Recommended Posts

Before my foray into this forum, property was never a topic that was on my mind's radar except only tangentially when discussing/pondering certain subjects (i.e., proprietary versus open source software, corporate republics, roads, etc.). In my mind different law dealt with different things to meet new issues (i.e., aviation, cyberspace, actual space, etc.) and property was just a mundane topic in the background that these things may or may not have touched upon. Animals were animals, money was money, taxes were taxes, construction law was construction law, and so on.

It's not too hard to imagine, then, that I would have trouble with the "propertarian" mindset. I still do and I still reject most of it, but it's an intriguing approach. This thread is meant to be a follow up of my previous one on rights so I can touch base on this subject.

George has previously ellicited that "property" came from "proper to" and I think this POV does well to alleviate some of the reflexive "ick" factor over the "propertarian" approach. "Property" ain't the thing but it's the title. "Ownership" is a connection rather than possession. If you own it, then it's mostly exclusive to you. It conveys exclusionary rights. (Hmm. I wonder what could be counted as "inclusionary" rights? Voting, perhaps?)

So, following from the above, we can (and do) apply this to plots of land, chattel, names, inventions, literary works, and so on. But what shouldn't we apply this to? One thing that comes to mind that we shouldn't "propertize" would be natural things (by that I mean things like genomes and embryonic lineages and not, say, the trees in your backyard). It also seems like knowledge and information should remain non-proprietary (database rights are actually a thing in the case of the latter). What else? Oceans and very large lakes (think Baikal or the Great Lakes), I suppose. (That doesn't mean you can't own beachfront property!)

Now, the electromagnetic spectrum is dicier. You can't hold it and nothing gets damaged if someone else uses the band that's assigned to you. If you own a frequency, then you own it in a particular area except inside other people's buildings. Much like public roads, there are bands reserved for everyone to use called open access frequencies. These things probably shouldn't be assigned in perpetuity in that there'd need to be some kind of circumstances under which they'd qualify as abandoned.

I think the current setup for domain names with ICANN, IANA, and other internet governance organizations works pretty well right now.

Interestingly, there is thing called quasi-property. It's like property, but different. What could this possibly apply to? As it turns out, corpses fall into this category. Makes sense, I suppose. Dead bodies aren't living people, but they enjoy something of a sacred status in most Western societies.

As far as I can tell, government is not really the antithesis of property, but is rather a necessity for it. Sure, you don't need specialized organizations for small trinkets, but the existence of ICANN, the USPTO, and town registers for real estate deeds make it clear that something like them is inevitable on the big scale. How these institutions all connect together is case dependent.

Link to comment
Share on other sites

Samson,

You left out some other considerations: time and nation.

Can you imagine the headache of trying to keep real-estate in the family for 1,000 years or more? Especially if a volcano erupts over it or something? :smile:

Also, there's the problem of one nation conquering another and confiscating a lot of property. People may cry foul and the conquered country may get it's sovereignty back, say, after 3 generations or more, but what about property then?

The children of the victorious folks from conquering country are born and grow up in the conquered country and inherit property from their parents, grandparents and so on. That's the only life they know. Yet the descendents of the conquered country will want their family's confisticated property back if the country regains its sovereignty or simply stays conquered but tries to become more "fair."

This was Ireland's problem (among a few others) and look at the mess it caused.

Property is a real thorny issue.

Michael

Link to comment
Share on other sites

Samson,

You left out some other considerations: time and nation.

Can you imagine the headache of trying to keep real-estate in the family for 1,000 years or more? Especially if a volcano erupts over it or something? :smile:

Also, there's the problem of one nation conquering another and confiscating a lot of property. People may cry foul and the conquered country may get it's sovereignty back, say, after 3 generations or more, but what about property then?

The children of the victorious folks from conquering country are born and grow up in the conquered country and inherit property from their parents, grandparents and so on. That's the only life they know. Yet the descendents of the conquered country will want their family's confisticated property back if the country regains its sovereignty or simply stays conquered but tries to become more "fair."

This was Ireland's problem (among a few others) and look at the mess it caused.

Property is a real thorny issue.

Michael

It is very thorny. The truth is that it's socially and historically situated, so there are many facets to it. As a result, I sometimes can't help but think that the libertarian/O'ist approach to property is much too rooted in the abstract. If you have two competing claims for one patch of land, why should the so-called "chain of transfers" be the standard by which to determine ownership? As you point out about conquered countries, it would be absurd to deny that the people who later grow up on the land generations later have no stake in it, especially if that's all they've known. While I see the need for eminent domain in, say, cases of condemned buildings, I never liked that it was used to expand my local airport. It just tears people out of their homes, most probably having sentimental value to their owners. I mean, sure, my city's commerce would increase, but that hardly feels like that's worth the cost of ruining livelihoods.
Link to comment
Share on other sites

Samson,

It gets more complicated when you realize that every nation on earth has conquest in its origins.

Settlement does not happen without conquest first. That's what pioneers are for.

There may be some cases where pioneers went to an uninhabited land, set down stakes, formed defenses to kill and/or imprison anyone who tries to take over or make them go, and set up a country, but I don't know of one.

In other words, the implementation of property rights, just like all rights protected by a government, emerge from conquest and settlement. This implementation does not exist a priori and a nation emerges to do it.

Whether rights themselves are a priori and what form that takes is a debate I am still not clear on. I know rights (including property rights) are derived from man's nature, which is a priori, but I often do not see a satisfactory explanation from those who claim a priori status of rights of what human nature is. Also, I have a huge difficulty severing the concept of rights from relationships with other people. I only understand rights, including the very concept of property, within a social context.

If you are alone on a desert island, I suppose the whole damn thing is your property if you want to think that way. It could be considered your property even if you only live on a tiny section of it simply because nobody else is around. But I find that kind of position useless in defining property or rights. And it is probably impossible to enforce ownership once you get rescued.

I'm not saying this conquest and settlement thing is ideal. I am saying this is how it has worked in mankind up to now.

Fortunately, once the dust settles, we have great men like our Founding Fathers who can dream of a constitution based on individual rights. But that emerges from a nation-like situation. It does not exist before the nation-like situation.

Michael

Link to comment
Share on other sites

Samson,

It gets more complicated when you realize that every nation on earth has conquest in its origins.

Settlement does not happen without conquest first. That's what pioneers are for.

There may be some cases where pioneers went to an uninhabited land, set down stakes, formed defenses to kill and/or imprison anyone who tries to take over or make them go, and set up a country, but I don't know of one.

In other words, the implementation of property rights, just like all rights protected by a government, emerge from conquest and settlement. This implementation does not exist a priori and a nation emerges to do it.

Whether rights themselves are a priori and what form that takes is a debate I am still not clear on. I know rights (including property rights) are derived from man's nature, which is a priori, but I often do not see a satisfactory explanation from those who claim a priori status of rights of what human nature is. Also, I have a huge difficulty severing the concept of rights from relationships with other people. I only understand rights, including the very concept of property, within a social context.

If you are alone on a desert island, I suppose the whole damn thing is your property if you want to think that way. It could be considered your property even if you only live on a tiny section of it simply because nobody else is around. But I find that kind of position useless in defining property or rights. And it is probably impossible to enforce ownership once you get rescued.

I'm not saying this conquest and settlement thing is ideal. I am saying this is how it has worked in mankind up to now.

Fortunately, once the dust settles, we have great men like our Founding Fathers who can dream of a constitution based on individual rights. But that emerges from a nation-like situation. It does not exist before the nation-like situation.

Michael

It certainly blows the whole homesteading fantasy out of the water. It's not like conquest is ever going to go away in the near future, either, so there are legal provisions that deal with it (right of conquest). Antarctica is pretty much unconquered, though, but we're not privatizing it anytime soon (I wish to keep it the way it is). You're correct that most property rights are messy in origin. Distribution is inherently geopolitical. It wasn't created and maintained by mythical market processes because those only happen once property rights are established.

I think it's more complicated once you realized that there isn't a single a priori type of ownership (aprioristic politics is just dumb). Nomads didn't have land rights, but once they formed cities, they did. Then with the rise of cyberspace and telecommunications we've got issues with allocating domain names, IP addresses, and bandwidth, and these things can't be contained within borders because they're global in scope. DHS/ICE seizures of domain names, for instance, were (in my eyes) an attack on the multistakeholder model of the internet. Arrogant countries like to behave unilaterally. Diplomatic ones multilaterally. I prefer the latter: more friends, fewer enemies, less conflict.

Property rights in organisms and/or nature has always bothered me ever since I learned about it. It just screams too much One Nation Under Copyright. Myriad Genetic's patents on human genes were especially disturbing. I'm somewhat of a bioconservative, so I didn't mind seeing those patents struck down.

I think Louis Brandeis, my favorite Supreme Court Justice, got it right:

That the individual shall have full protection in person and in property is a principle as old as the common law; but it has been found necessary from time to time to define anew the exact nature and extent of such protection. Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the new demands of society. Thus, in very early times, the law gave a remedy only for physical interference with life and property, for trespasses vi et armis. Then the "right to life" served only to protect the subject from battery in its various forms; liberty meant freedom from actual restraint; and the right to property secured to the individual his lands and his cattle. Later, there came a recognition of man's spiritual nature, of his feelings and his intellect. Gradually the scope of these legal rights broadened; and now the right to life has come to mean the right to enjoy life, -- the right to be let alone; the right to liberty secures the exercise of extensive civil privileges; and the term "property" has grown to comprise every form of possession -- intangible, as well as tangible.

The Right to Privacy
Link to comment
Share on other sites

Sadly, a moral principle never reaches beyond itself. Its ethical arms are too short, extending no farther than one man's soul, one man's purpose and lifespan. We have to look elsewhere for political guidance, because the thing at issue is "a nation of laws and not of men."

I deal in very simple ideas. The rotten timber is a fiction, so let's blast the fictions. In reality, there are living human beings whose freedom and interest are the subject of this debate. There is no divine right of incorporation, whether as a government, or Subchapter S tax dodge, or a family trust that never dies like a natural person.

COGIGG, p. 146

Link to comment
Share on other sites

Sadly, a moral principle never reaches beyond itself. Its ethical arms are too short, extending no farther than one man's soul, one man's purpose and lifespan. We have to look elsewhere for political guidance, because the thing at issue is "a nation of laws and not of men."

I deal in very simple ideas. The rotten timber is a fiction, so let's blast the fictions. In reality, there are living human beings whose freedom and interest are the subject of this debate. There is no divine right of incorporation, whether as a government, or Subchapter S tax dodge, or a family trust that never dies like a natural person.

COGIGG, p. 146

Well said, Wolf.

Link to comment
Share on other sites

As far as I can tell, government is not really the antithesis of property, but is rather a necessity for it.

I couldn't agree more. Historically, private property and powerful, centralized nation-states grew up together. In order to wage war effectively, larger and larger armies and navies had to be fielded, and this required more and more extraction of resources and money from the civil society. However, since states were very weak and small at the beginning of the feudal era, this could only be accomplished with the cooperation of the landed nobility. The nobles gave the emerging nation-state its permanent taxation and standing armies and other general powers needed to effectively coordinate a nation for war, and, in turn, the state gave them exclusive control over land and capital by using its new toys to suppress the peasants and the clergy (also the lesser nobility, the merchants, burghers, and wealthy peasants were eventually brought into the fold as well).

With this in mind, it isn't difficult to see that if the state were too weak, in the present day, property relations would probably go back to something like the way they were in Medieval times, where property was shared to some extent by the whole community. While this wouldn't necessarily be a bad thing in and of itself, it would dramatically decrease the level of innovation and re-investment of profit, first of all, and it would also compromise the security of the country completely, leaving it open to foreign conquest.

So I don't support a strong state like the one we have today because I'm a freedom-hating statist. I do so because it really is the only way to preserve freedom under present-day circumstances.

Link to comment
Share on other sites

As far as I can tell, government is not really the antithesis of property, but is rather a necessity for it.

I couldn't agree more. Historically, private property and powerful, centralized nation-states grew up together. In order to wage war effectively, larger and larger armies and navies had to be fielded, and this required more and more extraction of resources and money from the civil society. However, since states were very weak and small at the beginning of the feudal era, this could only be accomplished with the cooperation of the landed nobility. The nobles gave the emerging nation-state its permanent taxation and standing armies and other general powers needed to effectively coordinate a nation for war, and, in turn, the state gave them exclusive control over land and capital by using its new toys to suppress the peasants and the clergy (also the lesser nobility, the merchants, burghers, and wealthy peasants were eventually brought into the fold as well).

With this in mind, it isn't difficult to see that if the state were too weak, in the present day, property relations would probably go back to something like the way they were in Medieval times, where property was shared to some extent by the whole community. While this wouldn't necessarily be a bad thing in and of itself, it would dramatically decrease the level of innovation and re-investment of profit, first of all, and it would also compromise the security of the country completely, leaving it open to foreign conquest.

So I don't support a strong state like the one we have today because I'm a freedom-hating statist. I do so because it really is the only way to preserve freedom under present-day circumstances.

Well, I doubt that nation-states are necessary for property. I think any kind of government would do.

Link to comment
Share on other sites

Proper governments defend property rights.

Proper governments punish people who grab hold of what is not theirs.

Ba'al Chatzaf

Link to comment
Share on other sites

Proper governments defend property rights.

Proper governments punish people who grab hold of what is not theirs.

Ba'al Chatzaf

Is that what Israel did?

The Jewish Agency bought a parcel of land from Ottoman Turkey in the late 19 th century. The idea was for Jews to migrate to Palestine and live on the land the Jewish Agency bought (for gold, btw). After WW2 Jews attempted to migrate to Palestine to live on the land that had been set aside for them by the Jewish agence but the British reneged on the Balfour Declaration and tried to prevent it. Fighting happened. When the Brits surrendered the mandate they armed the Arab speaking Palestinians and left. Big fight. Jews won!!!!!!!!!!. The land abandoned by Palestinians was taken by the State of Israel when it was declared.

Here are the Rules. If there is a war, the looser loses. Loses land, loses wealth, loses money. Jews won, Palestinians lost.

The State of Israel is the only nation on earth that has to sue for peace after it has won a war.

After the 1967 war which Jordan and Egypt -started- the Jews won again!!!!!! Now Israel has the West Bank of the Jordan.

Same rules apply. Losers lose land. Got it! Once again Israel won and had to sue for peace.

After the 1973 Israel made the mistake of ceding Gaza to the Palestinians. After Yasser Arafat died, much fighting among Palestinians (no surprise that). Hamas came out on top. Hamas has two goals: 1. Destroy the State of Israel. 2. Kill as many Jews as it can.

Ba'al Chatzaf

Link to comment
Share on other sites

Hamas has two goals: 1. Destroy the State of Israel. 2. Kill as many Jews as it can.

Ba'al Chatzaf

Well, they do keep the sales pitch clear. "Destroy Israel. Kill Jews." KISS.

And the world thinks that this is supportable?

A...

Link to comment
Share on other sites

Because I mentioned it in this topic: ICANN has recently stated that country-code to level domains are not property and that the people filing suit against several rogue states can't have them put on hold for damages. More important, I think, is that complying with this request would be in breach of international trust and be interference with other countries. Second level domain names are property. Top level ones aren't.

Link to comment
Share on other sites

Samson, first of all, I accept that groups exist; and that leaders are empowered to speak for them. Moreover, I believe that anyone within a Group has a right to a Minority Report. The Fallacy of the Named Collective is not listed among the formal known errors, but it is the "They" in "They say."

Who speaks for Palestine? Or the United States?

Because I mentioned ... that country-code to level domains are not property and that the people filing suit against several rogue states can't have them put on hold for damages. More important, I think, is that complying with this request would be in breach of international trust and be interference with other countries. Second level domain names are property. Top level ones aren't.

I look at the basic definitions of "property." Property must be rival and exclusionary. Only one person can own the same thing at the same time (even a share in a collective is a rival "thing"); and it must be exclusionary: your having it prevents me from having it. Neither of those apply to national domain names. So, I agree with your premise. But where does it lead?

Link to comment
Share on other sites

Samson, first of all, I accept that groups exist; and that leaders are empowered to speak for them. Moreover, I believe that anyone within a Group has a right to a Minority Report. The Fallacy of the Named Collective is not listed among the formal known errors, but it is the "They" in "They say."

Who speaks for Palestine? Or the United States?

Because I mentioned ... that country-code to level domains are not property and that the people filing suit against several rogue states can't have them put on hold for damages. More important, I think, is that complying with this request would be in breach of international trust and be interference with other countries. Second level domain names are property. Top level ones aren't.

I look at the basic definitions of "property." Property must be rival and exclusionary. Only one person can own the same thing at the same time (even a share in a collective is a rival "thing"); and it must be exclusionary: your having it prevents me from having it. Neither of those apply to national domain names. So, I agree with your premise. But where does it lead?

Michael, you raise a good point about who speaks for who, but it doesn't just apply to multitudes. It also applies to children and animals as well.

You're using a definition of property from economics, which I don't think is quite right as pertains to law. I do not believe that property has to be "rival and exclusionary", but I don't think that this disagreement poses any problems for our agreement over ccTLDs not being property. To answer your question, I think the status of ccTLDs being non-property implies that they are more fundamental and inherently necessary for the things "above" them to be property. Now, there are sponsored TLDs, so it would seem those are quasi-proprietary in nature, but I don't think that relegates them to a fundamentally different status.

Link to comment
Share on other sites

Samson, first of all, I accept that groups exist; and that leaders are empowered to speak for them. Moreover, I believe that anyone within a Group has a right to a Minority Report. The Fallacy of the Named Collective is not listed among the formal known errors, but it is the "They" in "They say."

Who speaks for Palestine? Or the United States?

But where does it lead?

Michael, you raise a good point about who speaks for who, but it doesn't just apply to multitudes. It also applies to children and animals as well.

You're using a definition of property from economics, which I don't think is quite right as pertains to law. I do not believe that property has to be "rival and exclusionary", but...

I have no answer. And I like that. This bears some deep thinking.... In a different discussion on patents, I suggested that you could get a patent on something but not have exclusive control over it, more like copyright, or academic publishing, where you are acknowledged as the creator, but you cannot stop someone else from using the idea...

I have no answers... but I like your questions...

Link to comment
Share on other sites

Samson, first of all, I accept that groups exist; and that leaders are empowered to speak for them. Moreover, I believe that anyone within a Group has a right to a Minority Report. The Fallacy of the Named Collective is not listed among the formal known errors, but it is the "They" in "They say."

Who speaks for Palestine? Or the United States?

But where does it lead?

Michael, you raise a good point about who speaks for who, but it doesn't just apply to multitudes. It also applies to children and animals as well.

You're using a definition of property from economics, which I don't think is quite right as pertains to law. I do not believe that property has to be "rival and exclusionary", but...

I have no answer. And I like that. This bears some deep thinking.... In a different discussion on patents, I suggested that you could get a patent on something but not have exclusive control over it, more like copyright, or academic publishing, where you are acknowledged as the creator, but you cannot stop someone else from using the idea...

I have no answers... but I like your questions...

Why did you modify your quote to me asking where it leads? And what question did I ask in that post? Or are you referring to my questions in the OP? Or are you talking about your own question?

Link to comment
Share on other sites

Sadly, a moral principle never reaches beyond itself. Its ethical arms are too short, extending no farther than one man's soul, one man's purpose and lifespan. We have to look elsewhere for political guidance, because the thing at issue is "a nation of laws and not of men."

I deal in very simple ideas. The rotten timber is a fiction, so let's blast the fictions. In reality, there are living human beings whose freedom and interest are the subject of this debate. There is no divine right of incorporation, whether as a government, or Subchapter S tax dodge, or a family trust that never dies like a natural person.

COGIGG, p. 146

I couldn't disagree more strongly with the above sort of statement. Moral principles based on universal and timeless truths of human nature are themselves universal and timeless.

With respect to incorporation, there might not be a divine right, but there needs to be some mechanism for shielding the owners of a corporation from liability. I feel sorry for the sole proprietor who ends up losing everything as the result of a garbage lawsuit or just because his company went broke and he still owed his creditors. Doing business is hard enough in this country without attacking the basic framework that makes business possible.

Darrell

Link to comment
Share on other sites

Sadly, a moral principle never reaches beyond itself. Its ethical arms are too short, extending no farther than one man's soul, one man's purpose and lifespan. We have to look elsewhere for political guidance, because the thing at issue is "a nation of laws and not of men."

I deal in very simple ideas. The rotten timber is a fiction, so let's blast the fictions. In reality, there are living human beings whose freedom and interest are the subject of this debate. There is no divine right of incorporation, whether as a government, or Subchapter S tax dodge, or a family trust that never dies like a natural person.

COGIGG, p. 146

I couldn't disagree more strongly with the above sort of statement. Moral principles based on universal and timeless truths of human nature are themselves universal and timeless.

With respect to incorporation, there might not be a divine right, but there needs to be some mechanism for shielding the owners of a corporation from liability. I feel sorry for the sole proprietor who ends up losing everything as the result of a garbage lawsuit or just because his company went broke and he still owed his creditors. Doing business is hard enough in this country without attacking the basic framework that makes business possible.

Okie-doke, Darrell. You're smarter than I am. You figure out what to do with the rule of law.

Oysters and rocks,

Sawdust and socks,

Who could make clocks

Out of cellos?--

Scott Fitzgerald, "The Offshore Pirate"

Link to comment
Share on other sites

There is no inconsistency between the concept of universal objective individual rights and the concept of rule of law. In fact, I would argue that the former is required for the latter.

You're not the first person I've run across that advocated getting rid of the legislature and relying completely on the courts to determine the law. However, that person was suggesting that judges should make reference to the concept of individual rights. That's why I was surprised to learn that your system of Laissez Faire law takes no cognizance of it.

From a purely practical standpoint, I don't think it makes much sense to eliminate the legislature. Somebody needs to be answerable to the voters.

The problem we have today is that we have an unaccountable bureaucracy that is answerable to no one, but is nominally answerable only to the executive. The Congress has been eviscerated of its powers. Throw in administrative courts and the judiciary has had its power reduced too.

The power of the people has been severely diminished, but I don't see how your system of a strong judiciary would return any power to the people.

Darrell

Link to comment
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now