A Foundational Critique of Propertarianism
By RadCap
Introduction
The purpose of this essay is to identify and critique the areas in which the propertarian conception of property deviates from the (Hoppean) libertarian conception of property. This critique will be based upon Curt Doolittle’s essay entitled “Proptertarianism’s Property, Property Rights, and Obligations.”
For the critique I will examine some of Curt’s premises along with each of the eight categories of property outlined in the aforementioned essay. This is a critical area of evaluation because the core of every political system/philosophy/theory is its definition and treatment of property.
(Hoppean) Libertarian Conception of Property
Prior to delving into the critique, I will briefly provide a simple outline of the libertarian definition and purpose of “property.” For a more elaborate explanation see my chapter on “Property” in my book A Spontaneous Order: The Capitalist Case For A Stateless Society.
First, it is important to note that “property” (at least according to libertarians) is a strictly normative or legal concept. It is intended to provide a social framework by which violent conflict may be avoided, and to serve as the philosophical benchmark for adjudication if and when such violent conflict does occur. Hence, property norms are ultimately intended to facilitate peace, stability, predictability, cooperation, reciprocity, productivity, and general social order. (I realize some of these are redundant or overlapping).
If people know they can feel secure in their title to their property (so long as they acquire it via homesteading/original appropriation or voluntary exchange), then they will be more willing to invest in/develop it and engage in complex modes of cooperation with other individuals. Likewise, they will feel secure in their property if they know they will have a means of redress for any violations thereof (See my chapters on “Private Law Society” and “Defense and Security“).
When property rights are fixed, consistent, and function in a predictable manner, this serves to lower societal time preferences. However when property rights are in legal flux, or if a legal environment creates a situation where conflicting property rights exist then this will generate greater uncertainty leading to an increase in societal time preferences and therefore a general decrease in investment, development, and cooperation.
Hans-Hermann Hoppe provides a rational a priori justification of the libertarian private property ethic via his “Ethics of Argumentation.”
It is important to note that the source of all violent conflict ultimately concerns contests over the use and control of scarce goods. What makes the libertarian private property ethic unique is that it alone successfully provides a universal legal framework to coherently deconflict mutually exclusive desires for how to employ scarce goods. That is, it solves the fundamental problem of social order. Hoppe elaborates:
Contrary to the frequently heard claim that the institution of private property is only a convention, it must be categorically stated: a convention serves a purpose, and it is something to which an alternative exists. The Latin alphabet, for instance, serves the purpose of written communication and there exists an alternative to it, the Cyrillic alphabet. That is why it is referred to as a convention.
What, however, is the purpose of action norms? If no interpersonal conflict existed — that is: if, due to a prestabilized harmony of all interests, no situation ever arose in which two or more people want to use one and the same good in incompatible ways — then no norms would be needed. It is the purpose of norms to help avoid otherwise unavoidable conflict. A norm that generates conflict rather than helping to avoid it is contrary to the very purpose of norms. It is a dysfunctional norm or a perversion.
With regard to the purpose of conflict avoidance, however, the institution of private property is definitely not just a convention, because no alternative to it exists. Only private (exclusive) property makes it possible that all otherwise unavoidable conflicts can be avoided. And only the principle of property acquisition through acts of original appropriation, performed by specific individuals at a specific time and location, makes it possible to avoid conflict from the beginning of mankind onward, because only the first appropriation of some previously unappropriated good can be conflict-free — simply, because — per definitionem — no one else had any previous dealings with the good. [1]
According to libertarians, the status of “property” may only be applied to goods which are scarce/rivalrous. Scarce in that the supply of the good in question does not exceed the demand for it, and rivalrous in that it has the capacity for mutually exclusive usage. Hoppe elaborates as to why this is in the following:
Only because scarcity exists is there even a problem of formulating moral laws; insofar as goods are superabundant (“free” goods), no conflict over the use of goods is possible and no action-coordination is needed. Hence, it follows that any ethic, correctly conceived, must be formulated as a theory of property, i.e., a theory of the assignment of rights of exclusive control over scarce means. Because only then does it become possible to avoid otherwise inescapable and unresolvable conflict. [2]
For instance, so called “intellectual property” (IP) would not be considered genuine property from a libertarian perspective because it simply concerns patterns of information (be they designs, trademarks, literary works…etc.). Because my use of a pattern of information could in no way deprive you of access to that same pattern of information, then it cannot be said to be scarce/rivalrous. (More on this in my chapter on “Property“). However, IP is not necessary to prohibit fraudulent transactions, as such transactions entail theft (which is itself a form of aggression).
According to libertarianism, to own a given piece of property means having the exclusive right to occupy, transfer, or use it in whatever way one sees fit, and to set the conditions upon which non-owners may use it (if at all). The Non-aggression principle (NAP) is a derivative of the libertarian private property ethic. It merely makes explicit that which is implicit in the private property ethic, i.e. that any uninvited physical interference with the persons or property of others or threats thereof is criminal. What makes an act “criminal” is that force or threats thereof may be justifiably used in response to such an act in either the form of defense or punishment.
Rights
RIGHTS
1) Constituo – Homesteading: Convert into property through bearing a cost of transformation.
2) Transitus – Transit: passage through 3d space.
3) Usus – Use: setting up a stall.
4) Fructus – Fruits: (blackberries, wood, profits)
5) Mancipio – Emancipation: (sale, transfer)
6) Abusus – Abuse: (Consumption or Destruction) Opposite of Constituo.
So far so good.
[1.] Constituo is indeed a means by which ownership is established over a previously unowned good. The only other just means of property acquisition would be voluntary contractual transfer.
[2.] Transitus. Owning something does indeed entail the right to move it (atleast across one’s own property, or over the property of others’ with their consent).
[3.] Usus: Owning something does indeed entail the right to use it.
[4.] Fructus: At this point it’s getting a little metaphorical for my taste, however, yes, owning something does indeed entail the right to reap the “fruits” of which it produces, so to speak (assuming one has not entered into a contract with someone else stating otherwise).
[5.] Mancipio: Owning something does indeed entail the right to sell, transfer, or even relinquish title to it.
[6.] Abusus: Owning something does indeed entail the right to consume or destroy it. However, I don’t see how this is necessarily the opposite of homesteading. Not a big deal either way.
Of course, I don’t think it is necessary to delineate each individual type of action one may rightfully take with his property. For libertarians it’s simple: one may use his property however he sees fit, so long as such use does not entail aggression (i.e. uninvited physical invasion or threats thereof) against the persons or property of others.
Obligations
OBLIGATIONS
1) Non-Imposition : Productive, Fully informed, Warrantied, Voluntary Transfer(Exchange) of property-en-toto, Free of External Imposition of Costs against Property-en-toto.
It seems here that Curt is outlining what obligations one has with respect to his property in general as well as with the transfer of property in particular. (It would’ve been more clear had he distinguished between obligations one has toward his property in general, and what obligation he has specifically when transferring it.)
The first obligation is “productive”. The way I interpret this is that, in order for one to retain title to his property, he must continue to make “productive” use of it. If this is incorrect I am open to be corrected, but Curt didn’t really provide much context so this is my best guess. This reminds me of the Mutualist “Occupancy and Use” conditions for retaining property. I have several issues with this. First it is completely arbitrary. How are we to objectively determine what qualifies as a “productive” use? How are we to determine how long property can remain dormant or “unproductive” before it can be legally taken from the owner? A day? A week? A month? A year? Again, completely arbitrary. Such arbitrary standards serve only to generate conflict and strife and thus undermine social order.
According to libertarians, to own something means you are under no positive obligations in order to retain said ownership. You are only under the negative obligation to not use it to violate the property rights of others as mentioned earlier. This is a norm that can be easily and objectively observed and enforced. It does not require arbitrary standards such as “productive use.” Libertarians recognize that having the right to not use one’s property is the flipside of having the right to use it. For instance, if one would like to purchase a plot of land to use as a nature preserve, thus precluding anyone from entering or making “productive use” of it, then this would be well within his rights.
The second obligation is “fully informed.” I assume this is in regards to transactions; that they must be “fully informed.” However, this too is an arbitrary criteria. How are we to establish what “fully informed” is? Do I simply need to know what the product is? Do I need to know all the ingredients contained in the product? Do I need to know the exact method by which the product was produced and where the ingredients were sourced? Do I need to know how much the ingredients cost the producer? Do I need to know the producer’s profit margin on the transaction?
For libertarians, it is sufficient that the exchange is simply not made under false pretenses. Of course, the buyer may demand whatever information or conditions he wants for a particular transaction prior to executing it. For example, one will likely engage in greater due diligence when buying a car than when buying a pack of gum…etc. So long as the seller is indeed selling his product or service consistent with his advertisement then his obligation is fulfilled. The only reason this is a legal condition is because violating it would entail the theft of the buyer’s property (more on this in my “Contract” chapter). It is the buyer’s (and, for that matter, the seller’s) responsibility to determine what level of “informed” is sufficient for a given transaction.
However, there still exists a natural incentive for the seller to not develop a reputation for being a shyster, otherwise his future business prospects will be damaged. The market effectively regulates such things, so there is no practical need to impose any further legal obligations such as “fully informed.” Moreover, to impose such extra obligations would be to infringe on one’s legitimate property rights. Specifically his Mancipio, as Curt puts it. Beyond this, one can still have extra libertarian socio-cultural values that lend themselves to a general increase in social trust, which helps mitigate the presence of shysters. For instance, I argue for a racially and culturally homogenous society as a practical condition for the establishment and sustenance of a libertarian social order in my article on “White Nationalism is the Surest Path to a Libertarian Social Order.” In conclusion, encouraging “fully informed” transactions is the task of market incentives, custom, social mores, and culture not the law. However, if one does not believe these to be sufficient, then such “fully informed” standards may be legally imposed via covenant. More on this in my article on “A Libertarian Appraisal of Propertarianism.”
The third obligation is “warrantied.” According to Dictionary.com, “warrantied” is defined as “a covenant in a deed to land by which the party conveying assures the grantee that he or she will enjoy the premises free from interference by any person claiming under a superior title.” This is a reasonable obligation, and is likewise covered under libertarian legal theory by its prohibition on fraud. When someone purchases land, for instance, he enters into a contract with the seller that reads something to the effect of “I hereby transfer $X to you on the condition that you transfer title to plot Y to me.” Thus, if it turns out this was not a legitimate title, as someone else could demonstrate a superior title, then the seller would have engaged in fraud (more on this in my “Contract” chapter). This is because the seller would not have upheld his end of the transaction (transferring title). Moreover, there would exist title insurance in a market society to mitigate the occurrence of such mishaps, and to remunerate the buyer on the rare occasions they do occur.
The fourth obligation is “voluntary transfer (exchange) of property-en-toto.” It is not exactly clear to me what Curt means by property “en-toto”. He lists in parentheses (Demonstrated Property) after this term. My best guess is that the “en-toto” refers to the eight categories of property that Curt outlines in his essay. I will cover these next. That aside, the “voluntary transfer” obligation is reasonable, and likewise required under libertarianism. Involuntary transactions are generally considered aggression (unless one is punishing a criminal or defending his person or property from an aggressor…the aggressor may not like the force being used against him or his property in response but he is “estopped” from objecting owing to his prior aggressive conduct. More on this in my chapter on “Private Law Society.”)
The fifth and final obligation is “free of external imposition of costs against property-en-toto.” In my interpretation (and again I’m open to being corrected if I’m wrong) this means that any use or transfer of one’s property must be free of “negative externalities.” Externalities refer to “… cases where some of the costs or benefits of activities ‘spill over’ onto third parties. When it is a cost that is imposed on third parties, it is called a negative externality. When third parties benefit from an activity in which they are not directly involved, the benefit is called a positive externality.” [3]
This obligation is one of the more noteworthy sticking points of Propertarianism. Under libertarian legal theory, things often considered to be “negative externalities” such as pollution and obnoxious noise can be enjoined either on the grounds of trespass or via the enforcement of easements depending on the circumstances. This is precisely because they entail physical invasions of property. I cover the concepts of easements, trespass, externalities, nuisance, and torts extensively in my chapter on “Free Market Environmentalism.” However, it is virtually impossible to eliminate all “negative externalities” or “imposition of costs.” For instance, I may wear an ugly shirt in public and this could thereby be considered a “negative externality” for some. Ironically, some others may appreciate my ugly shirt so to them this would constitute a “positive externality.” Basically, whether something is a positive or negative externality in the first place is ultimately subjective.
Another example may be if an ice cream parlor dramatically lowers the price of its ice cream thus “costing” its competitors business. Would Curt wish for this to be prohibited under Propertarianism? Just about any and all economic activity can be construed as imposing some sort of cost on some other economic actor. Thus this rule is too vague to enforce, and renders virtually everyone guilty. Any attempt to enforce it would quickly devolve into arbitrary decrees. Of course, a libertarian legal order faces no such issue, as the only “negative externalities” it regulates legally are those which entail uninvited physical invasions of the property of others. This can be objectively verified and enforced. Of course, I’m sure Curt does not wish to prohibit the wearing of ugly t-shirts or implementing deep discounts in one’s wares and services. However, this is exactly the type of reductio ad absurdum he’ll have to contend with if he wishes to include such a vaguely worded obligation as part of his political system.
Finally, any attempt to enforce this obligation would entail violations of private property over physical goods (I’m being excessively specific because Propertarianism promotes a much broader notion of property than libertarianism.) It could easily infringe upon all six of the property rights that Curt himself listed from the outset (Constituo, Transitus, Usus, Fructus, Mancipio, and Abusus). Thus, I would recommend Curt further specify what he means by the “imposition of costs” so as to preclude these more ridiculous scenarios. Ideally, his honing of these obligations will result in the libertarian stance on the subject.
I. Self Property
I. SELF-PROPERTY
Personal property: “Things an individual has a Monopoly Of Control over the use of.”
….a) Physical Body
….b) Actions and Time
….c) Memories, Concepts and Identities: tools that enable us to plan and act. In the consumer economy this includes brands.
….d) Status and Class (mate and relation selection, and reputation.)
I have a bit of a semantic bone to pick with his use of the term “monopoly.” A monopoly has traditionally been defined as an exclusive privilege provided by the State. More on this in my chapter on “Monopolies and Cartels.” However, this aside I will proceed to use his presumed definition of the word which is likely something to the effect of “exclusive right to control”…etc.
The first type of “self-property” he identifies is the “physical body.” This is perfectly legitimate and libertarians agree that one can only be the sole owner of his own physical body (I presume this is Curt’s meaning as well).
The second type is “actions and time.” This is where things get a bit obscure and abstract. Regarding actions, I believe Curt is confusing one being “legally liable” for his actions with “owning them” as property. An action is something you do, not something you “own.” If I decide to do jumping jacks, I don’t therefore “own” those jumping jacks. One cannot “steal” my jumping jacks or violate my “property rights” to my jumping jacks. Remember, the status of property only pertains to those things which are subject to contestable control. Actions themselves are not. “Time” faces the same issue. The passage of time is not something that can be “owned” in a legal sense. It is not something that is subject to property. One cannot steal “my” time or violate my property rights to “my” time. This takes the metaphor of “my time” a bit too literally. Also, let’s think about the implications of enforcing this. If someone tells me they have an interesting story to tell and proceeds to babble about inane topics for an hour, has he then “stolen my time”, thus violating my property right to “my” time? After all, he promised an interesting story and failed to deliver. Again, I’m sure this is not Curt’s intent, yet this is the type of reductio ad absurdum he’ll be subject to if he attempts to assert actions and time are just as much legitimate “property” as one’s house or car.
The third type of “self-property” he identifies includes “memories, concepts, and identities.” Regarding memories, I have no idea in what way he means they can be considered “property.” Yes they are “your” memories metaphorically speaking, but that doesn’t mean you “own” them in a legal sense. After all, how is someone going to violate your property rights to your memories? For something to be property, it needs to have the capacity to be invaded or stolen. I suppose if someone gives you a concussion which results in the loss of your memories then Curt would construe this as a loss of property? However libertarians would say this would be punishable because hitting someone on the head is aggression, and the punishment could be set as being proportional to the harm caused. But again, even if the loss of memories can be said to be part of the “harm” this does not mean one “owns” them in a legal sense. Where does it end? The example I provided may seem reasonable, but say it has been shown that watching excessive amounts of TV leads to memory loss, would we then hold television networks legally liable for their customers’ memory loss? Again the implications of enforcing something like this is absurd and would entail the violation of people’s private property rights over their physical goods.
Regarding concepts, I have even less of an idea what he means. My first thought was that he was referring to intellectual property, but then I noticed he mentions this later under the “common property” category. How does one violate someone else’s property right to a “concept”, especially if Curt isn’t referring to intellectual property? I have no idea. For something to be property, it at least needs to have the capacity to be violated in some way, otherwise there is no need for the status. It would be extraneous.
Regarding identities he mentions “brands” which would seem to imply that he views trademarks (a form of intellectual property) as being legitimate property. This is where things can get a bit fuzzy. Under libertarian legal theory, fraud is prohibited because it entails theft. Let’s say I advertise a bike as being a Curt bike yet it was actually a Bob bike, and someone decides to buy it. Well technically this would be fraud, because I did not hold up my end of the title transfer contract, which was to provide the customer with a Curt bike. Now say I advertise that I’m selling cups of Pepsi that are in fact RC cola. This would likewise be fraud and considered criminal for the same reasons. However, unlike trademark, it would not be Pepsi or the Curt bicycle company that could take legal action against me, but rather the customers whom I defrauded. This is because I would be in possession of my customer’s money without having fulfilled my end of the title transfer contract (i.e. giving them Curt bicycles and Pepsi). Under trademark law, however, Pepsi and the Curt bicycle company could also sue me for infringing on their “trademark” because they supposedly “own” the brand. However, as mentioned earlier, all forms of “intellectual property” including trademarks are simply patterns of information and are thus not scarce. This disqualifies them for being legitimate property. To enforce them, therefore, would entail violations of private property rights in physical goods. For a more thorough critique of intellectual property see my chapter on “Property.”
The fourth type of “Self-Property” he identifies is “status and class” and in parenthesis he mentions “reputation” which provides some clarity. Of course, “status and class” are simply abstract categories not things to be “owned” in a legal sense. How does one violate my “status” or my “class”? What Curt means becomes clearer when he mentions “reputation.” However, this can be easily interpreted to mean something absurd. After all, to communicate anything at all about someone, whether privately or publicly, affects their reputation in some way. Does that mean no one should be allowed to voice their opinions of others? Perhaps Curt would respond by saying only things which negatively impact reputation should be prohibited. Of course, I could say something about Curt that I think reflects well on his character which some other person may be entirely put off by. Would I then be subject to prosecution? One’s reputation is simply comprised of the subjective valuations of others…and those valuations are not uniform. Libertarians would certainly disagree that one can legitimately assert legal ownership over the subjective valuations of others. This would entail violations of their property rights to their physical bodies, which Curt likewise holds sacred (and rightfully so). Moreover, one doesn’t typically have a universally good or bad reputation. This is yet another example of the recurring theme in the propertarian conception of property: that it contains many mutually exclusive or conflicting property types.
That said, I will be generous and assume he simply wishes one’s reputation to be legally safeguarded against libel and slander. In other words, that he supports defamation laws. However, simply spinning lies about someone’s character does not entail a violation of legitimate property as defined by libertarians. For Curt to attempt to enforce libel and slander laws would once again entail the infringement of private property rights over physical goods. Of course, there can and would be economic and social costs to engaging in libel and slander. Being caught engaging in such unscrupulous behavior would result in a loss of credibility and “status.” This results in some degree of ostracism. Various companies would be free to create rules which prohibited their patrons or employees from engaging in libel or slander, as would property owners. After all, I can kick you out of my house for whatever reason I want, including for propagating slanderous lies. Moreover, black lists of people who have been caught engaging in libel and slander could be published online by reputable sources, providing yet another incentive for one to speak truthfully with regards to the actions and character of others. However, if Curt or others weren’t satisfied by this and wanted to legally enforce prohibitions on libel and slander then they could do so via contractual covenant. More on this in my article on “A Libertarian Appraisal of Propertarianism.”
II. Personal Property
II. PERSONAL PROPERTY
….a) Several Property: Those things external to our bodies that we claim a monopoly of control over.
I will be generous here and assume he is referring to external scarce goods. This is perfectly legitimate and consistent with libertarian legal theory.
III. Kinship Property
III. KINSHIP PROPERTY
….a) Mates (access to sex/reproduction)
….b) Children (genetics)
….c) Familial Relations (security)
….d) Non-Familial Relations (utility)
….e) Consanguineous property (tribal and family ties)
The first type of “Kinship Property” Curt identifies is “mates.” This is another great example of the confusion between metaphorical language such as “Michelle is ‘my’ wife” and literal legal language such as “Michelle is my property.” To assert that another adult is your property, in this case one’s mate, violates Curt’s very own “physical body” Self-Property type. This is the very first type of property Curt establishes. How can one own her own body yet her husband own her body simultaneously? Even if one asserts partial ownership, this still does not compute. For if the husband has a minority share in his wife’s body, then he effectively does not own it because her majority share would always trump his minority share. The same is true vice versa. Alternatively, if the husband has an equal share then how would disputes be resolved when the wife wants to use her body in one way and he in another incompatible way? Such a dispute could only be resolved arbitrarily as the husband and wife would have equal claim to her body. No matter how you slice it, it makes no sense to view one’s wife as being his “property”, or vice versa, in a legal sense.
Libertarianism holds that as soon as one attains moral agency (i.e. atleast demonstrates the capacity to recogize and deliberately respect the property rights of others) then he becomes a full fledged owner of his/her physical body. Until then, a child’s parents act as stewards of his/her body. However, even after a child attatins moral agency, he remains subject to the “rules of the house” so long as he remains a resident on his/her parents’ property. I digress. Suffice it to say, libertarianism does not suffer the same issue of conflicting property types that propertarianism appears to be rife with.
The second type of “property” Curt asserts is that over one’s children which I’ve sufficiently addressed above. After a child attains moral agency this property type involves the same contradictions and issues as the property type over one’s “mate.”
The third type of Kinship property is referred to as “familial relations.” I have no idea what this means. No matter what anyone does they cannot make your child not your child, or your father not your father, or your brother not your brother. There is absolutely no need for an abstract category of “familial relations” to be given the status of “property” as it cannot be violated. If, on the other hand, Curt is saying one has a certain level of ownership over his relatives then we run into the very same conflicts and issues as the “mate” and “child” property types listed above.
The fourth type is “non-familial relations.” This is slightly different in that one can cease being your friend or coworker…etc. However, I have no idea in what way Curt believes this sort of cessation of association would entail a property violation. Would I be held liable for damages if I stop being someone’s friend, employer, co worker, employee, teacher, coach, stock broker,…etc.? I’m sure Curt would say no, but this is what applying the “property” designation to non-familial relations could entail. Or is Curt saying that if someone tells my friend something that influences him to cut ties with me then this someone should be held liable? What if what he said was the truth? The most generous interpretation of what Curt is attempting to assert here is that if someone influences your friends or colleagues to end their association with you via libel, slander, and defafmation then this would be legally actionable. However, even if this is the case then this property type would be entirely redundant with Curt’s “Status and Class” property type above (I explain the issues with this property type above). Whatever the case is, to enforce this property type would likewise lead to violations of the “phsyical body” property type under Curt’s “Self-Property” category. Revealing yet another contradictory property type in the propertarian model.
The fifth type of kinship property he refers to is “consanguineous property.” Consanguineous is defined as “relating to or denoting people descended from the same ancestor.” I’m assuming Curt is referring to one’s ethnic kin. This property type suffers from the very same issues and conflicts as the “non-familial relations” property type above.
IV. Cooperative Property
IV. COOPERATIVE PROPERTY
….a) Organizational ties (work)
….b) Knowledge ties (skills, crafts)
The first type of “cooperative property” Curt identifies is “organizational ties.” Again, the exact same issues and conflicts that apply to the non-familial relations property type above apply to this one. No need to rehash a critique that can simply be referenced above.
The second type is “knowledge ties.” However, the very same critique that applies to the “memories” property type under the Self-Property category above applies to this property type as well.
V. Shareholder Property
V. SHAREHOLDER PROPERTY
….a) Shares: Partnership or shareholdership: Recorded And Quantified Shareholder Property (physical shares in a tradable asset)
This property type is perfectly legetimate yet is simply a subtype of Curt’s “Personal Property” category above, thus it should have fallen under that category. I elaborate on parnterships, shares, corporations, coops and the like in my chapter on “The Corporation.”
VI. Common Property
VI. COMMON PROPERTY
….b) Commons: Unrecorded and Unquantified Shareholder Property (shares in commons)
….c) Artificial Property: (property created by fiat agreement) Intellectual Property.
The first type of “Common Property” Curt identifies is the “commons.” There is nothing inherently illegetimare or anti-libertarian about there being a “commons.” (Hoppean) libertarians just tend to view the “commons” as unowned resources/land that is not yet treated as scarce. Hoppe provides an example of a trail that a particular tribe uses to get from their village to a nearby lake…etc. He also discusses the process by which the “commons” may be privatized. I suspect much of what Curt and other propertarians see as “common” property would be viewed as joint private property by libertarians. Curt has claimed that libertarians do not offer an incentive to maintain a “commons” even if their philsophy permits their existence. However, this is completely unfounded. HOA’s, for instance, function perfectly well as a commons. To live in a particular community one may agree to paying monthly dues which go towards private security and upkeep of the neighborhood. Perhaps even the upkeep of a common pool or park. This same concept can be expanded far beyond the confines of a mere neighborhood via contractual covenant. I’m not sure how Curt fails to see the incentive. If someone wants to live in a well maintained and secured community or area, then he would be happy to pay the dues requried for membership or residency. For a more elaborate libertarian exposition of public, common, and private property see Hoppe’s “Of Private, Common, and Public Property and the Rationale for Total Privatization.” If you’re interested in how the free rider problem is addressed in a libertarian social order with regards to the production of security, then see my chapter on “Defense and Security.”
The second type of property Curt identifies is “Artificial Property” otherwise known as “Intellectual Property.” I’ve already touched on my critique of Intellectual Property above. Intellectual Property attempts to assign enforceable claims on mere patterns of information. Mere patterns of information are not scarce/rivalrous thus fail the necessary criteria to even be considered property. Any attempt to enforce intellectual property laws would necessarily involve the violation and infringement of private property rights over physical property (categorized as “Personal Property” by Curt). Once again we have identified another conflicting property type within the propertarian model. For a more thorough critique of intellectual property see my chapter on “Property.”
VII. Common Informal Institutional Property
VII. COMMON INFORMAL INSTITUTIONAL PROPERTY:
….a) Informal (Normative) Property: Our norms: manners, ethics, morals, myths, and rituals that consist of our social portfolio and which make our social order possible.
The first and only type of “Common Informal Institutional Property” Curt identifies is “informal (normative) property.” He elaborates further stating that this refers to manners, ethics, morals, myths, rigutals…etc. These institutions are indeed invaluable to any civilized society, however to say they are “property” in a legal sense once again reveals a confusion of metaphorical language such as “these are ‘my’ norms, customs, manners…etc.” with literal legal language that asserts that such institutions are “property.” Once more, how are these violated? Would the so called “cultural appropriation” by other non-whites of European norms be considered theft? Or is he saying that if someone coerces us to stop practicing these norms that this entails a property violation? The former interpretation is absurd, of course, and would entail violations of the “physical body” property type as well as the “personal property” property type which identifies property over scarce physical goods. This would result in yet another internal conflict of property types within the propertarian model. The second interpretation would indeed involve a violation of property rights, but not because the practice of certain norms is being obstructed, but rather because aggressive coercion is being used against either the physical bodies or external property of those wishing to practice them. Thus, such interference would already be prohibited in a libertarian social order without unecessarily assigning the status of property to cultural practices, social mores,…etc.
VIII. Common Formal Institutional Property
VIII. COMMON FORMAL INSTITUTIONAL PROPERTY
….a) Formal Institutional Property: Formal (Procedural) Institutions: Our institutions: Religion (including the secular religion), Government, Laws.
The very same issues and conflicts regarding “Common Informal Institutional Property” above apply to “Common Formal Institutional Property” here. There is no need to repeat the same points.
Conclusion
The foundational core of all political/legal systems is their definition and treatment of “property,” thus assessing propertarianism’s conception of property is integral to an evaluation of propertarianism as a whole. If a political system gets property wrong, then this will reflect poorly on the system as a whole. No matter how elegant and well crafted a building is, if it is built upon a poor foundation then it will surely fall.
This critique has identified many areas in which the propertarian conception of property not only conflicts with the (Hoppean) libertarian definition, but also with itself. By making their conception of property so broad, propertarians have subjected their model to a myriad of internal contradictory property types. In addition to the clear internal contradictions, much of the property type descriptions are vague and obscure, rendering them liable to sincere yet mutually exclusive interpretations. This is, ironically, something that Curt has claimed propertarianism is uniquely resilient to. However, upon closer examination, the opposite appears to be the case.
In a legal environment where what is considered property is vague, obscure, and often times conflicting, people will not feel secure in their belongings. This insecurity will express itself in higher socieal time preferences, less investment, and less cooperation. Afterall, how can one feel secure in his/her property when it is subject to forfeiture or infringement based on a judge’s arbitrary favoring of someone else’s competing yet (according to propertarianism) equally valid claim to said property (i.e. when two or more parties appeal to different yet conflicting propertarian property types as justifications for their legal claims to one and the same good)?
Thus, in practice, propertarianism would be far from the “rule of law.” It would, instead, be the rule of arbitrary judicial decree.
That said, I do share a lot in common with many propertarians, and believe an alliance between alt-right libertarians and propertarians would be prudent and fruitful. My hope is that Curt and other propertarians will refine their conception of property in accordance with the problem areas identified above.
References
[1] Hans-Hermann Hoppe, “State or Private Law Society?”
[2] Kinsella, Stephan, “Goods, Scarce and Nonscarce” (editorial published at Ludwig Von Mises Institute, Auburn, Alabama, August 25, 2010). mises.org/daily/4630.
[3] Gene Callahan, “What Is an Externality?” The Free Market 8th ser. 19 (2001).
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