From my article on law:
The Austrian account of property rights – as exemplified in the writings of Hoppe or Rothbard – begins with two basic principles. The first principle is that of self-ownership. The second principle is that of original appropriation or homesteading. A corollary to these two principles is voluntary exchange.
The unspoken assumption of the homesteading principle is that, absent some reason why something should belong to one person rather than another, no one has any better claim to it than anybody else. Who owns the moon? Who owns Mars? There is a slice of the Antarctic continent, called Marie Byrd Land, which is not claimed by any sovereign nation. Who owns it? I can give no good reason why I have rights to exclusive use of some portion of the Moon or a portion of Marie Byrd Land. So, no portion of the moon or Marie Byrd Land is my property. These questions open up the larger question of how any physical thing came to be owned in the first place.
To grant some individuals a priori primacy in property claims is equivalent to the bully system of law – it is the grant of privilege or double-standards. I term this dual-law. The choice is between some version of homesteading on the one hand or dual-law on the other hand. A better reason must be given for why someone owns something than “because he’s stronger than everybody else” or else accept the assignment of property rights by a system of privilege, that is, dual-law.
But is it true that we can deduce a perfect system of property rules (rules for the resolution of property disputes) solely by means of reflection? I think the answer is no unless we mean meta-rules that are completely devoid of content, such as the rule that “some kind of reason must be given why a thing belongs to one person rather than another.” Rather, laws regarding the resolution of property disputes (that is, property rights) are no different than any other kind of law and emerge in exactly the same way – through a process of discovery by trial-and-error.
In fact, if we say that the rules of property can be deduced solely by means of reflection, then we are doomed to Marxism. The reason is simple – since no one has any better claim to anything than anybody else, nobody owns or can come to own anything. The homesteading principle itself should be dismissed as a piece of capitalist propaganda designed to lure the masses into accepting their own enslavement in a system of privilege through “property rights.”
But the fact of the matter is that the practice of owning things, of homesteading them, and so on is an integral part of human action. It is a brute fact of human action, and the disputes that arise in the process are also brute facts of human action. And the means which have been successful in settling these disputes in the past – property law – are also brute facts of human action. Hence, property rights emerge from the resolution of disputes about who owns what and the normative content of property rights is filled out by the same process of discovery through trial-and-error as any other law.
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I think that property rights emerge in the same way as other rights and are not as foundational as Hoppe takes them to be (axiomatic to any discussion). Property rights may have many “exception clauses” that make them fuzzy and complicated. I think that the idea that a homeowner can blow away someone with his 12-gauge for kicking over the pink flamingo on the front lawn doesn’t make sense in real law even though there are routes through Hoppean reasoning to these kinds of extreme conditions. But I think that he can probably collect damages for graffiti on the side of his garage, whether or not it is artistic and I think that real property rights law is very capable of making these kinds of distinctions.
Clayton -