Rothbard:
…even though the property was originally stolen, that if the victim or his heirs cannot be found, and if the current possessor was not the actual criminal who stole the property, then title to that property belongs properly, justly, and ethically to its current possessor.
ok, this is important. So the thief cannot be the new just owner, but if the thief sells it, to someone, then that person can be the new just owner… I would add that person must not have reason to believe the property is stolen otherwise they would hold some guilt in the theft as well.
So this is actually what solves my question: the thief cannot be the new owner; a transfer of possession must occur. Once a transfer of of possession is made, if the original just owner cannot be found, then the new possessor becomes the just and rightful owner.
This solves the question in terms of Rothbards opinion, however I still find it unsatisfactory. What does it mean that the original just owner “cannot be found”? Does it mean that all possible efforts for location of the original just owner (OJO) have been exhausted? Does it mean the OJO no longer exists? Does it mean the OJO exists and is available for finding, but that neither the finder of the OJO nor the OJO can prove the claim of original just ownership?
If we condition it somehow on human effort and knowledge, then we arrive at the situation where just ownership is not an absolute philosophical concept, but that it is a human mental state — the state of reasonable knowledge that the just owner cannot be found. This is why I am arguing that there are two different types of just ownership in addition to legal ownership.
(1) Absolute just ownership
(2) Practical just ownership
(3) Legal ownership
#1 is actual absolute philosophical just ownership. This is based on the NAP. It does not necessarily mean that no aggression has occured. It means that the OJO no longer exists, otherwise only the OJO can be the OJO. In other words, there is a specific tract of land in the US that some lineage of Native Americans IS the OJO. This is not conditional on any US law, or any human action (except that which originally created the just ownership for the Native Lineage. The Native American just ownership still depends on these same principles as they might have stolen the land from a previous native tribe. However, if that previous native tribe is extinct, then the current surviving lineage is the OJO. This is where the concept of first user or new first user is important. Of course voluntary exchange is important here too, and the OJO (old first user) can voluntarily exchange to property to transfer it to the “new first user”. This does not mean any of them are the absolute first user. It just means that the just owner must not have gained possession violently, and any other potential just owner must simply not exist. The key concept here is that there is a real objective history of events (exchanges of possession – some voluntary, some involuntary) which human knowledge approximates.
I would somewhat dispute the requirement that the thief cannot ever be the just owner, but that opens another can of worms, and is another discussion. My goal here is to understand it from the libertarian view, and possibly improve upon it.
#2 is what Rothbard is talking about. This is where the reasonable effort to locate the OJO and reasonable proof of just ownership is required. This is relative to human knowledge. However this is not in conflict with NAP. This means that the rights of the OJO according to #1 can be violated and still be consistent with NAP. NAP does not require humans to have perfect knowledge. It requires us to be honest in our knowledge and act rationally and voluntarily according to that knowledge. It does not mean extra knowledge beyond what we currently possess does not exist or is impossible to gain. It simply requires reasonable, rational, and voluntary behavior. This is why it is reasonable for the US citizen with the land title to claim just ownership, and for us to believe that just ownership claim. It does not mean that person is the absolute just owner. It means they are the practical just owner, as it may be reasonably and rationally impractical for us to determine who the absolute just owner is, if they still exist, and to verify all the details in the history of the exchanges of the property.
I somewhat depart from Rothbard’s opinion here as well. In that although the person the thief sold the property to can be the just owner. They are the practical just owner, not the absolute just owner, unless the OJO no longer exists.
#3 could be the same as #2, but generally is not. The goal for #2 is to approximate #1 as closely as possible, even though it is usually (if not always) impossible for the practical to be identical to the absolute. Laws can be somewhat arbitrary as we all know. Slavery has been legal before, but we now know that violates the NAP, and therefore no law legalizing slavery can be said to be within the realm of #2. Only someone who does not understand the NAP can accept slavery as just (and hence possibly in the realm of #2… but they won’t be aware of #2 anyways because of their ignorance of NAP). The goal of libertarians is to align #3 with #2 (important to note that is is not the other way around!).
I think clayton has painted the picture of reality… it isn’t pretty. If the NAP was widely accepted hundreds (or thousands?) of years ago by everyone, the world would be a different place. It may be that he made some claims that will be difficult to prove, but it largely coincides with my understanding of history… which is full of violence, and it is generally difficult to determine with absolute certainty who threw the first punch. But what we know for sure is that Europeans arrived and started to use land which was already in use by Native people. This, by definition is an act of aggression; there is no need to throw a physical punch.
Of course, we can try to justify the European invasion of America in many different ways by using various philosophical definitions of property, etc, but ultimately, as Rothbard notes, usage of property is at least a part of just ownership. If hunting the animals that live on a particular tract of land does not coincide with usage of that land, then we are in grave problem territory. I think it is perfectly fine for people to own land and only use it for hunting or even hiking, even if infrequently. Otherwise we can just justify the taking of all sorts of land currently considered to be just and/or legal property by the owners.
Does this mean that Native Americans justly owned the entire continent? Not necessarily, but it would surely be impractical to draw reasonable boundaries without their cooperation (or a long time of observation). And it would be reasonable to assume they did own the whole continent without that cooperation. Say before making settlements, the Europeans observed for 100 years to see what lands were used, and then settled in the lands which weren’t used. That would be a reasonable justification for “taking” the land since it wasn’t being used (again we have to define a statue of limitations according to the NAP on ownership of unused property — that again is another discussion), not that it would be absolutely just… it would fall under #2 — it represents a reasonable effort to determine the OJO. The way it happened was under #3 though.. according to European law.
Of course, there is another flipside. Native Americans are also not justified in slaughtering Europeans who simply landed on their shores and settled (unless of course they reasonably and rationally determine a severe enough threat). However, once the Europeans are given the knowledge that they have settled in the Natives hunting grounds, then they would be reasonable to move their settlement (within some reasonable time frame). The reality is that both parties probably did not adhere to the NAP — they probably did not understand the NAP. So where does the justice lie? It lies in people who have knowledge of the NAP and #2 to act as though they do. It doesn’t mean lacking knowledge of the NAP destroys just ownership for the natives though.