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 -
Regarding the land owned by Native Americans, well this is even harder to prove. You see, not only would the Native Americans have to be able to point to the specific heirs of the owners of the land, they would have to prove which land was owned to begin with. It's not enough to just say, "Well, this general area was owned by Native Americans of such and such tribe. So return it to the heirs of the tribe." That is not how it works. You need specific people to have specific claims, and then they have to prove them.
Or is there a logical option I'm missing?
Yes, things and perspectives change. The frameworks being talked about are elastic, not Platonic
"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
@vive
lol, now you are just making me feel bad
I get the concept of having to prove a specific claim of rightful ownership. Do you see that this means rightful ownership depends on being able to prove it. So if I steal your property and you cannot prove the specific claim that I stole it, then you do not have rightful ownership.
Maybe I am incorrect in concluding that theft can be a source for rightful ownership since the theif would still potentially have to prove it later on.
Maybe it can be mroe clearly understood that rightful ownership is a mental state of understanding within a group of people. It is not an absolute concept. If rightful ownership requires proof, then it requires acceptance by the group as proof. If the group doesn't accept your proof, then you simply are not the rightful owner.
If I stole your car and have all the necessary forged documentation, and society accepts it as legitamate, then I am the rightful owner since I have proven it. Thee is no way for anyone to know it is stolen since you cannot prove it.
This means that there are two types of rightful ownership:
1. Actual or absolute rightful ownership as first user without the use of force.
2. Practical rightful ownership, which is relatvie to the recognition of society at large (requires proof).
It seems like some here are talking about #1, but then switch to #2 or conflate the two.
For example, the absolute rightful owner of a particular tract of land may be a particular lineage of Native Americans. But the practical rightful owner is whoever holds the US recognized deed. Similarly, although you may be the absolute rightful owner of your car, I may be the practical rightful owner because you cannot prove your ownership to the court, but I can (although forged). We could not hold anyone at fault for honoring me as the rightful owner (the practical rightful owner). Of course this is how rightful ownership works in practice --- it requires proof. So what I am arguing is that the only type of rightful ownership we need concern ourselves with is of the second kind.
This destroys the notion of absolute rightful ownership (which is what I am trying to draw attention to). In other words rightful property is not a product of labor, first user, voluntary exchange, etc... it is the product of being able to convince (prove to them) others that you are the rightful owner.
Now I know that everyone here will disagree with this. So why is it wrong?
In your two options given
a) In set up 1, you merely own something when you do. It's a very sparse and nearly empty statement. However, this would be at the heart of the matter, and show the Ontological nature of an Austrian approach. It will show the imperatives and consequences of action. This is actually where "proofs" would be, if there are to be any..
b) Set up 2, is something that is going to come out of set up one, and put us in some type of context. It is from here we would finally enter into an epistemological necessity, in order to make sense of anything. And from here, there are no "proofs", just demonstration, custom, expectations.
It's not so much about deed holding as it is about the individuals calculations and expectations against the relevant societies calculations and expectations.
Either way, these are empty sets, because we can't really say much more about a practice in an abstract form. Nor can we go into narrative or conformation biases in historical readings, in such an abstract setting.
Also, in reference to your "type 1" definition: We probably can establish a certain "logic of success" as it were, but that's a little bit of a different story
@jodiphour
So if I steal your property and you cannot prove the specific claim that I stole it, then you do not have rightful ownership.
As gotlucky drawned attetion to earlier, the thief in this case would be the legal owner. It's certain that some of the property that US citizens have today are not rightful, because they are the right of the native's heirs. But even if they knew how to prove it, probably they don't even know what is their rightful property and what isn't. As you said below your post with the first and second types. They would be rightful ownership and legal ownership.
So what I am arguing is that the only type of rightful ownership we need concern ourselves with is of the second kind.
I guess that is true, but you have to consider that, normally, the rightful owner is the one who can prove that his property is in fact his, not the other way around.
Ok, these last few replies, I find more satisfactory. Vive-la-insurrection hit it from the intellectual explanation perspective pretty clearly (maybe others have earlier as well), but I think it is important to explain it in terms of basic language and the actual reality we live in,
It's certain that some of the property that US citizens have today are not rightful, because they are the right of the native's heirs.
This is one point I am trying to make, but I'm not sure how many people here actually believe this. In studying history, it seems reasonable to recognize that at least some land was stolen from Native Americans and therefore at least some legal property is not rightful property (not just land but whatever is derived from that land as well).
So how can one ever claim rightful ownership of land which is legally owned? I do not find it satisfactory that the nonexistence of a challenge to that rightful ownership is the sole requirement. I think that rightful ownership can never be proven in the absolute sense. That doesn't mean it doesn't exist, just that any claim of it is ultimately questionable.
Here's my take:
Stolen property can become rightful property if the original owner's lineage dies out, or surpasses some generational threshold (not sure what I would take it to be, something long, say 100 generations). But it depends on the effort made by the victim to reclaim the property. Say if the victim lineage has relevant historical records and makes effort to reclaim that property, then the thief can never have rightful ownership, even after 1,000,000 generations, so long as the victim lineage still possesses records and pursues the case. Once the victim lineage dies out, then the thief becomes the rightful owner, as a voluntary exchange is no longer possible with the original rightful owner. As I mentioned earlier, it is because the thief exerted effort to maintain the property, so another citizen can not lay a greater claim to the thief's spoils.
I'm not arguing this to be legal property only. I am actually arguing it to be rightful property in the libertarian sense as well. Dead individuals can never have rightful property (unless of course, they left it as inheritance to another lineage). So we must define where "natural inheritance" stops... i.e. that by birthright.
To counter this must mean one to stop using any claim of rightful property. How can you prove that your car doesn't have any theft in its history? Say part of the metal was extracted from land stolen from Native Americans... this is a real possibility, but it may be impractical to prove it one way or the other. So one can only claim legal ownership, or practical ownership... say giving a probability of rightful ownership. Although I am near 100% certain, that whatever property you own, somewhere in it's history (the history of the matter it is made of), there is violence.
Now there is still the question of land vs material goods created form resources extracted from the land. As I think the two types of property are treated differently, at least by Rothbard. I would argue it doesn't matter... all property ultimately comes from land. So turning the resources extracted from that land into something does not create rightful ownership. It does add to the weight of any possible claim of rightful ownership once the original lineage dies out though.
vive la insurrection: It's not so much about deed holding as it is about the individuals calculations and expectations against the relevant societies calculations and expectations.
QFT.
Deeds are just a formal way of demonstrating who is the legal owner. They become necessary regarding valuable properties in a large society, as it is impossible for everyone to know who has a legal claim to what. They are unnecessary in small communities where this sort of information is common knowledge.
jodiphour: I get the concept of having to prove a specific claim of rightful ownership. Do you see that this means rightful ownership depends on being able to prove it. So if I steal your property and you cannot prove the specific claim that I stole it, then you do not have rightful ownership.
There are two different types of ownership, legal ownership and just ownership. As far as I am concerned, a thief can never become a just owner of the property he has stolen. The reason I am pushing the point of needing specific claims and proof is because of the scenario you have set up for us to examine. Even if there are rightful owners of the stolen land, these owners have to provide specific claims and proof. If they cannot, then we, the rest of society, have no idea if these claims are truthful claims.
Thieves cannot be rightful owners of the stolen property.
Rightful ownership is an opinion, it is not absolute. There are people who do not even believe in ownership (even if they demonstrate ownership).
No. I am not saying this. You have stolen it. You can never be the rightful owner.
This means that there are two types of rightful ownership: 1. Actual or absolute rightful ownership as first user without the use of force. 2. Practical rightful ownership, which is relatvie to the recognition of society at large (requires proof). It seems like some here are talking about #1, but then switch to #2 or conflate the two.
This is incorrect. Rightful owners need not be the first user. That is one method of acquiring rightful ownership.
For example, the absolute rightful owner of a particular tract of land may be a particular lineage of Native Americans. But thepractical rightful owner is whoever holds the US recognized deed. Similarly, although you may be the absolute rightful owner of your car, I may be the practical rightful owner because you cannot prove your ownership to the court, but I can (although forged). We could not hold anyone at fault for honoring me as the rightful owner (the practical rightful owner). Of course this is how rightful ownership works in practice --- it requires proof. So what I am arguing is that the only type of rightful ownership we need concern ourselves with is of the second kind.
Make it simpler and just call these "practical rightful owners" legal owners. That is what they are. We are concerned with actual rightful owners, or we wouldn't be libertarians. If all we cared about was legal ownership, then whatever the state says is what we ought to care about.
This is actually correct. Property rights are entirely about what the community/society assigns. But as libertarians, we want the community's/society's notion of property rights to align with the libertarian notion of just property rights.
jodiphour:If I stole your car and have all the necessary forged documentation, and society accepts it as legitamate, then I am the rightful owner since I have proven it. Thee is no way for anyone to know it is stolen since you cannot prove it.
Be precise with your use of words here. In this scenario, you wouldn't be the rightful owner, you'd be the legal owner, but the rightful owner would still be the one the car was taken from. In moral terms, you'd have no right to the car, even if your ownership was societally recognized.
The biggest issue is perhaps that the american indians, as hunter-gatherer types generally, didn't have a concept of property in the way that we do.
Lastly, iirc, they signed treaties with the US that should put all previous legal issues about land to rest. They have sovereignty on their reservations and forfeit original claim to any land outside it. I could perhaps be wrong there, don't want to research it.
In a moral sense, they have been greatly wronged historically. In a legal sense, they signed away their rights via treaty.
*Disclosure: I am myself in part American Indian.
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).
So once property has been stolen, there can never be a new rightful owner, only a new legal owner?
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.