Kevin,

Thanks for the round-up, and for the analysis.

A couple of points, in reverse order.

First, I don’t think it’s safe to infer from what’s been posted that the lot was never developed by Horowitz and the other real estate investors who held it prior to the 1985 seizure. Maybe it was, but maybe it wasn’t. It was a vacant lot in 1994, when the farmers got to it, due to the city government’s decision to mothball the trash incinerator project that they’d intended to put up on the land. But there may very well have been something there prior to the mothballing of the project, which was bulldozed after the city seized the property. From what I can gather the formal method by which the city seized the land involved a condemnation order, which indicates that there might have been some structures on the land. I just don’t know yet; Dain and Brad are trying to find out what the property looked like before the city government sank its claws into it.

Second, I actually don’t see how the money that the city government gave Horowitz in the forced “sale” matters on the question of whether Horowitz has a claim to the land. Since the transfer was made under duress, throwing some money at Horowitz doesn’t invalidate whatever claims he has to recovery of the land itself, if he would prefer that to the money. It’s true that if you rob me of $1,000 in gold and then give me $400 back in silver, I’d only be entitled to recover $600 more back from you, not the full $1,000 in gold. But that’s because the value of the metals is monetary, and the money is fungible, so by giving me back $400 in silver you’ve effectively given me back part of what you stole from me in the first place. If you forced me at gunpoint to sell my car to you for $1,000, then I’m still fully entitled to recover the car itself, not just enough money to make up the difference between the forced sale price and whatever price I would have freely agreed to sell the car at. I’m entitled to recover the whole thing, because it never stopped being my property; it just stopped being in my immediate possession. Maybe I should return the money that you gave me for the car once I’ve recovered it, but I doubt that that’s true, either.

Third, I didn’t state my position clearly enough in the post and had to clarify it in the following comment thread. I don’t think that anything that the the government seizes automatically counts as unowned and suitable for homesteading. My position is that governments don’t have any property rights in anything, so if the city government claims title to the lot it is morally either unowned, or else owned by someone else. However, if the property was seized directly from one or more identifiable victims, then those victim have a legitimately enforceable claim to recovery of the property that was stolen from them.

That would tend to count in favor of Horowitz’s moral right to reclaim his former share of the land, as the right-Rothbardians have been arguing. (It would, of course, do nothing at all to justify his forcible seizure of the entire lot; there’s no excuse for treating that as anything but an act of privateering under the State’s colors.) But I think that other factors undermine the claim that he has to his former share of the land.

Specifically, while Horowitz may have a claim to recover compensation for the lost property from the city officials who stole it from him, he lost his claim to recover the property itself when the farmers began to cultivate it. That’s because the property had been abandoned for years when they came to it. Now, the abandonment resulted from the city’s seizure of the property and its enforcement of a piratical property title on it; since Horowitz et al. only “abandoned” their former property under duress, that does not affect his right to come back later and demand compensation for the lost property. But it does affect innocent third parties’ right to treat the land as open for homesteading. And once the farmers have established a claim on the abandoned property through years of transformational labor, Horowitz can no longer recover his property out from under them. Since he made no public effort to recover the land until nearly a decade after the farmers had begun to cultivate the land, his only legitimate claim, if he has any, is against the city officials. The farmers don’t owe him anything.

While I disagee with the position that Horowitz has a right to recover a share of the land by dint of rightful ownership, I don’t think it’s beyond the pale. I can’t say the same thing for the sorts of arguments advanced by the anti-farmers commenters at Hit and Run. The entire argument boils down to the claim that we are morally obligated to defend every arbitrary entitlement to a share of the loot that’s handed out by the State, because that’s how the pirates’ code says the booty should be divvied up. I guess that if people want to interpret “private property rights” as nothing more than that, they can; the piratical view of property rights has a well-established pedigree. But they ought to at least have the decency to stop calling themselves “libertarians” if they are going to advance that sort of argument, and come up with a new, more descriptive name for themselves, such as “Constitutionalists,” or “entitlementarians,” or perhaps “liberal Mussolinists.”

Incidentally, this is one of my major problems with the kind of Old Republic nostalgia that gets peddled at, for example, LewRockwell.com. DiLorenzo and the rest of the gang have convinced themselves that American nationalism and imperialism both effectively started in 1861, and that antebellum pro-slavery blowhards like Calhoun were the true guardians of an imperiled decentralist republic. In fact it was the Southern slavocracy that was the constant driving force behind American expansionism and military adventurism from 1789 up to 1860, including the Louisiana purchase, the war of 1812, the Creek war, the ethnic cleansing of the Cherokee, the Seminole Wars, the seizure of Florida, the annexation of Texas, the war on Mexico, and repeated attempts to expand the slave empire into Cuba and other potential Latin American colonies, either through “purchase” or conquest. Just to mention a few. It was those Yankee millenialists like Garrison and Wendell Phillips who consistently opposed the predatory engorgement of the country and who denounced it as a travesty against liberty and republican principles.

Oh, but John Mackey doesn’t want us devaluing our “brand” by “aligning ourselves with these issues.” What are you trying to do, stop us from building a mass movement to evolve our society in positive directions? Don’t you have something more critical to talk about, like privatizing Social Security or enacting meaningful tort reform?

What, you thought that just because people’s lives are at stake here, we ought to treat it as something important?

Peter:

I don’t know how to handle the hypothetical case where no negotiated resolution is possible (both parties would be in the wrong), but it’s not a credible scenario.

Do you think that Ralph Horowitz is similarly obliged to work out a negotiated resolution with the urban farmers, rather than simply having them bodily removed from the property and bulldozing their gardens?

Peter,

I’m not sure I understand your claim about Wal-Mart’s use of seized land. If, after negotiations, Wal-Mart refuses to clear off the land, do the homeowners (or whoever) then have a right to evict them by force, knock down the building, etc.? I.e., are you suggesting negotiations merely as a means to avoid disproportionate violence, or are you suggesting that Wal-Mart has some deeper claim not to simply be forced off the land at the pleasure of the people it was seized from?

Paul,

Do you think that occupancy and transformation of the land has no impact on the former possessor’s rights to recover it? What if (unlike Wal-Mart, in most cases) the person occupying and using the land is someone who simply came to it long after it had been taken, rather than having colluded with the city government in the process of getting it stolen?

Also, do you think that there is any amount of time that could pass or anything that either the current possessor or the former possessor could do, that would count against the former possessor’s right to recover the specific property that she lost (rather than just recovering compensation from the aggressors for the lost property)? E.g. could the homeowners forcibly recover the land 20, 30, 40 years later? From anybody who happened to be on it, if Wal-Mart later closed down and “sold” to someone else? Etc.?

I don’t think your position is crazy, but I’m inclined to doubt that it’s true, and I’m interested to know what limits, if any, there are on it.

Vince,

Here’s something that puzzles me about your position as stated. If Horowitz and the farmers BOTH have a rightful claim to the property, then by what right can Horowitz forcibly exclude them from it (bodily removing them from the land, bulldozing the gardens, etc.)? Horowitz has a right to evict trespassers from his property, but if the farmers have a moral claim to the land then they are not trespassers, and he does not have a right to evict rightful owners from their own property, does he?

anon e mouse,

They have been trying to pay off Horowitz for the land, who initially seemed receptive, but is now refusing to sell, apparently out of spite at the protestors.

(Of course, if the lot belonged to him he’d have a perfect right to refuse to sell to anyone he didn’t care to sell to, for any reason that he pleased. But I don’t think that the lot does belong to him, and so any money paid to him would morally count only as a ransom, not as a purchase. In which case he not only tried to ransom property that didn’t belong to him, but also decided to be petulant about it, too.)

Glen,

I agree with you that the justice of IP restrictions is part of what’s up for dispute, and I agree that argument Volokh discusses isn’t used as a response to arguments to the effect that “IP is unjust, but it has good consequences, so we should have IP laws,” and I don’t know of any IP advocates who argue that way.

What I am saying is that Volokh’s reply to the argument begs the question against his interlocutor, because the intuitiveness of his counter-example depends on the idea that free copying is analogous to shoplifting. What’s doing the intuitive work in the counter-example is the fact that shoplifting is theft, and thus justifies forcible intervention whether or not there are other business models available to the shopkeep. It has nothing in particular to do with whether shopkeeps would be able to support themselves using other business models that aren’t vulnerable to widespread shoplifting. (They might very well be able to; any shop that sells inexpensive commodities just eats the losses from a certain amount of shoplifting anyway.) But you can’t extend the same argument to IP laws and have the same intuitive result without first making some further argument to demonstrate that free copying is theft, or relevantly like theft.

It’s true that Volokh would have a case against his interlocutor if the interlocutor’s argument were simply, “There are other business models available, so therefore IP laws are illegitimate.” The case would be: “Look, there’s this other case where having business models available doesn’t delegitimize government intervention. So that can’t be a sufficient condition for the illegitimacy of the law.” But nobody that I know of makes that argument, so if that’s what Volokh is responding to he’s just attacking a strawman. Instead, the context in which people make the sort of argument he’s discussing is in refuting a protectionist argument for the legitimacy of IP laws (rather than positively proving their illegitimacy). So the point isn’t that having other business models available delegitimizes government intervention. It’s that the availability of other business models undermines one of the intermediate steps in the protectionist argument (the claim that there wouldn’t be “enough” production of songs, drugs, or whatever if IP laws were repealed). I happen to think that consequentialism of the sort demanded by these protectionist arguments is morally indefensible, and that the injustice of protectionism is a more important point to stress than the fact that the consequences won’t really be what the protectionist claims that they will be. But I don’t see that Volokh’s actually engaged with the argument in its actual dialectical context.

I’m not sure if I’m clarifying or muddying my point, so I’ll just leave off there.

As for the socialist calculation problem, my complaint isn’t with property rights as such. It’s with the idea that what you do or don’t have property rights in can be determined by deliberating over what the right level of X to produce is, and then incentivizing people accordingly through the recognition or fabrication of new forms of property titles. Since there is no way even in principle to determine what the “right” level is independently of an actual market process it makes no sense to try to set the rules of markets based on such calculations. If the argument being made for private land titles were “Oh, well, if we don’t have private land titles then not enough land will be cultivated, so let’s start recognizing those in order to get more land cultivated,” then I would think that that argument was just as bad as the ones made for restrictions on free copying. The case for recognizing private property titles in X has to be made on other grounds than whether “enough” X will or will not be produced, because there isn’t any way to determine how much “enough” is until you’ve already engaged in a market process — which is to say, until you’ve already determined what sort of things are going to count as transferrable property and which aren’t.

Well. There’s a debate at Hit and Run, but I don’t know about a libertarian one. The debate at Mises at least has to do with the plausible (though mistaken) view that principles of restitution entitle Ralph Horowitz to recover his share of the land. The debate at Hit and Run looks more like Jesse Walker and a couple of others valiantly trying to fend off a bunch of Constitutionalists and liberal Mussolinists, whose “libertarianism” amounts to the principled defense of whatever property entitlements the government happens to be passing around to the propertied classes.

My favorite quote thus far comes from “Ayn Randian:” “But I am really just making the excellent point Woozle’s already made; you can do what you want with owned land, including not making use of it. The only reason anarchos invented this shady ‘mixing with labor’ was to thwart government title-granting abilities.” I just feel like twirling my mustache and cackling maniacally every time I read that.

Barbara,

I agree with you that different rhetorical postures are appropriate to different circumstances. My point in quoting Garrison was to reply to Uzzah’s claim that “If you have to resort to the angry rhetoric to make your point, maybe its a point that doesn’t hold much water.” I think this is false, and obviously so. Sometimes it’s worth pulling punches to get a point across and sometimes what the matter deserves is more severity and harshness in our language. When that’s the case it does absolutely nothing to undermine or to delegitimize the point that you are making, whether or not it makes individual listeners more or less likely to agree with you. (As I take it you agree, from your comments.)

I also think it’s worth noting, though, that whatever sort of language is most conducive to persuading people, the point of feminist writing is not always to convince sexist men to become less sexist. Persuading more men (or for that matter more women) to become feminists is one way that feminism can make progress towards its goals, but it’s not the only way, and sometimes neither the most important nor the most beneficial.

I think the plausibility of Volokh’s counter-example depends on the fact that it is clearly unjust to steal stuff from a store. Volokh adds a bunch of consequentialist worries (fewer people will own stores, etc.), but this is just hocus-pocus: the reason that government intervention is uncontroversially justified here is because property are uncontroversially at stake.

Now, if the anti-IP argument were just, “There are other business models available that free copying wouldn’t make unprofitable, so therefore the government shouldn’t prohibit free copying,” then it would of course beg the question in a rather crass way, and Volokh’s counter-argument would demonstrate that. But I’ve never heard the argument that Volokh makes used in that way. Rather, the dialectical context of the argument is always a response to protectionist arguments in favor of IP restrictions: “If we don’t have IP, then how ever will the movies get made / the musicians get paid / the drug research get done / etc.?” Answer: try a new business model; your broken business model is not my problem. This is a perfectly legitimate consequentialist response to the attempt at a consequentialist argument in favor of IP restrictions; it doesn’t address the justice of free copying, but that’s because it’s responding to an argument that explicitly disregarded questions of legitimate property rights in favor of a plea for protectionism.

Taken from the standpoint of justice, Volokh’s response here puts the argumentative cart before the argumentative horse.

And insofar as this and other points are intended solely as consequentialist replies to the argument, and not as appeals to justice, the entire argument depends on the presupposition that socialist calculation of the “right” levels of drug research, songs, movies, etc. is possible. Which it isn’t.