Martin Elson
Property is real and worth defending. Without a secure hold on a home, a workshop or a field, no one can plan a life, and a state that hands out such holds and takes them back keeps everyone on a leash. The trouble starts when property is made the root of every other right instead of one of its branches. Then whoever owns the ground owns every right of whoever stands on it. Property comes from liberty, not the other way round, and it carries the limits of the people it serves.
The case for private property
John Locke gave the classic case. Whatever a person takes from nature and mixes their labor with becomes theirs, because the labor was already theirs. They need no one’s consent to do it; if they had to wait for everyone’s, Locke wrote, people would starve amid plenty. But Locke attached limits. The taking is just only where “enough, and as good” is left in common for others, and no one may take more than they can use before it spoils. Robert Nozick rebuilt the case in 1974 as a theory of entitlement. A holding is just if it was justly acquired or justly transferred, whatever pattern of wealth results. He kept a thinner proviso: an appropriation is wrong only if it leaves others worse off than they would be if nothing had been appropriated at all.
Hans-Hermann Hoppe and Stephan Kinsella give the strictest modern version, and they drop Locke’s labor-mixing for plain first use. Things are scarce: two people can’t eat the same apple or plow the same field at once. Conflict over scarce things is the problem a rule of property exists to solve, and only a rule with visible borders solves it. Whoever first puts an unowned thing to use, or receives it freely from someone who did, owns it. Everyone can see the line, and whoever crosses it without consent is the aggressor. The argument is honest about where it leads. Kinsella followed it to the end and rejected intellectual property: copying an idea leaves the original where it was, so there is no conflict to settle and no title to defend. On that conclusion this site agrees with him.
Harold Demsetz added an economist’s account of where property comes from. Rights to a thing appear, he argued in 1967, when the gains from having them outweigh the cost of defining and enforcing them. His example came from the anthropologist Eleanor Leacock. When the fur trade raised the value of beaver, the Montagnais of the Labrador peninsula moved from open hunting to family hunting territories. On this view property is not handed down from above. It grows where people need it.
Garrett Hardin supplied the warning. Picture a pasture open to all. Each herdsman gets the whole gain from one more animal and bears only a share of the damage, so each adds another, and another, until the grass is gone. “Freedom in a commons brings ruin to all,” Hardin wrote in Science in 1968. He saw two ways out, private property or regulation by the state. Libertarians took the first, and the tragedy of the commons became the standard case for fencing things off.
Where it goes wrong
Every right a property right. Rothbard drew the conclusion most propertarians share: human rights are property rights. In The Ethics of Liberty (1982) he argued that there is no separate right of free speech, only the right to use your own property and to contract with the owners of other property. That looks tidy until you ask what happens on someone else’s ground. If every right you hold is a property right, then on another person’s land you hold almost none. Your speech, your company and your safety all run at the owner’s pleasure. This is why Strekal called absolutist propertarianism the solvent of all rights. Owning land, he wrote, gives no one the power to kill or enslave the people on it, and a theory that implies otherwise has its order backwards. Hoppe shows the solvent at work. His covenant communities could remove democrats and communists, and the theory has nothing to object with, because the owner’s rule is the only rule there is. Left-Libertarianism: The Case and the Controversy takes up the politics; here the point is logical. A theory that starts from property can’t say where property stops.
Courts have met the solvent in practice. In 1946 Grace Marsh, a Jehovah’s Witness, handed out literature on a sidewalk in Chickasaw, Alabama, a town owned outright by the Gulf Shipbuilding Corporation, and was arrested for trespass. The Supreme Court overturned the conviction in Marsh v. Alabama. The more an owner opens his property to the public, Justice Black wrote, the more his rights are bounded by the rights of those who use it. A town is still a town, whoever holds the deed. The Court put the line where Strekal puts it.
Scarcity needs a rule, not this rule. Hoppe’s argument shows that scarce things need some rule about who uses what. It doesn’t show that the rule must be first use followed by permanent, saleable title. Occupancy and use, Proudhon’s possession, where a claim lapses when use ends, avoids conflict too. So does a commons with rules. So does Henry George’s answer in Progress and Poverty (1879): full property in whatever labor makes, but the rental value of land, which no one made, collected for everyone shut out of it. George took Locke’s labor premise more seriously than Locke’s heirs did, and Locke’s own proviso points his way: once the land is all taken, there is no longer enough and as good left for others. Each draws visible borders; they differ on where. Scarcity can’t choose between them, since all of them answer it. The choice comes from what the rule is for. Property, Labor and Equality sets out the difference between possession and property, and What Counts as Aggression shows why theft needs a theory of property before it means anything. Scarcity supplies the need, not the theory.
Hardin’s commons was nobody’s. Hardin’s pasture had no members, no rules and no one to enforce anything. That is open access, not a commons, and thirty years later Hardin conceded it: in 1998 he called leaving out the word “unmanaged” the weightiest mistake in his paper. Elinor Ostrom spent a career on the commons that are managed, and found them nearly everywhere she looked. In Törbel, a Swiss mountain village, a rule dating to 1517 bars anyone from sending more cows to the summer pasture than they can feed through the winter. Japanese villages ran shared forests for centuries. Irrigators in Valencia still bring their disputes to a water court that meets weekly at the cathedral door, and fishers in Alanya, Turkey, draw lots for fishing spots each season. None of these is state property, and none is private title.
In Governing the Commons (1990) Ostrom drew out what the lasting ones share: clear boundaries, rules fitted to the place, a say in the rules for those they bind, monitors who answer to the users, sanctions that start small, cheap ways to settle disputes, and outside authorities who let them organize. These commons are property too: rights to use, to exclude outsiders and to make rules, held by a group. Demsetz’s account fits them as well as it fits the beaver hunters. It explains why people build rights when they need them. It doesn’t say those rights must be private, permanent and for sale.
Consent is not the line. The classical liberal map has two regions: coercion on one side, consent on the other, and whatever is consensual counts as free. David Ellerman shows that the old debate drew a second line inside consent. Medieval lawyers argued over the lex regia, the law by which the Roman people were said to have given their authority to the emperor. Was it a translatio, an alienation that left the people nothing, or a concessio, a delegation they could call back? Hobbes took the first view of every government, Locke something near the second. The same split runs through every institution where some act for others. Contract slavery and coverture marriage alienate; partnership delegates. The employment firm alienates; the cooperative delegates. Autocracy by consent alienates; democracy delegates. Left-Libertarianism shows covenant communities and charter cities landing on the alienating side, and Property, Labor and Equality carries the argument into the firm.
Wesley Hohfeld’s analysis of rights shows why the line holds. Ownership is not one thing but a bundle: claims against others, liberties to act, powers to change legal relations, and immunities from other people’s powers. The power to sell is one stick in the bundle. An inalienable right is a bundle with that stick missing. You hold the claim not to be used and the immunity from anyone’s power to take your agency, and you hold no power to give either away. Propertarianism makes every right a full bundle, sale included, which is how Block arrives at voluntary slavery (Who Owns You?). Personal sovereignty, in Strekal’s phrase, is the bundle without the power to sell.
I part ways with Ellerman at one point. He applies the test cleanly to the firm and mostly stops there, but the state fails it too. The pactum subjectionis, the supposed contract by which subjects hand their authority to a ruler, has the same shape as the employment contract at a larger scale, and a social contract no one signed is worse. If authority can’t be alienated to a boss, it can’t be alienated to a government. The map I drew from Ellerman, Roderick Long, Gary Chartier and Charles Johnson puts Lenin, the boss and the charter-city operator in neighboring boxes, and that is the point. If Ellerman is right about firms, he should be an anarchist, which on this site is the same thing as a libertarian. His quarrel in “Listen Libertarians!” is really with the right-libertarians.
The strongest case against
The propertarian’s best reply is that only property gives a bright line. Say that property is bounded by personal sovereignty and you have invited a judge to weigh one against the other in every case, and sooner or later the judge is a state. Kinsella prizes non-aggression for exactly this precision, and he is right that vague rules favor whoever does the interpreting. But the floor in What Rights Are is a bright line too: no one may be used as an input. A title ends at the guest’s body and voice. Where the borders of land run is left to occupancy customs and local rules, argued case by case, as Ostrom’s villagers argued theirs. Propertarianism buys precision about fences by giving up precision about people.
The second reply comes from Hardin’s side. Ostrom’s commons are small, old and close-knit. Törbel is a village, not a world of eight billion people who must share fisheries, rivers and air. The objection is fair, and Ostrom granted much of it. Her answer was not that commons always work but that no single form does, and she warned against panaceas of every kind. Larger systems need commons nested inside commons, each level setting its own rules, which she and Vincent Ostrom called polycentric governance. It is the word Strekal chose for his blog. And neither private title nor the state has yet managed the atmosphere.
The third comes from the other direction, from Marx. Rights talk, he argued in 1844, turns each person into an isolated monad, withdrawn behind private interests and cut off from the community. Push Ellerman’s inalienability hard as a rights claim and you get the same monad, sovereign and untouchable. It is an odd pairing, since Ellerman has little use for Marx: Marx kept the fight over who should own the capital that rents people, private shareholders or the state, and never asked whether people may be rented at all, which is why Ellerman calls Marxism an inadvertent capitalist tool. But on this point Marx lands a blow. The answer is that inalienability is a fact about persons, not a fortress around them. It doesn’t say “no one may touch me.” It says no one can buy their way out of dealing with you as an agent, again and again, and you can’t sell your way out either. That is closer to Ellerman’s own democratic firm, or a working commons, than to a lone owner behind his fence.
The fourth comes from Proudhon, and it cuts closest. The man who called property theft ended, in Theory of Property(1866), by defending it because it is absolute. Only a holding the state can’t touch, he argued, can stand against the state; bound it and you weaken the one counterweight people have. He is right that property guards liberty against rulers. But the guard comes from property being spread widely, which was his own condition, not from the owner’s power over whoever stands on his ground. A small holder’s title can be absolute against the state and still end at the guest’s body and voice. The absolutism Proudhon needed points up, at power; the propertarian kind points down, at people.
Where this lands
Property is a conclusion of liberty, not its master. It is what freedom looks like when it meets scarce things, and it keeps the limits of the persons it serves. A title ends where another person begins: no owner gets the speech, safety or agency of whoever stands on his ground. A commons with rules is property too, and often the better kind. And the line that matters is not consent against coercion but alienation against delegation. Authority may be lent to someone who answers to you; it can’t be sold, to a boss, a landlord or a state. Own the field. No one owns the farmer, not even the farmer.
Sources
- Alex Strekal (as brainpolice), “Absolutist Propertarianism Dissolves All Rights” (Polycentric Order, June 2009). Property as an extension of personal sovereignty, not its ground. archived · copy here
- Hans-Hermann Hoppe, A Theory of Socialism and Capitalism (Kluwer, 1989), ch. 2, on scarcity and property; Democracy: The God That Failed (Transaction, 2001), on covenant communities.
- Stephan Kinsella, “What Libertarianism Is” (Mises Institute, 2009), and Against Intellectual Property (Mises Institute, 2008). No scarcity, no property.
- Harold Demsetz, “Toward a Theory of Property Rights” (American Economic Review 57, no. 2, 1967): 347–59. Property rights emerge when their gains exceed their costs; the Montagnais and the fur trade.
- Garrett Hardin, “The Tragedy of the Commons” (Science 162, 1968): 1243–48, and “Extensions of ‘The Tragedy of the Commons’” (Science 280, 1998): 682–83. The 1998 concession: the tragedy belongs to the unmanaged commons. 1998 text
- Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action (Cambridge University Press, 1990). Törbel at pp. 61–65; the design principles of lasting commons.
- Elinor Ostrom, “Beyond Markets and States: Polycentric Governance of Complex Economic Systems” (Nobel lecture, American Economic Review 100, no. 3, 2010). Nested commons; no panaceas.
- Murray N. Rothbard, The Ethics of Liberty (Humanities Press, 1982), ch. 15, “‘Human Rights’ as Property Rights.”
- Marsh v. Alabama, 326 U.S. 501 (1946). The company town and the leafleting Jehovah’s Witness.
- David Ellerman, “‘Inalienable’ Means Inalienable Even With Consent.” The criminous slave, the tortious servant and the part-time robot; translatio versus concessio. original · copy here
- David Ellerman, “Listen Libertarians! Part I: The fundamental consent-versus-coercion misframing” (ellerman.org, 14 June 2012). Alienation versus delegation. original
- Martin Elson, “Mapping Institutional Privilege, Capitalism and Racism: Inalienist Versus Alienist Institutions” (2026). The state fails the inalienist test too; chart after Ellerman, Long, Chartier and Johnson. chart (PDF)
- Roderick T. Long, “POOTMOP Redux” (Austro-Athenian Empire, 22 June 2009). original
- Wesley Newcomb Hohfeld, “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning” (Yale Law Journal 23, no. 1, 1913): 16–59. Claims, privileges, powers and immunities.
- Karl Marx, “On the Jewish Question” (1844). The rights of man as the rights of an isolated monad.
- John Locke, Second Treatise of Government (1689), ch. 5, §§27–33. Labor-mixing, the “enough, and as good” proviso and the spoilage limit. Public domain.
- Robert Nozick, Anarchy, State, and Utopia (Basic Books, 1974), ch. 7. Entitlement theory and the weakened Lockean proviso.
- Henry George, Progress and Poverty (1879), bks. 7–8. Property in the products of labor, not in land; the rent of land for everyone. Public domain.
- Pierre-Joseph Proudhon, What Is Property? (1840) and Theory of Property (1866); selections in Iain McKay (ed.), Property Is Theft! A Pierre-Joseph Proudhon Anthology (AK Press, 2011). Possession versus property; property, widely spread, as a counterweight to the state.