Rightfully Stolen Property

Economics Economics Questions
41

European settlers were encouraged by their home governments - basically, the respective European governments were “privatizing colonization” for a period of time. Why do you think we even had a Homestead Act?

The Western expansion really is a story of genocide and war crimes along with broken promises, reneged agreements and betrayals motivated by the need to eliminate the nuisance of indigenous land claims. These land claims - even if they didn’t consiste of latitude and longitude - using stakes and survey transits - were not incomprehensible to the European settlers who were supposedly confused and genuinely thought “oh, the primitives don’t even have a concept of property.” This is the propaganda.

I think there is a lamentable aspect of inevitability to it even as there is to the currently unfolding quasi-colonialism in Asia, the Middle East, Africa and South America. While we won’t see as much genocide in the future as we have in the past, we will continue to see exploitation.

And the most frustrating part of it all is that the very same dupes in rich, Western nations who make this all possible through their zeal to pay taxes and obey any rule that somebody with an official title writes down on a piece of paper are victimizing themselves. The same techniques of exploitation that are being perfected overseas are then imported back here for use on us. American companies are becoming “Euro-ized” - look at ISO 9002, for example. The role of the individual on the factory floor is effectively that of a serf in this model of manufacturing that was developed during the 1980’s in Japan and China during the early years of the outsourcing craze.

Clayton -

42

That’s a bunch of sweeping statements you are making their, Clayton. Care to substantiate them?

I also see some straw men hanging out there. But anyway. If you back up what you are saying with facts and documentation, it may all become clearer.

43

None of them are controversial except the claim that the settlers actually did understand indigenous property rights and chose to violate them anyway. This conclusion I arrive at on a thymological basis, in other words, I disbelieve the accounts of European settlers who claimed they were of the impression that the natives had no conception of private property. Such claims are transparently self-serving.

Clayton -

44

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.

45

Are you looking for an ethically satisying answer?

That is to say, is the category you are trying to point to an ethical and/or moral one? Or is it something else such as a satisfactory legal theory, etc?

46

jodiphour,

I think you are a little confused about what Rothbard is saying regarding just owners. Firstly, there is this except from the chapter I linked to:

Secondly, as I stated in a post earlier, if the just owner cannot be found, this is another way of stating that the property is unowned. That is, no one is making a claim of ownership. Since there is no claim of ownership, there is no owner. So the object in question may be passed on to a new just owner. Consider the dropping of a $20 bill. If you don’t see who dropped it, you have no idea who the just owner is. For that matter, the just owner doesn’t know where it is either. No one claims the $20. You become the new just owner.

If someone were to come along and claim that the $20 is his, do you believe him? Doesn’t he require proof? Are you just going to hand this $20 over to whoever claims it is his? Maybe you might, and maybe you might not. But there would at least be a claim by someone regarding the $20. He may or may not be the just owner of the $20, but he is making a claim to own the object in question.

In the case of not being able to identify the just owner, there is just no claim. As far as I’m aware, there needs to be a claim to ownership for there to be ownership. It is a necessary condition of ownership. Without it, there is no ownership.

47

@jodi: It’s been a while since I read EoL but I recall walking away with the impression that Rothbard’s view is not legalistic - it’s not merely that the thief needs to race to sell it before the transaction can be undone but, rather, it’s a matter of traceability. Is it actually possible to trace back to the rightful property claim? In the case of almost all indigenous land claims, this is not possible.

I think Zimbabwe seized farms held by whites and redistributed the land through a farm nationalization program. The result was, of course, detrimental to their agriculture industry. This kind of “white people stole our stuff” collective justice has no place in a healthy, thriving society. The way to heal crimes committed in the recent past is to try - to the extent possible - to trace back specific titles to specific crimes. To the extent that is not possible, then the present titles must be let stand.

Clayton -

48

I’m looking for an answer that is logically consistent within the NAP framework. I’m not looking for something I will agree with morally.

Going by Rothbard, it seems that:

Jones can steal Brown’s property, kill Brown, and then sell that property to Jim, then Jim becomes the just owner.

This may be an incorrect interpretation, but that has to be explained. And my previous post raised specific questions about Rothbard’s explanation which Rothbard did not answer… at least he did not answer them in the passage quoted. I didn’t read the whole chapter, but after the given quote he seemed to change gears and said “now we have a theory of property”. So I assumed that he did not give further elaboration on the concept of just property. I will continue reading, but I assume other’s on the forum here can provide clues or reasoning beyond what has been written.

49

I wouldn’t argue that it isn’t possible to determine Native People’s land claims… with historical, archeological, and genetic research, we could reasonably determine who lived where, when… but again, this would only lead us to bringing #2 closer to #1. This is my point. That justice according to the NAP is #2 not #1. #3 is an entirely different beast.

50

I think my above post here (and Clayton’s post that you responded to answer this question), but I will try a different approach:

Is this a 3 person society or something more? If there are only 3 people, and 1 gets murdered, then at most only 1 person in this 3 person scenario can be a rightful owner of the murdered man’s property (hint: not the murderer). Now, if the buyer was complicit in the crime, then neither could be just owners, and anyone who came across this 3 2 person society could rightfully claim the murdered man’s property.

But I assume you are talking about a normal society, one with far more than 3 people. And this is why claims to ownership and traceability are important. As I said above, the claim of ownership is a necessary condition of ownership. If no one claims Brown’s property as their own (and we tend to give the family of the deceased and the people named in the will precedence over other claims), then it is unowned property, and anybody (except the thief/murderer) can claim it as his own.

And this is where traceability is important too. If the family of the deceased can trace the stolen property, then they have their claim of ownership. If it cannot be traced, then the just owners cannot make a claim. So the property is considered unowned, as without a claim of ownership, there cannot be ownership.

This is also why deeds are important in societies larger than a very small community. It enables people to make claims of ownership without needing to have constant vigilance over their property. They can point to a formal piece of paper and say, “See here! I own this valuable painting that you have acquired. It is mine, give it back.” It even enables third parties to point and say, “See here! I know for a fact that painting is really Bob’s and not yours. I’m going to go tell Bob so that he may reclaim it.”

In a small community, the deed is less important, as most people (if not all) can keep track of who owns what fairly easily. No one has to point to a formal deed in a small community in order for people to recognize the claim of ownership. But it is very necessary in a large society.

51

The problem is that we’re not talking about journaling a narrative, we’re talking about re-assigning real property that is currently owned by real people. That’s much more serious. The standards of evidence must be equally serious. Let’s say you see a beautiful mansion in Beverly Hills and decide you want to have it. So, you sue the owner and claim in court, “My ancestors once lived on this plot of land. We were simple folks so - even though we have no written record of our presence on this plot of land - it is a part of our family’s oral tradition and history. Here, listen to my grand-pappy’s testimony…” The problem is that “reasonably determine” is not stringent enough, you need to establish as fact that the title in question is to property that was stolen at such-and-such time in the past and that you are the proper heir to the property title. If you’re not the heir, then you have no standing to make the claim. If you can’t prove theft/fraud/whatever, then your claims are just hearsay from the legal standpoint, even if you can “reasonably determine” that a crime almost certainly occurred.

Clayton -

52

So it sounds like libertarian just ownership is type #2 as I have described above and not type #1.

If Jim claims the stolen property and did not take part in the theft and murder, then he becomes the rightful owner. Whether he bought it from the thief or stole it from the thief (which by definition is not theft) is immaterial. Yes?

and as I clarified earlier… the phrase “cannot be found” needs to be explained carefully. It sounds like you mean a legal title search for the just owner. But to me this is inconsistent. The just owner will not always hold a legal title. This is why I differentiated the types of ownership into absolute just, practical just, and legal.

53

If Brown’s relatives/spouse/children can find the stolen property, they can have it repossessed from Jim. Whoever is caught holding the hot-potato eats the losses. That is, after the repossession, Jim doesn’t have a tort claim against Jones unless Jones specified that the property was not stolen as part of the terms of the sale.

Clayton -

54

The problem is that we’re not talking about journaling a narrative, we’re talking about re-assigning real property that is currently owned by real people.

You are talking about ownership type #3, and possibly type #2, but probably not type #1. And we are in fact journaling a narative, and always have been. That is how history and records get written. But we have something beyond our written records, we have scientific method.

Here, listen to my grand-pappy’s testimony…" The problem is that “reasonably determine” is not stringent enough, you need to establish as fact that the title in question is to property that was stolen at such-and-such time in the past and that you are the proper heir to the property title.

This is why I did not say merely speech is enough to lay a reasonable claim. I advocated a combination of genetic testing, and historical/archaeological records. Fact means what can be empirically determined.

Let me be clear, I am not trying to advocate giving native people’s back all that has been stolen from them or even claiming that land has been stolen from them. I.e. I am not trying to make a moral argument. I am assuming that property was stolen, and then trying to analyze the situation to the fullest that logic will allow within the framework of the NAP, and then possibly trying to improve it to be more consistent to answer more questions.

55

@jodi: I think you would greatly benefit from reading the whole of Ethics of Liberty. Rothbard was a very conversational writer, so it’s actually a very easy read. I don’t agree with Rothbard on a lot of things, including foundational issues. However, Rothbard well illustrates the application of a methodological discipline to a subject of discussion. You will probably disagree with more of Rothbard’s conclusions than I do but that’s not really what matters - I think what you can benefit from is seeing a methodological discipline in action and apply that same kind of discipline to your own thoughts.

To go back to your post where you introduce categories 1, 2 and 3, I see lots of complex concepts being thrown around but I don’t see a methodology that determines what you think counts or doesn’t count for the sake of the discussion. Which facts/reasons matter and which don’t matter? If all the facts matter, then your analysis is woefully inadequate. But if you’re only looking at a subset of the facts, I don’t see the pattern in how you decided which facts to include in the analysis and which to exclude.

Clayton -

56

Well, from a historical point-of-view, there is not the slightest doubt that a lot of property was, in fact, stolen in the Western expansion. But that’s a far cry from proving facts to a sufficiently stringent standard to justify legally reassigning title. And I don’t think the types of empirical evidence you mentioned would be of the slightest assistance in establishing that a specific title should be transferred away from its owner to the heir(s) of an indigenous tribe. It’s not enough to say “a crime occurred in this area sometime between 1871 and 1875. Unspecified lands in this region were taken from the indigenous peoples. Here’s genetic evidence that assists in demonstrating this is the case.” The evidence proves something that is irrelevant, that is, that a crime occurred.

What matters to the libertarian analysis is: can title be established? Can you show that you are the heir of a specific piece of land whose title is currently incorrectly assigned to someone else? Part of what you need evidence for is the borders/extents of the land itself, otherwise your claim is meaningless. The other part is you need to show a chain of inheritance such that the title goes from a specific individual or group of specific individuals (give their names) that really existed and that chain of inheritance ends up with you. If you can show that, then you have established that you are the rightful owner and, therefore, it doesn’t matter who currently holds the title, it must be reassigned to you.

Clayton -

57

Apologies if this has already been mentioned. Most of the responses to Jodiphour’s original post center around it being difficult to find the rightful heirs to the land that was stolen. First more attention needs to be payed to determining what rightful means under the circumstances. It was obvious that the Native Americans were the rightful owners even after their land was stolen from them, when the Native Americans who originally owned the land died it would rightfully belong to their heirs. Much has changed since then however. The heirs of the thieves, over the many years, have put substantially more labor into the land than the Native Americans ever did. This is what complicates things.

Lets say that one of the Native American heirs were able to prove exactly what piece of land originally belonged to their ancestors. The land is ‘owned’ by a large corporation, who has built their headquarters there, a giant skyscraper. Now it isn’t like the large corporation is the one that stole the land in the first place, they haven’t done anything wrong, the land was originally stolen long ago by someone who is now obviously dead. Is the Native American heir really the ‘rightful’ owner of the land? After all the corporation didn’t steal the land and has certainly put more labor into it than the original owner.

58

Nope, this is utterly irrelevant. Stealing a piece of land and then fabulously developing it does not erase the original theft. Returning the title may seem to be a “disproportionate reward/punishment” because the value of the land returned is far greater than the value of the land that was stolen but that’s neither here nor there. The moral of the story in libertarian law is “buyer beware” - if you buy a piece of property, you better be damn sure it wasn’t stolen at some point.

Clayton -

59

“For example, land stolen from Native Americans… how can it rightfully be deeded to a US citizen and then passed on to subsequent heirs?”

I had a discussion about this here http://www.reddit.com/r/Anarcho_Capitalism/comments/se99h/taxation_is_theft_a_response_to_a_few_criticisms/c4dl913

I think it will help answer your question.

60

Yes, clayton, you raise important issues, and I will continue reading more of EoL.

If it helps… My methodological basis, i think, is that there is an actual history of events which defines ownership #1 — the objective reality but still depending on absolute consistency with the NAP, and our approximation to that history with the application of the NAP to the best of our abilities defines ownership type #2, and whatever human law says defines ownership type #3.

So the victim might be #1 owner until death even without making any attempt to get the property back. But the new first user who gets the property after the thief is dispossessed of it, is #2 owner, assuming everything is consistent with the NAP. #3 owner can be anyone, depending on the chosen legal basis.

Maybe I am misrepresenting the NAP. But I still think there are some specific technical issues in my questions which have ben ignored.

I don’t want to get bogged down in sounding like I am claiming that we can use current science to establish a specific claim of stolen land. I am merely trying to draw distinction between the categories of ownership as I have described them.

Serpentis-Lucas, you make valid points, but whatever effort an unjust owner puts into unjust property does not make it more just, at least not in the #1 sense. But you are right that it complicates things. Humans are very capable of complicating things, and things are simply complicated! I think according to Rothbard, the Native American would still be the rightful owner in your example. Is the skyscraper “severable” from the land? In Rothbard’s example (stolen car with radio added), it is much easier to determine. In your example, it is much more complicated. This is why we write laws, so that we have a system to determine what to do in these complicated situations of reality. But, yes, the Native American is the #1 owner in your example, and the corporation is probably due nothing if they can’t severe the building from the land. But again, this is why we rule by law. So that the law can define how the skyscraper be removed, or whether or not it simply goes with the land. Of course, ideally, the law would be as close to that which can be derived from the NAP directly with perfectly consistent logic.

I say #1, #2, and #3, in the hopes that it will force people to read my post above (here) more carefully, so that I can get detailed feedback on those specific ideas.