For libertarian economics, what do property rights include?

as answered on Quora:

I hate to pick at nits, but I do not think there is such a thing as “libertarian economics.” But I assume that the questioner really means “economic policy,” and is right to think that libertarians have a distinct policy. But any such policy is also a matter of law (libertarians, even of a hard-core private law variety hold to a rule of law) so the question becomes, What property rights are included under libertarian legal and economic policy?

Well, this turns out to be a big subject.

There are some differences of opinion, in part because the libertarian camp is a bit broader than usually let on by its most insistent advocates. But what defines libertarians is the way they themselves define liberty: as the freedom that all can share by being seen in the negative: a freedom from initiated coercion, or force. (Freedoms-to, in Isaiah Berlin’s formulation, are not the focus of libertarian principles.)

And for libertarians, liberty starts with the individual. Though it can be defined politically, as self–government, it is often, perhaps usually (following Locke and the Levellers) defined in property terms. Liberty entails self–ownership. To own one’s self means to own one’s own body. And like all property this entails excludability. In other words, self-defense.

So, already, at this most fundamental level, chattel slavery is prohibited. One cannot own others against their will, unless that other has committed some crime and his enslavement is repayment. Slavery is commonly thought to be not an acceptable kind of ownership, and slaves not legitimate property. Though Libertarians argue about the legitimacy of selling themselves into slavery.

Certainly, the chattel slavery that was the basis of 17th-, 18th- and 19th-century American economy is not legitimate property according to libertarianism. Libertarians were almost all abolitionists, in the mid-19th century, before the Civil War.

The basic conception of justice that libertarians hold has been called the entitlement, or proprietary theory of justice. As formulated by Robert Nozick, a property holding is just if it was justly acquired and justly transferred. To be justly acquired, it cannot be wrested from another. Hence the idea of self-ownership, and the idea of a first-come/finders-keepers ethic of property acquisition. This is the fairly logical outcome of the attempt to find a basic rule that would minimize conflict. Only scarce resources can be owned. So free goods (in the economic sense, as defined by economist Carl Menger and other early marginalists) are not subject to ownership.

This leads to problems of some common resources, such as air (non-economic on the surface of the planet, outside our nose and lungs) and oceans (lots of water there). Libertarians tend to evade or disagree or remain puzzled by these resources, and how property rights could possibly be applied in these resource pools. (Nevertheless, much work has been done, and should be looked up.)

But not to problems of land. I know of few libertarians who go the Georgist route, thinking that land may not be owned — but there used to be many of these, including the young Herbert Spencer and the individualist Joseph Hiam Levy, an able fin-de siècle economist (see his debates with Auberon Herbert and Benjamin R. Tucker.)

Intellectual property rights attorney Stephan Kinsella argues that intellectual property is a misnomer. He extends the analysis of Murray Rothbard, who thought that laws against “libel and slander” were unsupportable because one cannot own one’s reputation. Kinsella makes the point that patent and copyright law are both monopolistic “protections” (intrusions, interventions) of the State, and could not possibly arise in a society that takes the Non-Aggression Principle (NAP — really just a formalization of the principle of universalizble negative freedom) seriously, consistently.

So:

a. property in one’s own person, by which we mean “body”;

b. property in land and other scarce resources that no one else has owned, and which you have appropriated by some widespread or locally apt convention; and

c. property in scarce resources that one has purchased, by contract and without duress.

Libertarians these days almost univocally reject the Lockean idea that possible-to-own resources that have not been appropriated are “owned in common.” This notion is at best a fiction. At worst an imposition. Non-privatized property is seen as UN-OWNED. And property rights theorists are beginning to understand the importance of “ceasing-to-own” as a category. That is, not only must property rights require justice in acquisition and transferance, but also in maintenance. Just as one may lose property, in a physical sense, one can abandon it, in a normative sense. This puts the property into the category of un-owned. If you leave your car on the side of the road, and never return, it is abandoned. The road owner usually appropriates it, but since, today, all automobile titles are tightly regulated by the states, and most roads are State-owned, the states tend to assume ownership. This would not be the case in a libertarian society. Law and custom would look very different. And would have to include rules about disowned property, inadvertent or deliberate, and regard it as un-owned, allowing for a new appropriation.

Other cases of property abandonment? Littering, pollution, and (in the realm of self-ownership) body abandonment upon inadvertent death as well as intended death (suicide). (Would a consequence of this perspective be that suicide is often a form of littering, and, unless measures were made in advance by the would-be suicide, many acts of suicide would be rightly preventable, by coercion, as defense of the property the corpse is intentionally being abandoned upon?)

According to Murray Rothbard, there can be no “public property.” All property must be private. F. A. Hayek demurred from this, arguing that what we are really talking about is “several property,” which would include ownership by groups, in some corporate or even informal capacity. (Randy Barnett explains the seemingly archaic term in this way: “The term ‘several property’ makes it clearer that jurisdiction to use resources is dispersed among the ‘several’ — meaning ‘diverse, many numerous, distinct, particular or separate’ persons and associations that comprise a society, rather than being rooted in a monolithic centralized institution.”) The rule of law defends several property, which would allow for any forms of property now considered “public.”

Philosopher Roderick Long has discussed a public property element in a free society as configured around by the NAP. This subject is still under debate among libertarians.

All property comes down to the right to exclude and the right to control. Several property is private chiefly in the sense of de-priving others of its use. Where you cannot forcibly exclude others (understood as self defense), there is no property. Where you cannot control the thing ostensibly owned (without initiating force), it is not property. I believe Kinsella’s arguments against intellectual property flow directly from these considerations.

No wonder, then, that one proposed alternative to the term “libertarianism” is “propertarianism” — no other school of thought takes property rights as seriously libertarians do, or see them as so fundamental.

Note: There is a whole school of economics devoted to property rights discussion. Many of these economists are libertarians or near-libertarians. Richard Stroup, for example, has proffered a basic rubric for property rights: “For markets to work . . . rights to each important resource must be clearly defined, easily defended against invasion, and divestible (transferable) by owners on terms agreeable to buyer and seller. Well-functioning markets, in short, require ‘3-D’ property rights.” Again, the 3-D property rights require

  1. Definability — clarity in boundaries;
  2. Defense — ability to be maintained;
  3. Divestibility — capacity for ownership cessation by the property holder.

This latter includes divestment by gift, divestment by exchange (giving on condition of receiving something), and inadvertent abandonment (loss by inattention) and purposive abandonment (essentially, gift to the unowned state, gift to “whoever will appropriate from an unowned state” or assault upon others, if the property abandoned is specifically disutile or inutile to all).

Libertarian economic policy rests on conceptions of property rights, centered on individual self-ownership and extending outwards to natural resources and produced goods. Many kinds of several property are allowed, but the society would not be de facto libertarian if there were extensive black markets in stolen goods of whatever kind, or if the state (or similar institutions) appropriated by decree all sorts of un-owned and dis-owned property, or engaged in mass expropriation (taxes) or piecemeal expropriation outside the court system, or in contravention of the NAP.