How big an area could one claim to be homesteading?

Economics Economics Questions
21

I think you misunderstand the point of this thread. As far as I can tell, we’re not trying to “legislate from the recliner” – rather, we’re investigating the logical extent of the homesteading principle. What’s wrong with this? I’d say it’s important to find out which definitions of “homesteading” do not conflict with other libertarian principles. So it’s really a philosophical discussion we’re having, if that makes sense.

I have studied customary law. From what I understand, common-law jurists typically appeal to general or universal principles as much as possible. This actually maximizes efficiency – it’s easier to decide cases based on established general/universal principles than to take each case ex nihilo.

22

It is completely a matter of local customs. There is no use or need to armchair this.

This. And this can not be stressed enough. The sooner this concept is realized the better.

23

Somehow, I don’t think simply hand-waving and saying “The market will take care of it!” is going to be satisfying to most noobs.

24

Somehow, I don’t think simply hand-waving and saying “The market will take care of it!” is going to satisfying to most noobs.

It’s not ‘hand-waving’. That’s how law works. They’re trying to think of it as though they are Congress. That’s not how free market customary law works. If they don’t like that answer - that’s too bad. The question they are asking can not be answered; it’s meaningless. It is at least as absurd as asking, “who will produce cars without the Soviet State? And how many seats will they have?” An understanding of professional law and customary law is not to be gained by reading Rothbard; as nice of a background as that may be for general principles it is useless for substantive claims. There are no a priori principles of boundaries or restitution claims. There are many authors - Anthony de Jasay, Lon L. Fuller, etc. who provide insightful analysis of legal proceduralism and customary norms but it can not be emphasized enough that it is insane to attempt to decide the substantive content. One of the advantages of customary, private law is that it reflects what is acceptable to the people involved. And that is not something you can predict without actually letting the legal market operate.

25

Somehow, I don’t think simply hand-waving and saying “The market will take care of it!” is going to satisfying to most noobs.

Luckily, there is a long and detailed history of customary law.

26

Speculating about this ahead of time allows people to operate with some degree of certainty without having to wait for a court case to decide things.

27

This kind of armchair speculation is not useful for that purpose. The people on the ground can usually find norms without ever going to court for it. How often do you have to check your property maps at the county register to decide where your lawn starts and your neighbors begin? The aribters are only there for marginal cases; property bounds, like contracts, are largely self-enforcing.

28

The whole scenario is predicated on the premise that there is a disagreement between the parties; if they both agreed on an acceptable resolution, there would be no need to involve an adjudicator in the first place.

29

The whole scenario is predicated on the premise that there is a disagreement between the parties; if they both agreed on an acceptable resolution, there would be no need to involve an adjudicator in the first place.

There is an initial disagreement at the margins. But there is large agreement at the core, which is proven by the fact that they are able to organize and exist in civil society. Thus when they refer to an arbitration agency it is an appeal for a more refined sense of these margins as well as contractual defaults. For anyone who just ‘needed’ to have it written in stone they could simply bond themselves to an arbitration agency with fairly strictly stipulated standards and practices.

30

I really don’t see how the OP in this thread is trying to think of free-market customary law as though it’s Congress. Nor do I see how the question asked can’t be answered or is meaningless.

Where you say that “there are no a priori principles of boundaries or restitution claims”, it seems you mean that no one is prima facie obligated to follow any particular principles. You’re right about that. However, that doesn’t mean that a priori principles can’t be posited and discussed. The heart of libertarianism is all about principles – the Non-Aggression Principle, the Homesteading Principle, etc.

Am I supposed to be intimidated when you say that “it is insane to attempt to decide the substantive content” (more accurately “speculate on the substantive content”)? If so, then I’m sorry to tell you that I’m not.

31

I don’t see how this pertains to the OP whatsoever. If you don’t think that the OP should be discussed or responded to, why are you here? Do you feel the need to prevent others from doing that? If so, why?

32

The assumptions of the original discussion were mistaken. These things can not and should not be drummed out on the basis of floating theories. The whole point of market law is to make things conform to the wishes of the consumers; if you want historical examples of norms then look at customary law but even this is just past data - we are not any more likely to replicate Germanic tribal customary norms on boundaries and appropriation than we are to copy the Commune system of defense.

The answer to ‘how much land can you homestead’ is ‘as much as people will generally accede to without fear of being estopped on their own claims’. That’s it. There is no cubic measurement, no formula, no theory that will give you an answer any more precise than that.

33

Where you say that “there are no a priori principles of boundaries or restitution claims”, it seems you mean that no one is prima facie obligated to follow any particular principles. You’re right about that. However, that doesn’t mean that a priori principles can’t be posited and discussed. The heart of libertarianism is all about principles – the Non-Aggression Principle, the Homesteading Principle, etc.

The NAP is legally tautological, and ‘finders, keepers’ and ‘first come, first serve’ are a lot less confused than the Lockean principle. There certainly are restrictions on what law is (something which is arbitrary is not justice, it is fiat), what sort of jurisprudential procedural norms make logical sense. But that in no way bounds specific provisional norms, nor should it. The point of a market in law is to serve the customers. That is not done by having universal, arbitrary standards. Even Walter Block has said this - the arithmetical and standards of conduct for law are products of the market, not something one can dream up sitting in an office. Such a legal system would be ridiculous, and no one would actually use it. Why should they? Why should there be some universal standard on how property is appropriated? All we need to do is understand what it means to appropriate property, what sorts of questions are relevant to title and infraction and then let people work it out among themselves what boundaries best suit them. I can not believe this seems to be such a difficult concept for many libertarians to understand, and I suppose the general ignorance of customary law is the cause of it.

34

What, in your opinion, are the assumptions of the original discussion?

Of course, but I think that’s all rather beside the point here. The OP was about further refinement and delineation of the Homesteading Principle – also known as taking a principle to its logical conclusion(s). If you don’t like such things, that’s fine. But please don’t try to prevent others from continuing to engage in them.

The OP wasn’t talking about how much land one can homestead. He was talking about what constitutes homesteading. The amount of land involved is irrelevant. Given the OP, I don’t think the thread title was well-chosen, but it is what it is.

35

I hope you don’t mind if I break up your rather long paragraph.

What do you mean by “legally tautological”?

“Finders, keepers” is all well and good, but the issue there is with what constitutes “finding”. Likewise with “first come, first serve” – what constitutes “coming” there?

Yet people don’t have to come to agreements which make logical sense, do they? Simply saying that law is whatever people agree to takes logic out of the picture, doesn’t it?. What I (for one) have actually tried to do, here and elsewhere, is do exactly what you describe here – investigate what sort of juristic norms and principles make logical sense.

Are you equating “universal” with “arbitrary” there? If so, why? Logic is (as far as we can tell) universal – does that make it arbitrary?

You seem to contradict yourself between asking “Why should there be some universal standard on how property is appropriated?” and saying “All we need to do is understand what it means to appropriate property […]”. If you’re implying that there’s a correct meaning for “appropriate property”, that would imply a universal standard, wouldn’t it?

Regardless, I think it’s important and good to realize that speculations are speculations. They aren’t claims or demands on the future – they’re simply ideas on how things could work. Sometimes people find it difficult to understand abstractions and pure concepts without “real-world” examples. The speculations I and others might engage in are done for that purpose.

36

I have revised and added some links to this since I first posted it.

What do you mean by “legally tautological”?

Any theory of justice (not fiat) has a ban on aggression. Aggression is by definition not permitted under justice, even if the system allows for exceptions to punishment (makes aggression non-actionable in some cases) it is nonetheless verboten by being aggression. The question is: what counts as aggression? Now, our answer would be ‘violation of property’; but here the question becomes ‘what counts as a violation of property?’ You can only answer this by developing customary are contractual norms on what people consider a violation, and a large part of this will be whether or not it pays to sue the company which bonds you (inaccurately called ‘legal’ or ‘criminal’ insurance) for the damages which can be found for it. Thus, people would not sue for shining a flashlight on their door unless it can be proven that a flashlight causes serious damages; otherwise it would be in their interest to just ignore the matter, or bitch you out about it.

“Finders, keepers” is all well and good, but the issue there is with what constitutes “finding”. Likewise with “first come, first serve” – what constitutes “coming” there?

Whatever suits the people involved. It’s really none of my business how two Frenchmen decide what counts as appropriation, or what norms some legal company or another adopt as standard policy. As long as everyone involved agrees to be bound by the arbitration results, who cares?

Yet people don’t have to come to agreements which make logical sense, do they?

Then it’s not law. People don’t have to make arguments; but they’re not arguing. So?

Simply saying that law is whatever people agree to takes logic out of the picture, doesn’t it?

No, it doesn’t, for the above reasons and for the simple concept of voluntarism: if everyone involved agrees, mind your own business. Procedural norms can be established deductively (asking a person to prove that there is no reason he should be prevented from doing something is a logical impossibility, ergo the presumption of innocence). Substantive matters - metrics and norms of practice - are ultimately a matter of whatever people involved recognize and accept, there is no alternative possible: either some company they contract or bond to sets norms or people just accept norms that are used. It used to be in the West that they’d shave the bark off of trees to show their bounds; when there is a lot of land this is all you need. When there is less free land or the land is more valuable and thus more likely to be hotly disputed they develop more precise norms. But there is no way to decide, it depends on what people are familiar and comfortable with.

Are you equating “universal” with “arbitrary” there?

What is your universal reasoning on how many seats there should be in a car? There is none - it’s arbitrary’.

“All we need to do is understand what it means to appropriate property […]”. If you’re implying that there’s a correct meaning for “appropriate property”, that would imply a universal standard, wouldn’t it?

There is a difference between substantive norms and bounds, procedural logic and the very meaning of words. The three of these are all components of a juridical system, but they all derive from different considerations and facts. A basic familiarity with legal theory (which is NOT the same as libertarian morality, even if you ARE a a libertarian) would tell you this. You seriously need to read works such as Lon L. Fuller’s The Morality of Law and Anthony de Jasay’s Justice and Its Surroundings before your speculations are going to be anything but nonsense. If you want a professional opinion you could just bother emailing someone like Stephan Kinsella, who is a professional lawyer and will tell you exactly what I am right now.

Ironically, the approach you are taking to this (‘how much land can you homestead?’) derives from the same sort of anti-juridical reasoning that drives fiat positivism.

For simple speculation, based on the origins of European legal systems and the nature of our high-order derivative contracts and equity claims in commerce it would probably look like a combination of North Germanic tribal law, the Law Merchant, the American Arbitration Association and Roman Civil Law.

Because all norms and bounds are effected by legal dispute resolutions they are ipso facto those between the specific parties involved; and will derive from consuetudinary law (shooting someone in the face is prima facie a tort), customary law (the standards and practices generally recognized), case law (a review of relevant rulings, their arguments and results) and the specific rulings and contracts come to between the arbitration agency and its cusomers. It is not even conceptually possible for it to be anything else; saying, “X definitively counts as appropriation” is classificationist fiat, not law.

37

Why? Are you simply defining “theory of justice” that way? Or what?

Why must “justice” be defined such that “aggression” is not permitted under it?

I do agree that what counts as aggression is a pivotal question. I also understand that all of this is subject to boundary conditions (i.e. “where to draw the line”). Economic considerations aside, I think an interesting mental exercise is to see which (if any) particular boundary placements will ultimately lead back to statism. With that in mind, I’d argue that allowing a person to claim an entire continent, let alone an entire planet or moon, just by seeing part of it and voicing a claim would cause more disputes than it would solve.

And when someone doesn’t agree to that? Or when he changes his mind?

What if the two Frenchmen think it’s okay to appropriate property that other people have already appropriated?

How are you defining “law” then?

That depends on who “everyone” is, right? If you don’t agree but everyone else does, what then? What obligates you to follow the simple concept of voluntarism?

Sure, they can be*,* but logical impossibilities don’t preclude people from foregoing things like the presumption of innocence.

I understand that. Many people, especially newcomers to libertarianism, don’t. They think leaving it up to people to decide is “mob rule”, and they come up with all sorts of objections like “What if everyone else decides to take my land?” Explaining customary law to them is all well and good, but I think it’s also important to explain to them how and why customary law has a risen and (most likely) will arise where it’s allowed to. Hopefully that makes sense to you.

Logic is a process, not a result. For example, modus tollens is universal, but not arbitrary.

I don’t see how this addresses my contention. Can you please explain?

I don’t see how I’m taking any approach to the question “How much land can be homesteaded?” Rather, I’m taking an approach to the question “What constitutes homesteading?” Do you consider these two questions to be equivalent? If so, why?

I agree and I think I’ve looked into those rather extensively already.

Doesn’t logic deal with classification? I could give you the famous syllogism about Socrates being mortal, but I’m sure you already know of it. Even the different forms of law you mention above are classificatory. If Harald shoots Erik in the face, is it a tort? Only if it’s customary or if one or more analogous cases have been ruled as such. I guess this again raises the question of how you distinguish between “law” and “fiat”.

38

Why? Are you simply defining “theory of justice” that way? Or what?

That’s what it means. Fiat or statute is something completely different. Justice is not morality, it is not legislation, it is juridical practice and legal theory. Whatever relationship fiat and morality may have to justice it is something else. If you don’t understand that aggression is inherently unjust then you don’t know what justice is.

Again, you really need to read de Jasay and Fuller.

And when someone doesn’t agree to that?

Then they find a arbiter.

Or when he changes his mind?

You are estopped from doing so. This is basic contract law.

Sure, they can be*,* but logical impossibilities don’t preclude people from foregoing things like the presumption of innocence.

Then it’s not justice. You can’t have an arbitrary system. That’s a non-system.

Logic is a process, not a result.

And norms and bounds are results, not logic. They are channeled by logic, but they do not consist of logical deductions or praxeological realities.

Doesn’t logic deal with classification?

Obviously logic is involved with all ratiocination. That does not mean there is any a priori way to decide how many hectares you can claim by digging a ditch. And classificationism is not classification, it is a particular quart of statute legislation because there are no norms of practice, only some doofus with a pen and too much free time.

With that in mind, I’d argue that allowing a person to claim an entire continent, let alone an entire planet or moon, just by seeing part of it and voicing a claim would cause more disputes than it would solve.

Yes, so long as we aren’t flying around in space with supertechnology this would be absurd and no one would recognize it. So it’s a non-issue, in real life. These things only become relevant when you get to more feasible sizes, like two cattle ranchers arguing over grazing pastures. Then people have real disputes. In our present, real world only lunatics claim to own the moon.

I understand that. Many people, especially newcomers to libertarianism, don’t. They think leaving it up to people to decide is “mob rule”, and they come up with all sorts of objections like “What if everyone else decides to take my land?” Explaining customary law to them is all well and good, but I think it’s also important to explain to them how and why customary law has a risen and (most likely) will arise where it’s allowed to. Hopefully that makes sense to you.

Well, customary law, markets and civil society in general are a kind of ‘mob rule’. It is the pressure of majorities exerting what control they can to force other people to serve them. That being said it is a highly constrained, rationalistic mob rule. The trouble is that agencies like the state or rampant warlordism (I would not say there was a ‘state’ in the middle ages) break apart the constraints of customary and civil law, and unleash mob rule and fiat against the individual without providing feasible protections or recourse. The fact that the majority basically determines what is going on is inevitable, the question is how can we keep them from running roughshod over one another in the process.

39

In case someone is replying to my previous post, I will make a new one here.

Anthony de Jasay has argued that the only valid source of rights is a contract, which is a ‘meeting of the minds’. A contract because it consists of a meeting of the minds is the only unambiguous source of rights; it bestows a right on one party and a duty on another.

Liberties are extant simply because of the presumption of liberty argument outlined above. This is why I do not much care for ‘natural rights’ arguments or Constitutional rightsism - aside from the question of whether they are valid, they are a legally confused way of using the term ‘rights’; which stems from superimposing the contractual obligations of feudalism onto bureaucratic states and political philosophy.

In the case that someone fails to act in accord with contract and liberties such a person is, by definition, outside the law. An outlaw is estopped from complaining if he is robbed because he recognizes no coherent claim to property or liberties.

Now, let us take conflicting standards. We have the region of Ruritania, which is adjacent to Ancapistan. In Ruritania it is generally accepted that a light sprinkling of salt serves to establish a claim to a region of property. In AnCapistan they a rigorous test of land transformation. If an Ancapistani goes into Ruritania and complains that people have established huge tracts of land by scattering salt an arbiter will tell him ‘this is how they do that there, and due dilligence would have made you aware of this’. Even so, the practices of Ruritania are likely to rapidly collapse. Why? Because the incredibly low-cost of gaining control of Ruritanian land will allow AnCapistanis to buy up economically valuable land and farm it out to subsidiary sales. Quickly the norms in Ruritania will become transformed into those of AnCapistan. This is why crazy or bizarre standards will only persist in relatively confined communities where agreement to them is strongly implicit or explicit; i.e. Sharia law will persist among devout Muslims but that is hardly cause for concern by their cosmopolitan neighbours.

Customary law thus tends to gravitate towards the values of the population, ease of dispute resolution and economic profitability. Boundary zones will rapidly become normalize either by norms among groups living in close contact or by standard procedures adopted by their representative legal agencies and agreements between them. The only time this does not happen in customary societies is when there is not a rationalistic legal tradition and/or commercial structure to support them. Hernando de Soto is good on this in his book The Mystery of Capital.

Somalia, despite having a strong customary system, has trouble protecting the property rights of foreigners because their system is based on Somali tribes; while Somalis can shift tribal allegiance there is no established way for a non-Somali to join a tribe or for a non-Somali ‘tribe’ to be established. Likewise the case is much worse on the boundaries between customary law and statute-fiat societies; the Roman settlers and Germanic tribesmen of the areas they moved in to had incompatible systems of legal resolution which led to frequently bloody conflicts. But such is not a serious problem for a developed country with a humanistic (rather than exclusionary) customary system, such as was found in European international trade and sea law; despite centuries of fiat-legislation customary and civil law remain strong in European civilizations, and Confuscian law serves a similar role for the Chinese, who are able to conduct business all around the world with little trouble except from the government.b

40

I feel that there is a little too much here to choose specific quotes, so I’ll offer some clarification on what I was going for with this question.

The title may have been poorly worded. The substance of my question was not about size per se, even though I used the word “big”. I was asking, as Autolykos pointed out, about the logical principles which undergird homesteading. I chose a specific example of what seems to be a limitation of homesteading. It seems obvious that one would not be able to claim an entire continent (“For Spain!”), that this would not be homesteading. Some say this is because simply standing on a place isn’t using it, let alone mixing labor with it, and for this reason this cannot be considered homesteading. But that seems weird. If I own something, I’m the one who determines whether I’m using it or not. I can leave my car in my garage without touching it for an entire year without having my ownership over it threatened in any way. One couldn’t tell me that since I’m not using it enough, it shall recede back into the commons.

So it leads me to consider homesteading. If I own some acres in a remote wilderness based upon some purchase of title from somebody else, I don’t need to “use” the land in order to maintain ownership. I don’t need to put up a fence, till the land, etc., for this land to be forever recognized as mine. Yet if I stumble upon this same plot of land and it happens to somehow have been overlooked and I’m the first person to claim ownership, I suddenly have to use it in order to establish that it’s mine? Seems weird. Unless one takes such a broad definition of use as to include bird watching and day dreaming about what I may one day do with my land.

So maybe a rewording of the question would look something like “what are the logical limitations of the homesteading principle, if any? For example, how big an area could one claim to be homesteading/‘using’? Is ‘use’ to be understood only as a physical process, or can entirely subjective, internal, psychic enjoyment also be considered as use? I understand that specifics are difficult, if not impossible, to enumerate a priori, and even if they could be, libertarians are against imposing subjective preferences upon the market as though they were objective features of the universe; however, perhaps some principles can be established in this thread.” Too wordy? : )

I think part of the reason the premise of the post has been criticized is that it sounds like I’m implicitly arguing for the state in the realm of land ownership (contract enforcement?). I’m not. I’m perfectly comfortable accepting the answer that “the market will figure it out”. But if we choose to shrug it off and say ‘however it will be, it will be fine’ then why study economics in the first place? The market will always figure it out, and in the absence of aggression, any outcome is necessarily the optimal one; yet libertarians have obviously done excellent work in numerous fields enumerating logical principles and proceeding to deduce an edifice which can illuminate specific issues. This is what I’m searching for here. Not “homesteading can’t be right if you can’t tell me exactly how big an area will be acceptable.”

To reiterate, I’m not asking what the Libertopian norm would be if it ever had the chance to exist, because the market is a dynamic process and one can’t know a priori. I’m essentially asking, based upon the Rothbardian/Hoppean etc vision of homesteading, what constitutes use when, like in the Wikipedia entry on homesteading, it is said that “[t]he homestead principle in law is the concept that one can gain ownership of a natural thing that currently has no owner by using it or building something out of it.”

Thanks.