The lead article for a virtual symposium on “Land Tenure and Anarchic Common Law” being conducted by the Center for a Stateless Society begins:
There would likely be a range of legal regimes—commercial and non-commercial, religious and secular—in a stateless society. Some would be largely territorial, while others would serve people in different regions. The rules enforced by a given regime would presumably emerge from multiple sources: from the decisions of arbitrators, from the judgments of religious and other authorities accepted by participants in the regime, and from the specific contractual agreements made by regime participants. (For instance: property owners cooperating to arrange for road maintenance and other shared needs might also agree to frame their property claims in ways designed to formalize the rules governing the recognition of the transfer and abandonment of each other’s claims.) Whatever their sources, a wide variety of land tenure rules could in principle be implemented by these regimes. Disputes among anarchists about the form such rules ought to take have often focused on the differences between what can, for simplicity’s sake, be labeled occupancy-and-use and Lockean positions.
On a common account of the occupancy-and-use standard, if someone who acquires title to land by homesteading it (or by purchasing it from a homesteader or someone linked by a sound chain of title to a homesteader) neither maintains relatively continuous personal occupancy of her land nor sells it to someone else, the land becomes ripe for homesteading. Thus, while someone might rent out rooms in or a guest-house attached to a home she actually occupied, she couldn’t function as an absentee proprietor, renting out land on which she never set foot. (She might, perhaps, be free to rent out property she had occupied but from which she had made clear her intend to be absent from a limited period.) Because there would be no reason to view a would-be absentee proprietor as the actual occupant and user of the land she sought to rent to others, under an occupancy-and-use regime the land would ordinarily be treated as effectively abandoned, and the tenants would be able to homestead it and claim it as their own. Occupancy-and-use standards are especially attractive because they have the potential to preclude the kind of absentee ownership that could create a permanent feudal aristocracy.
Lockean land tenure standards, by contrast, characteristically permit absentee ownership. Proponents of such standards tend to argue that a legal system that didn’t differentiate between occupancy by a property’s legal owner and occupancy by the owner’s designee would operate more simply, require less interference with owners’ autonomy, and create fewer complications for economically beneficial arrangements than one that required occupancy by an actual owner.
I subscribe to the Lockean position, but with the so-called Lockean proviso, interpreted according to the principles of Henry George (i.e., “Georgism”) and left-libertarianism. As Peter Vallentyne explains in his Stanford Encyclopedia of Philosophy article on Libertarianism (and anarchism):
Libertarianism is committed to full self-ownership. A distinction can be made, however, between right-libertarianism and left-libertarianism, depending on the stance taken on how natural resources can be owned.
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According to a unilateralist conception of the power to appropriate, agents who first claim rights over a natural resource acquire those rights—perhaps provided that certain other conditions are met. These additional conditions may include some kind of an interaction constraint (such as that the agent “mixed her labor” with the resource or that she was the first to discover the resource) and some kind of “fair share” constraint. . . .
Radical right libertarianism . . . holds that that there are no fair share constraints on use or appropriation. . . . On this view, natural resources are initially not merely unprotected by a property rule (i.e., permissible use does not require anyone else’s permission); they are also unprotected by a compensation liability rule (i.e., no compensation is owed if one uses). A main objection to this view is that no human agent created natural resources, and there is no reason that the lucky person who first claims rights over a natural resource should reap all the benefit that the resource provides. Nor is there any reason to think the individuals are morally permitted to ruin or monopolize natural resources as they please. Some sort of fair share condition restricts use and appropriation.Consider Lockean libertarianism, which allows unilateral use and appropriation but requires the satisfaction of some version of the Lockean proviso that “enough and as good” be left for others. Lockean libertarianism views natural resources as initially unprotected by any property rule (no consent is needed for use or appropriation) but as protected by a compensation liability rule. Those who use natural resources, or claim rights over them, owe compensation to others for any wrongful costs imposed.
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Equal share left-libertarianism—advocated, for example, by Henry George (1879) and Hillel Steiner (1994)—interprets the Lockean proviso as requiring that one leave an equally valuable share of natural resources for others. Individuals are morally free to use or appropriate natural resources, but those who use or appropriate more than their per capita share owe others compensation for their excess share.
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One objection . . . that libertarians raise against the modern welfare state is that it uses force, or the threat thereof, to restrict people’s freedom to engage in activities that do not violate anyone’s rights. A second objection is that the modern welfare state—and most states generally—uses force, or the threat thereof, to restrict people’s freedom to use force to protect and enforce their own rights. Although most states recognize a right to use force in self-defense, few states recognize a legal right to forcibly extract compensation from, or punish, a person who has violated one’s rights. State typically punish those who attempt to impose the relevant rectification—even if the private citizens impose the very same rectification that the state would impose. Non-pacifist libertarians, however, deny this. Each individual has the right to enforce his rights in various ways, and these are not lost unless the individual voluntarily gives them up. The objection here, then, is not that agents of the state enforce people’s rights (which they are perfectly entitled to do if the protected person so wishes), but rather that the state uses force to prevent citizens from directly enforcing their own rights.
The above objections to the modern welfare state would be made both by right-libertarians and left-libertarians. Left-libertarians, however, can endorse certain “state-like” activities that right-libertarians reject. For on most left-libertarian views, individuals have an enforceable duty to pay others for the value of the rights that they claim over natural resources. Individuals seeking economic justice could form organizations that, under certain conditions, could force individuals to give them the payment they owe for their rights over natural resources, and could then transfer the payments to the individuals who are owed payments (after deducting a fee for the service, if the person agrees). The organization could also provide various public goods such as basic police services, national defense, roads, parks, and so on. By providing such public goods, the value of the rights claimed over natural resources by individuals will increase (e.g., rights over land for which police protection is provided are more valuable than rights over that land without police protection). Such public goods could be provided when and only when they would be self-financing based on the increased rents that they generate.
Imagine an area of township size in what used to be northern Indiana, shortly after the Glorious Dissolution of the United States and its subsidiaries and the abrogation of all of the laws by which the township used to be governed. All of the land in the “township” is “owned” (or used to be before the county recorder’s office went out of business) by small farmers and landlords, who make up half of the population. One of the landlords many years ago built with his own hands a very fine house on a small plot of land, but now lives elsewhere and rents the place out. The landless make up the other half of the population. The landless have read Thomas Paine’s Agrarian Justice, and are inspired by these words:
It is a position not to be controverted that the earth, in its natural, uncultivated state was, and ever would have continued to be, the common property of the human race. In that state every man would have been born to property. He would have been a joint life proprietor with rest in the property of the soil, and in all its natural productions, vegetable and animal.But the earth in its natural state, as before said, is capable of supporting but a small number of inhabitants compared with what it is capable of doing in a cultivated state. And as it is impossible to separate the improvement made by cultivation from the earth itself, upon which that improvement is made, the idea of landed property arose from that parable connection; but it is nevertheless true, that it is the value of the improvement, only, and not the earth itself, that is individual property.
Every proprietor, therefore, of cultivated lands, owes to the community a ground-rent (for I know of no better term to express the idea) for the land which he holds . . . .
The honest among the landed have to admit that Paine and the landless have a point, it being “a position not to be controverted.” More pressingly, they have a need to come to terms with the landless, and to take measures to secure their respective land rights commensurate with the threats to them from both inside and outside the township. They organize themselves and form a small militia for this narrow purpose. They fund it with “one single tax levied on the value of land, irrespective of the value of the improvements in or on it.” Membership in the organization is extended to the landed and the landless alike, lest the landless form their own separate and competing organization for the vindication of their own land rights, and because the landless have an interest in the security of the land rights of the landed (e.g., from marauding invaders) as well as their own. Even though the landless pay no land value tax in support of the militia, and those possessing more land value pay more than those possessing less, the contribution of each member of the organization is in reality equal. Although different members of the community owe different amounts in ground-rent to the community, the “ground-rent” collected is owed to each member of the community in equal shares. It’s these equal shares owed to each member from which the organization and militia is funded with equal contributions from each member. From this follows equal voting rights in the organization, as explained by Paine:
The right of voting for persons charged with the execution of the laws that govern society is inherent in the word liberty, and constitutes the equality of personal rights. But even if that right (of voting) were inherent in property, which I deny, the right of suffrage would still belong to all equally, because, as I have said, all individuals have legitimate birthrights in a certain species of property.
Issues to be decided by vote would include procedures for appraising the value of land independently of improvements thereon, whether the full amount of the rental value of the land is to be collected or only a portion thereof, and whether funds collected but not used in securing land rights and maintaining the militia are to be distributed to the community as a citizen’s dividend.
Membership in the organization is theoretically voluntary. However, suppose that the organization has circumscribed its area of concern within a defined territory of township size, and that within that area an individual possessor of land wants nothing to do with the organization and refuses to pay the ground-rent. This wouldn’t change the fact that every other person or persons who might want to use the land over which he claims exclusive right of possession would have as much right to the land as he. The organization wouldn’t be bound to recognize his claim to the contrary, and might justifiably recognize the adverse claim of someone else who was willing to pay the ground-rent, conditioned upon the payment to the previous possessor of the value of any improvements to the land.
Frankly, the same analysis would apply if a whole neighborhood wanted to secede from the township-wide organization and set up their own neighborhood-wide organization. Suppose the neighborhood sat on a gold mine, and the neighbors in that neighborhood had previously been paying the rest of the township a pretty penny in ground-rent for the exclusive right to mine that gold. The neighborhood’s understandable desire to secede wouldn’t change the fact that the rest of the township would like to mine that gold too, and that the “neighbors” have no more right to the gold mine than anyone else. The township-wide organization would be justified in recognizing the adverse claim of other people willing to pay the ground-rent, and even in using the militia if necessary to install such people. (A township-sized organization allowing a neighborhood sitting on a gold mine to mine that gold without paying ground-rent would likely be faced in short order with a militia much stronger than its own.)
What this points to is the need for and likely evolution of a balance of powers between such organizations. The neighborhood sitting on a gold mine, even if it maintains its own separate organization, will inevitably need to pay ground-rent to a larger organization, to secure its exclusive right to possession of the gold mine from the larger organization and from other larger organizations of similar power. On the other hand, two adjacent township-sized organizations of similar and balanced power will not expect ground-rent from each other. But if all of the township-sized and county-sized organizations occupying the former State of Ohio start to rise from the ashes and combine as an organized power, their counterparts occupying the former State of Indiana might decide to form an organization and militia to match Ohio’s power, “just in case.” This Indiana militia, the sole purpose of which like that of its constituent organizations would be to secure land rights, would naturally be funded by the member organizations in proportion to the land values secured by each organization. And the Indiana organization and the Ohio organization might, in turn, decide it advisable to form an even greater militia to match the threat represented by Canada — funded, again, by each organization in proportion to the land values secured by each organization. Interestingly, a similar method for providing for the common defense was specified by Article VIII of the Articles of Confederation:
All charges of war, and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the united States in congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several States in proportion to the value of all land within each State, granted or surveyed for any person, as such land and the buildings and improvements thereon shall be estimated according to such mode as the united States in congress assembled, shall from time to time direct and appoint.
My anarchist friends might understandably object at this point that what I’ve described here is not anarchism, that what I’ve tried to do here is justify a government, and that this is a peculiar position for a self-described anarchist to take. A few points in response: First, the great Albert Jay Nock considered himself an anarchist, but distinguished between “government” and “the State” and reserved his condemnation for the latter. Second, the sole function of the “governments” I’ve postulated is to determine and secure land rights. The funding for this function comes directly from the very same land rights. (If land does indeed belong to everyone equally, then it is not unjust to take from the landed what belongs to the landless and redistribute it to the landless, minus the cost of the power to do so, which is also the power to secure land rights.) This function doesn’t necessarily entail even the provision of a police force to prevent or punish trespassing or home invasion, or other crimes. (Police and most other services now traditionally provided by governments can be provided separately on the market — although I wouldn’t think it too horrible if members of the organizations I’ve contemplated voted on the local level to use part of the ground-rent collected to provide such services that are closely related to the protection of land rights.) Rather, it contemplates preventing the kind of permanent invasion of land rights that a militia is suited to prevent. It has the benefit of providing an answer to the objection to anarchism that even many libertarians consider insurmountable — namely, the problem of “national” defense. Third, while this thought-experiment contemplates voting and democracy, which is generally unsupportable on anarchist principles, the voting and democracy is basically limited to the very local level (where the practicality of direct participation in debate and if necessary of leaving for a more congenial community makes it appear more consent-based) and to the purpose of securing land rights. Fourth, philosophical anarchism remains intact in this vision of a possible anarchic order. The organizations or “governments” contemplated can pretend to no moral authority beyond whatever justice might inhere in their actions.