Private Property of Land: the Right of the First-Comer - Politics | PoFo

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On 5 march, I posted on PoFo (cf. socialism) a proposition for collectivising the soil and the subsoil, to be understood as a universally valid socialist policy. I shall devote another article to the justification of this proposition, questioning the legitimacy of private property of land. As an introduction to this later topic, I turn now to the defense of private property of natural resources, one of the preferred themes of libertarians.

In his "Treatise on Civil Government", Locke struggles to demonstrate that by mixing his labor with land, man legitimately makes it his property. Admitting that in raw unworked state, nature belongs to everyone, Locke invites us to a transubstantiation, that which work exerts on land. It's like reading an treatise of alchemy. His effort has something pathetic because transubstantiation sets with difficulty. Let's follow his reasoning:

Though the earth and all inferior creatures be common to all men, yet every man has a “property” in his own “person.” This nobody has any right to but himself. The “labour” of his body and the “work” of his hands, we may say, are properly his. Whatsoever, then, he removes out of the state that Nature hath provided and left it in, he hath mixed his labour with it, and joined to it something that is his own, and thereby makes it his property. It being by him removed from the common state Nature placed it in, it hath by this labour something annexed to it that excludes the common right of other men. For this “labour” being the unquestionable property of the labourer, no man but he can have a right to what that is once joined to, at least where there is enough, and as good left in common for others.

He that is nourished by the acorns he picked up under an oak, or the apples he gathered from the trees in the wood, has certainly appropriated them to himself (…) I ask, then, when did they begin to be his? when he digested? or when he ate? or when he boiled? or when he brought them home? or when he picked them up? And it is plain, if the first gathering made them not his, nothing else could. That labour put a distinction between them and common. That added something to them more than Nature, the common mother of all, had done, and so they became his private right.

And will any one say he had no right to those acorns or apples he thus appropriated because he had not the consent of all mankind to make them his? (…) If such a consent as that was necessary, man had starved, notwithstanding the plenty God had given him. (…) Thus, the grass my horse has bit, the turfs my servant has cut, and the ore I have digged in any place, where I have a right to them in common with others, become my property without the assignation or consent of anybody. The labour that was mine, removing them out of that common state they were in, hath fixed my property in them. » (116)

The assertion that he who has mixed his labor with the land must become the owner of the product of the labor IN ITS ENTIRETY has the appearance of obviousness but only the appearance. Let us admit that the producer legitimately obtains the property of the product which his labor extracts from the earth; why is it therefore problematic that he must remunerate the community that acts as the owner of the land? Locke cannot ignore that thousands of landlords receive rent from peasants, which does not prevent them from selling their harvest on the market and living from this revenue. The reason he cites, the complication of public consent, lacks credibility. A rationally organised community is able to collect this rent without the heaviness of the formalities leading the producers to starvation and death. Incidentally, Locke forgets to explain why when his valet mixes his labor with the land, he does not become the owner of the product.

« But the chief matter of property being now not the fruits of the earth and the beasts that subsist on it, but the earth itself, as that which takes in and carries with it all the rest, I think it is plain that property in that too is acquired as the former. As much land as a man tills, plants, improves, cultivates, and can use the product of, so much is his property. He by his labour does, as it were, enclose it from the common. Nor will it invalidate his right to say everybody else has an equal title to it, and therefore he cannot appropriate, he cannot enclose, without the consent of all his fellow-commoners, all mankind. God, when He gave the world in common to all mankind, commanded man also to labour, and the penury of his condition required it of him. God and his reason commanded him to subdue the earth—i.e., improve it for the benefit of life and therein lay out something upon it that was his own, his labour. He that, in obedience to this command of God, subdued, tilled, and sowed any part of it, thereby annexed to it something that was his property, which another had no title to, nor could without injury take from him ». (118)

Even for someone who is convinced by the principle of ownership of the product, the passage from it to ownership of the land seems hazy. The repetition of the thesis takes the place of a demonstration.

« Nor was this appropriation of any parcel of land, by improving it, any prejudice to any other man, since there was still enough and as good left, and more than the yet unprovided could use. So that, in effect, there was never the less left for others because of his enclosure for himself. For he that leaves as much as another can make use of does as good as take nothing at all» (118).

The last paragraph may seem surprising, but it is explained by this principle that Locke states elsewhere: waste being contrary to the law of the Creator, no man can become the owner of a larger plot than that of which he can consume the product. In such a system, there is indeed land for everyone, except in cases of overpopulation. But land ownership as we know it in our world does not fit this description. Property is here concentrated; large properties, small properties and landless people coexist. Locke's argument therefore does not justify land ownership as we know it in the real world but as it would exist in a society of small independent landowners.

Locke has remained the reference for libertarians. Rothbard and Nozick cite him extensively. In fact, Rothbard merely rephrases Locke. He compares the producer to a sculptor. The sculptor marks the clay with his personal imprint. The material has become the embodiment of the sculptor's idea. One of two things, says Rothbard, either the sculpture belongs to the sculptor, or all the inhabitants of the planet have an equal right to the sculpture. My question to Rothbard is: what prevents the sculptor, future undisputed owner of the sculpture, from paying the community a reasonable price for the borrowed material?
Rothbard's answer goes back to Locke's absurd idea that if he is not the owner of the material and therefore of the soil from which he extracts it, the producer should individually address the billions of inhabitants of the planet to obtain their agreement on its borrowing from nature.

"In practice, again, it is obviously impossible for every person in the world to exercise effective ownership of his four-billionth portion (if the world population is, say, four billion) of every piece of the world’s land surface" (41).

The origin of this aberrant conception is this. For libertarians, the State is absolute evil. They cannot therefore accept that he serves as an intermediary between the producer and the rest of the population. In this world without State, it is then necessary to obtain billions of individual agreements. This is the root of the problem.

« All of these resources are given to individuals and not to “society,” which is an abstraction that does not actually exist. There is no existing entity called “society”; there are only interacting individuals.. » (41)

My topic “Welcome tio Hell” showed that Robinson Crusoë is the representative man according to Rothbard. A being without social relation and commitment before he freely chooses to engage in such relations. A situation absolutely different from ours, we, the actual humans.

Giving ownership of land to society would, according to Rothbard, be tantamount to offering it to oligarchs, government bureaucrats. A well conceived collective ownership of the soil could really enrich each member of society, by a reduction in taxes or by the distribution of a State dividend.

Rothbard pushes his reasoning to the end of his very particular logic, without worrying about its realism:

« Therefore, if an individual cannot own original land, neither can he in the full sense own any of the fruits of his labor. The farmer cannot own his wheat crop if he cannot own the land on which the wheat grows» (42).

Why is the qualifying adjective "original" attached to the word "land"? Because Rothbard knows that many peasants do not own the land they work. Rothbard must avoid that this state of affairs demolishes the libertarian theory as a whole. It is therefore implied that the non-owner peasant or one of his ancestors sold the said land. From the libertarian perspective, a contract between consenting individuals legitimately alters the ORIGINAL distribution of property.

Nozick is more subtle and tries to improve Locke's theory. He doubts that mixing his work with the land is enough to legitimize property. He realises that if land is not abundant in a region, granting ownership of land to its discoverer or its first occupant is likely to harm the situation of other inhabitants. For example, these would be deprived of water if the land contains the only spring in the area. Locke thought he would solve the problem by severely limiting the size of properties. Nozick envisages another solution: the discoverer becomes the legitimate owner only on the condition of compensating the people harmed, by paying them damages. He goes even further since he seems to exclude that an appropriation is legitimate if it involves the monopoly of a vital resource. He calls "Lockean clause" all provisos that provide rights for the neighbours of a land likely to be appropriated by a discoverer. The main difficulty consists in estimating the damage to be compensated. Against what “baseline” should it be calculated? Nozick admits being a little powerless in the face of this question:

« This question of fixing the baseline needs more detailed investigation than we are able to give it here. It would ne desirable to have an estimate of the general economic importance of original appropriation…» (177).

I fail to see how the aggregate estimate would help in assessing particular harms. Be that as it may, Nozick isn't so dubious about all aspects of the matter. He distinguishes two ways of considering the degradation of the situation of neighbour because of primitive appropriation:
    - The WEAK version: the neighbour can no longer freely use the asset.
    - The STRONG version: the neighbour can no longer benefit himself from the advantages of ownership of the land already appropriated.
According to him, it is the weak version of the degradation which must determine the calculation of the compensation, an assertion which he does not prove. But in addition to the weak and the strong versions, there is a third one that Nozick's position requires him to ignore: if land becomes private property, individual members of the community lose the opportunity to obtain a share of the collective income enabled by common property. Like his “coreligionists”, Nozick finds it difficult to conceive of a common property combined with private exploitation.

And the harm continues with future generations, which Nozick ignores. The heirs of the first occupier should continue to compensate the heirs of the first harmed, because the profit-harm relationship is transmitted from generation to generation as long as the appropriation lasts.

Analysing the Lockean clause, Nozick considers that it even plays a posteriori. If I am the owner of one source among many others and all the others dry up, I cease to be the rightful owner of the only remaining source. According to Nozick, as a corollary, the owner of an island would be obliged to welcome a castaway. Here is Nozick embarked on a path much more sinuous and trapped than its basic principle suggested. He prided himself on having a “historical” theory of justice, therefore immune to the flaws of the “final” theories. The FINAL elements came out with the sound of trumpets but now re-enter through the basement window. The Belgian philosopher Philippe Van Parijs observes:

"Nozick's 'purely historical' theory therefore suffers from precisely the same 'inconsistency' with which he accused all configurational or final theory of being infected: it is perfectly possible that one is not really entitled to what one is supposed to be entitled» (144).

The libertarian Israel Kirzner sees weakness in Locke's and Nozick's theories. The libertarian demonstration must find a new way. Kirzner thinks he has found it with his "discovery theory." When a still unoccupied land becomes a factor of production, it is because a discoverer brings it there. No land occupied without prior discovery. And the discovery is anything but trivial; it is a performance with powerful, even magical effects:

« Each discovery is a genuine novelty; it does not consist of the conversion or unfolding of earlier inputs. There is nothing at all inevitable about an act of discovery; we cannot, ex-post, describe the outcome as having been caused by anything that existed in the past» (219).
« The outcome of an act of discovery is thus originated EBTIRELY by the act» (221).
« The justice of his title is then seen as stemming from the creative character of the pure act of discovery» (223).

Land property being justified by so much creative power, it obviously escapes the Lockean clause. “(It) does not necessarily harm others, since this resource never did exist for these others." The fact that without the first discovery, the said resource would have been discovered a little later by others "seems to be not really a relevant circumstance at all. Once I have created the object through its discovery, there is simply no way for you to create it ndependently; it already does exist, for human purposes» (223-4).
Got carried away by his enthusiasm, Kirzner seems to have forgotten what the question under examination was. The problem to be solved is this: as society develops, under the combined pressure of demography and production, the occupied lands gradually extends, both in order to house more and more inhabitants and to enlarge economic activity. At each of these extensions, does society need a Christopher Columbus? True, some natural resources such as raw minerals are hidden; Their exploitation requires preliminary discovery. Society may very well grant a concession of exploitation to the discoverer, without offering him the property. This would in no way deprive the discoverer of the fruits of the discovery. Why does Kirzner have the illusion of this deprivation? Because he gets confused in the distinction between the remuneration of the different agents involved in production; in particular, he does not correctly draw the line between entrepreneur profit and normal remuneration of the factor of production land. Admittedly, “Ricardian” land rent tends to absorb all of the entrepreneur’s potential profit. But this process results from equalization of the rate of profit under the action of competition. Now, precisely, the phenomenon described by Kirzner is that of an innovation, that is, of an entreprise that escapes this equalization. Consequently, if the community gets the value of the marginal product of land, this does not prevent the capitalist and the workers from obtaining the value of their respective marginal products nor the entrepreneur from receiving a residual profit.

Locke, John. Two Treatises of Government.
Rothbard, Murray. [1973] 2006. For A New Liberty. The Ludwig von Mises Institute, Auburn.
Kirzner, Israel. 1992. The Meaning of Market Process. Routledge, London and New York.
Nozick, Robert. 1974. Anarchy, State, and Utopia. Blackwell, Oxford
Van Parijs, Philippe. 1991. Qu'est-ce qu'une société juste ? Editions du Seuil, Paris.
Monti wrote:I observe that the replies to my article are not very abundant so far. I wonder : is the question at stake uninteresting?

It's rather that almost everyone here is a socialist or capitalist, and thus prefers not to know (yet has no way to refute) the facts you explained. Your post attacked and in effect demolished one of the foundational anti-concepts of both capitalism and socialism: the means of production.
An important point is that the whole story explained in my article is about what is called « original appropriation”, i.e. peaceful appropriation of land that was previously unoccupied. This is an interesting theoretical problem. But, in history, most lands have been appropriated by the sword or the gun. Since the beginning of history, land has always been an object of conflict. In Europe, most present properties have their root in past feudalism. It is less true in the US… if we neglect the fact that natives (Indians) were chased away from their land. But for libertarians, Indians had no right to property because libertariansdefend only private property.
One of the best criticisms of the theory of the right of the first comer is to be found un Henry George's "Progresse and Poverty", especially in the first chapter of Book VII named "Injustice of Private Property of Land".

Link to Progress and Poverty

Has the first comer at a banquet the right to turn back all the chairs and claim that none of the other guests shall partake of the food provided, except as they make terms with. him?
Monti wrote:I do not understand what you mean (1) by anti-concept;

An anti-concept is an invalid artificial concept deployed to prevent use of a valid natural concept. Marxism is a towering, ingenious edifice of anti-concepts. That is why Marxism could never have existed without Marx: it is a work of fiction.
(2) by "means of production" being an anti-concept of both capitalism and socialism;

Both capitalism and socialism are dependent on erasing the distinction between contributing to production what would not otherwise have been available for production and merely having legal control of what would otherwise have been available for production. "The means of production" conflates those two entirely different concepts.
and (3) how my text about land property has demolished this anti-concept. Could you explain more precisely?

You identified the salient facts. You aren't the first, by any means. Even the physiocrats were aware of them, nearly 300 years ago.
Monti wrote:But for libertarians, Indians had no right to property because libertarians defend only private property.

More to the point, feudal "libertarians" hold that the landowner's arrogated property "right" trumps everyone else's pre-existing rights to liberty. The Romans invented the legal concept of "res nullius" because they had no concept of a universal individual human right to liberty: their society was based on chattel slavery.

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