The recently-published Hoppe festschrift, Property, Freedom, and Society: Essays in Honor of Hans-Hermann Hoppe, contains many articles of interesting to Austrians and libertarians. A particularly fascinating one is Chapter 23, Frank van Dun‘s “Freedom and Property: Where They Conflict.” Van Dun argues against the idea of freedom as property, on the grounds that, if freedom is the supreme libertarian value, then it trumps property rights in some cases where it could be used to limit freedom. He gives the example of “hostile encirclement,” where someone is surrounded on his own land, thus turning it into a type of prison. While I have some disagreements with Van Dun’s conclusions, it is a provocative piece.
Interestingly, Walter Block presents a sort of flip-side of this argument. See my post The Blockean Proviso and also Roderick Long’s post Easy Rider and the comments thereto, discussing Block’s “forestalling” view that someone who homesteads land that “encircles” unowned land must grant an easement to permit potential homesteaders access the unowned property. Van Dun thinks “encirclement” that limits the “freedom” of someone trapped inside the circle, on their own land, is unlibertarian even the encirclement is done consistent with property rights; Block things “encirclement” is unlibertarian if it prevents others from homesteading the unowned resource. (See my comments to Long here for an explanation of how the civil law handles the type of encirclement that concerns van Dun.)
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Entrapment (of an innocent) done consistent with property rights is a contradiction.
Saying that a property right in land includes the right to imprison innocents on their own land is equivalent of claiming that a property right in a pair of hand cuff includes the right to use them on innocents.
The explanation of this is straight forward. Person A has access to his home by way of a road. Say person B owns that road but sell it to person C. Person C has bought the road “as he saw it,” including Person A’s easement.
There is no right conflict, as Person C could not have bought what Person B did not own, ie the right to exclude Person A from the road.
Van Dun is more or less correct – the general principle of liberty is both a foundation for justifying property and a constraint on property. That is, whether or not there is liberty cannot simply be reduced to the question of “who is the owner?”, in that just because someone is an owner does not grant them absolute authority in the sense of being able to violate other people’s right to life and liberty. You don’t lose all of your rights simply for being on someone else’s land. Hence, the problem of legitimacy is not just a matter of just aquisition, but also a matter of the decision-making power that ownership can be said to grant.
Jon:
The civil law takes a similar approach to what you describe: “Art. 693. Enclosed estate; voluntary act.
If an estate becomes enclosed as a result of a voluntary act or omission of its owner, the neighbors are not bound to furnish a passage to him or his successors.”
“You don’t lose all of your rights simply for being on someone else’s land.” – Brainpolice.
Actually – why not? When your not on the property owner’s easement then your on shaky ground. To argue otherwise is to dilute the power of private property ownership to its present level.
Still, it is also has to be asked “what is the duty to provide easements to another?” Can a property owner get into trouble if all he supplies is a crumby dirt track only suitable for walking on foot? If it occurred in Anarchtopia who is the non-government higher power that punishes the owner? Alternatively if anyone can access another land via helicopter why should a property owner have to even provide any easement at all?
“Actually – why not?”
Because that self-detonates the entire thing. It literally dissolves personal sovereignty in the sense that someone can somehow legitimately murder someone or enslave them by appealing to ownership. Literally everything that one objects to in the state is snuck back in on such a basis.
“When your not on the property owner’s easement then your on shaky ground. To argue otherwise is to dilute the power of private property ownership to its present level.”
I’m not particularly focusing on the narrow issue of easements. What I’m talking about is the more general question of “what scope of decision-making power ownership legitimately grant?”. I deny that such power is absolute because I do not think that it would be just for me to, for example, murder someone who’s standing on my lawn and then appeal to my ownership to justify it.
In other words, the NAP and personal sovereignty don’t magically not apply as soon as someone sets foot on your land. The problem with the state is not just the fact that its land claim isnt justly aquired, but also the very idea that land ownership grants absolutist legitimacy (a claim over the lives of whoever happens to be in an owned geographical area) in the first place.
What I’m addressing is a much broader conceptual issue about the relationship between liberty and property. My contention is that liberty inherently constrains property in the sense that a genuine conflict does arise when a property owner appeals to their ownership to justify violations of liberty. For example, if someone beats their wife or murders their children, I would contend that “love it or leave it” fails here too, not just in the context of the state.
Just because you own a given piece of land does not mean that you can literally do whatever you want to other people (including enslaving them, assaulting them and murdering them) so long as they are on your land – that inherently implodes liberty by subordinating it to an overly rigid sense of property. This is the sense in which I say that property has to be contextualized to liberty, and not the other way around.
Piffle! That’s squeamish crap that waters down property rights to nothing! Either you are the sovereign owner over your land in Anarchtopia (allodial) or your sharing ownership with permission from a ‘higher power’ – i.e. government (feudal). Hence any person who is on another’s private property which is not part of the easement in Anarchtopia bettter well respect the property owner or else. There would be nothing stopping a property owner from putting up signs “trespassers will be shot” all over his private property and mean it.
Gil,
Brainpolice is clearly confused, but there is half a point to be extracted, namely the issue of proportionality of response, no?
The argument just goes to show what silly contradictions you can get into when your philosophy makes arbitrary things absolutes. If freedom is absolute, then property and many other things fall apart. If property is absolute, then freedom, the right to life, and other things suffer. It’s best to start with the right to life, as the old natural law did, as the starting point for your logic, but even it can’t be an absolute. I can’t think of anything that is an absolute right.
The argument just goes to show what silly contradictions you can get into when your philosophy makes arbitrary things absolutes. If freedom is absolute, then property and many other things fall apart. If property is absolute, then freedom, the right to life, and other things suffer. It’s best to start with the right to life, as the old natural law did, as the starting point for your logic, but even it can’t be an absolute. I can’t think of anything that is an absolute right.
The argument just goes to show what silly contradictions you can get into when your philosophy makes arbitrary things absolutes. If freedom is absolute, then property and many other things fall apart. If property is absolute, then freedom, the right to life, and other things suffer. It’s best to start with the right to life, as the old natural law did, as the starting point for your logic, but even it can’t be an absolute. I can’t think of anything that is an absolute right.
To fundamentalist and Brainpolice – the path to the front door would be considered part of the easement. Hence private property owners wouldn’t be shooting dead girl guides selling cookies.
The fact of the matter is that someone could engineer conditions to keep someone “trapped” via property rights. This assumes that the trapper lives in a vacuum. One would assume by being raised in “Anarchtopia”, the trapper would have consented and signed all sorts of agreements with various entities (or lives a very lonely, division-of-labor-less life) Road companies, chamber of commerce, insurance companies, police companies, etc. I imagine one would be contractually obligated to adhere to a minimum list of good neighbor/reputable trader type clauses.
“One would assume by being raised in “Anarchtopia”, the trapper would have consented and signed all sorts of agreements with various entities (or lives a very lonely, division-of-labor-less life) Road companies, chamber of commerce, insurance companies, police companies, etc. I imagine one would be contractually obligated to adhere to a minimum list of good neighbor/reputable trader type clauses.” – Ric.
That doesn’t sound much like an ‘anarchic’ society rather more like a ‘minarchic’ one.
“Piffle! That’s squeamish crap that waters down property rights to nothing! Either you are the sovereign owner over your land in Anarchtopia (allodial) or your sharing ownership with permission from a ‘higher power’ – i.e. government (feudal). Hence any person who is on another’s private property which is not part of the easement in Anarchtopia bettter well respect the property owner or else. There would be nothing stopping a property owner from putting up signs “trespassers will be shot” all over his private property and mean it.”
I’m sorry, but this is a false dichotomy: I reject both the state and anyone’s claim to have a “right” to assault, murder and enslave others just because they happen to be on their land for the exact same reason. My entire point is that using property to justify absolute authority waters liberty down to nothing, and that there inherently has to be a synthesis between the two in which neither of them dissolve the other.
You seem to be missing the context that I’m talking about. Suppose I’m just standing on your land briefly, pose no threat, am willing to leave if asked, and you simply see me and immediately shoot me to death. That would simply be murder, and appealing to your ownership to justify it would be a ridiculous argument for psychopathy. Or suppose I beat my wife to a pulp, and say “love it or leave it”. It would still be assault – appealing to ownership doesn’t justify what obviously would be crimes.
That doesn’t sound much like an ‘anarchic’ society rather more like a ‘minarchic’ one.
At this point, I can only wonder how you conceive the “anarchic” society. Anarchy doesn’t mean atomistic individuals living hermits’ lives–people are still a part of a large society–it just means that there is no final, authority on matters legal.
If it occurred in Anarchtopia who is the non-government higher power that punishes the owner?
Just because there is no government, that doesn’t mean that there won’t be conflicts, and thus the need for conflict resolution. Arbitration and mediation can and are handled by private organizations, and would certainly do so in an anarchic society. Why should anyone yield to the judgement of a private judge? Well, first of all, because you would help choose which one to go to so that the case can be heard. And second, if you don’t, civil society can make life very difficult or uncomfortable, even without violating your rights. Again, anarchy still has communities and a society. The power of peer pressure and ostracism should not be dismissed lightly, especially when there’s no coercive authority to appeal to.
Well, howz about this Brainpolice – if I have signs over all my sovereign private property in Anarchotopia that states “Do not trespass! Guard dogs on duty!” and some child jumps the fence and get mauled to death then I don’t see why I should be liable in any way.
Well, M. A. Clem, I don’t see why sovereign private property have to be forced into signing contracts with all other private owners nor necessary have to bother with private courts if they don’t want to. Besides who’s say to private land ownership will stay small and cosy and open to quaint conflict resolutons?
I reject both the state and anyone’s claim to have a “right” to assault, murder and enslave others just because they happen to be on their land for the exact same reason.
Anarchy doesn’t mean atomistic individuals living hermits’ lives–people are still a part of a large society–it just means that there is no final, authority on matters legal.
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