A Brief Thought on Use and Occupancy

Though I believe in a use and occupancy condition for property, I also believe that this condition should be interpretted liberally - and by liberally here I mean conservatively. Thanks in part to agrarian nostalgia and also to philosophical convenience, original appropriation and continuing "use" and "occupancy" are often explained in terms of a particular mode of subsistence, which is family farming. Under a very strict interpretation of the use and occupancy condition, you don't own your land unless you plant and/or live on it, and the only bits of it that you do own are those parts that you either live directly on or plant on; and if your land goes fallow, then you don't own it any more.

I think there are very good "liberal" and "leftist" reasons for homesteading and continuing use and occupancy to not be interpretted so strictly. One is American Indians getting run off their land because they hadn't sufficiently appropriated it and/or weren't making "good enough" use of it. Another is protected natural areas.

My general and hopefully noncontroversial sense is that if there is no room under the property rules for an area set aside for the mere observational enjoyment of nature, then the property rules are too strict. So what if my land went fallow? I like the look of tall dry grass and wildflowers. Merely walking through and enjoying it should be good enough to count as use (and if I'm the first in a while to walk on it with a fence around it, then that should count as first use).

I shouldn't have to spend 7 nights a week 52 weeks a year on my land for my claim to it to be respected. And I shouldn't have to plant on every bit of it for my claim to be respected, either. If I can't enjoy my land in the way I want to enjoy it (assuming of course that my method of enjoyment doesn't get in the way of other people enjoying their own land), then I don't have property rights. And the way I'd like to enjoy it, once I get rich enough to buy a few acres, is to leave some of it as brushland, grassland, or woods.

None of this is to say that I think the use condition should be thrown out altogether. A house that has boards over its windows and obviously isn't being used at all is, I think, "re-homestead-able". And I believe a field that has nothing grown on it and no one living on it, and whose last owner according to all the records there are died with no heir or anyone who claims to be one, then that field too is re-homestead-able. I just think that sitting there and enjoying the land as it is should be good enough to count as use.

Garrett Roth Discusses Use and Occupancy

This isn't the whole lecture, unfortunately, but it does say a bit about the Use and Occupancy condition. It is nice to hear anarcho-capitalists admit the libertarianness of it.

I could save this next topic for a different post, but I'll address it here too. Some people point to the American Indians getting run off their land by white men who quote Locke, and question why the labor-mixing standard should be used anyway. My answer is two-fold: first, if people aren't entitled to the full product of their labor, then they don't own their labor, and they are slaves. So any notion of ownership that does not regard labor is going to be an apology for enslavement (and you will have some notion of ownership). Secondly, there are only two standards for ownership: one recognizes the last receiver of a chain of voluntary transfers going back to the original appropriator (the one who mixed his labor with it) as the legitimate owner; the other does things this way.

Indigenous Rights

I was just reading about Avatar (sorry, I haven't watched it yet) and I was reminded of The Man's propensity to wipe out or enslave any new people he comes in contact with. Supposing that the next decade or two will see the rise of White Flight to some Third World country, and supposing that the white settlers will try to set up some libertarian regime in the New New World, I would like to make clear some things about indigenous modes of subsitence which not everyone will find as legitimate under an individual rights framework but which I consider to be fully legitimate under individual rights.

Water sources and waterways that are used collectively are more than likely owned collectively. This doesn't make me a socialist or a tree hugger. Individuals have the right to homestead, and they have the right to homestead in groups. If a water source is used in a way that excludes other uses of it (for example, drinking excludes pollution), then it is appropriated for a particular use. And in the case that this use is made by many people in general (which is most of the time), the water source is owned by the "unorganized public". No local official has the authority to just declare whole waterways the property of some corporation. You would need the consent of the owners for that to be legitimate, and in the case of rivers, the "owners" are every single person who regularly drinks from, boats in, swims in, plays in, and fishes in that river. I'm not saying privatization is always and in all places illegitimate. I'm just saying that transfer of title is illegitimate without the consent of the owner, and in the case of rivers that's pretty hard to get.

Indigenous people and concerned settlers have the right to coerce people to stop polluting. Most environmental "reform" I see provides ways for companies to basically buy licenses to pollute. And unfortunately, I've heard a few self-styled libertarians show support for arrangements like these when they speak in favor of people being free to do whatever they want to anybody and anything else, so long as they compensate for damages. If you have a right to remain whole in your person and things, then you have a right not just to demand compensation for aggression against you, but you also have a right to use a certain amount of force to stop the aggression. We have no reason to suppose that the deformed baby sold his right to bodily integrity by being conceived to a woman who was a member of a group whose officials received money in "compensation" for dumping. If you want to buy "dumping rights", you have to follow a procedure similar to the one mentioned above. And if you didn't get dumping rights under that kind of procedure, then you don't have a right to pollute (which is basically dumping on other people's property, and in some cases amounts to poisoning people), and anyone who wants to has the right to force you to stop.

Land that is frequently and regularly used collectively is more than likely owned collectively. Again, this doesn't make me a socialist or a tree hugger. It's just that the labor of the "unorganized public" appropriates land just as legitimately as individual labor, and that the right of access connected to first use is held by each individual first user and bequeathed to each subsequent user. This means, basically, that each indigenous person is a co-owner of regularly-used open land. (Which, quite frankly, looks to me like the more "natural" method of land appropriation and ownership - personal homes and gardens aside, since humans first settle land "together" and first use resources together.) Since every user of the land is "naturally" an owner of it, frequently-used open land cannot legitimately be sold by anyone who is not expressly given that permission by every single person who has gathered food in that land. If that permission is not given by every single owner, then the purchase is void. If you did not buy land according to the method prescribed here, then any use of "your" land that deprives individuals of resources they traditionally had access to is an act of theft, and the deprived indigenous people have a right not just to demand compensation from you, but also to force you to stop using "your" land that way.

Just wanted to set some things straight here. Didn't want to see libertarian property theory used to justify the next ethnocide, genocide, or mass subjugation...

Common Land

Problems with privatization are depicted in Cromwell, the 1970 movie starring Richard Harris and Alec Guinness. In one scene, royal henchmen drive shepherds and cattle off a field and erect fences, all to the protest of Cromwell, who bellows "This is common land!" Certain fields and forrests in England at the time had been dedicated to public use, and were used by commoners to graze and hunt. By handing over to well-connected members of the nobility land that members of the general public depended on and had the legally-recognized and customary right to use, the King excluded people from using property which was considered theirs, and - through force - transferred control of a good from one set of owners to a new, illegitimate, owner. In short, privatization of common land robbed the general public of what was rightfully theirs.

I stand by "right wing" anarchists with the view that private infrastructure can be moral and would be more efficient than the provision of roads and utilities at prices below cost (that is, private infrastructure can make congestion and water shortages a thing of the past). But the morality and efficiency of private infrastructure doesn't mean that there shouldn't or wouldn't be any public property.

Roderick Long's essays on stateless public space, here and here, were two of the best things that happened to anarchist legal theory. He notes that public property can emerge through the uncoordinated efforts of the "unorganized public", without the actions of a government.

"Consider a village near a lake. It is common for the villagers to walk down to the lake to go fishing. In the early days of the community it's hard to get to the lake because of all the bushes and fallen branches in the way. But over time, the way is cleared and a path forms - not through any centrally coordinated effort, but simply as a result of all the individuals walking that way day after day."

According to John Locke's theory of property, which many libertarian anarchists espouse, a formerly un-owned thing becomes owned by someone when they "take it out of the state of nature" by "mixing their labor with it". By picking fruit from un-owned trees, the fruit becomes the product of your own labor, and is yours to keep, give, exchange, and defend as yours. By planting on un-owned land, the land becomes yours, and any effort by someone else to use the land without your permission is an act of theft.

Long applies the labor theory of property to the lakeside village trail. "The cleared path is the product of labor - not any individual's labor, but of all of them together. If one villager decided to take advantage of the now-created path by setting up a gate and charging tolls, he would be violating the collective property right that the villagers together have earned."

(The practice of armed guards stopping travelers on dirt roads and demanding "payment" in exchange for the "service" of safe passage should be recognized as the crime we intuitively think it is - armed robbery. This differs radically from the tolls that would be charged on tollways in a free market, where the roads would actually be maintained by the ones who legitimately own them, and where maintenance would be a service that one can legitimately demand payment for.)

"Since collectives, like individuals, can mix their labor with unowned resources to make those resources more useful to their purposes, collectives, too can claim property rights by homestead." And since this is a property right, violating it constitutes theft.

Fields and forrests on private land in the Los Altos hills are criss crossed by trails which are traditionally open to the general public. Supposing that these trails were cleared by the "unorganized public" before the land was demarkated, or that the space the trails occupy was voluntarily handed over for public use, these trails belong rightfully to the public. They go through private property, but the trails themselves are common land. By closing off trails that go through their own land, landowners deprive hikers of access to a good which is rightfully theirs. (Of course, this is supposing that the trails were homesteaded before the land was, or that the trails were voluntarily handed over for public use.)

The collective homesteading principle can be taken beyond trails and be applied to fields and forrests. Now, I don't recognize animal agriculture as a legitimate mode of production, so let's set aside grazing and hunting for now, and look at gathering.

I should say first that just picking an apple from a tree doesn't make the whole tree yours. But continually picking apples from that tree, in a way that excludes another's use of that tree, makes that tree yours to pick from. You don't have to plant an orchard to own apple trees. If you continually pick apples from certain trees, to the exclusion of others' use of those trees, then you homesteaded those trees.

Trees can be homesteaded collectively, too. If a group of people continually pick apples from trees, to the exclusion of other uses of those trees, then the trees belong to the group collectively for picking. If someone comes and chops down some apple trees, without the consent of everyone else, he's excluding other people's use of their "own" resource, and essentially commits theft against the unorganized public.

Fields and forrests that people freely roam to gather mushrooms, or dig up roots, or pick flowers, or get sap, or gather sticks, or get berries, or collect any other fruit of the earth, belong collectively to the people who keep the habit of using that land.

The tragedy of the commons is a problem for common land, but it doesn't have to be such a tragedy. For one thing, the unorganized public doesn't have to be so unorganized. If a people worry about too many men chopping down too many trees, they can agree to seasonal quotas and give each other incentives to abide by them.

Also, (and you already got hints to this earlier in this post) the very nature of commonly-owned land means that any use of it which denies others' access to it is an act of theft. If the apple trees belong to everybody for picking, then cutting some of them down effectively deprives other co-owners of the ability to use a resource that they too "own". Since it's theft, then members of the public have the right to prevent each other from doing it.

This would lead to different locales developing their own rules on who can take what and what can be done if someone breaks the rules. Since membership in these groups isn't going to be purely voluntary, these groups can become state-like. But I don't think they would count as states if they act within certain restraints. If they don't assume ownership over people's very bodies, then they would be very different from conventional states. And they definitely couldn't be states if the rules are determined by the people who actually use the land, and not by a group that just assumes ownership of it.

I was moved to write this after reading the Wikipedia article on Chief Joseph. It wasn't anything about him in particular that made me think about this - it was the idea of American Indians not appropriately transferring the land out of the state of nature. According to Locke and many other white men, the "savages" hadn't really made the land their own, and so didn't really own it. If people are just following buffalo herds, and not doing anything to the ground to make it useful in a way that a white man would recognize as useful, then the land they roam is still un-owned land, and whoever fences it off and tills it first is the legitimate first user.

I find such stringent criteria for "legitimate first user" to be unlibertarian. A free society has a diversity of lifestyles. If people aren't free to keep and use land without noticeably changing it, then they aren't free. And if people aren't free to keep land collectively, then they aren't free.

Collective homesteading poses a problem for both nationalization and privatization. Whether common land is taken by an "organized" public, or by a private entity, it is wrenched out of the hands of those who homesteaded it or inherited it from homesteaders. It is stolen either way.

Long writes that the rules for privatization can be left up to common law, but one rule that seems obvious to me is that the privatization of common land should require the consent of everyone who uses it. If it's sold off or given away against the consent of someone who actually uses it, and who inherited the right of that use from predecessors, then it's taken from an owner without the owner's consent - that is, it's stolen.

Though I believe in a free market in water, it's hard for me to imagine how a river would be privatized without stealing it from members of the unorganized public. Privatization would have to start, not with the privatization of rivers, but with the private construction of cisterns to collect and store water.

The same limits on privatization would apply to dirt roads formed by the unorganized public, and to roads that were paved through the chaotic cooperation of people all acting out of their mutual self-interest without direction from above. Privatizing these roads without unanimous consent of their users would be theft for reasons explained above.

Though many government roads were not created by the unorganized public, and though government roads are built and maintained with stolen money and probably on stolen land, they too should probably be treated as non-government common roads. In this essay on privatization, Rothbard writes: "Often, the most practical method of de-statizing is simply to grant the moral right of ownership on the person or group who seizes the property from the State. Of this group, the most deserving are the ones who are already using the property but who have no moral complicity in the State's act of aggression. These people then become the 'homesteaders' of the stolen property and hence the rightful owners." In the case of government roads, these rightful owners are all the members of the general public who use the roads and didn't work for the government. Privatizing a government road without stealing from somebody would seem as difficult as privatizing a river or a non-government common road without stealing from somebody - the rightful owners are most everyone who drives on them, and selling a road against the consent of a single driver who regularly uses that road would be depriving a fellow owner of the use of his "own" property.

Since they would still be public roads after they are taken out of government hands, they would still have the same problems that plague government roads (aka, congestion) and maybe more. For instance, not enough money might be contributed for repaving. But if uncoordinated effort and mutual self-interest can maintain Wikipedia, there's no reason people can't figure out how to make it work for roads. Big corporations can adopt whole stretches of highway, repave them, and line them with advertisements. And besides, when the potholes get big enough and numerous enough, and when rush hour gets long enough, the rich ones will be willing to spend money out of their own pockets to build monorails and tollways in the air or underground.