I was talking with a friend this Saturday about the concept of right of conquest.
He gave the following explanation for it, from his understanding (I am summarizing and removing a lot of details):
Property is a normative concept. It is something that people agreed upon. So, in order for property to exist, you need society; or, rather, the concept of property exists only within the context of a society. But which society? What if two different societies exist next to each other? Then, whatever the society is in charge of the particular plot of land, that's the society that will "create" the concept of property on this particular land.
So, whenever there is a war, and one country conquers land belonging to another country, the property of the land changes hands. (Note that my friend does not approve of wars: in general, or wars of conquest in particular. He is merely looking at the reality of what happens, in his opinion, to the status of property. The act of war that led to this change should be condemned and avoided at all costs according to my friend.)
Why doesn't this happen when private individuals steal from each other? Because there is a society "above" them. So, if Joe steals from Bob, then the item still belongs to Joe, since the society in which both live has determined it so.
But there is no society "above" two countries, since each of them is an independent society. So, there is no "international" context in which to define the idea of property. In other words, just like "weight" is a concept that makes sense within confines of a particular gravitational field, "property" is a concept that makes sense within confines of a particular society. Plots of land changing control of societies is like an object moving from one gravitational field to another (and thus acquiring weight due to another set of circumstances).
What about anarchy, I asked? He answered that if a given plot of land is inhaibited by the people who belong to an anarchic society, then the concept of property is created by common laws of that society. If members of another society, for instance, monarchy, conquer that land, then another society gives context to property on that land.
But in a situation of no society at all (i.e., total lawlessness), no concept of property can exist, even if people are around. In that context, "might makes right".
He added that the right of conquest works when no international law exists. If it does, like today, and the international law defines property and prohibits its transfer through conquest, then right of conquest could not be a way to transfer property.
I am interested what people might say about this logic.
I personally see two problems:
1. It's true that society gives context to property. But that may mean that property makes sense to speak of when people live in a society (i.e., when there is more than person around). It's not the case that society of people decides what property is.
2. Furthermore, it doesn't mean that a specific society determines or defines property. Society in general defines property.
3. I think my friend would agree that it is still immoral to take someone else's property if you're stranded on an island. One doesn't need to set up a legal system (monopolistic of anarchic) to know that what I have is property. We may have different ideas of what is moral or not in these circumstances, but might makes right would not be one of them.
4. If what he describes is right, then we have the strange conclusion that if a Bob and Joe live in England, and Bob takes a diamond from Joe, he is a thief. Then, imagine that England is at war with France. Bob flees to France. He is now under a completely different society. There is no set of international relations between the two countries that recognizes each other's property (quite the opposite: if England takes one of France's territorial possessions, it will keep it, and vice versa). So, while he is still in England, he is a thief. While he is in the Channel, he is no longer a thief, but the diamond belongs to nobody. When he is in France, he for sure is not a thief, and the diamond is his.
Anything to add?
Also: any good books (besides Hoppe's book on socialism and capitalism which I am currently slowly reading) or articles on the concept of property?
I agree that "society" establishes property or vice versa. Private property is probably the single most important aspect of civilization. For society to even exist, private property must be established, or in the case of socialism/communism, private property must be monopolized. In either case the idea that ownership of property exists is paramount. It may be normative, but it is so because mutual cooperation and respect for property establishes mutually beneficial trade. Humans can't "advance" without trade and, we can't trade without establishing ownership of property. I believe this principle extends to state to state relations as well.
What your friend is suggesting, is that two competing societies can't establish property laws. That the only significant law is "might is right". But we know this to be untrue on many levels. Although states were originally and can often still be antagonistic towards each other, they also are capable of mutual cooperation. Mutual cooperation based on the respect of each others property, i.e. trade. Furthermore, there may not be an ultimate arbiter for state relations, but states are still subject to the whims of a market. If one country imposes a tariff, a negative reaction will occur in their relations with another. Lack of respect for property, by one state towards another, will lead to negative consequences. The idea of property and property rights is universal to all civilizations once they actively engage with one another in any kind of trade. In order to even recognize another state, a state ipso facto must respect its claims to property, it becomes normative between those two societies at the moment of recognition.
Although I don't agree with his entire premise, your friend does make an interesting point about leverage. Without a final arbiter, i.e. a state for the states. Ultimately, countries with the most physical power are able to extend undo influence over other, less militarily inclined and/or larger states. It's a point that many anarchist should take to heart when discussing human nature and the absence of higher authorities.
What your friend is suggesting, is that two competing societies can't establish property laws. That the only significant law is "might is right". But we know this to be untrue on many levels. Although states were originally and can often still be antagonistic towards each other, they also are capable of mutual cooperation. Mutual cooperation based on the respect of each others property, i.e. trade.
My friend might answer that when this is true, there is mutual respect for property between the countries and may even be some sort of extradiction agreement (if there isn't, we are still in trouble in terms of my ad absurdum scenario). I.e., as my friend said, when there is international law (which can a form of agreement between two given states) that does not recognize war as an act of property transfer, then obviously, there is no such thing as a right of conquest.
But obviously, if a war started between two states, that means that the mutual respect for property has broken down. That's the whole point of a war. Even if it's not a war of conquest, but some sort of war involving a third party, still: the idea is that one state considers it legitimate to damage tanks or ships belonging to another state; hence, it no longer respects the other state's property. The diplomatic bond that united them and united their "property-producing" societal "gravitational fields" broke down.
In order to even recognize another state, a stateipso facto must respect its claims to property, it becomes normative between those two societies at the moment of recognition.
I think it's an excellent point, when some sort of international law exists. I.e., when two states don't recognize each other's existence, that's one thing. But if they do (even though they are at war), as has happened in human history at some point, then it's problematic to say that they do not recognize each other's property. Hence, when state A is at war with state B, state A still considers B a society, and all the land under B's control is property, albeit according to B's, not A's rules. In such a situation, after the end of the war, A must return all lost property to B.
This rule has developed after a certain point.
What puzzles me is the logic of a rule that if A attacked B, and B in the process of defense has captured some of A's territory, it now legitimately belongs to B. So, wars of conquest are wrong, but territory acquired in a war of defense is legitimately acquired. (This is the logic that Israel uses to defend its post-1967 borders.)
Legitimately belongs to is subjective or normative to each specific state, and is often the source of disagreement when discussing borders and/or land possesions. Claims on disputed land are just that, claims. Conquest or defense neither justifies a claim or negates them. It is simply claimed and disputed.
I think what we are ultimately discussing then, "is how do we determine disputed claims on property without an arbiter", although there can be considerable international pressure applied, ulitmately the answer is "might is right".
When there is a concept of "law" (international or local), there is assumption of justice. Israel, for instance, is not saying that it can hold the lands by force, and therefore, they belong to it. Arabs are not saying that they should take the lands from Israel because they can (obviously, they can't).
There is a concept of justice being invoked here from either side. The argument why holding of the lands is just is different (obviously), but neither side is using "might is right" argument.
Also, internation pressure in terms of what? Is that just the case of bullying by other powers? Although de facto that may be the case, de jure (at least in presumption), it's not.
I.e., there is a difference between saying that a judge's decision has a place in the law and saying that "eh, all judges are corrupt anyway".
I think another question could be raised here.
My friends identifies "society" with "government" or "state". Admittedly, he is no anarchist, but could not even an anarchist agree with him?
I.e., it could be the case that the state has occupied a society just like any invader might. But the truth remains that many customs and common-law relationships in the society may be originate from state laws.
For instance, if two anarchists have an accident on the road, how should they determine who was at fault? Certainly they shouldn't go to police or a local statist judge. Imagine they go to an anarchist arbitrator. Then what?
Isn't there a chance that he will use existing laws of the land, set up by the state, to determine who was at fault? For instance, if one of the motorists was driving on the left side of the road and the other on the right side of the road, the anarchist judge might have to look what the local customs are: if the are in the US, the one driving on the left is at fault (because the local custom is to drive on the right); if they are in the UK, it would be the opposite.
Even though these customs have become established as a result of immoral positive law resulting from violence of the state, once they have become established, such is reality.