At what point does stolen property become legitimate property?
For example, land stolen from Native Americans... how can it rightfully be deeded to a US citizen and then passed on to subsequent heirs?
This is something I've long wondered about. The problem is that almost everything has a history of violence attached to it, so how can there be any rightful property at all?
So, chapter nine in the Ethics of Liberty is entirely relevant to this thread. I suggest that you read the whole chapter (or even the whole book), but I will quote the most relevant portion:
The answer is that the criterion holds as we have explained above: The right of every individual to own his person and the property that he has found and transformed, and therefore “created,” and the property which he has acquired either as gifts from or in voluntary exchange with other such transformers or “producers.” It is true that existing property titles must be scrutinized, but the resolution of the problem is much simpler than the question assumes. For remember always the basic principle: that all resources, all goods, in a state of no-ownership belong properly to the first person who finds and transforms them into a useful good (the “homestead” principle). We have seen this above in the case of unused land and natural resources: the first to find and mix his labor with them, to possess and use them, “produces” them and becomes their legitimate property owner. Now suppose that Mr. Jones has a watch; if we cannot clearly show that Jones or his ancestors to the property title in the watch were criminals, then we must say that since Mr. Jones has been possessing and using it, that he is truly the legitimate and just property owner. Or, to put the case another way: if we do not know if Jones’s title to any given property is criminally-derived, then we may assume that this property was, at least momentarily in a state of no-ownership (since we are not sure about the original title), and therefore that the proper title of ownership reverted instantaneously to Jones as its “first” (i.e., current) possessor and user. In short, where we are not sure about a title but it cannot be clearly identified as criminally derived, then the title properly and legitimately reverts to its current possessor. But now suppose that a title to property is clearly identifiable as criminal, does this necessarily mean that the current possessor must give it up? No, not necessarily. For that depends on two considerations: (a) whether the victim (the property owner originally aggressed against) or his heirs are clearly identifiable and can now be found; or (b) whether or not the current possessor is himself the criminal who stole the property. Suppose, for example, that Jones possesses a watch, and that we can clearly show that Jones’s title is originally criminal, either because (1) his ancestor stole it, or (2) because he or his ancestor purchased it from a thief (whether wittingly or unwittingly is immaterial here). Now, if we can identify and find the victim or his heir, then it is clear that Jones’s title to the watch is totally invalid, and that it must promptly revert to its true and legitimate owner. Thus, if Jones inherited or purchased the watch from a man who stole it from Smith, and if Smith or the heir to his estate can be found, then the title to the watch properly reverts immediately back to Smith or his descendants, without compensation to the existing possessor of the criminally derived “title.”[7] Thus, if a current title to property is criminal in origin, and the victim or his heir can be found, then the title should immediately revert to the latter. Suppose, however, that condition (a) is not fulfilled: in short, that we know that Jones’s title is criminal, but that we cannot now find the victim or his current heir. Who now is the legitimate and moral property owner? The answer to this question now depends on whether or not Jones himself is the criminal, whether Jones is the man who stole the watch. If Jones was the thief, then it is quite clear that he cannot be allowed to keep it, for the criminal cannot be allowed to keep the reward of his crime; and he loses the watch, and probably suffers other punishments besides.[8] In that case, who gets the watch? Applying our libertarian theory of property, the watch is now—after Jones has been apprehended-in a state of no-ownership, and it must therefore become the legitimate property of the first person to “homestead” it—to take it and use it, and therefore, to have converted it from an unused, no-ownership state to a useful, owned state. The first person who does so then becomes its legitimate, moral, and just owner. But suppose that Jones is not the criminal, not the man who stole the watch, but that he had inherited or had innocently purchased it from the thief. And suppose, of course, that neither the victim nor his heirs can be found. In that case, the disappearance of the victim means that the stolen property comes properly into a state of no-ownership. But we have seen that any good in a state of no-ownership, with no legitimate owner of its title, reverts as legitimate property to the first person to come along and use it, to appropriate this now unowned resource for human use. But this “first” person is clearly Jones, who has been using it all along. Therefore, we conclude that 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.
The answer is that the criterion holds as we have explained above: The right of every individual to own his person and the property that he has found and transformed, and therefore “created,” and the property which he has acquired either as gifts from or in voluntary exchange with other such transformers or “producers.” It is true that existing property titles must be scrutinized, but the resolution of the problem is much simpler than the question assumes. For remember always the basic principle: that all resources, all goods, in a state of no-ownership belong properly to the first person who finds and transforms them into a useful good (the “homestead” principle). We have seen this above in the case of unused land and natural resources: the first to find and mix his labor with them, to possess and use them, “produces” them and becomes their legitimate property owner. Now suppose that Mr. Jones has a watch; if we cannot clearly show that Jones or his ancestors to the property title in the watch were criminals, then we must say that since Mr. Jones has been possessing and using it, that he is truly the legitimate and just property owner.
Or, to put the case another way: if we do not know if Jones’s title to any given property is criminally-derived, then we may assume that this property was, at least momentarily in a state of no-ownership (since we are not sure about the original title), and therefore that the proper title of ownership reverted instantaneously to Jones as its “first” (i.e., current) possessor and user. In short, where we are not sure about a title but it cannot be clearly identified as criminally derived, then the title properly and legitimately reverts to its current possessor.
But now suppose that a title to property is clearly identifiable as criminal, does this necessarily mean that the current possessor must give it up? No, not necessarily. For that depends on two considerations: (a) whether the victim (the property owner originally aggressed against) or his heirs are clearly identifiable and can now be found; or (b) whether or not the current possessor is himself the criminal who stole the property. Suppose, for example, that Jones possesses a watch, and that we can clearly show that Jones’s title is originally criminal, either because (1) his ancestor stole it, or (2) because he or his ancestor purchased it from a thief (whether wittingly or unwittingly is immaterial here). Now, if we can identify and find the victim or his heir, then it is clear that Jones’s title to the watch is totally invalid, and that it must promptly revert to its true and legitimate owner. Thus, if Jones inherited or purchased the watch from a man who stole it from Smith, and if Smith or the heir to his estate can be found, then the title to the watch properly reverts immediately back to Smith or his descendants, without compensation to the existing possessor of the criminally derived “title.”[7] Thus, if a current title to property is criminal in origin, and the victim or his heir can be found, then the title should immediately revert to the latter.
Suppose, however, that condition (a) is not fulfilled: in short, that we know that Jones’s title is criminal, but that we cannot now find the victim or his current heir. Who now is the legitimate and moral property owner? The answer to this question now depends on whether or not Jones himself is the criminal, whether Jones is the man who stole the watch. If Jones was the thief, then it is quite clear that he cannot be allowed to keep it, for the criminal cannot be allowed to keep the reward of his crime; and he loses the watch, and probably suffers other punishments besides.[8] In that case, who gets the watch? Applying our libertarian theory of property, the watch is now—after Jones has been apprehended-in a state of no-ownership, and it must therefore become the legitimate property of the first person to “homestead” it—to take it and use it, and therefore, to have converted it from an unused, no-ownership state to a useful, owned state. The first person who does so then becomes its legitimate, moral, and just owner.
But suppose that Jones is not the criminal, not the man who stole the watch, but that he had inherited or had innocently purchased it from the thief. And suppose, of course, that neither the victim nor his heirs can be found. In that case, the disappearance of the victim means that the stolen property comes properly into a state of no-ownership. But we have seen that any good in a state of no-ownership, with no legitimate owner of its title, reverts as legitimate property to the first person to come along and use it, to appropriate this now unowned resource for human use. But this “first” person is clearly Jones, who has been using it all along. Therefore, we conclude that 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.
But there is far more before and after this portion, and it is even better when read in context. So I highly suggest reading the entire chapter.
jodiphour: Of course, someone will argue that violence requires infringement of property rights, so taking property from a thief is not violent. And that is a valid point too and may solve the conundrum.
Of course, someone will argue that violence requires infringement of property rights, so taking property from a thief is not violent. And that is a valid point too and may solve the conundrum.
That is not the typical understanding of the word violence. Violence is physical force. If you take the property from the thief through force, you have used violence against him.
This is different from aggression, which is the initiation of violence or the threat thereof. Taking the property from the thief is not aggressive (within proportion), so it is in line with the NAP.
Violence can be used to create just ownership.
There is a proper role for the use or threat of violence. The fact that - a priori - we desire the minimization of violence does not flow from violence being in some cosmic sense "immoral" but, rather, from the simple fact that it is impoverishing. Hence, the minimization of violence is not an end-in-itself. Rather, prosperity (individual human flourishing) is the end desired and the minimization of violence is one of the logical preconditions to achieving this. This is why we're not pacifists.
Clayton -
Libertarians typically subscribe to John Locke's view on the emergence of property, so the burden of proof would be on the scions of Native Americans to prove that their ancestors "mixed their labor with unclaimed land (i.e. homesteaded land)". As gotlucky has indicated, the issue becomes extremely complicated once we move beyond the superficial statement of "Native Americans should have their property restored" into the very exacting question, "What, specifically, is the property that must be restored and what evidence do you have that it is their property?".
My take on aboriginal property is that beyond actual settlements (which existed amongst tribes that knew agriculture), the claims of property cannot be construed as falling on the actual land but on the resources being controlled, i.e. the animals hunted and the plants etc. from which food was gathered. Thus, most of this property was simply abandoned either through migration (including hunter-gatherers settling into agriculture) or the practical disappearance of tribes altogether (mostly by disease). This does not mean that there were not clear instances of theft, but when you consider the sheer magnitude of the North American continent, these crimes were not the general practice (though still egregious).
This is an interesting perspective. I've also heard it argue that Native Americans did not view land as property and therefore we can't claim that it was stolen. I don't really buy it because use of land confers a type of ownership to me, regardless of the person's concept of ownership. Also, treaties may have been signed, but I think coercion was probably used. And the treaties were probably violated by the US. I may be biased, because I don't think I can be convinced that Native Americans voluntarily gave up their land.
My point is to assume it was stolen, then try to understand the rightful ownership issue. The point is that legal ownership is not the same thing as rightful ownership. And that some things we think we are the rightful owners of may not actually be the case because of the history of violence attached to that property. And in order to resolve that, we have to adjust our definition of rightful property to at least allow to transfer after death of the victim lineage.
No. There can be a new rightful owner, just not the thief. Once property becomes unowned, it may be homesteaded by a new person. That person will be the rightful owner.
Why can't the thief homestead it? So someone else has to appropriate it from the thief? or we just have to wait until the thief dies? How is someone supposed to know it was stolen? What if someone steals it from the thief thinking the thief is the rightful owner, is that ok?
Why can't the thief homestead it?
If it becomes unowned, the thief can homestead it, but I doubt any libertarian would consider the thief the rightful owner. For objects that have never been owned, first use is one of the criteria to make it rightfully owned (the other is that the homesteader makes a claim to own it, as he could just pick a berry off a bush and never come back to it).
If an object is currently unowned but has been owned previously, then we have one more criterion: the new owner cannot have acquired it unjustly (i.e. stolen it). So the thief could be a first user if it were to become unowned, but unless the rightful owner gives his blessing to the thief, the thief can never rightfully own it.
Obviously, it is possible that other libertarians may disagree with this viewpoint. But I don't think that a just theory of property can allow for people to acquire property through unjust means. It seems contradictory.
So someone else has to appropriate it from the thief? or we just have to wait until the thief dies?
Anybody would be a better owner than the thief, in my opinion (I think Rothbard makes a similar point somewhere, probably in FaNL or EoL). But really, the rightful owner is the person the thief stole it from. Ideally, the property would make its way back to the rightful owner. Barring that, anybody else would be a better owner.
How is someone supposed to know it was stolen?
No one can necessarily know, though it might be possible in certain contexts. I'll try to find what Rothbard wrote about this, as iirc, what he wrote seemed to make sense when I read it.
What if someone steals it from the thief thinking the thief is the rightful owner, is that ok?
Sure, why not? After all, he's taking it from an unjust owner. That doesn't mean that I can respect the second thief.
I may be biased, because I don't think I can be convinced that Native Americans voluntarily gave up their land...My point is to assume it was stolen, then try to understand the rightful ownership issue.
First, not all land was in use before the arrivals of Europeans. Second, much of that which was in use for hunting and gathering was abandoned (due to the reasons I discussed in the previous post). For these reasons it really does not make sense to assume that such an enormous amount of land was 'stolen' (if we can count land as actual property at all). Even that property which was stolen need not be put back into the control of the heirs of those who once used it, since - as I argued - the ownership was actually over the animals and plants on the land, not the actual land itself, and how many modern heirs would be making use of those, even if they still existed? I.e. they would become abandoned anyway.
thanks gotlucky for digging that up! I had read some Rothbard stuff about first user, and knew that solved some of it, but the above passage pretty much touched on all the possible scenarios!
But I think it is still important to note that "just ownership" is a sort of assumed concept. It may or may not be able to be proven either way. So the true rightful owner may be different than who we are allowed to reasonably assume is the rightful owner. This is an important distinction.
So while smith may be reasonable in assuming that jones is the rightful owner of your stolen watch, it doesn't make jones the rightful owner. In this way, it is almost impossible to know who the true rightful owner of anything is. We simply have no choice but to work with legal ownership rather than absoltue rightful ownership.
I think part of the problem is that the encroaching Europeans did not comprehend - in large part as a result of a convenient obtuseness - the concept of "ancestral lands", a situation where neighboring tribes reached a pseudo-territorial equilibrium that minimized incursions into each other's hunting grounds, even though much of the land was unoccupied at any given time.
Plus, I don't think it can be stressed enough that when people can do something, they will, however unjustifiable it may be. The experiences of the Trekboers in South Africa are highly analogous to those experienced by American pioneers. In both cases, there was a lot of sanctimonious justification of rapine combined with habitual playing of the martyr.
jodiphour: But I think it is still important to note that "just ownership" is a sort of assumed concept. It may or may not be able to be proven either way. So the true rightful owner may be different than who we are allowed to reasonably assume is the rightful owner. This is an important distinction.
Right, just ownership is a subjective concept. Not everyone shares the libertarian belief about justly owned property (and even if they did, that would make it universal, not necessarily objective). But I think that most people who support the NAP (i.e. libertarians) would most likely agree with Rothbard's position on this issue.
Not knowing who is the rightful owner is another way of saying that no one is making a claim to the object in question. For example, if you drop a $20 on the street, you would be the rightful owner. But it is lost to you. No one knows that it belongs to you, and hell, you don't even know where it is, so there is no way for you to make a claim that it is yours. At this point, it is unowned. No one is making a claim to own the $20. Whoever uses it next becomes the rightful owner.
Ideally just ownership would equal legal ownership. Practically, we have to work with legal ownership. But people do bring lawsuits today about who is the rightful owner of X, but whatever the judge decides is who becomes the legal owner, regardless of just ownership. But we can know who the rightful owner is most of the time. As Rothbard pointed out, and I said right above, when we cannot identify the rightful owner, this is another way of saying that nobody is claiming the object in question. So, the next user is the rightful owner - unless, of course, he acquired it unjustly (i.e. he stole it).
Gotlucky
Yes, there is. This is getting a little tiring repeating myself. Where is this so called property that is supposed to have been stolen? Is 109 Main Street Oklahoma City, OK? Or is it 314 School Street Kansas City, MO? You can't say that the Indians owned all of Ohio, as they did not own all of it. So, where is this land in Ohio that they are claiming was stolen? What specific plots of land?
You can't say that the Indians owned all of Ohio, as they did not own all of it. So, where is this land in Ohio that they are claiming was stolen? What specific plots of land?
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.
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.
Care to substantiate them?
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.
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.
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?
"As in a kaleidoscope, the constellation of forces operating in the system as a whole is ever changing." - Ludwig Lachmann
"When A Man Dies A World Goes Out of Existence" - GLS Shackle