Objective Propery Rights

[Peter]

I have a day or so to edit this so any suggestions or criticisms would be welcome.

This is a reexamination of *property rights* from an Objectivist point of view for other Objectivists. What do precedents and concepts going back to English Common Law like Easement, encroachment, rights of adjoining landowners, "Light, Air, and View," the doctrine of "ancient lights," adverse possession, and "coming to the nuisance," have to do with a hypothetical Objectivist Government? Should the history of Western Law apply to the statutes that will be enacted at the State or county level under an Objectivist or Tea Party Constitution? I say they should.

A first glance it appears Ayn Rand is saying that a person can do on their property as they see fit as long as they do not infringe upon the rights of others but are there subtleties involved? Did Ayn Rand think of these subtleties? Only to a limited degree.

"Man's Rights," The Virtue of Selfishness, 96.

. . . . Any undertaking that involves more than one man, requires the voluntary consent of every participant. Every one of them has the right to make his own decision, but none has the right to force his decision on the others.

End quote

And in her article, "The Left: Old and New" in The New Left: The Anti-Industrial Revolution, [p. 89] Ayn Rand wrote:

In regard to the political principle involved: if a man creates a physical danger or harm to others, which extends beyond the line of his own property, such as unsanitary conditions or even loud noise, and if this is *proved*, the law can and does hold him responsible. If the condition is collective, such as in an overcrowded city, appropriate and *objective* laws can be defined, protecting the rights of all those involved -- as was done in the case of oil rights, air-space rights, etc."

End quote

Based on these statements, I would say that air pollution as one example of the extension of *property rights* is addressed by her philosophy only insofar as pollution can be seen as infringing on individual rights, but Rand acknowledges that the condition could be collective, as when people live in close proximity. Then, *objective* laws can be written binding all citizens to its ruling, and this is not force but a concept called *precedent.*

My position is that a lot of common sense "trial and error experience" would be lost if we simply state as a part of Objectivism that a person may do anything on their property as long as they do not infringe on the rights of others, because your rights and the rights of others has ancient legal precedent that extends beyond simple property lines. It would be wrong to lose this knowledge and history.

In "What Is Capitalism?" Capitalism: The Unknown Ideal Ayn Rand wrote:

The institution of private property, in the full, legal meaning of the term, was brought into existence only by capitalism. In the pre-capitalist eras, private property existed de facto, but not de jure, i.e., by custom and sufferance, not by right or by law.

End quote

Private property has existed in English Common Law for centuries, and the history of Western Law should apply to modern laws that will be enacted at the State, County or City level, in an Objectivist Government. In "The Structure of Liberty" Lon Fuller agrees, and he mentions eight basic rules of law embodied in Western Common Law and Precedent:

1. Having rules at all, rather than deciding issues of justice ad hoc (or, for the particular end or case at hand without consideration of wider application.)

2. Having clearly understood rules.

3. Having rules that do not change rapidly, so one can use them to make decisions.

4. Having non-contradictory rules, so it is possible to obey them

5. Having rules that do not require one to do things beyond one's power.

6. Having rules that are well publicized.

7. Having rules that are not retroactive.

8. Having rules where there is congruence between the rule as articulated and the rule as actually applied.

The result?

"The pluralism of Western law . . . has been, or once was, a source of freedom. A serf might run to the town court for protection against his master. A vassal might run to the king's court for protection against his lord. A cleric might run to the ecclesiastical court for protection against the king."

The rule of law developed as each of these legal systems, attempting to curry "customers" away from alternative legal systems that could be chosen, granted "benefits to their customers". Use our service, and you'll be sure of avoiding ex post laws. Come to us, and we make sure your legal duties are clearly communicated. Join us--publicize our rules and make them enduring.

Thus a polycentric legal system (market justice) was responsible, historically, for developing what is now known as the rule of law. Better, in a sense, to think of it as the unintended consequence of the rule of laws.

End quote

I see a good reason to rethink these *common laws,* and add them if appropriate to a more ideal Capitalist State's, County's, or City's laws. Wisdom gathered into common law should not be lost.

What about situations like flooding along the Mississippi River, or New Orleans after a hurricane? In an either/or situation, should the Army Corps of Engineers flood private farmland or let private houses be flooded out? Or should the Government do nothing? I think Ayn Rand might say that only individuals should have built levees to protect their own property. If a person gets flooded out, then they should not build there again. But what if people have been building on lowlands like in New Orleans or The Netherlands for hundreds of years? I can imagine the similar kinds of either/or situations in large, crowded cities. Who does government assist first? Should Government assist at all? People have always wanted government to assist.

Without these ancient "rules, a judge would be starting from scratch. He would have no precedents on which to base his rulings. Without this use of *precedents* we could not have civil proceedings or criminal trials. Cases would continually go to appeals court or the Supreme Court.

There are thousands of real estate precedents, involving access to water, a view of the water or mountains or other landmarks. Riparian or waterfront laws are abundant in every state. The declaration that a person may do as they like on their property as long as they do not violate the rights of others is an oversimplification. No you can't. And knowledgeable people are aware of this fact.

Though what she wrote should not be edited, Ayn Rand said that Objectivism is contextual. It changes. It's politics gives us the framework of a government. Clearly, for Ayn Rand the U.S. Constitution is a less than perfect *example* of her philosophy "fleshed out." Ms Rand thought that the U.S. had the best Constitution available and The United States was the best country for leading a life of freedom that she knew of.

I do not recommend amending her past writings for a changing world, but the Constitution HAS changed. It has been amended. It may be amended in the future. Therefore, Rand's political *example* of the US Constitution is changing, though her philosophy may be in opposition to some of those changes, and to some of the interpretations by the Supreme Court.

State and Local governments provide a service that people have wanted from times BEFORE the Constitution was written. Local governments give us more services because of their different jurisdictions and duties. Further broadening or fixing of these duties is the work of the voters and the people they elect.

Reread the Constitution. Read your State's constitution. They do not consist of one philosophical statement. Government consists of legal machinery and a lot of nuts and bolts, and not just a solitary, shining light bulb casting the shadow of the dollar sign. If you can rightfully do as you please on your property as long as you do not violate the rights of others, then drunkenness, rowdy and disorderly conduct, nude bathing and fornication are all just fine as long as you do them in your own front or back yard. Do amped up speakers blasting rock and roll rule your world? For me, they don't. No thanks. Does anything go? Not on this planet. Not anywhere.

If you disagree with me, ask a realtor, a surveyor, the county commissioners, or the local sheriff about property rights. Buy and own some property. Build on in. Live on it. Your perspective might change from the doctrinaire and philosophic, to the actual.

The main precedent that I will discuss is *Coming to the Nuisance.* The Coming to the Nuisance doctrine provides a partial remedy to the problem I will call the "Right to a View." An Objectivist might immediately respond, based on Rand's writings that "There is no such thing as a "Right to a View." Oh, yes there is, just as there is a traditional right to water, sunlight and unpolluted air. If I buy the land with a view, I will want to keep the view. Laws like *Coming to the Nuisance* are tried and true prescriptions for living on earth in a community.

Here is a quote about "Coming to the Nuisance," discussed in, "The Antidote for Zoning: Bringing Objectivity to the Land Development Process" by David Wilens:

quote

"Coming to the Nuisance" means exactly what it sounds like: if a property owner is using his property so as to cause a nuisance to another property owner, then the property owner who was the earlier to start his particular use is the one who has the right to continue his use . . .

Because the right to property means the right to use it indefinitely, it follows that, once a property owner has started using his property in a particular fashion, he has the right to stop others from interfering with that particular use. This is the rationale behind the Coming to the Nuisance doctrine's requirement that, when uses of two properties conflict with each other, the use which has priority is the one started first, and the owner has the right to stop others from interfering with this prior use (the "first in time, first in right" rule).

Since the right to property necessarily implies the right to use it indefinitely, and since the right to use property indefinitely implies the first in time, first in right rule, it follows that respecting property rights ultimately means respecting the Coming to the Nuisance doctrine too. The two are inseparable.

end quote

Imagine that you find land with that view you desire, pay the large amount of money for it, and your property extends to the water. This ensures that no one can build between you and your view. By common Law no one is allowed to float a building on the water that blocks your view. There is NO problem because you've ensured of your view by owning the land to the water.

However, by possessing this "Right to a View," aren't you blocking the view of everyone who lives in back of you, further away from the water? Yes you are, but by precedent this is fine. The right to a view does not extend indefinitely back from the view. By tradition it extends just to those properties closest to the view, be it The Chesapeake Bay, or The Rocky Mountains.

The view is better near the water. You will have paid more to be near the water. You expect to see the great view if that's what you bought. If you did not buy waterfront property you expect to see the back of a house. These principles go back to olde England.

If anyone has seen the Sissy Spacek film, "Violets are Blue" there is a beautiful nighttime scene from a boat on the bay with the carousel going round in the background, and you can hear crowds of ecstatic children laughing. Suppose you say to yourself, I would like that property. You find the land with that view, spend the exorbitant amount of money for it, and your property extends to the water, ensuring that no one can build between you and your view.

An Objectivist might object that if there's a view that you value, but you are NOT on the water, then you have the right to get a contractual agreement with other property owners to insure your view, or buy the land that may prove to create an obstacle. I agree, but we need to think beyond our catechism of stock Randian phrases, and the idea that you need a contract with everyone who borders your property to live well, because you don't. A right to a view is an age old tradition for those living near the water, and this principle should be kept.

Another example? You find the land with that view, and your property extends to within one un-built upon lot from the water, and you built your home. The "Coming to the Nuisance" doctrine ensures that no one can build so high as to get between you and your view, BECAUSE YOU BUILT FIRST. Is this infringing on the other property owner's rights? No.

Scene three: You find the land with that view, and your property extends to within ONE BUILDING LOT from the water, and you built your home. However, there is already another one story home in front of you. The "Coming to the Nuisance" doctrine does not protect you, so you build a two story home, putting your living room with its better view on the second floor.

Do you now have any objective, legal right under the "Coming to the Nuisance" doctrine to keep the closer to the bay homeowner from building a three story home there, that blocks your second story view at a later time? Yes you do! Is that objectively infringing on his property rights? NO.

There are more scenarios but I will stop there. This is the sort of dilemma that flat-out statements of "rights" do not cover. Just as non violent *coercion* was added to the *Non Initiation Of Force* concept by Ayn Rand, the right to property also needs rational clarification. "There oughta be a law," and there is. I found it in Common Law.

I and my family have been personally involved in this issue but I will not give the specifics, except to say I have been dealing with *set backs,* *easements,* *wetlands delineation,* perk tests, billboards which we own, rights to a view, and concepts like *Coming to the Nuisance* and *Adverse Possession*, which is briefly an Anglo-American property law, that means someone built too close, or on someone else's property with or without the property owner's permission, in good faith. *Adverse Possession* has a statute of limitation in most U.S. states that allows an adverse possessor to acquire legal title if the owner does not seek timely possession.

A quick and all too common example is when a ditch is dug for drainage and the ditch digger goes around a tree, but the rest of the ditch splits the property line. Years and years later a survey is done discovering the discrepancy that has been forgotten or never known by the current land owners.

Or, County ordinances might say you need to set your buildings back at least five feet from the property line, and using common sense this term is known as "set back." To build four feet from the line you may need a zoning "easement" from the county and / or consent from the adjoining property owner, which again, is a tried and true prescription for living with neighbors. *Set back* is not an infringement on objective property rights.

Did Ayn Rand write or say anything about zoning laws? I would think she would be opposed to zoning laws unless the laws are objectively written and rational. Remember, she did write about the collective nuisance of living in a city (and the word collective was her choice of words.) Property rights have gray areas between your property rights and the rights of others. Zoning Laws can sustain property values, and stop coercive activities. Who wants a smelly crab processing plant next to their residential property?

Objective laws define the legal line between what may be considered morally wrong by different individuals who have different moralities, and legally wrong behaviors, that infringe upon legitimate rights. Many illegal activities do not involve the 'strict' initiation of force. Rather, they are considered coercive. I maintain that zoning can PROHIBIT coercive activities.

An Objectivist view should be that the proper purpose of laws is to guarantee your right to do what you want with your property subject only to the restrictions you have agreed to in contracts with others, AND in consideration of objectively held common laws and precedents. The purpose of zoning laws IS NOT to enable others o work through the government to tell you what to do with your property without your agreement. I DO agree in spirit, with Ayn Rand's multiple definitions of property rights but I disagree on finer points that might be considered coercive in nature, in her strict interpretation of *absolute* property rights.

Just what is property? When someone owns property the land's dimensions are strictly defined, by surveying. One could say that piece of land is five acres, relatively rectangular in shape, and borders three other properties and the road. However, there is a further dimension to land: The sky above it, the land below it, the surrounding view, and the air you breath.

Property is more than two dimensional. Let me enumerate some cases that illustrate more than two property dimensions:

Water and mineral rights.

Air quality rights.

The sky above. In other words, sunlight and rainfall rights.

Who got there first, or *Coming to the Nuisance*?

The right to a surrounding view.

And the right to a continuation of a property's fair value.

Water and mineral rights. This is the easiest to defend property right because virtually everyone agrees, mineral rights under the property are justifiable, and require little defense. However, a corollary right is that no one on surrounding properties can legally pump out ground water until the water table under your property is lowered so much that you have no access to well water.

This issue recently happened in Somerset County, Maryland where a newly built state prison caused dozens of surrounding properties that only had "well water" to go dry, and it stopped Wal-Mart from building a distribution center in that County. And there have been many cases where corporations poisoned the ground water.

Another issue, is using up all the water in a river, or damming it. Should this be legal, if the river previously ran through your property? Not unless the property owner agrees. And there have been cases where individuals or countries drilled sideways under a neighbor's property to steal oil or minerals.

Air quality rights. No one can deny you breathable air, by burning, building a pig farm, or a manufacturing plant near you, without your consent, if the land is zoned residential or agricultural, unless the pig farm was there first.

The sky above. No one may plant trees that extend over your property, or block the sun or the rain, with a building, without your permission, if the land is zoned residential, or agricultural.

And now my last, more nebulous concept. Does a person have a right to diminish your property's value, because of something that they do on their property? Let us postulate that I have a Beverly Hills estate and The Clampetts move in next door and the nuisance has come to you . . .

Semper cogitans fidele,

Peter Taylor

I will put my more extensive notes culled from the "Ayn Rand Lexicon" on another letter.

"Ancient lights" is an English doctrine. It states that if a landowner had received sunlight across adjoining property for a particular period of time, that landowner was entitled to continue to receive unobstructed access to sunlight across the adjoining property. According to this doctrine, the landowner acquired a prescriptive easement and could not be prevented from access to light. However, the doctrine of ancient lights has been repudiated in the U.S. Law makers are of the opinion that this doctrine is inconsistent with the needs of a developing country.

The right of a landowner to unobstructed light, air or view may be created through the granting of an easement by private parties. It can also be through the adoption of conditions, covenants, and restrictions. A state legislature can create the right to unobstructed light, air or view by creating a right to sunlight for a solar collector. Similar right can be created by local governments in adopting height limits to protect views and provide for light and air.

A property owner may be prohibited by a statute from erecting a fence or structure over ten feet in height which prevents an owner or occupier of adjacent land from enjoying the light or air.

In Pacifica Homeowners' Ass'n v. Wesley Palms Ret. Cmty., 178 Cal. App. 3d 1147 (Cal. App. 4th Dist. 1986), appellant homeowner's association's members owned single-family residences located uphill from respondent retirement community. These single-family residences had views of the ocean, Mission Bay and the city. The homeowners' deeds protected the views from future obstruction. Respondent was granted a conditional use permit in 1958 to operate a retirement hotel on a 40-acre tract of land with landscaping and five-story building height restrictions. Eucalyptus and pine trees on respondent's property exceeded the height of its five-story building 25 years later and obstructed appellant's views. Appellant alleged that respondent was burdened with servitude to not permit any obstruction taller than its five-story building but was denied injunctive relief. On appeal, the court found that there was no implication of a restriction on the height of trees in the conditional use permit that limited the height of the building. The focus in the permit was on the aesthetics of respondent's property, not on protecting the appellant's views. The court inferred that the planning commission approved the mature height of the trees since it attached no trimming or other height restrictions. The Court affirmed the judgment and the retirement community's demurrer to appellant homeowner's association's action was properly sustained, because statute or governmentally imposed conditions on development creating a right to an unobstructed view in the absence of any agreement. The respondent neither acted in bad faith nor interfered with any right where homeowners had no natural right to an unobstructed view.

Edited May 14, 2011 by Peter Taylor

[Peter]

No problem is so big or so complicated that it can't be run away from!

Linus Van Pelt in the comic strip, “Peanuts.”

Notes:

I am no lawyer or Objectivist scholar, but how does my view on *Precedents* square with the following quotes? It is interesting to run through what she said. What is right on the mark? What needs clarification? When is Rand wrong? I don’t fall for the “fully integrated or you stink” package deal, but I am still an Objectivist.

Peter

Ayn Rand, "What is Capitalism" Capitalism: the Unknown Ideal, p. 19

Capitalism is a social system based on the recognition of individual rights, including property rights, in which all property is privately owned.

The recognition of individual rights entails the banishment of physical force from human relationships: basically, rights can be violated only by means of force. In a capitalist society, no man or group may initiate the use of physical force against others. The only function of government, in such a society, is the task of protecting man's rights, i.e., the task of protecting him from physical force; the government acts as the agent of man's right of self-defense, and may use force only in retaliation and only against those who initiate its use; thus the government is the means of placing the retaliatory use of force under objective control.

End quote

“Man’s Rights,” The Virtue of Selfishness, 94.

Property Rights

The right to life is the source of all rights—and the right to property is their only implementation. Without property rights, no other rights are possible. Since man has to sustain his life by his own effort, the man who has no right to the product of his effort has no means to sustain his life. The man who produces while others dispose of his product, is a slave.

Bear in mind that the right to property is a right to action, like all the others: it is not the right to an object, but to the action and the consequences of producing or earning that object. It is not a guarantee that a man will earn any property, but only a guarantee that he will own it if he earns it. It is the right to gain, to keep, to use and to dispose of material values.

End quote

Capitalism: The Unknown Ideal, 122. “The Property Status of Airwaves,”

Any material element or resource which, in order to become of use or value to men, requires the application of human knowledge and effort, should be private property—by the right of those who apply the knowledge and effort.

End quote

Galt’s Speech, For the New Intellectual, 182

Just as man can’t exist without his body, so no rights can exist without the right to translate one’s rights into reality—to think, to work and to keep the results—which means: the right of property. The modern mystics of muscle who offer you the fraudulent alternative of “human rights” versus “property rights,” as if one could exist without the other, are making a last, grotesque attempt to revive the doctrine of soul versus body. Only a ghost can exist without material property; only a slave can work with no right to the product of his effort. The doctrine that “human rights” are superior to “property rights” simply means that some human beings have the right to make property out of others; since the competent have nothing to gain from the incompetent, it means the right of the incompetent to own their betters and to use them as productive cattle. Whoever regards this as human and right, has no right to the title of “human.”

The source of property rights is the law of causality. All property and all forms of wealth are produced by man’s mind and labor. As you cannot have effects without causes, so you cannot have wealth without its source: without intelligence. You cannot force intelligence to work: those who’re able to think, will not work under compulsion; those who will, won’t produce much more than the price of the whip needed to keep them enslaved. You cannot obtain the products of a mind except on the owner’s terms, by trade and by volitional consent. Any other policy of men toward man’s property is the policy of criminals, no matter what their numbers. Criminals are savages who play it short-range and starve when their prey runs out—just as you’re starving today, you who believed that crime could be “practical” if your government decreed that robbery was legal and resistance to robbery illegal.

End quote

.

“What Is Capitalism?” Capitalism: The Unknown Ideal, 18

Man has to work and produce in order to support his life. He has to support his life by his own effort and by the guidance of his own mind. If he cannot dispose of the product of his effort, he cannot dispose of his effort; if he cannot dispose of his effort, he cannot dispose of his life. Without property rights, no other rights can be practiced.

End quote

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“Man’s Rights,” The Virtue of Selfishness, 96.

If some men are entitled by right to the products of the work of others, it means that those others are deprived of rights and condemned to slave labor . . . Any alleged “right” of one man, which necessitates the violation of the rights of another, is not and cannot be a right . . . No man can have a right to impose an unchosen obligation, an unrewarded duty or an involuntary servitude on another man. There can be no such thing as “the right to enslave.” A right does not include the material implementation of that right by other men; it includes only the freedom to earn that implementation by one’s own effort . . . .The right to property means that a man has the right to take the economic actions necessary to earn property, to use it and to dispose of it; it does not mean that others must provide him with property . . . The right of free speech means that a man has the right to express his ideas without danger of suppression, interference or punitive action by the government. It does not mean that others must provide him with a lecture hall, a radio station or a printing press through which to express his ideas.

Any undertaking that involves more than one man, requires the voluntary consent of every participant. Every one of them has the right to make his own decision, but none has the right to force his decision on the others.

There is no such thing as “a right to a job”—there is only the right of free trade, that is: a man’s right to take a job if another man chooses to hire him. There is no “right to a home,” only the right of free trade: the right to build a home or to buy it. There are no “rights to a ‘fair’ wage or a ‘fair’ price” if no one chooses to pay it, to hire a man or to buy his product. There are no “rights of consumers” to milk, shoes, movies or champagne if no producers choose to manufacture such items (there is only the right to manufacture them oneself). There are no “rights” of special groups, there are no “rights of farmers, of workers, of businessmen, of employees, of employers, of the old, of the young, of the unborn.” There are only the Rights of Man—rights possessed by every individual man and by all men as individuals.

Property rights and the right of free trade are man’s only “economic rights” (they are, in fact, political rights)—and there can be no such thing as “an economic bill of rights.” But observe that the advocates of the latter have all but destroyed the former.

End quote

“The Cashing-in: The Student ‘Rebellion,’” Capitalism: The Unknown Ideal, 259.

It is only on the basis of property rights that the sphere and application of individual rights can be defined in any given social situation. Without property rights, there is no way to solve or to avoid a hopeless chaos of clashing views, interests, demands, desires, and whims.

End quote

“What Is Capitalism?” Capitalism: The Unknown Ideal, 19.

The right to agree with others is not a problem in any society; it is the right to disagree that is crucial. It is the institution of private property that protects and implements the right to disagree—and thus keeps the road open to man’s most valuable attribute (valuable personally, socially, and objectively): the creative mind.

End quote

“What Is Capitalism?” Capitalism: The Unknown Ideal

The institution of private property, in the full, legal meaning of the term, was brought into existence only by capitalism. In the pre-capitalist eras, private property existed de facto, but not de jure, i.e., by custom and sufferance, not by right or by law. In law and in principle, all property belonged to the head of the tribe, the king, and was held only by his permission, which could be revoked at any time, at his pleasure. (The king could and did expropriate the estates of recalcitrant noblemen throughout the course of Europe’s history.)

End quote

Galt’s Speech, For the New Intellectual, 183. Human Rights and Property Rights

The modern mystics of muscle who offer you the fraudulent alternative of “human rights” versus “property rights,” as if one could exist without the other, are making a last, grotesque attempt to revive the doctrine of soul versus body. Only a ghost can exist without material property; only a slave can work with no right to the product of his effort. The doctrine that “human rights” are superior to “property rights” simply means that some human beings have the right to make property out of others; since the competent have nothing to gain from the incompetent, it means the right of the incompetent to own their betters and to use them as productive cattle. Whoever regards this as human and right, has no right to the title of “human.”

End quote

“The Monument Builders,” The Virtue of Selfishness, 91.

There is no such dichotomy as “human rights” versus “property rights.” No human rights can exist without property rights. Since material goods are produced by the mind and effort of individual men, and are needed to sustain their lives, if the producer does not own the result of his effort, he does not own his life. To deny property rights means to turn men into property owned by the state. Whoever claims the “right” to “redistribute” the wealth produced by others is claiming the “right” to treat human beings as chattel.

End quote

“The Nature of Government,” The Virtue of Selfishness, 110. Contracts

In a free society, men are not forced to deal with one another. They do so only by voluntary agreement and, when a time element is involved, by contract. If a contract is broken by the arbitrary decision of one man, it may cause a disastrous financial injury to the other . . . . This leads to one of the most important and most complex functions of the government: to the function of an arbiter who settles disputes among men according to objective laws.

End quote

“The Nature of Government,” The Virtue of Selfishness, 111.

A unilateral breach of contract involves an indirect use of physical force: it consists, in essence, of one man receiving the material values, goods or services of another, then refusing to pay for them and thus keeping them by force (by mere physical possession), not by right—i.e., keeping them without the consent of the owner.

End quote

“Collectivized ‘Rights,’” The Virtue of Selfishness, 102.

In a free society, the “rights” of any group are derived from the rights of its members through their voluntary, individual choice and contractual agreement, and are merely the application of these individual rights to a specific undertaking. Every legitimate group undertaking is based on the participants’ right of free association and free trade. (By “legitimate,” I mean: noncriminal and freely formed, that is, a group which no one was forced to join.)

For instance, the right of an industrial concern to engage in business is derived from the right of its owners to invest their money in a productive venture—from their right to hire employees—from the right of the employees to sell their services—from the right of all those involved to produce and to sell their products—from the right of the customers to buy (or not to buy) those products. Every link of this complex chain of contractual relationships rests on individual rights, individual choices, individual agreements. Every agreement is delimited, specified and subject to certain conditions, that is, dependent upon a mutual trade to mutual benefit.

End quote

“Man’s Rights,” The Virtue of Selfishness, 93.

Individual Rights

A “right” is a moral principle defining and sanctioning a man’s freedom of action in a social context. There is only one fundamental right (all the others are its consequences or corollaries): a man’s right to his own life. Life is a process of self-sustaining and self-generated action; the right to life means the right to engage in self-sustaining and self-generated action—which means: the freedom to take all the actions required by the nature of a rational being for the support, the furtherance, the fulfillment and the enjoyment of his own life. (Such is the meaning of the right to life, liberty and the pursuit of happiness.)

The concept of a “right” pertains only to action—specifically, to freedom of action. It means freedom from physical compulsion, coercion or interference by other men.

Thus, for every individual, a right is the moral sanction of a positive—of his freedom to act on his own judgment, for his own goals, by his own voluntary, uncoerced choice. As to his neighbors, his rights impose no obligations on them except of a negative kind: to abstain from violating his rights.

The right to life is the source of all rights—and the right to property is their only implementation. Without property rights, no other rights are possible. Since man has to sustain his life by his own effort, the man who has no right to the product of his effort has no means to sustain his life. The man who produces while others dispose of his product, is a slave.

Bear in mind that the right to property is a right to action, like all the others: it is not the right to an object, but to the action and the consequences of producing or earning that object. It is not a guarantee that a man will earn any property, but only a guarantee that he will own it if he earns it. It is the right to gain, to keep, to use and to dispose of material values.

End quote

“Man’s Rights,” The Virtue of Selfishness, 92.

“Rights” are a moral concept—the concept that provides a logical transition from the principles guiding an individual’s actions to the principles guiding his relationship with others—the concept that preserves and protects individual morality in a social context—the link between the moral code of a man and the legal code of a society, between ethics and politics. Individual rights are the means of subordinating society to moral law.

End quote

“Textbook of Americanism,” The Ayn Rand Column, 83.

Man holds these rights, not from the Collective nor for the Collective, but against the Collective—as a barrier which the Collective cannot cross; . . . these rights are man’s protection against all other men.

End quote

Galt’s Speech, For the New Intellectual, 182.

The source of man’s rights is not divine law or congressional law, but the law of identity. A is A—and Man is Man. Rights are conditions of existence required by man’s nature for his proper survival. If man is to live on earth, it is right for him to use his mind, it is right to act on his own free judgment, it is right to work for his values and to keep the product of his work. If life on earth is his purpose, he has a right to live as a rational being: nature forbids him the irrational. Any group, any gang, any nation that attempts to negate man’s rights, is wrong, which means: is evil, which means: is anti-life.

End quote

“What Is Capitalism?” Capitalism: The Unknown Ideal, 17.

Since knowledge, thinking, and rational action are properties of the individual, since the choice to exercise his rational faculty or not depends on the individual, man’s survival requires that those who think be free of the interference of those who don’t. Since men are neither omniscient nor infallible, they must be free to agree or disagree, to cooperate or to pursue their own independent course, each according to his own rational judgment. Freedom is the fundamental requirement of man’s mind.

End quote

“A Nation’s Unity,” The Ayn Rand Letter, II, 2, 3.

Individual rights is the only proper principle of human coexistence, because it rests on man’s nature, i.e., the nature and requirements of a conceptual consciousness. Man gains enormous values from dealing with other men; living in a human society is his proper way of life—but only on certain conditions. Man is not a lone wolf and he is not a social animal. He is a contractual animal. He has to plan his life long-range, make his own choices, and deal with other men by voluntary agreement (and he has to be able to rely on their observance of the agreements they entered).

End quote

“Textbook of Americanism,” The Ayn Rand Column, 83.

A right is the sanction of independent action. A right is that which can be exercised without anyone’s permission. If you exist only because society permits you to exist—you have no right to your own life. A permission can be revoked at any time. If, before undertaking some action, you must obtain the permission of society—you are not free, whether such permission is granted to you or not. Only a slave acts on permission. A permission is not a right. Do not make the mistake, at this point, of thinking that a worker is a slave and that he holds his job by his employer’s permission. He does not hold it by permission—but by contract, that is, by a voluntary mutual agreement. A worker can quit his job. A slave cannot.

End quote

“Textbook of Americanism,” The Ayn Rand Column, 84.

The Right to the Pursuit of Happiness means man’s right to live for himself, to choose what constitutes his own private, personal, individual happiness and to work for its achievement, so long as he respects the same right in others. It means that Man cannot be forced to devote his life to the happiness of another man nor of any number of other men. It means that the collective cannot decide what is to be the purpose of a man’s existence nor prescribe his choice of happiness.

End quote

“Textbook of Americanism,” The Ayn Rand Column, 84.

Since Man has inalienable individual rights, this means that the same rights are held, individually, by every man, by all men, at all times. Therefore, the rights of one man cannot and must not violate the rights of another.

For instance: a man has the right to live, but he has no right to take the life of another. He has the right to be free, but no right to enslave another. He has the right to choose his own happiness, but no right to decide that his happiness lies in the misery (or murder or robbery or enslavement) of another. The very right upon which he acts defines the same right of another man, and serves as a guide to tell him what he may or may not do.

End quote

“Textbook of Americanism,” The Ayn Rand Column, 85.

It is not society, nor any social right, that forbids you to kill—but the inalienable individual right of another man to live. This is not a “compromise” between two rights—but a line of division that preserves both rights untouched. The division is not derived from an edict of society—but from your own inalienable individual right. The definition of this limit is not set arbitrarily by society—but is implicit in the definition of your own right.

Within the sphere of your own rights, your freedom is absolute.

End quote

“Textbook of Americanism,” The Ayn Rand Column, 85.

A right cannot be violated except by physical force. One man cannot deprive another of his life, nor enslave him, nor forbid him to pursue his happiness, except by using force against him. Whenever a man is made to act without his own free, personal, individual, voluntary consent—his right has been violated.

Therefore, we can draw a clear-cut division between the rights of one man and those of another. It is an objective division—not subject to differences of opinion, nor to majority decision, nor to the arbitrary decree of society. No man has the right to initiate the use of physical force against another man.

End quote

“Man’s Rights,” The Virtue of Selfishness, 97.

There is no such thing as “a right to a job”—there is only the right of free trade, that is: a man’s right to take a job if another man chooses to hire him. There is no “right to a home,” only the right of free trade: the right to build a home or to buy it. There are no “rights to a ‘fair’ wage or a ‘fair’ price” if no one chooses to pay it, to hire a man or to buy his product. There are no “rights of consumers” to milk, shoes, movies or champagne if no producers choose to manufacture such items (there is only the right to manufacture them oneself). There are no “rights” of special groups, there are no “rights of farmers, of workers, of businessmen, of employees, of employers, of the old, of the young, of the unborn.” There are only the Rights of Man—rights possessed by every individual man and by all men as individuals.

End quote

“Man’s Rights,” The Virtue of Selfishness, 96.

If some men are entitled by right to the products of the work of others, it means that those others are deprived of rights and condemned to slave labor.

Any alleged “right” of one man, which necessitates the violation of the rights of another, is not and cannot be a right.

No man can have a right to impose an unchosen obligation, an unrewarded duty or an involuntary servitude on another man. There can be no such thing as “the right to enslave.”

End quote

Capitalism: The Unknown Ideal, 256.

The end does not justify the means. No one’s rights can be secured by the violation of the rights of others.

“The Cashing-In: The Student ‘Rebellion,’”

end quote

“Collectivized ‘Rights,’” The Virtue of Selfishness, 101.

Since only an individual man can possess rights, the expression “individual rights” is a redundancy (which one has to use for purposes of clarification in today’s intellectual chaos). But the expression “collective rights” is a contradiction in terms.

End quote

“Collectivized ‘Rights,’” The Virtue of Selfishness, 102.

A group, as such, has no rights. A man can neither acquire new rights by joining a group nor lose the rights which he does possess. The principle of individual rights is the only moral base of all groups or associations.

End quote

“Collectivized ‘Rights,’” The Virtue of Selfishness, 104.

Individual rights are not subject to a public vote; a majority has no right to vote away the rights of a minority; the political function of rights is precisely to protect minorities from oppression by majorities (and the smallest minority on earth is the individual).

End quote

“The Roots of War,” Capitalism: The Unknown Ideal, 37.

When individual rights are abrogated, there is no way to determine who is entitled to what; there is no way to determine the justice of anyone’s claims, desires, or interests. The criterion, therefore, reverts to the tribal concept of: one’s wishes are limited only by the power of one’s gang. In order to survive under such a system, men have no choice but to fear, hate, and destroy one another; it is a system of underground plotting, of secret conspiracies, of deals, favors, betrayals, and sudden, bloody coups.

End quote

“The Wreckage of the Consensus,” Capitalism: The Unknown Ideal, 227.

One of the notions used by all sides to justify the draft, is that “rights impose obligations.” Obligations, to whom?—and imposed, by whom? Ideologically, that notion is worse than the evil it attempts to justify: it implies that rights are a gift from the state, and that a man has to buy them by offering something (his life) in return. Logically, that notion is a contradiction: since the only proper function of a government is to protect man’s rights, it cannot claim title to his life in exchange for that protection.

The only “obligation” involved in individual rights is an obligation imposed, not by the state, but by the nature of reality (i.e., by the law of identity): consistency, which, in this case, means the obligation to respect the rights of others, if one wishes one’s own rights to be recognized and protected.

End quote

“A Nation’s Unity,” The Ayn Rand Letter, II, 2, 3

The concept of individual rights is so prodigious a feat of political thinking that few men grasp it fully—and two hundred years have not been enough for other countries to understand it. But this is the concept to which we owe our lives—the concept which made it possible for us to bring into reality everything of value that any of us did or will achieve or experience.

End quote

“Textbook of Americanism,” The Ayn Rand Column, 83

Permission (vs. Rights)

A right is the sanction of independent action. A right is that which can be exercised without anyone’s permission . . . If you exist only because society permits you to exist—you have no right to your own life. A permission can be revoked at any time . . . . If, before undertaking some action, you must obtain the permission of society—you are not free, whether such permission is granted to you or not. Only a slave acts on permission. A permission is not a right. Do not make the mistake, at this point, of thinking that a worker is a slave and that he holds his job by his employer’s permission. He does not hold it by permission—but by contract, that is, by a voluntary mutual agreement. A worker can quit his job. A slave cannot.

End quote

Leonard Peikoff, “The Philosophy of Objectivism” lecture series (1976), Lecture 5.

Context

Knowledge is contextual . . . By “context” we mean the sum of cognitive elements conditioning the acquisition, validity or application of any item of human knowledge. Knowledge is an organization or integration of interconnected elements, each relevant to the others . . . Knowledge is not a mosaic of independent pieces each of which stands apart from the rest . . . . In regard to any concept, idea, proposal, theory, or item of knowledge, never forget or ignore the context on which it depends and which conditions its validity and use.

End quote

Introduction to Objectivist Epistemology, 42–43.

Concepts are not and cannot be formed in a vacuum; they are formed in a context; the process of conceptualization consists of observing the differences and similarities of the existents within the field of one’s awareness (and organizing them into concepts accordingly). From a child’s grasp of the simplest concept integrating a group of perceptually given concretes, to a scientist’s grasp of the most complex abstractions integrating long conceptual chains—all conceptualization is a contextual process; the context is the entire field of a mind’s awareness or knowledge at any level of its cognitive development.

This does not mean that conceptualization is a subjective process or that the content of concepts depends on an individual’s subjective (i.e., arbitrary) choice. The only issue open to an individual’s choice in this matter is how much knowledge he will seek to acquire and, consequently, what conceptual complexity he will be able to reach. But so long as and to the extent that his mind deals with concepts (as distinguished from memorized sounds and floating abstractions), the content of his concepts is determined and dictated by the cognitive content of his mind, i.e., by his grasp of the facts of reality. If his grasp is non-contradictory, then even if the scope of his knowledge is modest and the content of his concepts is primitive, it will not contradict the content of the same concepts in the mind of the most advanced scientists.

The same is true of definitions. All definitions are contextual, and a primitive definition does not contradict a more advanced one: the latter merely expands the former.

End quote

Galt’s Speech, For the New Intellectual, 126.

No concept man forms is valid unless he integrates it without contradiction into the total sum of his knowledge.

End quote

“The Objectivist Ethics,” The Virtue of Selfishness, 26.

One must never make any decisions, form any convictions or seek any values out of context, i.e., apart from or against the total, integrated sum of one’s knowledge.

End quote

“The ‘Conflicts’ of Men’s Interests,” The Virtue of Selfishness, 51.

Context-Dropping

Context-dropping is one of the chief psychological tools of evasion. In regard to one’s desires, there are two major ways of context-dropping: the issues of range and of means.

A rational man sees his interests in terms of a lifetime and selects his goals accordingly. This does not mean that he has to be omniscient, infallible or clairvoyant. It means that he does not live his life short-range and does not drift like a bum pushed by the spur of the moment. It means that he does not regard any moment as cut off from the context of the rest of his life, and that he allows no conflicts or contradictions between his short-range and long-range interests. He does not become his own destroyer by pursuing a desire today which wipes out all his values tomorrow.

A rational man does not indulge in wistful longings for ends divorced from means. He does not hold a desire without knowing (or learning) and considering the means by which it is to be achieved.

End quote

Leonard Peikoff, “The Philosophy of Objectivism” lecture series (1976), Lecture 5.

Whenever you tear an idea from its context and treat it as though it were a self-sufficient, independent item, you invalidate the thought process involved. If you omit the context, or even a crucial aspect of it, then no matter what you say it will not be valid . . . . A context-dropper forgets or evades any wider context. He stares at only one element, and he thinks, “I can change just this one point, and everything else will remain the same.” In fact, everything is interconnected. That one element involves a whole context, and to assess a change in one element, you must see what it means in the whole context.

End quote

“The Monument Builders,” The Virtue of Selfishness, 88.

“Public Interest,” the

Since there is no such entity as “the public,” since the public is merely a number of individuals, any claimed or implied conflict of “the public interest” with private interests means that the interests of some men are to be sacrificed to the interests and wishes of others. Since the concept is so conveniently undefinable, its use rests only on any given gang’s ability to proclaim that “The public, c’est moi”—and to maintain the claim at the point of a gun.

End quote

“The Pull Peddlers,” Capitalism: The Unknown Ideal, 170.

So long as a concept such as “the public interest” (or the “social” or “national” or “international” interest) is regarded as a valid principle to guide legislation—lobbies and pressure groups will necessarily continue to exist. Since there is no such entity as “the public,” since the public is merely a number of individuals, the idea that “the public interest” supersedes private interests and rights, can have but one meaning: that the interests and rights of some individuals take precedence over the interests and rights of others.

If so, then all men and all private groups have to fight to the death for the privilege of being regarded as “the public.” The government’s policy has to swing like an erratic pendulum from group to group, hitting some and favoring others, at the whim of any given moment—and so grotesque a profession as lobbying (selling “influence”) becomes a full-time job. If parasitism, favoritism, corruption, and greed for the unearned did not exist, a mixed economy would bring them into existence.

Since there is no rational justification for the sacrifice of some men to others, there is no objective criterion by which such a sacrifice can be guided in practice. All “public interest” legislation (and any distribution of money taken by force from some men for the unearned benefit of others) comes down ultimately to the grant of an undefined, undefinable, non-objective, arbitrary power to some government officials.

The worst aspect of it is not that such a power can be used dishonestly, but that it cannot be used honestly. The wisest man in the world, with the purest integrity, cannot find a criterion for the just, equitable, rational application of an unjust, inequitable, irrational principle.

End quote

“The Fascist New Frontier,” The Ayn Rand Column, 111.

There is no such thing as “the public interest” except as the sum of the interests of individual men. And the basic, common interest of all men—all rational men—is freedom. Freedom is the first requirement of “the public interest”—not what men do when they are free, but that they are free. All their achievements rest on that foundation—and cannot exist without it.

The principles of a free, non-coercive social system are the only form of “the public interest.”

End quote

“The Moral Meaning of Capitalism,” For the New Intellectual

I could say to you that you do not serve the public good—that nobody’s good can be achieved at the price of human sacrifices—that when you violate the rights of one man, you have violated the rights of all, and a public of rightless creatures is doomed to destruction. I could say to you that you will and can achieve nothing but universal devastation—as any looter must, when he runs out of victims. I could say it, but I won’t. It is not your particular policy that I challenge, but your moral premise. If it were true that men could achieve their good by means of turning some men into sacrificial animals, and I were asked to immolate myself for the sake of creatures who wanted to survive at the price of my blood, if I were asked to serve the interests of society apart from, above and against my own—I would refuse, I would reject it as the most contemptible evil, I would fight it with every power I possess, I would fight the whole of mankind, if one minute were all I could last before I were murdered, I would fight in the full confidence of the justice of my battle and of a living being’s right to exist. Let there be no misunderstanding about me. If it is now the belief of my fellow men, who call themselves the public, that their good requires victims, then I say: The public good be damned, I will have no part of it!

End of Objectivist quotes

Common law, real estate law

It is illegal for a person, in the absence of an easement or specific agreement, to erect buildings or other structures on his/her own land so that any part, however small, will extend beyond his/ her boundaries, and thus encroach on the adjoining premises. In such cases, mandatory injunction to compel the removal of the encroachment is a proper remedy.

Encroachment can take the form of anything like overhanging walls or something beneath or above the land. For instance, projecting stones into the adjoining land without a right or license from the owner is a wrongful act and keeping the stones in the position in which they were so placed constituted a continuing trespass or nuisance.[ii]

Encroachment of trees to the property of adjoining landowners is sometimes considered as nuisance. There are two divergent lines of thinking in cases pertaining to encroachment of trees. One line of cases state that an owner is not liable to an adjoining owner for damages from an overhanging limb of a tree unless the owner or a former possessor planted the tree.[iii] In other words, an owner is not liable if the tree was of natural growth and is only liable if planted and nurtured “artificially”. On the other hand, some courts are of the view that proof of a landowner’s planting or nurturing a tree is not an element of a plaintiff’s cause of action for damages and casts liability on the owner even if the tree was of “natural growth”.[iv]

However, this “natural/artificial” dichotomy as a test of liability in encroaching tree cases has been discarded by many jurisdictions for various reasons such as the impossibility of obtaining evidence concerning the origin of trees in many instances, the unfairness in imposing liability upon one who plants or nurtures a tree while excusing one who neglectfully permits the growth of unsightly scrubs.[v]

Hence, courts have adopted a balanced view that the overhanging branches of a tree, not poisonous or noxious in nature, are not a nuisance per se, in such a sense as to sustain an action for damages.[vi] Liability is imposed upon proof of some real, sensible damage resulting from the overhanging branches. Further, encroaching trees and plants are not nuisances merely because they cast shade, drop leaves, flowers, or fruit, or just because they happen to encroach upon adjoining property either above or below the ground.[vii] Thus, alleged damage caused by falling pine needles and pine cones from an overhanging tree does not impose liability on a landowner.[viii]

Encroaching trees and plants are regarded as a nuisance when they cause actual harm or pose an imminent danger of actual harm to adjoining property and the owner may be held liable for damages, and may also be required to cut back the encroaching branches or roots.[ix]

At common law, a continuing encroachment by an adjoining landowner upon the land of another by erecting and maintaining a building thereon without right is a trespass as well as a nuisance. No matter whether such encroachment is upon the surface of the soil, above or below it, the adjoining owner whose property is encroached upon has a right to seek ejectment. “In no event should a landowner be obliged to submit to invasion or compelled to part with his property, or any portion thereof, upon the mere payment of damages by a trespasser.”[x] However, under some specific circumstances, law does not consider an owner whose structure encroaches upon the adjoining land to be a trespasser in going upon the land to remove the encroachment.[xi]

Acquiescence or Estoppel

The term acquiescence is used to describe an act of a person in knowingly standing by without raising any objection to infringement of his rights, when someone else is unknowingly and honestly putting in his resources under the impression that the said rights actually belong to him. These results in a situation wherein the person whose rights are infringed cannot anymore make a claim against the infringer or succeed in an injunction suit due to his conduct. Therefore acquiescence is the acceptance or agreement by keeping quiet or by not making objections.

Estoppel on the other hand refers to the preclusion of a person from denying or asserting anything to the contrary of that which has been established as the truth. This may either be by the acts of judicial or legislative officers, or by a person’s own deed, acts, or representations, either express or implied.

Estoppel in the context of encroachment usually occurs in case of structural encroachment. Structural encroachment is a concept in American real property law, in which a piece of real property hangs from one property over the property line of another landowner’s premises. The actual structure that encroaches might be a tree, bush, bay window, stairway, steps, stoop, garage, leaning fence, part of a building, etc. If the landowner permits such structural encroachment to remain in the property for a long time, s/he will have estopped their right to complain about the structure later.

In law, both acquiescence and estoppel are factors that bar an encroachment action.

When a landowner does not complain for a long time about an encroachment to his property, under the principles of acquiescence as well as under estoppel, subsequently, s/he loses the right to complain. Therefore in the case of City of Eustis v. Firster[ii], it was held that a plaintiff is not entitled to mandatory injunction for removal of boathouses and piers built by city more than 25 years earlier where condition existed when plaintiff acquired his or her property and he or she did nothing about it for 10 years.

Also, in the case of Bright v. Michel[iii], it was held that equitable estoppel prevented mandatory injunction where plaintiffs lent defendants money to construct encroachments, observed encroachments being built, and voiced no objection thereto until after encroachments were completed and bad feeling arose, and where defendants thought that they were not encroaching.

Under the common law, a land owner has no legal right to the light and air unobstructed from the adjoining land unless there is an easement. Courts have always held that there is no private right to a view without an express easement or restrictive covenant. Usually, a property owner cannot complain about interference with a view resulting from the lawful erection of a building or other structure on the adjoining land.

The right of a landowner to unobstructed light, air or view may be created through the granting of an easement by private parties. It can also be through the adoption of conditions, covenants, and restrictions. A state legislature can create the right to unobstructed light, air or view by creating a right to sunlight for a solar collector. Similar right can be created by local governments in adopting height limits to protect views and provide for light and air.

A property owner may be prohibited by a statute from erecting a fence or structure over ten feet in height which prevents an owner or occupier of adjacent land from enjoying the light or air.

In Pacifica Homeowners’ Ass’n v. Wesley Palms Ret. Cmty., 178 Cal. App. 3d 1147 (Cal. App. 4th Dist. 1986), appellant homeowner’s association’s members owned single-family residences located uphill from respondent retirement community. These single-family residences had views of the ocean, Mission Bay and the city. The homeowners’ deeds protected the views from future obstruction. Respondent was granted a conditional use permit in 1958 to operate a retirement hotel on a 40-acre tract of land with landscaping and five-story building height restrictions. Eucalyptus and pine trees on respondent’s property exceeded the height of its five-story building 25 years later and obstructed appellant’s views. Appellant alleged that respondent was burdened with servitude to not permit any obstruction taller than its five-story building but was denied injunctive relief. On appeal, the court found that there was no implication of a restriction on the height of trees in the conditional use permit that limited the height of the building. The focus in the permit was on the aesthetics of respondent’s property, not on protecting the appellant’s views. The court inferred that the planning commission approved the mature height of the trees since it attached no trimming or other height restrictions. The Court affirmed the judgment and the retirement community’s demurrer to appellant homeowner’s association’s action was properly sustained, because statute or governmentally imposed conditions on development creating a right to an unobstructed view in the absence of any agreement. The respondent neither acted in bad faith nor interfered with any right where homeowners had no natural right to an unobstructed view.

Light, Air, and View: Related Pages

“Ancient lights” is an English doctrine. It states that if a landowner had received sunlight across adjoining property for a particular period of time, that landowner was entitled to continue to receive unobstructed access to sunlight across the adjoining property. According to this doctrine, the landowner acquired a prescriptive easement and could not be prevented from access to light. However, the doctrine of ancient lights has been repudiated in the U.S. Law makers are of the opinion that this doctrine is inconsistent with the needs of a developing country.

While common law does not recognize a landowner’s right to acquire an easement of light by prescription, US courts have not been as receptive to protecting a landowner’s access to sunlight.

In Prah v. Maretti, 108 Wis. 2d 223 (Wis. 1982), plaintiff’s residence had a solar water heating system. The lot adjacent to plaintiff’s lot was purchased by defendant for constructing a home. Plaintiff advised defendant that if home were built at proposed location, defendant’s house would substantially and adversely affect plaintiff’s solar system and could cause plaintiff other damages. Despite this, defendant started construction. A complaint and application temporary injunction was filed by plaintiff. The court found that plaintiff had stated a common law private nuisance claim upon which relief could be granted and remanded the case.

[syrakusos]

You have a Gordian Knot.

There is a difference between deciding some or all of these problems for your own satisfaction and expecting "society" to come to a "rational" conclusion on any or all of them.

The basic problem is that the foundation of law grew up by happenstance. Even if they were thought out from first principles 2000 or 200 years ago, changes in human action would necessitate re-thinking at least the applications, if not the fundamentals.

I happen to have some antique stock certificates. Depending on which American state they were issued in, they may call two owners "joint owners with right of inheritance and not tenants in common" or may call them "joint tenants." Both are hold overs from real estate law, of course. The law attempted to adapt concepts from land to commerce and industry - and now to the information age. This created a complex tangle of contradictory facts and contradictory rulings by courts with different histories. Of course it is a mess. How could it not be.

Ayn Rand, for all her brilliance, was one person. Not only could she not think of everything, she could not think through everything to all consequences from all suppositions. It is wrongheaded to comb her works looking for clues. In the middle ages, they called it "bibliomancy" opening the Bible to a random place to find a meaningful reading for an immediate problem. Perhaps some traveler told them of the I Ching. Later, some people did the same thing with Dante's Divina Commedia, used it as a bibliomantic guide to life.

If your goal is to show that Ayn Rand's ideas on property law changed over time and suggest inconsistent applications of fundamental truths, then you succeeded.

If your goal is to establish objective property law, then you have a ways to go.

In the English system - including America, of course - we have "benchmade law." Legal rulings do more than declare a final settlement: the judge explains his reasoning. The reasoning is fundamental to the process, basic to the establishment of precedent. Other nations have "civil law." (Not to be confused with American "tort" law.) Under civil law, the legislature defines everything in detail and the court's only job is to apply the case at hand to the law on the books. No reasoning is necessary.

You are working from an English tradition, citing all these cases along with the opinions of a philosopher - and just one at that - whereas you could also view this from a legislative framework, trying to discover all the details of statement that would make the law complete.

For instance, in the case of the Sunshine Problem, blocking access to a non-exclusive, non-rival good like sunlight could be interpreted as being the other side of the coin from being upstream of someone and polluting the river. Originally in ancient days, property rights were thought to reach to the center of the Earth and infinitely upward into space. You can buy, sell, lease or rent air rights in New York City. You cannot prevent airliners from flying over your land - nor can you prevent police aircraft from looking down on it. How you and I think this through is one thing. How the rest of the world does is something else. We like to think that a new and better age is dawning as a result of Objectivism. If you are planning a legal system for that glorious new future, then you have a lot of work ahead of you.

[Peter]

I have now questioned Objectivism's position on abortion, contextualism, and property rights. And I am right that a reexamination is needed.

Michael, I will reply to your other points later. I am helping watch my 18 month old granddaughter while my daughter goes to the gym for her Saturday inner core training. Every drawer without a Home Depot latch must be opened . . .

Michael E. Marotta wrote:

You have a Gordian Knot . . . There is a difference between deciding some or all of these problems for your own satisfaction and expecting "society" to come to a "rational" conclusion on any or all of them.

End quote

I agree. Please write an article on this Michael. My writing is only fair, but I was a professional proofreader. I will proofread / edit what you write, if you wish, before you post it, and the "final cut" will be yours. I thought about bringing in more examples but I felt like I was just repeating myself. If a rank amateur can do even this little . . . what could a legal eagle do?

My intent was to untie the "rationally derived, - at" and/or just "traditional knot" versus the "newly thought - out objective knot" using Ayn Rand's 55 different views as an example, which is a tough job. It would be a shame to lose all the acquired wisdom found in *precedent.* And I wanted to show that there is a market for *new objectivism.*

Too many Objectivists recite ONE MANTRA when a subject is brought up. They do not think for themselves. Over and over again on another site I heard, "You can do as you wish on your property as long as you don't infringe on the rights of others," like they were all ventriloquist's dummies. If you want to experience an excruciating vacation spend a week on Diana Hsieh's Objectivism Online. I did, and my wife was following along. Her view was that she had never seen such a grouping of psychopaths in one place, in her life and feared they would try to do me bodily harm if we ever met because I questioned what Ayn Rand wrote.

Here and at TOC/Atlas is the place for advancements in objectivism. There's no place like home. *Coming to the Nuisance* *Adverse Possession* What wonderful common sense precedents.

I agree, Michael, that it would be wonderful to consolidate those precedents into a national data bank, instead of having each state's versions conflicting in slight ways. Perhaps a Supreme Court ruling in 2016 will accomplish that.

My second post in this thread which was simply quotes is an example of how Objectivism needs a different type of Supreme Court ruling. I think we all know the spirit of Randian Law but putting that mish mash into practice would be another Gordian Knot. Perhaps you or David Kelley will untie it.

Peter Taylor

Edited May 15, 2011 by Peter Taylor

[Peter]

Michael M. wrote:

We like to think that a new and better age is dawning as a result of Objectivism. If you are planning a legal system for that glorious new future, then you have a lot of work ahead of you.

End quote

My own short cut to that future would be to keep what we have in the US Constitution, but amend it. “The Pursuit of Happiness” needs an amendment enumerating the objective criteria required for property rights. The “Atlas Shrugged” character Judge Narragansett isn’t in the DC phone book but Paul Ryan, and Ron and Rand Paul are. We just need a vocal majority on the side of right. Unfortunately, I am not sure we have philosophically reached that point yet.

The elections of 2010 filled me with promise but since then I have seen polls about the attitudes of prospective voters, especially concerning “entitlements,” not swinging towards the Tea Party. I hope I am wrong. I am convinced that a political paradigm shift is possible. We just need the right Presidential candidate.

Peter Taylor

[Brant Gaede]

Peter, I suggest a better differentiation between the Constitution and the Declaration of Independence.

--Brant

[Peter]

Michael E. Marotta wrote:

. . . It is wrongheaded to comb her works looking for clues. In the middle ages, they called it "bibliomancy" opening the Bible to a random place to find a meaningful reading for an immediate problem.

End quote

Ouch!

Well said Michael. Hmmm? MEM. That’s a computer term for a long lived idea or virus (I think, or is that meme?) and a letter in the Hebrew alphabet. What does your middle initial “E” stand for?

I think of Rand’s philosophy as essentially correct, much as I might regard a host of scientifically proven theories. To a degree it is a state of mind found in a place like Objectivist Living where I know I will be speaking to others who share my esteem for rationality. Therefore I may preface a letter by saying this is by and for Objectivists, and why I quote Rand. It is of passionate interest to “us” to know that she jibes with reality as frequently as she does. We are a band of brothers and sisters.

I am constantly putting the pieces together, and integrating myself with my knowledge. I know that this *integrated self* can lead to the opposite of what my stated goal is.

Barbara Branden wrote:

But what I call “Objectivist Rage” has a peculiar twist to it, unlikely to be found anywhere else except, paradoxically, in religion. It is almost always morally tinged. Those who question our ideas and those who oppose them, we are told, are not merely unintelligent, ignorant, uninformed; they are evil, they are moral monsters to be cast out and forever damned . . . . This is a problem that has caused many well-meaning people to turn away from Objectivism after painful and humiliating encounters with moralizing Objectivists; it thereby endangers the future acceptance of the ideas that are important to all of us.

End quote

That is the dark side of what can occur when a person belongs to a “group,” and IF one accepts the premise that ideas are evil and not the deeds that may accompany them.

If I were at a regular, every day forum, and not an Objectivist public forum, I would not be quoting Rand so much, simply because people would think my quotation was eccentric and not pertinent to the discussion.

Last year I did write a letter to the editor about global warming and mentioned Rand briefly. Here is how it began:

I hope everyone is keeping a scientifically open mind about the Global warming debate. I think proponents of the Global Warming theory think like this quote from the Talmud:

“We do not see things as they are. We see them as we are.”

In other words, they have a subjective view reinforcing their preconceived prejudices. Compare this viewpoint to another quote. A scientist will look at the facts, not the spin. Ayn Rand wrote:

“We begin as philosophers where we began as babies, at the only place there is to begin: by looking at the world.”

What a 'literal,' world of difference. I definitely go with the second point of view, which is the scientific point of view. We need to see things as they are.

End quote

So that is an example where I rarely mention Ayn Rand in public.

But here, on Objectivist Living, it is a different story. I know there are libertarians of all stripes here so I warn them that I am primarily addressing Objectivists but if you are still interested, please read what I have written.

Ah, a new word for me: “bibliomancy.” Rhymes with Randroid

Peter Taylor

[syrakusos]

My intent was to untie the "rationally derived, - at" and/or just "traditional knot" versus the "newly thought - out objective knot" using Ayn Rand's 55 different views as an example, which is a tough job. It would be a shame to lose all the acquired

wisdom found in *precedent.* And I wanted to show that there is a market for *new objectivism.*

You did a good job of that. Your catalog of quotes on property and the derivation of property rights would make excellent rubrics for a treatise on Objective Law. But it is not for me to write. Thanks also for offereing to proofread for me, but I live with one, already. My wife has done over a 100 for Bantam-Doubleday and a couple dozen for some other people. I keep her away from my work, unless it is really important.

I think, also, that your lengthy array of citation is sufficient to cause a lot of discussion within Objectivist circles. If you are registered elsewhere, you might consider it. But duck when you do...

[syrakusos]

My own short cut to that future would be to keep what we have in the US Constitution, but amend it. “The Pursuit of Happiness” needs an amendment enumerating the objective criteria required for property rights.

I am convinced that a political paradigm shift is possible. We just need the right Presidential candidate.

We do see that differently. The advantage to bench-made law is that it is flexible and contextual. But I am open to civil law, which would demand the details you ask for. So far, I have not read a good basis for property rights. It may be that there is no single metric. Some people say "property is what you mix your labor with" and point to a farm. But appreciating and art object - or a sunset - is different from that and you can own art or even own the land on a cliff that provides the view you did not create.

Economics books define public goods as being non-rival and non-exclusive. Thus, private property must be exclusive and rival. But that begs the questions. What makes it exclusive? Who is a rival? The problems with land are about the only thing we work well with. When it comes to intellectual property rights, nothing seems certain to me. I can ask questions. I have no answers.

As for that last, Presidential politics is an entirely different area of discussion. F. A. Hayek's Road to Serfdom quotes Franklin D. Roosevelt saying that free enterprise has not failed because it really has never been tried.

Edited May 16, 2011 by Michael E. Marotta

[syrakusos]

Ah, a new word for me: “bibliomancy.” Rhymes with Randroid

Well, it was a bit unfair, in that you did not really just find passages at random. And I do agree with you that easily Ayn Rand was mostly right about most things she cared to write about. She was absolutely right about the basics. So, we can work from there. I guess, really, anyone who calls themself an Objectivist does that.

[psychoanaleesis]

Peter,

Nicely done. Long and winding but very informative. What you are trying to accomplish will be applicable when another renaissance comes in i.e. a revolution or something like the strike in AS. Rand, time and time again, left the details to the science of law to discuss the details and applications of such issues.

It's only in a rational society that an article such as this would be of great relevance and concern. Would you like to build a "Galt's Gulch" somewhere, anytime soon? ;)

[Peter]

David Lee wrote:

It's only in a rational society that an article such as this would be of great relevance and concern. Would you like to build a "Galt's Gulch" somewhere, anytime soon? ;)

End quote

I was hoping someone with legal experience would be inspired to write something "magazine article worthy."

This is an open challenge to all. Take what I have written and use it as you see fit, the credit will be all yours, if you write something decent. Take any of the ideas I have written about, or any of my text or quotes, be it on property rights, abortion, or anything else and use them as a springboard. Write something I would like to read. A few good people will read what I wrote and that is all that I wanted.

Galt's Gulch, David? I have already "gone Galt."

Now I do want to warn everyone in their fifties in America who might be thinking about living on their Social Security when you get to be my age. My SS income is right around the nation's medium which is $1178 a month, and if you also have supplemental medical insurance it is barely enough, even though I own my house and car and have no loans to pay back. You need some outside income. Boy, oh boy, you can tell what I am worrying about.

Does The Philippines have Social Security, David? This is probably a completely chauvinistic thought, but does anyone there ever wonder what life would be like if Subic Bay were still being leased to the US and The Philippines was a US territory like Guam or Puerto Rico? "You people" speak such good English, with a tropical twang : o )

I think I will increase my vegetable garden size this year. Is there a scarecrow to keep cats from pooping in your garden?

Peter Taylor

Edited May 17, 2011 by Peter Taylor

[psychoanaleesis]

Does The Philippines have Social Security, David? This is probably a completely chauvinistic thought, but does anyone there ever wonder what life would be like if Subic Bay were still being leased to the US and The Philippines was a US territory like Guam or Puerto Rico? "You people" speak such good English, with a tropical twang : o )

I think I will increase my vegetable garden size this year. Is there a scarecrow to keep cats from pooping in your garden?

Peter Taylor

That's funny Peter. Where'd you get that impression? from Pacquiao?

Unfortunately, yes we do have SS here. Goddamn SS, stealing from folks like me and getting a loan - with the money I EARNED?!? I don't like the idea of begging or asking anyone to return what is MINE. I abhor the idea of having anyone else think for me and decide what is best for me.

Oh, for all the right reasons, how I would love if the Philippines is a US territory but I think the US is better off without the burden of this culture.

BTW how to keep cats away I did think of catnip too but they might just poop on your yard anyway after getting high - to keep the catnip area clean.

D.

Edited May 18, 2011 by David Lee