defend their property rights, then we have the familiar “tragedy of the commons”.

Whether the field is enclosed with a fence, or not, has no effect on the principle of the property rights, it simply makes them easier to enforce in practice. It is also possible that there could be property rights to other non-interfering uses of the land. Perhaps Tom, a labourer, walks across the field every morning to get to work. If his walk does not interfere with the grazing sheep, then he can use field as a through-way. And in this case, it is possible that putting up a fence would infringe on Tom’s property rights, by interfering with his homesteaded use of the field as a right of way.

Homesteading principles can be applied to any scarce good. The concept of property rights should be looked at from the perspective of human action: how the good in question is used by the individual in satisfying their wants. They need not confer full exclusivity to physical objects. For example, radio spectrum could be homesteaded, or fishing rights in the oceans. Property rights can also be specific to certain time periods, such as seasonal hunting rights, or rights of transit.

The natural emergence of informal property rights during parades and public events is described in “Homesteading for Fun and Survival” by Jeffrey Tucker and Manuel Lora. The article provides a good description of how, without the use of force, homesteading occurs naturally as a way to organize scarce resources, and leads to a harmonious, fair and peaceful social order.

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