Violence, Homesteading, and the Origins of Private Property
Those who us who accept self-ownership and a Lockean account of property acquisition must face an important objection. In this account, self-owners occupy land and other natural resources, in that way acquiring exclusive rights to the land or resources. Once they done so, they may transfer their titles to the property they have acquired through exchange or gift, and they may bequeath it to their heirs. Once someone acquires property from someone who has initially acquired it, he may transfer it under the same conditions, and so on until we reach the present possessors of the property.
The objection is that we usually cannot trace a clear line of transmission from someone who originally acquires property down to the present. At some point or other between initial acquisition and the present, acts of violent expropriation probably took place. If someone with legitimate title can show he was expropriated, then he of course may recover his property, but usually this cannot be done. What, then, does the Lockean account imply, if anything, about the legitimacy of current property titles?
In my opinion, Murray Rothbard has the best answer to this question. In The Ethics of Liberty, he said,
To sum up, for any property currently claimed and used: (a) if we know clearly that there was no criminal origin to its current title, then obviously the current title is legitimate, just and valid; (b) if we don’t know whether the current title had any criminal origins, but can't find out either way, then the hypothetically "unowned" property reverts instantaneously and justly to its current possessor; (c) if we do know that the title is originally criminal, but can't find the victim or his heirs, then (c1) if the current titleholder was not the criminal aggressor against the property, then it reverts to him justly as the first owner of a hypothetically unowned property. But (c2) if the current titleholder is himself the criminal or one of the criminals who stole the property, then clearly he is properly to be deprived of it, and it then reverts to the first man who takes it out of its unowned state and appropriates it for his use. And finally, (d) if the current title is the result of crime, and the victim or his heirs can be found, then the title properly reverts immediately to the latter, without compensation to the criminal or to the other holders of the unjust title. (pp. 58–59)
What happens, though, if you reject this solution and instead require that current possessors be able to show a clear line of transmission from an original act of acquisition to the present in order to have legitimate title? The consequence of this insistence should be clear. You are saying that the Lockean account has, in almost all cases, no application to the present. You are rejecting the theory in the present.
What should you do, then? Ludwig von Mises offers an appealing solution. He thinks that if you trace property ownership back far enough, you will encounter violent expropriation in the chain of transmission. In Socialism, he says,
[W]hen we follow the legal title back, we must necessarily arrive at a point where this title originated in the appropriation of goods accessible to all. Before that we may encounter a forcible expropriation from a predecessor whose ownership we can in its turn trace to earlier appropriation or robbery. That all rights derive from violence, all ownership from appropriation or robbery, we may freely admit to those who oppose ownership on considerations of natural law. But this offers not the slightest proof that the abolition of ownership is necessary, advisable, or morally justified. (p. 43)
In his view, though, we shouldn’t be concerned about this, so long as we live in a free market economy. In such an economy, property will tend to pass to those best able to meet the demands of consumers. The “dollar votes” of consumers direct production. In Human Action, he says,
However, the fact that legal formalism can trace back every title either to arbitrary appropriation or to violent expropriation has no significance whatever for the conditions of a market society. Ownership in the market economy is no longer linked up with the remote origin of private property. Those events in a far-distant past, hidden in the darkness of primitive mankind's history, are no longer of any concern for our day. For in an unhampered market society the consumers daily decide anew who should own and how much he should own. The consumers allot control of the means of production to those who know how to use them best for the satisfaction of the most urgent wants of the consumers. Only in a legal and formalistic sense can the owners be considered the successors of appropriators and expropriators. In fact, they are mandataries of the consumers, bound by the operation of the market to serve the consumers best. Under capitalism, private property is the consummation of the self-determination of the consumers. (pp. 679–80)
Supporters of natural law ethics will reject Mises’s utilitarianism. But if someone who favors the Lockean account insists on the clear transmission rule, he cannot apply the Lockean account, and it may well be that Mises’s solution is the best available alternative.
And what about those of us who accept both the Lockean account and Rothbard’s solution to the clear-transmission problem? Mises’s argument is still relevant. Property, for the reason he gives, tends to pass to those best able to meet the demands of consumers.