More fun with procedural property rights

I’ve mentioned before that there was a period when I spent (wasted?) an incredible amount of time studying philosophies of procedural property rights. I call them philosophies of procedural property rights because these philosophies try to justify property rights by appealing to just processes, namely non-aggressive and voluntary processes. As I wrote before, that is a rather ridiculous notion: the only way you can grab up a piece of unowned land (and it is all unowned initially) is to aggressively exclude others from it without their consent.

There are other more amusing issues with these theories though. Think about homesteading for instance. Homesteading is the preferred procedural property rights method of initiating ownership. Basically, people grab up pieces of unowned land — in some theories they have to have done some labor on it — and then that land becomes theirs. Crucially, they then have the right to exclude anyone and everyone from that land without exception. To not grant them that right would, according to these theories, be a violation of just processes because it would involve forcing them to let people on their land and using aggression against them if they don’t.

So imagine a situation where you are sleeping in a field. Around you all the land is unowned. As you sleep, someone (or a group of people) quickly homestead all of the land immediately around you. So outside of this tiny area where you are sleeping, all of the land surrounding you is now owned. Imagine that they quickly put down electrified fences surrounding you to protect their newly acquired land even. So when you wake up, you are basically trapped. You cannot get out of the tiny plot where you were sleeping without trespassing on someone else’s land. You ask the owners of the surrounding land if you can walk across and they say no. Now what?

A libertarian that is pressed with this question has two ways to answer:

  1. You may not cross any of those lands without consent of the owners, and must sit there and starve to death.
  2. You may cross the land even without the consent of the owners.

Option one is consistent with and mandated by theories of procedural property rights, but it is totally unconscionable. Few people would agree that because you happened to have been homesteaded around that your life must now end. You apparently would have to spend your entire life always making sure you had some ownership over a route out of wherever you happen to be. This would be impossible and absurd.

Option two is more reasonable, but it totally smashes open procedural property rights. It essentially endorses the principle that you may violate procedural property rights if it is necessary to protect welfare. That is, it accepts the idea that there are positive welfare rights — here the right to not starve and die — that trump the requirements of just processes. And this rips out the entire normative core of procedural property rights.

So either the procedural property rights advocate has to argue for something totally absurd (option one) or something that completely undercuts the entire justification of procedural property rights itself (option two).