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.

Vince: If not for the illegitimate force of government, Horowitz, et al would not have had their homestead terminated. Anything that occurs as a result of the illegitimate action should be null and void. The property should revert to the original homesteader.

Anything at all? No matter how long the property has remained abandoned and no matter what Horowitz himself did with respect to it?

Horowitz abandoned his claim to his share of the plot for 15 years before he took the city to court — not claiming that the land had belonged to him all along (which would have justified only a share of the land being returned to him without compensation to the city government, NOT the piratical “sale” of the entire property in return for a pay-off), but rather that the city was the owner of the land for the last 15 years but was under a contractual obligation to sell it to him.

Whatever imaginary quasi-Rothbardian defense you might be able to put in Horowitz’s mouth for his claim over a parcel of the land, he IS NOT making that claim in fact. His public actions constitute a quitclaim of his claim on his share of the land to the city government from 1985-2003, and thus an abandonment of a direct claim to the property. The urban farmers were thus justified in treating the land as abandoned property, available for homsteading and transforming by personal occupancy and labor. If Horowitz changes his mind NOW, and starts demanding compensation for an illegitimate seizure in 1985 (rather than asserting the non-existent rights that derive from a piratical “sale”) then he has a right to demand restitution from government officials but no right to take even his share of the land, let alone the WHOLE LOT, out from under farmers who homesteaded it while it was left abandoned by him and the other former owners of the land.

Here are a couple of questions that may help us to break out of the circle into which the conversation has fallen.

1. As it happens, there are a number of people who lived or had businesses on land that was seized by their city government and then turned over to Wal-Mart, who then set up stores and parking lots on it. Are you claiming that the homeowners or business owners victimized by the land seizure have a right to come in 15 years after abandoning the land to the city government, forcibly seize control of the plot on which the Wal-Mart sits, blow up the store and tear up the parking lot, and then take over control of the plot, after more than a decade of continuous operation? I don’t think this is true even of cases where the store directly colluded with the city government in order to make the initial theft — let alone of cases where the new occupant played no role in the theft, and only came along years after the theft had been made.

2. Are you claiming that Horowitz has a just claim to seize the ENTIRE farm, as he did, or only that he has a claim to seize a parcel of it equivalent to his share of the land?

2a. If the latter, what basis could he have for seizing the land that never belonged to him before the seizure, which would not provide just as good a basis for the farmers claiming rightful ownership of ALL the land, including Horowitz’s share?

2b. If the former, then which parcel of the land has he got a right to claim? And do you think that there is ANY length of time that Horowitz could have left the land unused, or ANY public actions he could have taken, which would constitute abandonment of the property for the purposes of future homesteaders? If so, how long and what are they?