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 -
jodiphour,
I think you are a little confused about what Rothbard is saying regarding just owners. Firstly, there is this except from the chapter I linked to:
To some readers, our doctrine may seem harsh on good-faith recipients of goods which later turn out to be stolen and unjustly possessed. But we should remember that, in the case of land purchase, title searches are a common practice, as well as title insurance against such problems. In the libertarian society, presumably the business of title search and title insurance will become more extensive to apply to the wider areas of the protection of the rights of just and private property.
Secondly, as I stated in a post earlier, if the just owner cannot be found, this is another way of stating that the property is unowned. That is, no one is making a claim of ownership. Since there is no claim of ownership, there is no owner. So the object in question may be passed on to a new just owner. Consider the dropping of a $20 bill. If you don't see who dropped it, you have no idea who the just owner is. For that matter, the just owner doesn't know where it is either. No one claims the $20. You become the new just owner.
If someone were to come along and claim that the $20 is his, do you believe him? Doesn't he require proof? Are you just going to hand this $20 over to whoever claims it is his? Maybe you might, and maybe you might not. But there would at least be a claim by someone regarding the $20. He may or may not be the just owner of the $20, but he is making a claim to own the object in question.
In the case of not being able to identify the just owner, there is just no claim. As far as I'm aware, there needs to be a claim to ownership for there to be ownership. It is a necessary condition of ownership. Without it, there is no ownership.
@jodi: It's been a while since I read EoL but I recall walking away with the impression that Rothbard's view is not legalistic - it's not merely that the thief needs to race to sell it before the transaction can be undone but, rather, it's a matter of traceability. Is it actually possible to trace back to the rightful property claim? In the case of almost all indigenous land claims, this is not possible.
I think Zimbabwe seized farms held by whites and redistributed the land through a farm nationalization program. The result was, of course, detrimental to their agriculture industry. This kind of "white people stole our stuff" collective justice has no place in a healthy, thriving society. The way to heal crimes committed in the recent past is to try - to the extent possible - to trace back specific titles to specific crimes. To the extent that is not possible, then the present titles must be let stand.
I'm looking for an answer that is logically consistent within the NAP framework. I'm not looking for something I will agree with morally.
Going by Rothbard, it seems that:
Jones can steal Brown's property, kill Brown, and then sell that property to Jim, then Jim becomes the just owner.
This may be an incorrect interpretation, but that has to be explained. And my previous post raised specific questions about Rothbard's explanation which Rothbard did not answer... at least he did not answer them in the passage quoted. I didn't read the whole chapter, but after the given quote he seemed to change gears and said "now we have a theory of property". So I assumed that he did not give further elaboration on the concept of just property. I will continue reading, but I assume other's on the forum here can provide clues or reasoning beyond what has been written.
I wouldn't argue that it isn't possible to determine Native People's land claims... with historical, archeological, and genetic research, we could reasonably determine who lived where, when... but again, this would only lead us to bringing #2 closer to #1. This is my point. That justice according to the NAP is #2 not #1. #3 is an entirely different beast.
jodiphour: Going by Rothbard, it seems that: Jones can steal Brown's property, kill Brown, and then sell that property to Jim, then Jim becomes the just owner. This may be an incorrect interpretation, but that has to be explained.
This may be an incorrect interpretation, but that has to be explained.
I think my above post here (and Clayton's post that you responded to answer this question), but I will try a different approach:
Is this a 3 person society or something more? If there are only 3 people, and 1 gets murdered, then at most only 1 person in this 3 person scenario can be a rightful owner of the murdered man's property (hint: not the murderer). Now, if the buyer was complicit in the crime, then neither could be just owners, and anyone who came across this 3 2 person society could rightfully claim the murdered man's property.
But I assume you are talking about a normal society, one with far more than 3 people. And this is why claims to ownership and traceability are important. As I said above, the claim of ownership is a necessary condition of ownership. If no one claims Brown's property as their own (and we tend to give the family of the deceased and the people named in the will precedence over other claims), then it is unowned property, and anybody (except the thief/murderer) can claim it as his own.
And this is where traceability is important too. If the family of the deceased can trace the stolen property, then they have their claim of ownership. If it cannot be traced, then the just owners cannot make a claim. So the property is considered unowned, as without a claim of ownership, there cannot be ownership.
This is also why deeds are important in societies larger than a very small community. It enables people to make claims of ownership without needing to have constant vigilance over their property. They can point to a formal piece of paper and say, "See here! I own this valuable painting that you have acquired. It is mine, give it back." It even enables third parties to point and say, "See here! I know for a fact that painting is really Bob's and not yours. I'm going to go tell Bob so that he may reclaim it."
In a small community, the deed is less important, as most people (if not all) can keep track of who owns what fairly easily. No one has to point to a formal deed in a small community in order for people to recognize the claim of ownership. But it is very necessary in a large society.
The problem is that we're not talking about journaling a narrative, we're talking about re-assigning real property that is currently owned by real people. That's much more serious. The standards of evidence must be equally serious. Let's say you see a beautiful mansion in Beverly Hills and decide you want to have it. So, you sue the owner and claim in court, "My ancestors once lived on this plot of land. We were simple folks so - even though we have no written record of our presence on this plot of land - it is a part of our family's oral tradition and history. Here, listen to my grand-pappy's testimony..." The problem is that "reasonably determine" is not stringent enough, you need to establish as fact that the title in question is to property that was stolen at such-and-such time in the past and that you are the proper heir to the property title. If you're not the heir, then you have no standing to make the claim. If you can't prove theft/fraud/whatever, then your claims are just hearsay from the legal standpoint, even if you can "reasonably determine" that a crime almost certainly occurred.
So it sounds like libertarian just ownership is type #2 as I have described above and not type #1.
If Jim claims the stolen property and did not take part in the theft and murder, then he becomes the rightful owner. Whether he bought it from the thief or stole it from the thief (which by definition is not theft) is immaterial. Yes?
and as I clarified earlier... the phrase "cannot be found" needs to be explained carefully. It sounds like you mean a legal title search for the just owner. But to me this is inconsistent. The just owner will not always hold a legal title. This is why I differentiated the types of ownership into absolute just, practical just, and legal.
If Brown's relatives/spouse/children can find the stolen property, they can have it repossessed from Jim. Whoever is caught holding the hot-potato eats the losses. That is, after the repossession, Jim doesn't have a tort claim against Jones unless Jones specified that the property was not stolen as part of the terms of the sale.
The problem is that we're not talking about journaling a narrative, we're talking about re-assigning real property that is currently owned by real people.
You are talking about ownership type #3, and possibly type #2, but probably not type #1. And we are in fact journaling a narative, and always have been. That is how history and records get written. But we have something beyond our written records, we have scientific method.
Here, listen to my grand-pappy's testimony..." The problem is that "reasonably determine" is not stringent enough, you need to establish as fact that the title in question is to property that was stolen at such-and-such time in the past and that you are the proper heir to the property title.
This is why I did not say merely speech is enough to lay a reasonable claim. I advocated a combination of genetic testing, and historical/archaeological records. Fact means what can be empirically determined.
Let me be clear, I am not trying to advocate giving native people's back all that has been stolen from them or even claiming that land has been stolen from them. I.e. I am not trying to make a moral argument. I am assuming that property was stolen, and then trying to analyze the situation to the fullest that logic will allow within the framework of the NAP, and then possibly trying to improve it to be more consistent to answer more questions.
@jodi: I think you would greatly benefit from reading the whole of Ethics of Liberty. Rothbard was a very conversational writer, so it's actually a very easy read. I don't agree with Rothbard on a lot of things, including foundational issues. However, Rothbard well illustrates the application of a methodological discipline to a subject of discussion. You will probably disagree with more of Rothbard's conclusions than I do but that's not really what matters - I think what you can benefit from is seeing a methodological discipline in action and apply that same kind of discipline to your own thoughts.
To go back to your post where you introduce categories 1, 2 and 3, I see lots of complex concepts being thrown around but I don't see a methodology that determines what you think counts or doesn't count for the sake of the discussion. Which facts/reasons matter and which don't matter? If all the facts matter, then your analysis is woefully inadequate. But if you're only looking at a subset of the facts, I don't see the pattern in how you decided which facts to include in the analysis and which to exclude.
Well, from a historical point-of-view, there is not the slightest doubt that a lot of property was, in fact, stolen in the Western expansion. But that's a far cry from proving facts to a sufficiently stringent standard to justify legally reassigning title. And I don't think the types of empirical evidence you mentioned would be of the slightest assistance in establishing that a specific title should be transferred away from its owner to the heir(s) of an indigenous tribe. It's not enough to say "a crime occurred in this area sometime between 1871 and 1875. Unspecified lands in this region were taken from the indigenous peoples. Here's genetic evidence that assists in demonstrating this is the case." The evidence proves something that is irrelevant, that is, that a crime occurred.
What matters to the libertarian analysis is: can title be established? Can you show that you are the heir of a specific piece of land whose title is currently incorrectly assigned to someone else? Part of what you need evidence for is the borders/extents of the land itself, otherwise your claim is meaningless. The other part is you need to show a chain of inheritance such that the title goes from a specific individual or group of specific individuals (give their names) that really existed and that chain of inheritance ends up with you. If you can show that, then you have established that you are the rightful owner and, therefore, it doesn't matter who currently holds the title, it must be reassigned to you.
Apologies if this has already been mentioned. Most of the responses to Jodiphour's original post center around it being difficult to find the rightful heirs to the land that was stolen. First more attention needs to be payed to determining what rightful means under the circumstances. It was obvious that the Native Americans were the rightful owners even after their land was stolen from them, when the Native Americans who originally owned the land died it would rightfully belong to their heirs. Much has changed since then however. The heirs of the thieves, over the many years, have put substantially more labor into the land than the Native Americans ever did. This is what complicates things.
Lets say that one of the Native American heirs were able to prove exactly what piece of land originally belonged to their ancestors. The land is 'owned' by a large corporation, who has built their headquarters there, a giant skyscraper. Now it isn't like the large corporation is the one that stole the land in the first place, they haven't done anything wrong, the land was originally stolen long ago by someone who is now obviously dead. Is the Native American heir really the 'rightful' owner of the land? After all the corporation didn't steal the land and has certainly put more labor into it than the original owner.
This is what complicates things.
Nope, this is utterly irrelevant. Stealing a piece of land and then fabulously developing it does not erase the original theft. Returning the title may seem to be a "disproportionate reward/punishment" because the value of the land returned is far greater than the value of the land that was stolen but that's neither here nor there. The moral of the story in libertarian law is "buyer beware" - if you buy a piece of property, you better be damn sure it wasn't stolen at some point.
"For example, land stolen from Native Americans... how can it rightfully be deeded to a US citizen and then passed on to subsequent heirs?"
I had a discussion about this here http://www.reddit.com/r/Anarcho_Capitalism/comments/se99h/taxation_is_theft_a_response_to_a_few_criticisms/c4dl913
I think it will help answer your question.
Yes, clayton, you raise important issues, and I will continue reading more of EoL.
If it helps... My methodological basis, i think, is that there is an actual history of events which defines ownership #1 --- the objective reality but still depending on absolute consistency with the NAP, and our approximation to that history with the application of the NAP to the best of our abilities defines ownership type #2, and whatever human law says defines ownership type #3.
So the victim might be #1 owner until death even without making any attempt to get the property back. But the new first user who gets the property after the thief is dispossessed of it, is #2 owner, assuming everything is consistent with the NAP. #3 owner can be anyone, depending on the chosen legal basis.
Maybe I am misrepresenting the NAP. But I still think there are some specific technical issues in my questions which have ben ignored.
I don't want to get bogged down in sounding like I am claiming that we can use current science to establish a specific claim of stolen land. I am merely trying to draw distinction between the categories of ownership as I have described them.
Serpentis-Lucas, you make valid points, but whatever effort an unjust owner puts into unjust property does not make it more just, at least not in the #1 sense. But you are right that it complicates things. Humans are very capable of complicating things, and things are simply complicated! I think according to Rothbard, the Native American would still be the rightful owner in your example. Is the skyscraper "severable" from the land? In Rothbard's example (stolen car with radio added), it is much easier to determine. In your example, it is much more complicated. This is why we write laws, so that we have a system to determine what to do in these complicated situations of reality. But, yes, the Native American is the #1 owner in your example, and the corporation is probably due nothing if they can't severe the building from the land. But again, this is why we rule by law. So that the law can define how the skyscraper be removed, or whether or not it simply goes with the land. Of course, ideally, the law would be as close to that which can be derived from the NAP directly with perfectly consistent logic.
I say #1, #2, and #3, in the hopes that it will force people to read my post above (here) more carefully, so that I can get detailed feedback on those specific ideas.