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Libertarianism and Original Appropriation

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Abstract

The article is devoted to the problem of the structure of libertarian theory of justice. It tries to present a map of the main concepts and principles of this theory and to investigate its possible justifications. It explains such fundamental concepts as original appropriation, homesteading, labour theory of property or first possession theory of original appropriation. The article shows merits and drawbacks of alternative libertarian principles of justice in first acquisition and proposes a sketch of an original justification for the first possession theory of original appropriation.
Łukasz DOM IN I AK
Nicolaus Copernicus University, Toruń, Poland
Libertarianism
and Original Appropriation
Libertarianizm
i pierwotne zawłaszczenie
H is t or i a i P ol it yk a
No . 22 (2 9)/2017, pp. 43–5 6
IS SN 189 9-516 0, e -IS SN 2 391-7652
ww w.h i p.u m k . pl
A b s t r a k t   • 
Artykuł poświęcony jest problemowi struktury
libertariańskiej teorii sprawiedliwości. Prezen-
tuje on mapę głównych pojęć i zasad tej teorii
oraz bada jej możliwe uzasadnienia. Artykuł wy-
jaśnia takie fundamentalne pojęcia jak posiada-
nie, własność, pierwotne zawłaszczenie, labory-
styczna czy posesoryjna teoria własności. Arty-
kuł analizuje mocne i słabe strony alternatyw-
nych zasad libertariańskiej teorii sprawiedliwo-
ści rządzących pierwotnym nabyciem oraz kre-
śli szkic oryginalnego uzasadnienia posesoryjnej
teorii własności.
S ł ow a k lu c zo w e : libertarianizm, pierwot-
ne zawłaszczenie, laborystyczna teoria własno-
ści, zmieszanie pracy, posesoryjna teoria wła-
sności, pierwsze posiadanie, prawo niesprzecz-
ności, komposybilność uprawnień, teoria spra-
wiedliwości
A b s t r a c t  • 
e article is devoted to the problem of the
structure of libertarian theory of justice. It
tries to present a map of the main concepts
and principles of this theory and to investigate
its possible justications. It explains such fun-
damental concepts as original appropriation,
homesteading, labour theory of property or
rst possession theory of original appropria-
tion. e article shows merits and drawbacks
of alternative libertarian principles of justice
in rst acquisition and proposes a sketch of
an original justication for the rst possession
theory of original appropriation.
K e y w o r d s: libertarianism, original appro-
priation, homesteading, mixing labour, rst po-
ssession, occupancy, non-contradiction law, ri-
ghts compossibility, theory of justice
DOI: http://dx.doi.org/10.12775/HiP.2017.026
44 His t o r ia i Pol it yk a No. 22 (29)/2017
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Introduction
e present paper tries to provide a road map of main accounts of original ap-
propriation within libertarian political philosophy. It explains what rst appro-
priation is and what sorts of principles of justice are candidates for governing the
processes of property titles distribution. e paper proceeds in accordance with
the following order. In § 2 we distinguish between possession and ownership and
explain what original appropriation is; in § 3 the idea of a principle of justice in
original appropriation is introduced and main principles are presented and jux-
taposed; in § 4 we analyse and criticise the labour principle of justice in original
appropriation; in the last substantive section – § 5 – we investigate the rst pos-
session principle of justice in original appropriation and propose our justication
thereof, trying at the same time to indicate its relative merits. e aim of this paper
is to give a sketch of libertarian theory of justice, particularly its theory of justice
in rst acquisition.
Possession, Ownership and Original Appropriation
In order to explain what original appropriation is, we rst have to draw a crucial
distinction between possessing a thing and owning it. To possess a thing is to
have a possibility to deal with it at will, to control it for oneself or as an owner
and therefore to exclude others from dealing with it. As von Savigny points out,
“by the possession of a thing, we always conceive the condition, in which not only
one’s own dealing with the thing is physically possible, but every other person’s
dealing with it is capable of being excluded” (1848). Although analytically dif-
ferentiated by von Savigny, elements of one’s own dealing with a thing and of
excluding others are indispensably interdependent since it is impossible to do the
former without being able to do the latter. Hence, the concept of possession “refers
to either or both «control» and «exclusion of others». But it is clear that, where
the former is used, it is intended to be synonymous with the latter. at is to say,
one controls (in the sense of possesses) a thing inasmuch as what happens to that
thing allowing for the operation of physical laws is determined by no other
person than oneself” (Steiner, 1994). Possession is thus a threefold, factual relation
between the possessor, the thing possessed and the rest of mankind such as the
possessor can control the thing to the exclusion of others. Possession is therefore
a descriptive concept.
Łuk a s z  D o m inia k   •   Libertarianism and Original Appropriation 45
Ownership1, or property, on the other hand is a normative concept. To own
a thing is to have a right to possess it, i.e. to be in such a juridical position that
one’s claim to deal with the thing at will is a justied claim whereas claims of other
persons are unjustied or less justied than the owner’s. As Barnett puts it, “rights
are those claims a person has to legal enforcement that are justied, on balance, by
the full constellation of relevant reasons, whether or not they are actually recog-
nized and enforced by a legal system” (2004). To recognise someone’s ownership
is therefore to assert that his possession of a thing is just, rightful, lawful, licit or
reasonable etc., is to conclude that he ought to possess the thing if such is his will,
even if he actually does not possess it. As Kinsella writes, “ownership is the right
to control, use, or possess, while possession is actual control” (2009). us, own-
ership is a threefold normative or juridical relation between the owner, the thing
owned and the rest of mankind such as the owner may control the thing to the
exclusion of others because he has the best title to do it. Hence, the distinction
between possession and ownership is a distinction between factual and normative
relation.
Having drawn the above distinction between possession and ownership, we are
ready to dene original appropriation. us, original appropriation is acquiring
ownership of unowned things. To originally appropriate is to establish property
rights, i.e. justied claims to physical things that at the moment of acquisition are
unowned. What is important to underline again, is that original appropriation is
not about taking factual possession of things that are unpossessed or unowned –
this process is called occupation and can be conceived as one of the possible inves-
titive facts that can result in original appropriation but should not be confounded
with the latter. Neither is it about acquiring ownership of things already owned.
It is about instituting new property rights to unowned things. As Nozick puts it,
the topic of original acquisition of holdings, the appropriation of unheld things
includes the issues of how unheld things may come to be held” (2014), i.e. come
to be owned. Hence, original appropriation is about creating normative relations
between persons and things.
Principles of Justice in Original Appropriation
When we already know what original appropriation is, we can ask a further
question: How may original appropriation come about? What facts may invest
1 On the exact and detailed account of ownership see Honore (1961).
46 His t o r ia i Pol it yk a No. 22 (29)/2017
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us with property titles? What must happen and in what kind of situations we
ought to nd ourselves for original appropriation to take place? How to become
an owner of an unowned resource? Answering all these and similar questions is
a subject-matter of a theory of justice and principles that determine which facts
are investitive facts or how to originally become an owner are principles of justice
in original appropriation. In words of Nozick, “the process, or processes, by which
unheld things may come to be held, the things that may come to be held by these
processes, the extent of what comes to be held by a particular process, and so on”
are governed by the “principle of justice in acquisition” (2014).
By the same token, a theory of justice preoccupies itself with identifying princi-
ples of justice in two other realms of human action. e second one is a sphere of
transferring already existing property titles. Principles of justice in property trans-
fers concern such issues as the ways in which an owner may transfer his property
title to other persons, facts that may invest a new owner with the title, possible
constraints on types of titles that may not be transferred etc. Again, the subject-
matter of principles of justice in transfers is not a factual, physical act of transfer-
ring things between persons but identifying licit transfers of existing property
titles to these things; a thing or possession thereof can be transferred without the
title to it being transferred as e.g. in the case of theft when even though possession
is transferred, the title is only violated and stays where it was. As Nozick puts it,
“the second topic” within a theory of justice “concerns the transfer of holdings from
one person to another. By what processes may a person transfer holdings to an-
other? How may a person acquire a holding from another who holds it? Under this
topic comes general descriptions of voluntary exchange, and gift and (on the other
hand) fraud, as well as reference to particular conventional details xed upon in
a given society. e complicated truth about this subject we shall call the principle
of justice in transfer” (2014). Libertarian theory of justice identies consent and
title transfer theory of contracts as principles of justice in transfers and argues
against alternative theories such as the will theory or the promised expectations
model of contracts.
ese two subject-matters of a theory of justice (original appropriation and
transfers) are elds of interest of distributive justice. e third sphere of a theory
of justice lies beyond the scope of distributive concerns and pertains to the ques-
tion of rectication of committed injustices. In this area relevant questions include
issues connected with forfeiture of rights, kinds of liability, sorts of rectication,
viz. retribution, restitution, compensation or deterrence, etc. “e existence of
past injuries (previous violations of the rst two principles of justice in holdings)
raises the third major topic under justice in holdings: the rectication of injustice
Łuk a s z  D o m inia k   •   Libertarianism and Original Appropriation 47
in holdings... what, if anything, ought to be done to rectify these injustices? What
obligations do the performers of injustice have toward those whose position is
worse than it would have been had the injustice not been done? Or, than it would
have been had compensation been paid promptly? How, if at all, do things change
if the beneciaries and those made worse o are not the direct parties in the act
of injustice, but, for example, their descendants? Is an injustice done to someone
whose holding was itself based upon unrectied injustice? How far back must one
go in wiping clean the historical slate of injustices? What may victims of injustice
permissibly do in order to rectify the injustices being done to them, including
the many injustices done by persons acting through their government?” (Nozick,
2014). ere are discussions going on within libertarian scholarship between pro-
ponents of retributivist and restitutive theories of rectication and between strict
liability and negligence accounts of responsibility.
Also within the purview of our main topic, i.e. original appropriation, lib-
ertarianism identies competing principles of justice in rst acquisition. ree
theories can be mentioned here. e rst one is a conventional-contractarian
theory of rst appropriation. According to this approach, principles that decide
when property rights are acquired by individuals are established conventionally
or through social contract. erefore, there must be some community acceptance
for property rights to be instituted and this common or contractual recognition
of property rights is their ultimate justication. Amongst libertarian scholars this
conventional-contractarian theory of acquisition is represented by Jan Narve-
son (2001) for whom libertarian property rights are the implication of the social
contract (Nowakowski, 2016). In the present paper we will not elaborate on the
conventional-contractarian theory of original appropriation because of its so-far
limited impact and atypicality within libertarianism. We will focus instead on
two main libertarian theories: labour theory of original appropriation and rst
possession (or occupancy) theory of original appropriation.
According to the labour theory of original appropriation, the investitive fact
consists in mixing one’s labour with an unowned thing. is investitive process
of mixing one’s labour with a thing is also called homesteading (Block, 2008).
us, the principle of justice in original appropriation is named the homestead
principle. e idea that mixing one’s labour constitutes investitive fact comes from
John Locke and is espoused by such prominent libertarian scholars as inter alia
Murray Rothbard (1998) or Walter Block (2008). In Locke’s own original words
the homestead principle is explained as follows: “every man has a property in his
own person: this no body has any right to but himself. e labour of his body,
and the work of his hands, we may say, are properly his. Whatsoever then he re-
48 His t o r ia i Pol it yk a No. 22 (29)/2017
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moves out of the state that nature hath provided, and left it in, he hath mixed his
labour with, and joined to it something that is his own, and thereby makes it his
property. It being by him removed from the common state nature hath placed it
in, it hath by this labour something annexed to it, that excludes the common right
of other men: for this labour being the unquestionable property of the labourer,
no man but he can have a right to what that is once joined to, at least where there
is enough, and as good, left in common for others. He that is nourished by the
acorns he picked up under an oak, or the apples he gathered from the trees in
the wood, has certainly appropriated them to himself. No body can deny but the
nourishment is his. I ask then, when did they begin to be his? when he digested?
or when he eat? or when he boiled? or when he brought them home? or when he
picked them up? and it is plain, if the rst gathering made them not his, nothing
else could. at labour put a distinction between them and common: that added
something to them more than nature, the common mother of all, had done; and
so they became his private right” (1980).
e labour theory of original appropriation should not be confused with the
rst possession theory of original appropriation. As we said in the second para-
graph, possession is a possibility to deal with a thing at will to the exclusion of
others. What is important to notice about this denition is that to have such
a possibility, it is not necessary to even touch the thing, let alone to expend or mix
one’s labour with it. One can be in a position to deal with a thing at will when
there is no physical obstacle (like crossing a river or climbing a mountain) to deal
with it and when there is no other person in such a position. So, for instance, if
one sees a gold bar before him and intends to deal with it for himself and there is
no other person in a similar position, he has already taken possession of the gold
bar without even touching it. Nor mixing one’s labour with a thing is sucient
for taking possession of it. As Epstein (1979) shows by quoting Pierson vs. Post, in
the case of the hot pursuit of wild animal, mixing hunter’s labour with the game
is something dierent than taking control of the wild creature and therefore it is
not sucient for acquiring property rights in that thing. Although the plainti,
Post, expended labour in the pursuit of a fox and in this sense mixed this labour
with the worn out animal, it was not enough to take a control over still running
beast. e defendant, Pierson, came to the spot and caught the tired animal. e
problem for the court was to confront with the assumption that “each person is
entitled to ownership and control over his own labor. Where the pursuer by his
eorts has worn down the fox, the late capture by the rival in eect amounts to an
inadmissible appropriation of labor which the law should prevent. e justica-
tion for the hot pursuit rule does not, however, explain all the recurrent features
Łuk a s z  D o m inia k   •   Libertarianism and Original Appropriation 49
of the law. Some labor goes unrequited when two pursue and one loses. Again,
if A has given up the chase when confronted with sudden perils, B may capture
with impunity even though his task was made immeasurably easier by A’s prior
labors. Conversely, there are some things acquired not through labor but only by
chance or good fortune and one who so acquires takes full and indefeasible title
even though there was, except in a metaphorical sense, no expenditure of labor in
either acquisition or cultivation” (Epstein, 1979). us, the court adjudicated that
mixing labour with a thing in the case of the hot pursuit did not equal taking pos-
session of the fox and that even “the wounding of the animal when in hot pursuit
did not amount to possession because of the many events that could have occurred
between the original wounding and the eventual capture. e court in decid-
ing for the defendant Pierson took the middle position, holding that the mortal
wounding of such beast, by one not abandoning his pursuit may, with the utmost
propriety, be deemed possession of him” (Epstein, 1979). erefore the property
rights to the fox were acquired by the defendant who took rst control over the
fox, not by the plainti who mixed his labour with the animal.
Hence, according to the rst possession theory of original appropriation the
investitive fact consists in taking an unowned thing in rst possession, i.e. in
coming to the position in which it is possible to deal with the thing at will to
the exclusion of others. us, the principle of justice in rst acquisition is called
occupancy principle or rst possession principle. e idea that taking rst posses-
sion constitutes investitive fact comes from Roman Law and is espoused by such
prominent libertarian scholars as inter alia Hans-Hermann Hoppe (e.g. 2015), Ri-
chard Epstein (1979) or Stephan Kinsella (2008). As the latter says, “the focus on
creation distracts from the crucial role of rst occupation as a property rule for ad-
dressing the fundamental fact of scarcity. First occupation, not creation or labor,
is both necessary and sucient for the homesteading of unowned scarce resources.
One reason for the undue stress placed on creation as the source of property rights
may be the focus by some on labor as the means to homestead unowned resources.
is is manifest in the argument that one homesteads unowned property with
which one mixes one’s labor because one «owns» one’s labor. However, as Palmer
correctly points out, «occupancy, not labor, is the act by which external things
become property». By focusing on rst occupancy, rather than on labor, as the
key to homesteading, there is no need to place creation as the fount of property
rights, as Objectivists and others do. Instead, property rights must be recognized
in rst-comers” (2008).
50 His t o r ia i Pol it yk a No. 22 (29)/2017
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Ramications of the Labour eory
of Original Appropriation
ere are sundry ways of justifying labour theory of original appropriation. Each
of these ways reveals moral or logical appeal of the labour theory. One of these jus-
tications has just been mentioned in the above quotation. Labour as investitive
fact refers to human creativity, ingenuity or rationality as values and virtues that
are cherished in themselves. en, because property rights are instituted by labour,
they reect these values and virtues; what is more, they promote them. Property
rights viewed in this light can be construed as necessary conditions for reaching
human fullment and happiness. In this manner for instance Randy Barnett can
picture property rights as conducive to human ourishing and happiness: “if hu-
man beings are to survive and pursue happiness, peace and prosperity while living
in society with others, then their laws must not violate certain background natural
rights” (2004). Similarly, labour refers to the concept of desert and eort. It opens
the possibility of justifying one’s claims to control particular resources as deserved
claims, based on eort put into the discovery or production of these resources. If
he who expended his labour, who devoted his resources, who created an economic
good from useless and hostile environment, who transformed an unowned waste
land into fertile elds before anyone else wanted to invest the time and energy to
do so, does not deserve the fruit of his eort, who does?
But the most important justication for property claims provided by the la-
bour theory consists in a logical chain of steps by which something that is al-
ready owned is annexed to something that belongs to no one, thereby rendering
the latter also a part of one’s estate. e chain unfolds in the succeeding links:
1) A owns A’s body; 2) because A’s labour is just a specic purposeful movement
of A’s body, then A must also own A’s labour; 3) A can transform an unowned
resource only by his labour; A transforms it by attaching his labour to it; 4) now,
when the transformed resource is mixed or permeated with A’s labour which was
A’s property, it must also be A’s property.
An ample criticism has been issued against this line of argument. Actually,
each of the consecutive steps in the above chain of reasons has been attacked as
unjustied and untenable. According to Stephan Kinsella, it is the second link in
the chain that is broken. For it is impossible to own one’s labour. Only tangible
things can be owned because conicts can arise only over tangible things and the
function of property rights is to avoid conicts. If intangible things were rendered
ownable, then conicts over them would become possible. Such alleged property
rights to intangible things would then generate conicts, what would eectively
Łuk a s z  D o m inia k   •   Libertarianism and Original Appropriation 51
make them anti-rights rather than rights: norms that “contradict the very purpose
of norms” (Hoppe, 2012). Apparently, labour is not a tangible object; it is not an
object at all but a type of human action. Actions in turn, as not tangible objects,
cannot be owned. So, Kinsella writes: “there is no need to maintain the strange
view that one «owns» one’s labor in order to own things one rst occupies. Labor is
a type of action, and action is not ownable; rather, it is the way that some tangible
things (e.g., bodies) act in the world” (2008).
A problem involved in this criticism was pointed out by Hillel Steiner who
noticed that labour as a kind of purposeful movement of a body is from the physi-
cal point of view nothing else than an energy expended by the body and attached
to external objects. Because matter (tangible things) and energy are translatable
into each other, there is no fundamental obstacle for adding and owning labour
– labour is just a dierent state of matter. As Steiner puts it, “our bodies produce
energy. ey convert body tissue into energy, some of which gets expended in
our acting. A good deal of this expended energy is simply abandoned by us in the
course of this acting. It is absorbed into parts of the external environment that we
make no consequent claim to. Other portions of our expended energy are infused
into parts of the external environment, transforming their features in various
ways. Sometimes we claim these things for ourselves as the fruits of our labour.
And sometimes, where such transformation violates another’s rights, it forms the
basis of a claim against us” (1994).
Steiner, on the other hand, criticises the third and forth link in the above chain
of reasons. He points out that if a thing which is undoubtedly owned by us, like
our labour, is attached to an external object that is also undoubtedly owned by
us, then the resultant object is perforce our property. If element A belongs to the
set X and element B belongs to the set X, then A + B must also belong to the set
X. e problem is, that if we attach a thing we own to the thing that we do not
own, the conclusion that the latter thing becomes our property does not perforce
follow. Quite to the contrary, if element A belongs to the set X and element B does
not belong to the set X, then A + B cannot belong to the set X. Is there then any
other reason for which one should conclude that it is B that became an element
of X rather than A which ceased to be an element of X? “e answer, as we know
only too well, is uncertain. For any claim, to the eect that its being infused with
my labour makes this land mine, can be met with the counter-claim that, in so
infusing the land, I was relinquishing my title to that labour” (1994). To the same
result asks Nozick: “Why isn’t mixing what I own with what I don’t own a way
of losing what I own rather than a way of gaining what I don’t? If I own a can of
tomato juice and spill it in the sea so that its molecules mingle evenly throughout
52 His t o r ia i Pol it yk a No. 22 (29)/2017
Pa p e r s
the sea, do I thereby come to own the sea, or have I foolishly dissipated tomato
juice?” (2014).
To this it is possible to answer two things. It is true that mixing one’s labour
with an unowned resource does not perforce render it owned as it is the case with
mixing one’s labour with already owned object. However, it does not have to do it
to provide sucient justication for the claim of the homesteader because when
this allegedly unowned resource is infused with and contains homesteader’s la-
bour and is then taken by someone else, this labour is willy nilly taken with it and
there is no doubt that this labour is a property of the homesteader. Hence, even
though the resource might not be perforce owned, taking it from the homesteader
without his consent is tantamount to involuntary taking of homesteader’s labour
which is his property, i.e. it is tantamount to theft. As Eric Mack points out, “If
John has so mixed his labor with a bit of raw material – transforming, let us say,
a branch into a nicely shaped and useful spear the resulting spear embodies
John’s non-abandoned rightful held labor. Hence, if Tom comes along and makes
o with that spear, Tom violates John’s retained right over that invested labor.
Since Tom cannot make o with that spear without making o with John’s invest-
ed labor, we naturally say that John has a right to the spear vis-a-vis Tom” (2009).
Second of all, it is always a problem to say when particular condition is fullled in
a given case, regardless of the theory that is actually presupposed. Is mixing a can
of juice enough? Certainly not. Ten cans, twenty, one hundred...? is is classical
continuum problem and therefore it is up for the courts to decide and to establish
some convention. e same problem emerges on the rst possession theory. Is
chasing a wild animal enough to possess it? Wounding it, mortally wounding it,
killing it...? ere is no principled way of solving such questions – regardless of the
theory of justice in original appropriation. We always need conventions to seal up
our theoretical system.
Finally, also the rst step in the above chain of reasons has been contested. As
Richard Epstein pointed out, obviously labour theory is not an independent theo-
ry of original appropriation because it presupposes that we own our bodies. How-
ever, it cannot be the case that we own our bodies because we mixed them with
our labour this reasoning would result in regressus ad innitum since then we
would have to explain “our labour” as produced by our bodies and so on, and so
forth. Hence, the labour theory must presuppose some other, more fundamental
theory of original appropriation of our bodies that justies and constitutes raison
d’ être of the labour theory. If the labour theory is contingent upon this more fun-
damental theory, then the question arises whether the labour theory is not redun-
dant. at should be sucient to have only one, fundamental theory of original
Łuk a s z  D o m inia k   •   Libertarianism and Original Appropriation 53
appropriation that would explain both ownership of our bodies and ownership of
external resources. According to Epstein, this theory is the rst possession theory
of original appropriation: “Why does labor itself create any rights in a thing? e
labor theory rests at least upon the belief that each person owns himself. Yet that
claim, unless it be accepted as bedrock and unquestioningly, must be justied in
some way (leaving aside the question of to whom the justication must be made).
e obvious line for justication is that each person is in possession of himself, if
not by choice or conscious act, then by a kind of natural necessity. Yet if that pos-
session is good enough to establish ownership of self, then why is not possession
of external things, unclaimed by others, sucient as well? e irony of the point
should be manifest. e labor theory is called upon to aid the theory that posses-
sion is the root of title; yet it depends for its own success upon the proposition that
the possession of self is the root of title to self ” (Epstein, 1979).
Ramications of the First Possession eory
of Original Appropriation
In this last paragraph we would like to focus on what we claim is the best justi-
cation for the rst possession theory of original appropriation and what are the
ramications of both this theory and its justication. We suggest that the ultimate
justication of this theory is not usually evoked avoidance of conicts – although
it is a necessary consequence of the justication we are going to present here – but
a necessary condition of rationality of a conceptual system (it is good to remember
that rights have form of deontic propositions and therefore they also form a con-
ceptual or theoretical system). Let us present a sketch of our argument.
For a conceptual system to be rational it is necessary to be non-contradictory
(Popper, 2002). Nothing that violates the law of non-contradiction can be true,
justied or for that matter rational (Łukasiewicz, 1987, 1988). In a system of ra-
tionally justied rights – so-called natural rights – existence of contrary rights and
duties, let alone contradictory ones is ex denitione o limits since contrary rights
violate the law of non-contradiction. As Steiner puts it with reference to rights as
such, although his argument seems to work impeccably only with natural rights,
“mutual consistency – or compossibility – of all the rights in a proposed set of
rights is at least a necessary condition of that set being possible one. A set of rights
being a possible set is, I take it, itself a necessary condition of the plausibility of
whatever principle of justice generates that set. Any justice principle that deliv-
ers a set of rights yielding contradictory judgements about the permissibility of
54 His t o r ia i Pol it yk a No. 22 (29)/2017
Pa p e r s
a particular action either is unrealizable or (what comes to the same thing) must
be modied to be realizable” (1994). Hence, systems of rights in which there are
contradictory or contrary rights is o limits insofar as its rational justication is
concerned. Basically, such a system can never be rationally justied. It is obvious
on the other hand that one of the most important and direct ramications of
a system of non-contradictory rights is avoidance of conicts. It is the case be-
cause for a person who abides by the norms of such a system it is impossible to
nd himself in the situation of conicting rights or duties. So, on our account it is
not so much that property rights are justied functionally or teleologically as be-
ing conducive to conict avoidance as that their function of conict avoidance is
a logical consequence of their fundamental vindication as rational (non-contradic-
tory) allocations of individual jurisdictions (Barnett, 2004) or spheres of freedom
(Steiner, 1994).
Now the question is: What set of rights can be a set of non-contradictory
rights? Following Steiner we can say that rights predicate about human action.
Because each action-token always takes place in a specic time and space, it can
be given an exhaustive description in extensional terms of its spatio-temporal com-
ponents. We can therefore say that two action-tokens are incompossible when they
share at least one physical component; on the other hand, action-tokens are com-
possible when they do not have any physical components in common. Now, rights
that “oblige” people to perform two or more action-tokens that share at least one
physical component are perforce contradictory rights – they “oblige” people to do
what is incompossible to do; whereas rights which oblige people to perform action-
tokens that do not have common components are non-contradictory rights. How
to make sure that rights never become contradictory? It is necessary and sucient
to construe of rights as rights to exclusive control of physical components of ac-
tions, i.e. as rights to possess tangible things. If physical components of actions are
unequivocally distributed amongst people, if each and every physical component
is unambiguously and exclusively assigned to one and only one person, then there
can never be rights to action-tokens that share physical components with each
other and therefore there can never be rights that oblige people to perform incom-
possible action-tokens (Steiner, 1994). As Steiner points out, “a set of categorically
compossible domains, constituted by a set of property rights, is one in which each
person’s rights are demarcated in such a way as to be mutually exclusive of every
other person’s rights... we will interpret this to mean that no two persons simulta-
neously have rights to one and the same physical thing” (1994).
Because the nature of possession is such that it is impossible for two or more
people to possess the same thing at the same time – although it seems possible for
Łuk a s z  D o m inia k   •   Libertarianism and Original Appropriation 55
two or more people to simultaneously mix their labour with the same thing (e.g.
when two people chase the same wild animal) then assigning rights to people
who took rst possession of a thing, who are rst-comers, perforce avoids non-
contradictoriness of rights and conicts between people since the dawn of time.
For it is always and from the very beginning clear who has title to which physical
resource as well as which resources are still up for appropriating and which are
not so available. As Hans-Hermann Hoppe writes, “with regard to the purpose of
conict avoidance, no alternative to private property and original appropriation
exists. In the absence of prestabilized harmony among actors, conict can only be
prevented if all goods are always in the private ownership of specic individuals
and it is always clear who owns what and who does not. Also, conicts can only
be avoided from the beginning of mankind if private property is acquired by acts
of original appropriation (instead of by mere declarations or words of latecomers)
(2012). It is by denition inconceivable for more than one person to be in a posi-
tion in which it is physically possible to deal with a thing at will to the exclusion of
others. Neither is it conceivable for more than one person to simultaneously come
to such a position. us, taking rst possession of scarce resources as basis of title
and as principle of justice in original appropriation guarantees non-contradictori-
ness of rights and avoidance of conicts since the dawn of time.
Conclusions
In the paper we presented main accounts of original appropriation within liber-
tarianism. We contrasted two dominant theories of rst acquisition of property
rights: labour principle of justice and occupancy principle of justice in original ap-
propriation. Some of the main problems of respective theories – especially labour
theory – were investigated. We argued that rst possession principle of justice in
original appropriation nds its justication not in teleological and functional ac-
count of conict avoidance but in inherent rationality and non-contradictoriness
as well as – drawing on Steiner – categorical compossibility which naturally result
in conict avoidance.
56 His t o r ia i Pol it yk a No. 22 (29)/2017
Pa p e r s
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