Land rights, what do they include?

[Galileo Blogs]

Speaking broadly, I agree with DavidOdden that property rights only apply to a society of men. It is a meaningless concept if you are living alone on a deserted island. The question then becomes, by what standard is something to be considered property? A key aspect of that standard is the idea of exclusivity. A right to property is only meaningful if the use of that property necessarily excludes another person from using it at the same time. I have a right to my land because my using it precludes someone else from using it. I do not have the right to air because my breathing it does not preclude someone else from breathing it. So, to productively use the first resource (land), there must be legal recognition of my property right in it, whereas there can be no legal recognition of a property right to air.

The law governing uses of both types of resources -- property and valuable non-property -- would hinge on one key idea: you cannot harm your neighbor. So, if in using my property I harm someone's ability to use and enjoy his property, I have committed a tort, and my neighbor can sue me. The same principle would apply if I hurt my neighbor by polluting a common resource such as air. The latter issue, pollution of air or other common non-property resources, is very complex, and probably deserves its own thread. But the overall principle is the same in all of these cases. Harming another person or his property is what is forbidden.

Using the standard of not harming one's neighbor, I do not see why someone cannot "pollute" both his own property and non-property, as long as it does not result in harm to someone. So, if you strip mine your land, and leave it scarred and barren, that is fine, because your neighbors are not harmed. If one is living in a society where property rights haven't been completely defined, and you pollute vacant land owned by no one, that is not a problem. Polluting the air in a desolate region where the polluted air does not cause demonstrable and meaningful harm to individuals is not a problem.

One can even imagine a semi-science fiction type scenario. Let's say you figure out a way to hurl the earth's garbage to the moon. Unless the moon has been claimed as property, I don't see why you couldn't find the nearest convenient crater and fill it with trash.

None of these actions violate anyone's rights and are valid, especially because they are actions taken in furtherance of one's own life.

Edited February 17, 2007 by Galileo Blogs

[DavidOdden]

I hate to ask this question of such an excellent post, but it would be intellectually dishonest of me to not pick this nit:

The law governing uses of both types of resources -- property and valuable non-property -- would hinge on one key idea: you cannot harm your neighbor.

...

Harming another person or his property is what is forbidden.

What constitutes "harming" another person? E.g. if the pharmacy has one dose of insulin on hand, I need it now and I buy it first, and then some other guy in the same pickle arrives an hour later (poor guy, he dies), have I harmed him? Why not?

[Galileo Blogs]

I hate to ask this question of such an excellent post, but it would be intellectually dishonest of me to not pick this nit:What constitutes "harming" another person? E.g. if the pharmacy has one dose of insulin on hand, I need it now and I buy it first, and then some other guy in the same pickle arrives an hour later (poor guy, he dies), have I harmed him? Why not?

I don't think you're nit-picking at all. However, I have to think this through to provide an answer. I'll just say that in the example you give, the first person has not harmed the second person. He didn't use physical force to coerce him in any way. In fact, he is completely unaware that the second person exists at all.

As for what is harm, my quick answer is that it is an action that causes physical injury to a person, or which forcefully prevents him from exercising his right to property. The latter right consists of his freedom of action to use his property in a life-sustaining or enhancing manner.

[DavidOdden]

I'll just say that in the example you give, the first person has not harmed the second person. He didn't use physical force to coerce him in any way.

Complete agreement.

In fact, he is completely unaware that the second person exists at all.

Aack! I didn't mean this to be contingent on ignorance. Suppose I know the guy and I know he is in the same bind, and I must act to save my life.

As for what is harm, my quick answer is that it is an action that causes physical injury to a person, or which forcefully prevents him from exercising his right to property. The latter right consists of his freedom of action to use his property in a life-sustaining or enhancing manner.

The thing I want to steer clear of is the conclusion that my saving my own life caused the other guy to die from diabetic shock. The essential concept in play, I think, is "cause". Causation is not the same as the "if X had not been true, what probably would have happened" scenario. My antipathy towards "causes harm" arguments seems to stem from how people often misapply the concept of "cause".

Yuck. I just had a bad case of Cardozo reflux (MacPherson v. Buick)

[Galileo Blogs]

Aack! I didn't mean this to be contingent on ignorance. Suppose I know the guy and I know he is in the same bind, and I must act to save my life.

I completely agree. The argument applies whether the first person knew the second person or not.

The thing I want to steer clear of is the conclusion that my saving my own life caused the other guy to die from diabetic shock. The essential concept in play, I think, is "cause". Causation is not the same as the "if X had not been true, what probably would have happened" scenario. My antipathy towards "causes harm" arguments seems to stem from how people often misapply the concept of "cause".

This is a good point. That is why the operative concept has to be force. Harm can only occur if someone uses force against another person, which clearly has not happened in your example.

The term "causes harm", if applied loosely, could imply that someone causes someone harm by failing to help that person. However, a failure to help is not causing someone harm, since no force is involved.

Interestingly, if failing to help someone is to cause harm to that person, then the welfare state is morally justifiable. The state, acting as our agent, helps everyone. If it failed to so, it would be "harming" the people.

[Qwertz]

Yuck. I just had a bad case of Cardozo reflux (MacPherson v. Buick)

Ha! I get it!

Reading the thread, I started thinking about the conquest and discovery (of terra nullius) rules. Historically, government-funded explorers discovered land not under the jurisdiction of the sponsor government (or any government with whom the sponsor government had a treaty) and claimed it [the land] in the name of (usually) the Crown. The Crown was (under the feudal system, anyway) the ultimate landowner, parceling it out to citizens under land grants. This survives in Anglo-American property law in the form of escheat, whereby the State becomes the owner of land if no one else has a valid claim. Usually this only happens when someone holding in fee simple absolute with no encumbrances dies intestate with no statutory heirs whatsoever, but it can also happen by statute. The concept that the State holds the ultimate title in land is the conceptual underpinning, not only of escheat, but of the State's power to tax land, to take through eminent domain, and to enter onto or seize property involved in the committing of a crime. The landowner's right of exclusion is always subject to the State's, because the State has the right (under certain circumstances) to exclude the landowner from the property (and even extinguish his title).

I began thinking, "my, that's silly." Landowners ought to own their property absolutely, at least as against escheat, taxation and eminent domain. I stumbled across tax protesters rambling on about the (Napoleonic) concept of allodial title, which they argue grants a landowner such absolute title. Unfortunately for them, allodial title has never existed as such in Anglo-American law. And besides, a title in land which didn't give the State the power to exercise its legitimate police powers would result in localized anarchy - criminals could hole up in their houses and the police couldn't come get them.

So it seems to make sense that, insofar as property rights are protected by a government, property is held subject to the State's willingness to protect those rights.

Now when I tried to apply this to terra nullius, I ran into a quandary: If property rights are based on individual rights, how does the State get jurisdiction? Can the State declare itself the exclusive protectorate of any property interest that might ever arise within its statutorily defined territorial boundaries? If I discover a totally unknown island within US territorial waters - one of which the US know nothing - where do the US get their power to protect my property interest? My citizenship, the statutory territorial limits, or through my voluntary cession of my (natural) right to protect my own property interest?

In other words, if I own land, what right (if any) comes with it to decide which government (if any) will protect my rights? Assuming the land starts as terra nullius, that more than one government is willing to protect my property, and that no treaty resolves the issue as between the various governments.

-Q

[DavidOdden]

Can the State declare itself the exclusive protectorate of any property interest that might ever arise within its statutorily defined territorial boundaries? If I discover a totally unknown island within US territorial waters - one of which the US know nothing - where do the US get their power to protect my property interest?

It stems from the presumption of a rightful monopoly on the use of retaliatory force. Whether or not the US government has knowledge of the existence of this island doesn't matter, what matters is that it is within the US. So we're rejecting the anarchist presumption that there can be competing governments within the same territory. Of course nothing addresses the situation of ill-defined boundaries, or the quasi-anarchy that exists when you have governments in an improper hierarchy (I'm referring to the federal / state conflict). So I wold say that the State does not need to declare anything, it's a basic fact about the nature of government.

In other words, if I own land, what right (if any) comes with it to decide which government (if any) will protect my rights?

None.

Assuming the land starts as terra nullius, that more than one government is willing to protect my property, and that no treaty resolves the issue as between the various governments.

Well, I don't see how this can arise. If we're talking about uncivilized lands, like the entire Moon, or the American west 200+ years ago, then there is no government, and the first thing that has to be to establish a government. I've got a few suggestions along those lines. Once it is determined that this hunk of land is part of the US, then Canada has no interest (in the technical sense) in Detroit. Your choice, then, is whether you will buy that land, knowing you'll be subject to US law and not Canadian law, or whether you will decide to try making a land claim in Canada under their laws, if you think US law sux. You don't have the right to opt out of US law, except by leaving the US.

However, the question of whether the citizens of Detroit might have a right to secede from the US and get Canadianized is amore complex issue.

[Qwertz]

The moon is a good enough example. If you ignore the US flag on it. If I "discovered" the moon and laid claim to a lunar tract, would I necessarily have to establish a new government, because (hypothetically) no existing government's jurisdiction extends there? If I created my own government, could I then enter into a treaty to make my land part of any country that wanted to deal with me? Or is that too much like competing governments?

-Q

[DavidOdden]

If I "discovered" the moon and laid claim to a lunar tract, would I necessarily have to establish a new government, because (hypothetically) no existing government's jurisdiction extends there?

"Have to" in what sense? Dude, if you can get to the moon and build permanent living quarters, that would be so awesome. If it was really sustainable, I'd suggest settling into a gulch and establishing a rational society with no taxes or restrictions on trade. But if you want to do this and then negotiate with the US to extend the geographical sphere, not to mention tax base, plus new ares where they can restrict trade and fight the war on drugs...

Now I do appreciate how there are issues of international law involved, and you'd be blazing new legal territory. The point is, the moon is not part of the US and it is not part of Canada or Great Britain or Norway. If you were Canadian (you're not, eh?), and you colonized the moon but wanted the protection of an Earth government, it seems to me that you'd have to establish a local government of some sorts that covers your moon-flats, and then voluntarily merge with some other government, which could be (shudder) Canada or (shiver) Norway. My history-reservoir is dry at the moment: have two countries ever voluntarily merged? That seems to me like the basis of the kind of case you're looking at.

[Qwertz]

One could make arguments about the EU "voluntarily merging," or East and West Germany after the fall of the Iron Curtain, but the bulk of "unification" has happened through conquest. Or maybe purchases count?

Interestingly, the Moon is covered by the Outer Space Treaty. Neither the Soviets nor the US make any claim to any part of the lunar surface, and the treaty treats the Moon like international waters. Would a private claimant to Lunar land have to abide by this treaty?

-Q

[Clawg]

Unowned things like air, sunlight, a nice view, etc. aren't your property . . . they're "gratis". So, taking away your sunlight or view doesn't constitute a violation of your rights. However, actually injuring you by, say, dumping contaminants in the water that poison you IS a violation of your rights. It's not property damage, it's personal damage.

That's my understanding, too.

But:

When I invest into building a large (unmovable) solar collector and my neighbor builds a large structure above / aside then my solar collector becomes worthless.

Same thing with mining rights, before I can start digging into the ground (building my own mine) I first have to invest large sums of money to find a good spot. My competitors could just wait and build a mine on their own as soon as they see me start digging.

My point is that because you only own what you create (and what others agree that you own) you have to negotiate about the rights of use of all "gratis" things like 'space', air, sun light etc.

That's easy to accomplish with a small number of competitors but in reality you would have to negotiate with an unlimited number of people that could claim those things making your investment futile.

Am I right to argue that in these cases the (local) government has to act as a middleman?

And continuing this thought would voluntary fees for the governmental protection of (unowned) 'sunlight rights' (or mining rights) be proper?

(With voluntary fees I mean that if you don't pay the fee you don't get a (monopoly) right on that ressource at that specific place, you can still use it but so can others)

Contradictions arise from incorrect principles. In this thread I'm arguing against the "you only own what you made" view of property.

Mmh... seems we had the same idea for a new topic at the same time, maybe merging the threads would be a good idea?

Well, my position is that while you do not own for example the sun light you can negotiate with your competitors of that piece of land space on the rights of its use. But that being hardly possible to accomplish the government acts as a representative of all your possible competitors compensating them for waiving any "claim" on the 'gratis' ressource.

Metaphysically impossible, I think. I'll leave it to you to do the math.

Ok, I agree, on second thought there would probably not enough matter in the solar system to build such a huge satellite / such a large number of satellites to cover parts of the sun.