when private property isn’t

NathalieOnScottishHillsideOn the Adam Smith Institute’s blog, George Kirby writes about the need for Britain to adopt a Scandinavian law:

Currently, in Britain I am largely restricted in my freedom of movement, despite thousands of miles of footpaths, bridleways and other rights of access. Furthermore, in England and Wales, I cannot camp in the ‘wild’ — instead I must pay to use a campsite.

What is restricting Kirby’s freedom? Apparently, it’s his lack of access to other people’s property.

"Implementing Allemannsrett in Britain," he suggests, "would change this."

What Is Allemannsrett?

Allemannsrett (literally ‘All Man’s Law’) is an ancient custom, most clearly found in Norway, Sweden (Allemansrätten) and Finland (Jokamiehenoikeus), where it has been formally enshrined in law.… it allows everyone to use rural, uncultivated land for walking, camping, foraging and other outdoor activities, regardless of who owns it.

To American libertarians, this probably sounds like a call for more government intervention and less respect for private property. And indeed, Kirby anticipates our reaction:

An objection might be that this infringes on the right to personal property, but I believe Allemannsrett is in accordance with J.S. Mill’s harm principle. The laws of the Nordic countries clearly demand that those taking advantage of the Allemannsrett are respectful to the land they are using: there are rules concerning littering, the lighting of fires and so on.

But is Allemannsrett really "in accordance with J.S. Mill’s harm principle"?

(And if so, does Mill’s principle accurately represent libertarian theory?)

John Stuart Mill articulated his harm principle in On Liberty: "The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others."

If everyone agreed to the harm principle as stated, we’d have a far more libertarian world, but a literal reading of Mill might lead one to think that force can only be legitimate if preventing physical bodily harm — that I am justified, in other words, in shooting the rapist who attacks my wife but not the burglar who breaks into my house. Not only am I not justified in shooting the burglar, according to this reading, but I can’t even use force to detain him until the police show up. And neither would the police be justified in using force to arrest him, since he hasn’t harmed anyone.

Of course that understanding of the harm principle is not the foundation of libertarian ethics.

In For a New Liberty: The Libertarian Manifesto, Murray Rothbard writes,

The libertarian creed rests upon one central axiom: that no man or group of men may aggress against the person or property of anyone else. This may be called the “nonaggression axiom.” “Aggression” is defined as the initiation of the use or threat of violence against the person or property of anyone else.

Not only may I use force to prevent you from injuring me; I may also use it to prevent you from stealing my stuff — assuming the stuff is legitimately mine.

If Mill’s harm principle does cover more than just physical harm to our bodies, if it in fact includes harm to our property, does Allemannsrett prevent such harm? Is it enough to require that uninvited hikers and campers "are respectful to the land they are using … concerning littering, the lighting of fires and so on"?

I think our intuitions are in conflict here. On the one hand, no harm, no foul: if you can move through my woods peacefully and leave minimal evidence of your passing, then how have my rights been violated?

On the other hand, get off my land!

In what way can we even say the land is my property if I don’t have final say on how it can and cannot be used? If that authority rests with the state, it’s equivalent to saying that the land is really government property, and the current government is allowing me one sort of use while allowing a different sort to anyone who wants to hike and camp on it with minimal impact.

If the land is not legitimately mine, then there’s no need for a special law to say that I can’t keep intruders off of it. (I’ll come back to this point.) And if the land is legitimately mine, and I don’t want strangers hiking or camping in my woods, then Allemannsrett is yet another government-supported violation of my rights, and it’s puzzling to see it promoted on the Adam Smith site, whose support for the free market presumably includes support for private property.

So is Kirby’s longed-for "freedom of movement" simply at odds with private property?

Maybe not.

His mistake, it seems to me, is to assume the state’s authority to define property rights — and to revise that definition at its pleasure.

A more rewarding approach may have been to read up on Rothbardian property theory instead of Millian ethics. (Murray Rothbard was a fan of John Stuart’s father, James Mill, but he considered Mill Junior to be a corruptor of liberalism, an agent of its decline from classical to modern liberalism — in other words, from libertarianism to socialism.)


How does legitimate property come into being?

Rothbardian property theory borrows from the common-law tradition, which found its most famous expression in the writings of John Locke: unowned land becomes private property when an individual "mixes his labor" with the land, such as a farmer clearing a field, or anyone building a house on previously unowned acreage.[1]

This "homesteading" is the first legitimate way to acquire property. The only other way is through voluntary exchange with legitimate property owners.

But what do you actually own? And how much of it? Let’s address the second question first:

Unto the Heavens?

Rothbard departed from common-law tradition in his disagreement with the common-law principle

that every landowner owns all the airspace above him upward indefinitely unto the heavens and downward into the center of the earth. In Lord Coke’s famous dictum: cujus est solum ejus est usque ad coelum; that is, he who owns the soil owns upward unto heaven, and, by analogy, downward to Hades.[2] (Murray Rothbard, "Law, Property Rights, and Air Pollution," Cato Journal, Volume 2, No. 1 (Spring 1982): pp. 55–99)

According to Rothbard, the ad coelum rule never made any sense in the context of homesteading: "If one homesteads and uses the soil, in what sense is he also using all the sky above him up into heaven? Clearly, he isn’t."

If land property doesn’t legitimately extend forever upward and downward, then how far does it extend?

Can I fence off an arbitrarily large area of unowned land and claim it as new property?

Relevant Technological Unit (RTU)

Rothbard writes,

If A uses a certain amount of a resource, how much of that resource is to accrue to his ownership? Our answer is that he owns the technological unit of the resource. The size of that unit depends on the type of good or resource in question, and must be determined by judges, juries, or arbitrators who are expert in the particular resource or industry in question.

What is a technological unit? It is the minimum amount necessary for the use of the property, "enough of it so as to include necessary appurtenances." This unit will vary according to the uses the owner has in mind, and the features of the resource being homesteaded.

For Rothbard, homesteading isn’t just the justification for first acquisition of property; homesteading is at the heart of the very concept of what property is and isn’t.

As Frank van Dun notes ("Against Libertarian Legalism," Journal of Libertarian Studies, 2004), Rothbard insisted that

“property” is a praxeological, not a physicalist concept. Consequently, one’s property is only in “means of action,” not in things as such.[3]

Thus the Rothbardian concept of property is profoundly different from how we’re used to thinking about the subject. Property is not in things, but in our use of things, in our actions taken in the world. It is not a physical object, nor a rigidly defined spatial boundary; it is "not in things as such," but an exclusive claim to the use of a scarce resource, a claim to the means of human action.

It happens that with solid objects, the physical concept and the praxeological concept yield similar results. There isn’t much practical difference between my ownership claim to a chair as a physical object and the claim to exclusive authority over use and disposal of that chair.

If I want to protect my chair, I can lock it up, secure it within the walls of my house, which I can also own as a physical object. But things become more complicated when we consider the kinds of natural resources that are not as easily held in the hand or sheltered within walls.

Good Fences and Good Neighbors

When new neighbors buy houses in my neighborhood, they soon put up fences around their backyards. We eventually did so, ourselves. The more crowded the neighborhood gets, the more important these fences seem, not just for security but for clarity. It’s helpful to know both whose property is whose and which parts of the property are more private than others. Front yards tend not to have fences: come and say hello. Homes have walls: invitation only, please. Backyards do have fences: on the privacy continuum, they are somewhere in between homes and front yards. No one takes offense.

But we do have a nearby neighbor whose fencing is far less friendly, the sort of property owner who makes me sympathize with George Kirby and his restricted freedom of movement.

One of the benefits of this neighborhood is that we live near the woods. Some of the woods are undeveloped private property and some are city parkland. Across both there is a network of creek- and riverside trails. Within the parkland, these are just considered part of the park. Across the edges of private lots, they are considered public "easements." An easement is defined as "a certain right to use the real property of another without possessing it." But as we’ll see, this definition depends on a traditional understanding of property as territorial.

The Allemannsrett that Kirby wishes for in Britain would most likely take the legal form of mandatory public easements on private property — a clear violation of property rights.

That’s how my unfriendly neighbor perceived the trail that crossed the riverside edge of her lot. Her response was first to put up No Trespassing signs, then to install razor wire. The city government went after her. She responded by suing the city government — and winning.

This is the sort of story that usually warms a libertarian’s heart: a besieged property owner standing up to city hall and emerging victorious. Score one for property rights.

I hesitate to join my comrades in the celebration, however. I suspect the property rights being championed in this case are a government artifact, not a just property claim in the libertarian sense.

I don’t know the local history, but it seems likely to me that the trail and its easement predate this homeowner’s title. That by itself does not justify the easement. When I bought my house, I was aware of all sorts of zoning and other restrictions the government placed on my new property. If they were an unjust imposition on a former property owner, then they’re still unjust, whether I was aware of them at the time of my purchase or not. But I suspect that the riverside trails were here before the houses were here. I suspect that the city-defined easement was a formal recognition of an informal reality: the "community" (a problematic concept, but I don’t have room to address it here) had homesteaded those trails before anyone came along and drew property lines across them. That shouldn’t keep the newcomer from building a house nearby, but it should keep that newcomer from prohibiting hiking on the old trail. The hikers were there first.

Who Owned the New World?

A brief historical example should help illustrate this point.

When the English showed up in North America, they justified their claim to native-occupied land by claiming that the Indians hadn’t done anything to homestead it, which turns out to mean that they hadn’t cleared it of forest so that cattle could graze. The English saw the wilderness as virgin (or said that they did) and therefore as yet unclaimed. Roger Williams, a Puritan troublemaker and gadfly to the government in the best libertarian tradition, claimed at the time that the English Crown had no right to issue charters to the colonists. The Pilgrims, et al., needed to secure permission instead from the proper owners: the Indians.

To the standard claim that the Indians hadn’t done anything to claim the territory, Williams replied that they used it for hunting. His contemporaries scoffed. Many modern liberals now agree with him: this continent justly belongs to the Indians.

Libertarians — those of us who subscribe to Rothardian property theory, at least — must disagree with both sides in the dispute. Yes, the American Indians should have been recognized as holding just claim to the resources they used, including hunting grounds, but they certainly can’t be seen as having homesteaded the whole continent. The newcomers violated the natives’ property rights only when they interfered with the established Indian usages. Taking hunting grounds away from native hunters was a violation of their rights, but building farms or towns nearby wasn’t necessarily any sort of invasion.

The problem, the apparent conflict of claims between the Indians and the English, was in the concept of territorial property, by which I mean strict spatial boundaries on the property, property understood as a place, rather than an exclusive claim on certain uses of a place.

Usage Rights

Properly understood, property rights are usage rights.

Property rights should reduce conflict. They should make it easy to say, These decisions are yours to make, while these other decisions are not.

The problem with the standard definition of an easement is that it assumes that rights are in conflict: it recognizes rightful use claims while maintaining the language of rightful spatial claims. One person owns a territory while others have legal permission to invade it for specific uses. A consistent definition would not declare that both ownership and invasion are justified.

A libertarian definition would reject the spatial understanding — a conception of property that leads inevitably to conflicting rights — and recognize that two people have separate and compatible property claims within the same territory.

The question I would recommend George Kirby ask is not if new legislation would increase his freedom of movement without overly inconveniencing current property owners, but rather whether or not the current title holders are in fact the legitimate property owners in the first place — and whether or not their property extends to as much undeveloped land as the state currently recognizes. Considering Britain’s history, I suspect some property claims are justified, while many are not.

Allemannsrett is the wrong answer, because it asks the wrong question. A property theory based in homesteading and voluntary exchange — a theory based in human action instead of territorial boundaries — would produce fewer conflicts as well as greater freedom of movement.


One Response to when private property isn’t

  1. Starkwoman says:

    I’m left wondering whether or not any of this can be related at all to ‘intellectual property’ rights (or wrongs). When employed by a research firm, it is usually clear that what one creates or discovers while employed by that firm ‘belongs’ to the research firm. But this is never stipulated, before the fact, when employed by a university.

    Of late, universities are increasingly ‘taking possession’ of the intellectual property of faculty members, sometimes using, as an excuse, that the faculty member used university resources in developing their ideas. Unlike, for instance, government employees who are often free to leave their work at their workplace, an academic’s ‘workplace’ includes the space that they traverse to and from ‘work’, their living rooms, even their bathrooms, and often happens well outside a 40-hr ‘work week’. The intellectual work of faculty members in Faculties like Computer Science, Engineering, Medicine, can be ‘saleable’, a ‘commodity’, but in the Humanities and Social Sciences the ‘products’ of our intellectual ‘work’ may have little commercial value; however, now even our course lecture notes are deemed the property of the university.

    Have I, for decades, been freely giving away my creative ideas to colleagues and students, perspectives that I thought were my intellectual property–and hence mine to give–when in fact I’ve been giving away the university’s property? When did education–as distinct from university degrees that is–become a commodity? It used to be considered a service, like health care. Neither is free any longer, apparently, and both seem to be ‘for sale’.

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