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Property ownerless as a result of aggression

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FlyingAxe Posted: Thu, Nov 22 2012 9:49 PM

If A aggresses against victim B, killing both B and all his descendants, what is the status of B's property? Presumably, it is ownerless. If C occupies/finds it, he can keep it, right?

But what if A (the aggressor) occupies it? Although it's true that his murder of B was a crime, his appropriate of B's property is not.

To me this line of logic sounds somewhat absurd, but why, from natural rights point of view, is it?

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Wheylous replied on Thu, Nov 22 2012 10:12 PM

The way I understand it is that crimea by you cannot be a predecessor to your claim of a piece of property. For example, I can't threaten you to sign a contract to give me all your stuff. It's an invalid contract.

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Anenome replied on Fri, Nov 23 2012 2:18 AM
 
 

FlyingAxe:

If A aggresses against victim B, killing both B and all his descendants, what is the status of B's property? Presumably, it is ownerless. If C occupies/finds it, he can keep it, right?

But what if A (the aggressor) occupies it? Although it's true that his murder of B was a crime, his appropriate of B's property is not.

To me this line of logic sounds somewhat absurd, but why, from natural rights point of view, is it?

In the first sentence: If C finds ownerless property, for whatever reason, he can homestead it.

In the second sentence: A's occupation of the property he took by killing B and B's descendants is certainly unjust. B is guilty of murder and should be brought up charges and face justice. The problem is one of when this fact is discovered.

If the fact is discovered during A's lifetime, then the best way to deal with the property would be to give it to the one who discovered the fact of its unjust occupation by A, and A's murderous deeds. By this a society can incentivize rooting out such injustices as well. Thus if A is convicted, the first one to discover the property's unowned status is the one who outed A as a murderer and unjust owner, and thus he has first claim on it.

If A is dead, however, and none of B's relatives can be found (perhaps unlikely most of the time), then either A's relatives should be allowed to continue staying there, since they are probably innocent of any collusion in the murder. Or the property should be auctioned off as unowned.

Personally I wonder which is more just, to punish the descendants for their ancestor's crimes by kicking them off the land as its passing down to them was illegitimate (by which most people could be punished for crimes strecting back thousands of years if need be, and which reasoning is the basis of many contnual racial and cultural struggles the world round, such as the Middle Eastern conflict with Israel), or to let them stay, acknowledging that they are basically innocents.

Let's take a look at the relevant Rothbard passage:

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.

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 title-holder 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.

***Murray N. Rothbard (1998-08-16 00:00:00-07:00). The Ethics of Liberty (Kindle Locations 2079-2123). New York University Press. Kindle Edition.

 

 

 
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This might provide some guidance as to why the criminal has no title to the property.

Freedom of markets is positively correlated with the degree of evolution in any society...

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FlyingAxe replied on Sat, Nov 24 2012 11:04 PM

Re: Rothbard's analysis:

Suppose a corporation seizes someone's land. A century passes. The corporation still holds on to the land.

The victim's descendants cannot be found or do not have proof of their ancestor's ownership. But we clearly know that the original land was seized criminally. Does the corporation get to keep it?

1. If we assume that the corporation is not a person (as many people on this forum and Kinsella), but that the individual members are, then presumably, they get to keep the land, since they are not the original aggressors. This seems like an absurd result: corporation (and other similar structures, including governments, can seize lands, and, as long as enough time has passed, get to keep it).

2. If we asume that the corporation is a person, then it loses the property, and the first homesteader gets to acquire it. But then we have to explain how a corporation can be a person...

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Anenome replied on Sat, Nov 24 2012 11:33 PM
 
 

FlyingAxe:

Re: Rothbard's analysis:

Suppose a corporation seizes someone's land. A century passes. The corporation still holds on to the land.

The victim's descendants cannot be found or do not have proof of their ancestor's ownership. But we clearly know that the original land was seized criminally. Does the corporation get to keep it?

1. If we assume that the corporation is not a person (as many people on this forum and Kinsella), but that the individual members are, then presumably, they get to keep the land, since they are not the original aggressors. This seems like an absurd result: corporation (and other similar structures, including governments, can seize lands, and, as long as enough time has passed, get to keep it).

2. If we asume that the corporation is a person, then it loses the property, and the first homesteader gets to acquire it. But then we have to explain how a corporation can be a person...

Corporations are only considered 'persons' as a legal convenience. It's easier to say "X corporation," then address a lawsuit to the collective action of its owners and operators and list them by name.

Corporations can't actually hold property, rather corporate property is just that, property held corporately by the collective of individuals that own that property.

If those people directed their agents, ie: the operators of the business, to unjustly seize land which they then held corporately, the legitimate heirs cannot be found, and enough time passes without the crime being discovered that heirs hold the land corporately now, then Rothbard's rules still apply.

I wrote before that the point where it seems like some injustice has crept in is where you say the heirs should get to keep the land. That feels wrong somehow. But in this case we would be holding the heirs liable for crimes their ancestors committed, which is clearly unjust. Title was passed to them, they had no part in the crime, but the title was illegitimate originally as held by the person(s) that seized it. Thus that title was null and void and the land was actually unowned for the entire time that the seizers occupied it.

Then along came the heirs and occupied that land, and by that act homesteaded it. So, their ownership of that land is not on the basis of the original title which was illegitimate, but rather their own act of homesteading after the fact.

I think your thought of 1. being an absurd result is based on the assumption that the stolen title is passed on and then somehow converted to legitimacy by being inherited. This isn't what happens. The stolen title passes away when all the heirs are gone, just as surely as if the heirs had all died out of natural causes.

We think there must surely be some way to deal with the original crime. But the thief is dead. There is no way to obtain cosmic justice against him, unless there is in fact a god in heaven :P Meanwhile, the heirs of the original thief occupy the land thinking they have legit title to it, even though it was illegit. However, since there were no legit heirs to the land alive, they end up unknowingly homesteading the land and by that obtaining legit title anyway.

Corps are not persons and viewing corporately held land by its original meaning--as property held collectively and operated by an agent of the owners--it's clear that you can still apply Rothbard's rationale to even corporately-owned property.

 
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gotlucky replied on Sat, Nov 24 2012 11:56 PM

FlyingAxe:

1. If we assume that the corporation is not a person (as many people on this forum and Kinsella), but that the individual members are, then presumably, they get to keep the land, since they are not the original aggressors. This seems like an absurd result: corporation (and other similar structures, including governments, can seize lands, and, as long as enough time has passed, get to keep it).

One could make a strong case that should the stockholders or owners of the corporation claim the property as theirs, that they are complicit, thus they may not morally own it. It's a different analysis if the owners were not complicit - in other words, if they didn't order the aggression and were unaware of it.

You brought up a century passing, and in that case, if the original owners have no descendants or they cannot be found, then the land may be homesteaded. If the current holders obtained it legitimately (it is ownerless), then they can be the new rightful owners. This might seem to be a problem regarding the state, but the state is a criminal organization, and it claims these lands by decree, not by homesteading. You are not allowed to homestead unowned land; the state prevents you.

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Anenome replied on Sun, Nov 25 2012 1:17 AM
 
 

gotlucky:

One could make a strong case that should the stockholders or owners of the corporation claim the property as theirs, that they are complicit, thus they may not morally own it.

I think we have to assume that, since generally a principal can be held responsible for the actions of their agent, within the scope of authorized activity.

 

 
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cab21 replied on Sun, Nov 25 2012 2:01 AM

b could have in the will  who would own the property in that case, it could be the people that bring the agressors to justice, it could be the next people that homestead the land, but i think people could put it in their will that the land be owned by more than just decendents.

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Anenome replied on Sun, Nov 25 2012 2:05 AM

cab21:

b could have in the will  who would own the property in that case, it could be the people that bring the agressors to justice, it could be the next people that homestead the land, but i think people could put it in their will that the land be owned by more than just decendents.

Yes, that would count as 'heirs.' I said descendants since these are the typical heirs, but you're right I should've used 'heirs.'

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FlyingAxe replied on Sun, Nov 25 2012 1:43 PM

gotlucky:
 This might seem to be a problem regarding the state, but the state is a criminal organization, and it claims these lands by decree, not by homesteading. You are not allowed to homestead unowned land; the state prevents you.

How is the state different from the corporation in my example? When William the Conqueror and his buddies came over to England and seized Anglo-Saxon land, they were criminals. But then, once William died, his heir inherited the land, etc. The holders of the land (William's barons) all agreed that they were just renters from the king. As centuries passed, it was clearly impossible to find the descendants of the original Anglo-Saxon owners. So, the land now belongs to the Queen Elizabeth II as her property.
 
The same goes for the US government. Yes, at the time when it seized lands from Native Americans (if they ever owned them — since the same analysis applies), it was holding those lands illegally. But then time passed, and the members of the government changed, and they now owned the land that was called "federal" (as long as they were the members), since at whatever moment it became ownerless, they homesteaded it by occupying and controling it.

It's true that the government is criminal in other areas (such as forced taxation, etc.), but one can be a criminal and still legally hold property that he inherited, no?
 
Why is the above analysis wrong? (Let us ignore for the moment that the government positions itself as a representative of the people. Let's imagine it was more like the Queen of England de jure.)
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gotlucky replied on Sun, Nov 25 2012 2:00 PM

Your analysis is wrong because the state prevents others from homesteading it. Consider a national park. The state owns that land. You are not allowed to homestead it. But agents of the state never homesteaded it. They took it by force and prevented others from homesteading it. They own it by decree. If there are buildings on that land, it may complicate the analysis, but the principle remains that the state owns land by decree. You are never allowed the chance to homestead it. The state will aggress against you if you attempt to.

Let's look at the post office, since that has not just land but capital through buildings, machines, etc. Who homesteads the post office? Firstly there are the taxpayers that are robbed. but it does operate a business to an extent, so taxpayers aren't the only owners. The people who work there actually use the property that makes up the post office. So the owners would be a mixture of taxpayers and post office workers, not the state in general. The state doesn't homestead it. Only agents of the state can homestead, and as I just pointed out, the people who homestead it are the people who work for it and we can assume that taxpayers ought to be given ownership as the post office's capital is made up of taxpayers' capital.

But the state doesn't allow you to homestead the post office. If the people who run the post office were to say, "Screw you, USA, we work for ourselves now", what would happen? The state would send in the police or the national guard or even the army in order to reclaim its property. The actual homesteaders are prevented from homesteading.

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Anenome replied on Sun, Nov 25 2012 7:36 PM

The 'state' is an abstract referent meaning those individuals elected and imbued with certain official powers. It cannot homestead anything. At best officials could homestead things, take title, and then confer that title to the state.

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FlyingAxe replied on Mon, Nov 26 2012 2:20 AM

So, I still don't see a difference with the state. Why would you expect the federal government to let others homestead the parks? They own the parks, as per our analysis.

If future members of the corporation X, whose past members have violently seized someone's property, inherit the property, they are also preventing others from homesteading it since the moment they inherited it. Of course they are preventing — it's presumably their property, as we have discussed. Just like if I am wearing a watch given to me by my diseased uncle who had stolen it (with the original owner impossible to find) — I will be preventing others from homesteading the watch, since it's mine. It was ownerless for the moment my uncle died, but then I automatically homesteaded it.

Aye, the "corporation X" is just a legal construct. So what? That doesn't prevent us from saying that its members inherit the land it had seized in the past eventually, once all the old members die out.

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Anenome replied on Mon, Nov 26 2012 2:28 AM

You can't conflate a government with a corporation.

Go try to sell your shares in ownership in a government.

In our example, the corporation would be holding title. Governments don't hold title to land, they simply declare it theirs, using the law. It's not even pretext at voluntary exchange.

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gotlucky replied on Mon, Nov 26 2012 8:32 AM

So, I still don't see a difference with the state. Why would you expect the federal government to let others homestead the parks? They own the parks, as per our analysis.

They own the parks, but they haven't homesteaded the parks. Declaring thousands of acres of land to be yours is not equivalent to homesteading. Furthermore, the only people who could possibly homestead it are the park rangers and other employees that take care of the land and possibly any other patrons of the park. What the government does is declare, by law, that they own the park, as Anenome pointed out above.

If future members of the corporation X, whose past members have violently seized someone's property, inherit the property, they are also preventing others from homesteading it since the moment they inherited it. Of course they are preventing — it's presumably their property, as we have discussed. Just like if I am wearing a watch given to me by my diseased uncle who had stolen it (with the original owner impossible to find) — I will be preventing others from homesteading the watch, since it's mine. It was ownerless for the moment my uncle died, but then I automatically homesteaded it.

The government acquires the land through aggression, and then proceeds to prevent others from ever homesteading it legitimately. The POTUS and Congress do not homestead Yellowstone National Park. If any was to homestead it, it would be the people who run and take care of it. Almost the entire federal government has nothing to do with it. Yet the federal government is the one that claims ownership of it, not the people who actually use it.

In the case of the watch, should the owner never be found, then you would homestead it. Your family doesn't homestead it. You do.

Aye, the "corporation X" is just a legal construct. So what? That doesn't prevent us from saying that its members inherit the land it had seized in the past eventually, once all the old members die out.

Individual members can homestead the land. The corporation doesn't homestead anything. The members could homestead on behalf of the corporation, but the property in question has to actually be used in order to be homesteaded. It's one thing to be the new first user of a watch, but it's quite another to be the new first user of Yellowstone National Park or the USPS.

But as Anenome said above, the main difference between a corporation and the state is that the state doesn't generally homestead (especially large areas of property). The state just decrees by law that it owns X. A corporation has to actually go out and use it.

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FlyingAxe:
If A aggresses against victim B, killing both B and all his descendants, what is the status of B's property? Presumably, it is ownerless. If C occupies/finds it, he can keep it, right?

But what if A (the aggressor) occupies it? Although it's true that his murder of B was a crime, his appropriate of B's property is not.

A's commission of a tort against B does not strip A of his rights to homestead unowned property: whose property it once was is irrelevant.

As for the larger problem of how to deal with aggressors whose victims and their heirs are dead, and therefore unable to collect restitution, I'm in favor of viewing the right of restitution as property like any other, which therefore becomes unowned and open to homesteading upon the death without heirs of its owner. How would one homestead B's right to restitution? By being the first person to successfully prosecute A for his crime. Thus the self-interest of otherwise disinterested third parties would ensure that B's murderer doesn't away with it.

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FlyingAxe replied on Sat, Dec 1 2012 10:26 AM

Anenome:

You can't conflate a government with a corporation.

Go try to sell your shares in ownership in a government.

In our example, the corporation would be holding title. Governments don't hold title to land, they simply declare it theirs, using the law. It's not even pretext at voluntary exchange.

Sorry, I feel like you're splitting hairs. We can imagine a private organization whose charter says that its membership changes every four  years, and the members are voted in by the public. Once someone is a member, he can resign, but he can't sell his shares or seat to someone else. There is nothing wrong with this arrangement from libertarian point of view, is there?

Can such an organization own land? We can say that its members own land, or whatever version of land-ownership-by-an-organization you prefer.

Next, this organization "goes rogue". Let's say it seizes land from a nomadic tribe living nearby. It homesteads the land and then rents it out to a bunch of people. The land presumably still belongs to the nomadic tribe, right?

300 years pass. Nobody from the tribe's members' descendants can be identified anymore. Meanwhile, the membership in organization passed from one group of members to another. Question: who owns that piece of land today?

a) the current members of the organization
b) the current renters (descendants of the original renters or some new renters)
c) nobody — whoever wants to, can come and grab it

Note: it's clear that the renters signed a document saying they were renting, not buying, land from the organization.

Also, imagine that the organization really homesteaded the land somehow. I don't see why we are stuck talking about national parks, which may or may not have been homesteaded (btw, park rangers clearly work for the government). What about D.C.? What about public roads in every city vis-a-vis state governments? What about the vast majority of other countries' land that the countries' governments claim to own? "Federal land" is just an American (and few other societies') peculiarity. True, we may not be able to say that Putin owns all of Siberia, but what about the Red Square?

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FlyingAxe replied on Sat, Dec 1 2012 10:47 AM

Also, I agree that the government itself does not claim to own the land. The official line is that the public owns the land, and the government is merely the public's representatives.

But we, as libertarians, consider this to be a fallacy. We claim that the government should be treated not as an extension of public, but as an independent organization. Also, we might imagine that the government did claim to own the land, rather than being an extension of the public. In fact, that is the case in the UK, where the Queen de jure claims to own all the land, with the "government" being only her ministers. So, from the Queen's claim's perspective, all English citizens are merely her tenants.

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FlyingAxe replied on Sat, Dec 1 2012 10:49 AM

Minarchist:

FlyingAxe:
If A aggresses against victim B, killing both B and all his descendants, what is the status of B's property? Presumably, it is ownerless. If C occupies/finds it, he can keep it, right?

But what if A (the aggressor) occupies it? Although it's true that his murder of B was a crime, his appropriate of B's property is not.

A's commission of a tort against B does not strip A of his rights to homestead unowned property: whose property it once was is irrelevant.

As for the larger problem of how to deal with aggressors whose victims and their heirs are dead, and therefore unable to collect restitution, I'm in favor of viewing the right of restitution as property like any other, which therefore becomes unowned and open to homesteading upon the death without heirs of its owner. How would one homestead B's right to restitution? By being the first person to successfully prosecute A for his crime. Thus the self-interest of otherwise disinterested third parties would ensure that B's murderer doesn't away with it.

But what about the aggressor's descendants who inhertied the (originally stolen) property? Should anyone who discovers this fact be free to take the property away from them? (We are still dealing with the situation where the original owners' descendants cannot be identified.)

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My point was that the aggressor can legitimately homestead the unowned land of his victim, he becomes the rightful owner of the land. He is liable for the murder, that is all. His homesteading of unowned land is a separate issue. He cannot be considered to be stealing it, precisely because it has no owner.

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cab21 replied on Sat, Dec 1 2012 1:49 PM

so how would the agressor determine if the land is unowned or owned? ownership comes from homestead, paper trail is just recording ownership and not creating ownership.  so no paper trail needs to be there, so why should there need to be a paper trail to have others rightfully inherit the land who are not the agressor?

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As you say, documents just record ownership, they don't establish it. The aggressor is in the same position as anyone else who finds some property which he believes might be unowned. He could just take it right away, assuming there's no one out there with a claim on it. He could try to do some research so that he can be confident that no one else owns it already. Either way, if someone comes along at a later date, and can prove that it was their land, the aggressor is out of luck. I don't believe that property rights should have an expiration date. Even if it's 100 generations later, if somebody can prove some property is rightfully theirs, it should be recognized as such.

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Anenome replied on Sat, Dec 1 2012 6:06 PM

As they say, possession is 9/10ths of the law.

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Minarchist:

As you say, documents just record ownership, they don't establish it. The aggressor is in the same position as anyone else who finds some property which he believes might be unowned. He could just take it right away, assuming there's no one out there with a claim on it. He could try to do some research so that he can be confident that no one else owns it already. Either way, if someone comes along at a later date, and can prove that it was their land, the aggressor is out of luck. I don't believe that property rights should have an expiration date. Even if it's 100 generations later, if somebody can prove some property is rightfully theirs, it should be recognized as such.

There is an idea called "we don't destroy the world because of one stolen log". I.e., if someone steals a wooden log of yours and sells to me, and I build an apartment building, into basement of which this log is incorporated, and then sell the apartments to a bunch of families, who move in, etc., etc., we don't destroy all of this because of one log that was stolen from you. You need to be returned the value of the log — ideally, by the guy who stole it, but second-best by me or the owners of the apartments. Simply because, as mentioned above, all the (inhabited) world is unfortunately built one way or another using stolen goods of some sort.

So, the rule sounds somewhat normative, but I suppose all rights are normative, aren't they?



Any response re: my government (devil's advocate) argument from anyone?

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I don't see why the rights of restitution of the victim of a theft should be abridged (he be denied the return of his stolen log) for the convenience of third parties (current owners of the apartment). That said, he doesn't have to exercise his rights in that way. I imagine that almost anyone in the situation of the victim would be happy to accept monetary restitution in place of demanding the destruction of the building so that he could have the log itself returned to him. Moreover, if that much time has passed, odds are he can't prove it was his log anyway, otherwise why did he wait so long to demand restitution? So, in practice, I wouldn't anticipate many instances of "destroying the world over one stolen log,"but the victim of the theft would nonetheless have the right to do so. The principle that property has no expiration date has a self-limiting mechanism re practical problems such as you've raised, in that, with the passage of time, it becomes increasingly difficult to prove ownership. As an ethical matter, we only care about what is the case. As a practical, legal matter, however, what's important is what can be proven to be the case.

apiarius delendus est, ursus esuriens continendus est
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