"Homesteading in a circle". Dr. Walter Block's limitations on homesteading.

Economics Political Theory
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I recently watched a video where Dr. Block was explaining the theory of homesteading and defending his idea of private roads against various usual objections and desires to use eminent domain. (I tried to find this specific video again, but with no luck so please refer me to it if you know where it is). Here’s a summary of the discussion and I’ll get to the question after that.

The most obvious case FOR eminent domain is when some people (call them “Roadsters”) want a road from A to C and there’s a homesteaded private property located in between (owned by “Roadblock”). The shape of the property is an elongated thin strip. Keep in mind that this objection is inherently utilitarian and should be fought on that level. However, since most people ARE believers in at least some utilitarianism, we have to point out that the owner of the property does not own the slice in the third dimension. So the roadsters could build a tunnel or a bridge. Dr. Block then analyzes that and proves that building a bridge/tunnel is very likely possible in all situations.

My first observation is that there is a cost to building a tunnel/bridge or making the road go around roadblock’s property, however this cost has no relevance to the argument about who should be allowed to do what, moreover Dr. Block should agree to this point given his rejection of Coaseian-like and utilitarian distributions of property rights. (I can provide reasons if interested). This is mostly standard stuff up to here.

Here is the part that interested me. Dr. Block then put forward the scenario where Roadblock homesteads a donut shaped patch of land surrounding the land owned by “Donuthole”. Here is where Dr. Block claimed that it would not be libertarian for Roadblock to homestead property in this way. The reason being that Roadblock is effectively controlling land that is owned by Donuthole (I’m paraphrasing here). Apparently there is some article somewhere about this, please point me to it if you know.

HERE ARE MY OBJECTIONS

  1. Donuthole can still get out given enough resources. (Think something like west Berlin). This shows that Roadblock won’t NECESSARILY control Donuthole’s land. Since such homesteading hasn’t been shown to ALWAYS lead to a problem it should not be forbidden/unlibertarian.
  2. Donuthole can still get out given enough resources. Just like in the case with the tunnel/bridge we should not use the cost of something to argue for a limitation on homesteading.
  3. If Roadblock were to homestead only one of the semi-circles and his brother homesteaded the other wouldn’t it be perfectly legitimate for them to voluntarily join their land into one whole piece under a corporation? This ends up in the same scenario and we see that the argument isn’t for limiting homesteading to permissible geometric forms. Rather, the argument given by Dr. Block is in fact an argument for limiting the shape of any land property and this means all potentially affected third parties having to approve the merger. (remember that the third parties do not suffer an externality/physical trespass, but merely a financial cost from the merger). I’d argue again that there is no victim here. Something seems wrong with having to approve mergers and aquisitions, but I haven’t hashed out the logical argument against that yet.

What are your thoughts? I’d be very interested to hear anything related to this since these are fundamental issues.

Now as an addition to the scenario (this is added by me and not in the video). Suppose Roadblock builds a sphere around Donuthole’s land. 1 and 2 would not hold anymore since Donuthole needs to break the sphere to get out. However 3 still holds (possibly Roadblock has to give air and water to Donuthole so he isn’t a murderer). So even in this extreme example we still shouldn’t limit the shape of property. Note that you could be guilty of murder under some situations, but this still doesn’t mean we should have a regulation on property shapes, only punish after the fact and allow self defense to the possible victim.

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“Apparently there is some article somewhere about this, please point me to it if you know.”

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Hey thanks!

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That’s a great article.

I think the article by Dr. Block (I was looking for initially) is the one referred to here: https://mises.org/daily/3794/Freedom-and-Property-Where-They-Conflict#ref7

I’m not sure I am ready to accept that freedom is more important than property rights. “Restricted freedom” in this case seems to imply that you were denied some kind of positive right, like “the right to travelling outside the encircled”. Where are you getting this right from.

I’m thinking now that if I accept the right of passage idea, I’d have to accept some form of socialism, because being able to travel is no different than having access to information or the ability to build your own car or having “access” to healthcare.

Am I wrong or is this a fundamental disagreement on method?

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Hi Derpstatis,

Walter Block is a Rothbardian and approaches these problems differently than a subjectivist moralist (such as Mises, Hazlitt, etc) would.

See: Dealing with lifeboat scenarios. This Week in Liberty, Episode 2. Guest: Rob (Autolykos)

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As a Rothbardian, I am not pleased with Block’s donut theory (as I read it in another paper).

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This is stupid. Easements. Donuthole has homesteaded an easement on access to and from his property. Its very simple, no court in a competitive market would permit encirclement without concessions.

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Malachi, I agree that if he has homesteaded the easement that would be the end of the discussion. Or perhaps homesteaded access rather than easement? This argument is one I am willing to pursue and it looks very favorable.

However there is no a priori reason to presume he has. In fact in the special case where Donuthole has never left his property or had any communications with others he has clearly not homesteaded any easement or access. Such would be the case if some aliens have already homesteaded the universe minus our solar system. In my view we would not have the right to demand passage through the universe and we have not homesteaded any such easement.

Here I think there are also the questions of what can be homesteaded and how, but even if you are correct about the homesteading of easement, since we have not shown (or IF it is not shown in case I am mistaken) that to be necessarily the case, I would contend that it is an issue for arbitration rather than an outright ban on the shape of property. I presume you would agree with this? If so would you agree there is nothing to be said about such limitations on property and that we can let the arbitrators figure out who homesteaded what to solve this dilemma?

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I’m generally not a fan of the Rothbard/Block-style approach to legal theory. The deductive approach is of no use in determining the normative content of the law. This is a crucial point, too, since it leads directly to the realization that without a thriving market in law, we are doomed in terms of establishing what the law should be. Legal criticism is just so much hot air contra other hot air. Every point of view is equally mere opinion.

Clayton -

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Hi Clayton,

I somewhat agree. But isn’t your approach a bit like saying that we could not discuss how anarchy would work until we have it? I would prefer that these things are hashed out so that we know what to expect and what to agitate for and what to try to persuade people to take up as principles.

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Sorry, but Block is simply masturbating.

Donut theory or not, the choice before every encircler (and every other human) is between beeing (1) a peaceful, cooperative agent aiming to enjoy the benefits of division of labor and trade with others, or (2) a dick. Without a state to attract/collect the dicks and provide them powers, the non-dicks will outcompete dicks hands down, and their patronage of arbitrators delivering non-dicky judgments would set non-dicky precedents for other arbitrators to follow. In your particular example, if arbitrators have not yet established the non-dicky precedents, the non-dicks prevalent in society would likely have enough resources to encircle the encircling dick with yet a larger donut and give him a taste of his own medicine – in addition to refusing to exchange goods and services with him and banning him from their properties.

Can you lock me into your Port-A-Potty while I’m inside and demand $1m to let me out before you throw your property over a cliff?

I say, do whatever you want and enjoy/suffer the consequences.

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But Rothbard/Block aren’t just speculating about how the law might work under competition. They pretend to be laying down certain rules about how law must work; private law in any case. I have myself speculated at length about how the law might work under competition. But I make no pretense to be establishing rules about how the law must work.

I also think we can do slightly better than speculation by looking at cases in the modern world where true law manages to eke an existence and also by looking in history and comparing law across cultures. But this form of study is decidedly empirical and the conclusions drawn are, therefore, inherently uncertain as regards their applicability to the character of law in an unhampered market in law services.

Clayton -

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Thanks Clayton, I believe I understand you position a little better.

I agree with your characterization of Rothbard/Block. But isn’t it true that they are deriving these rules based on reason/logic and the principle of homesteading (at least in this case). Are you somehow looking for a non-normative view of law (in which case I presume you would not necessarily accept homesteading or any theory of property rights other than that which arises naturally)?

I would object to using the empirical approach because it suffers from the bias of positivism. In using the empirical approach you must also resort to logic to interpret your observations. So I say for the sake of discussion that we speculate that homesteading will arise as a principle in SOME free societies and see where logic will necessarily take us.

I’d be happy to continue the discussion on method in another post if you are willing.

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My views are explained at length here.

Whoever said we can’t use logic? The use of empirical evidence does not positivism make. Do you believe that you must be a positivist in order to say, “the particulars of human anatomy are empirical facts”?

Clayton -

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I hope we won’t stray from the topic too much.

I will take a look, thanks.

I wasn’t implying that you said that. I just thought that we would agree that logic must be used, and so I hoped that would lend support to my defense of Block’s method, if it hasn’t that’s fine.

I think you might have misinterpreted what I meant by “bias of positivism”. I meant that whenever you look to how things are to speculate on the best way they could be (or how they should be if you accept normative legal arguments) you are going to be biased because you assume some sort of rationality of the system. I used the term bias of positivism because this is a regular problem with legal positivists saying “well there is a law so there must be a reason for that”. I will read your views a little later, but I don’t see how you can escape that problem without some normative views, since if we find the law operating in a certain way at a given time you will not (as far as I can tell) have a basis to object to that because it must have been the result of interpreting the evidence (+ logic) or the result of a process which you favor. The proverbial example of slavery is probably worth mentioning in this regard. Please correct me if I’m wrong here.

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@Derp: Well, I think the operative word in your last paragraph is “we” - there is no “we” in any particular dispute, there is only the individuals who are party to the dispute and their several views of right & wrong as well as their own beliefs about their power to bring about their desired outcome.

Imagine we live 500 years ago. I begin plowing on part of your field and harvesting it. You bring up a dispute and then take me to law. However, before we enter the court, I whisper in your ear that I know about the affair you’re having with Daisy in the town on the other side of the mountain when you go to market. When we get into the courtroom, you drop your claim and we settle that the new property line is, in fact, moved.

Is this just? I think we all agree that the means by which I’ve brought about my desired outcome had nothing to do with justice or morality or “common sense” or any of that. It had to do with the fact that I had some kind of power over you (in this case, being privy to a ruinous secret) and exploited that power to my advantage.

Yet, the fact is that our case would be exceptional. Most of the time, a dispute would simply turn on the moral argument - who is right and who is wrong (morally)? Of course, morality is its own can of worms. So when I say “morality”, I don’t mean it in the “Thou shalt not” sense but, rather, in the sense of obvious, polite decency… the same sense in which you know better than to urinate in a public park in broad daylight. So both power and morality are both always in operation in any dispute.

“We” don’t need to reach any sort of consensus about how every dispute of a certain kind must be resolved. When law is rightly understood, you realize that the judge is no such thing. He is not really a judge; he merely makes a pretense of decreeing and ordering. To whatever extent he does decree, he does so in the capacity of an agent of the ruling power, not in the capacity of moral conviction, all pretenses aside.

Rather, the role that is played by judges today would be performed solely by mediators and arbitrators in an unhampered market in law. There is zero market demand for judges. Helping people resolve their disputes is a job that can be performed by an expert in law, that is, someone who has studied moral philosophy and the philosophy and history of law and who has a deep understanding of the particular nature of the disputes he hears (in other words, a specialist). When he speaks, he speaks in the role of a counselor, an advisor. He is merely someone who is helping both sides to a dispute find a durable solution to their dispute so that they can avoid becoming entangled in a feud and his advice carries weight by virtue of his extensive knowledge of prior disputes and dispute-resolutions (settlements) and how those have worked out over time.

The modern, government judge is a hollowed-out, cartoonish shell by comparison. The job of the government judge is to obfuscate the farcical nature of what is actually happening in the courtroom.

Clayton -

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Clayton,

What I mean by “we” was actually “you”. I was refering to you as the observer/speculator that will have to apply the evidence based method you described previously.

In your example it is clear that the blackmailer traded his silence for some property. I don’t see any problem with that or why that should reflect on morality as you describe it.

I completely agree with the rest of what you said, in the end it isn’t about justice or morality. However I don’t see how it answers the question of method. Why is it preferable to base legal speculation on your version of empirical study rather than the Block/Rothbard method as you describe it? What if people by using the market end up prefering the Block/Rothbard method?

Regarding your urinating example, this is interesting because there are places in the world where that is normal as long as you are not showboating. So for my personal clarity how would you speculate that the case urinator (A) vs. passer by (B) get settled? Suppose that you had to supply your opinion on the dispute. What method would you use to form an opinion on who is in the right (A or B or none)? Again I don’t need to know the decision, just the method.

Thanks.

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I distinguish between law proper and philosophy of law - I would say you are talking about the latter, in this case. The difference is that the opinions of “commentators/speculators” is immaterial to actual law, whereas the philosophy of law is nothing but (and of no actual consequence to real disputes).

That’s my point - it doesn’t. And we have no idea what, exactly, is “in trade” in any particular dispute. Only the disputants know that.

For the same reason you can’t use the Block/Rothbard method in “deducing” human anatomy from axiomatic principles. Sure, you can say “logic and the geometry of local space dictate that two organs cannot occupy the same place within the chest cavity”, but a) that isn’t telling us anything non-trivial and b) you still can’t deduce the particular facts of human anatomy from the axiomatic principles. In other words, you can deduce that a liver and a heart cannot occupy the same space in the chest cavity but you cannot deduce that human beings have a heart and have a liver. In order to discover that, you have to actually get out a scalpel and start carving up cadavers (or read a book by someone who has).

In the same way, you can deduce that Jones and Smith cannot both own the same object at the same time (since ownership is, by definition, the exclusive right to use of something). However, you cannot deduce the particular facts of law - even property law! - from these elementary logical/Euclidean concepts. In order to discover these particulars, you must actually study how people settle their disputes as a matter of common practice.

That was just a side-point… the illustration is immaterial. I’m just trying to point out the difference between deontological morality (“Thou shalt not”) and the more pragmatic or “obvious common sense” idea of morality that actually governs people’s day-to-day behavior.

Clayton -

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I understand what you are saying. I understand that your or my opinion is immaterial. I understand that you cannot deduce law without first studying how things are.

But I think it is important to settle one question. The question is how you personally would go about forming an opinion on a dispute with the knowledge you have now. I assume you would see what the common sense morality is (as you personally perceive it) and try to see what its logical implications are for the particular circumstances.

Secondly and most importantly what is your basis for opposing the current legal order? Why not have a coercive state with judges? I don’t see how you personally can ever pass a value judgment on any existing system unless you presume to know what common sense morality is. Or perhaps you know enough of it to oppose a state, but not enough to figure out the particulars of an anarchistic society?

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How is it inherently utilitarian? Even if it were, why does that mean it must be fought on that level and no other?

As I see it, “eminent domain” is really the state’s way of saying that it owns the land, not the person who the state fraudulently says owns it.

I don’t consider ownership to be the same thing as control. Ownership is normative, while control is descriptive. Furthermore, I think ownership entails three kinds of right: the right to use (jus utendi), the right to the fruit(s) of use (jus fruendi), and the right to abandon (jus abutendi).

With that said, I think Donuthole has in fact already homesteaded one or more footpaths (at least) from the land he resides on and one or more other people’s land. Indeed, because he homesteaded them (and thus took complete ownership of them), Donuthole isn’t limited to using those strips of land solely as footpaths. If Roadblock prevents Donuthole from making any use of those footpaths, he’s effectively stealing from him. Indeed, I’d say that Roadblock can’t take ownership of those strips of land without agreement from Donuthole. An easement allowing Donuthole to travel through Roadblock’s surrounding land would actually entail a diminution of Donuthole’s existing rights IMO.

Given what I wrote above, I think Roadblock building such a sphere would in fact violate Donuthole’s existing property rights.