A Libertarian Account of Original Appropriation

In Logan Chipkin’s interview of Stephan Kinsella (starting about here) Kinsella explains the Libertarian concept of “Original Appropriation.” Kinsella says that we will need a rule to determine who can use a resource, that is to say, who owns a resource. It should be a rule everyone can agree to that is not just violence.

The idea of Original Appropriation is built on asking “Who has the best connection or link to the resource?” Consider how this would play out for homesteading land. Start with whoever owns that land today. How did they come to own that land? Presumably, they bought it from someone. There must be a chain of people that purchased the land. Contract law (the purchase of the land) is, in these cases, how we know who has the strongest link to the resource.

But as you trace back this ownership, someone had to be “…the first guy… to have the right to pluck it out of the unknown state of the wilderness…” this implies that “homesteading is the first rule that gives you your best [original] link to a resource.” In other words, whoever first uses a resource taken from nature is the owner.

Because the first user will always have priority over the second user (unless the second user buys the resource via contract) it must be that homesteading land determines who owns that resource originally. (This idea is what Hoppe called this the “prior later” distinction.)

This “interplay of contract law and homesteading” is what Hoppe calls “Original Appropriation” and libertarians believe it “answers all of the questions… about who should own a resource.”

Original Appropriation In Early America

In a typical American history class, the founding of America begins with Columbus discovering America. Criticism of Columbus are common today because it is believed by some that he severely mistreated the Native Americans and because his discovery of American led to the European nations ‘stealing’ the land from the Native Americans. Is this characterization of ‘stealing’ accurate from an original appropriation perspective?

In my pre-woke American history classes, we were taught that society’s that lived in America had no modern concept of land ownership. We were told that Europeans used to “buy” land from the Native Americans in exchange for token payments like “a bunch of beads.” Because the Native Americas had no concept of land ownership, they didn’t understand the consequences of the ‘sale.’ Once the land had been ‘purchased’ then the European felt they were ‘within their rights’ to shoot the Native Americans when they showed back up on the land again. Or that is how it was taught in my American history classes.

Stories like this are symbolic and illustrative of the problem, but in reality, the truth is subtler. Native American cultures, though some did have agriculture, were often close to hunter-gatherers cultures. In my home state of Utah, the Mormons taking the land to use automatically put immense population pressure on the Native American populations because they relied on the land for hunting. To support a population on hunting requires a lot of land. Clearing forests to build houses reduced the amount of land available to hunt on, thus reducing the amount of food available.

To Americans or Mormons, I’m sure this seemed like a gross waste of land usage to simply leave it in a close to pristine “unknown state” just so you can keep hunting on it. I’m sure they thought of themselves as plucking the land from a pristine “unknown state” and claiming the land for the first time and thus saw themselves as the rightful owners. And those that rely on land as a resource for hunting don’t necessarily think of themselves as ‘owning the land’ any more than our current sources of air or water are perceived by us as being ‘owned’ by someone. So it seems unlikely that the Native Americans would immediately ‘stake an ownership claim’ for the land they used for hunting when it was only slowly taken from them. (Assuming they even had a concept of land ownership in the first place to know to stake it.)  

And yet, from a Voluntarist perspective, we’d have to consider the natives using the land only for hunting as ‘owners’ of the land even if their culture didn’t yet understand that idea well. So the idea that Europeans stole it from them must be taken seriously under the idea of Original Appropriation.

Original Appropriation As Useful Fiction

What this means is that a Voluntarist account of how property is initially appropriated has no real counterpart in the real world. An idea like “original appropriation,” like many Libertarian ideas, assumes a fantasy history where we imagine the entire world being reset back to a pristine state where it’s possible to determine who first “homesteaded the land.”

In reality, the very concept of being “homesteaded” is deeply tied to cultural concepts and assumptions alien to the vast majority of humans that ever lived because the vast majority of humans lived in hunter-gather cultures that had nomadic lifestyles. Yet when humans did finally invent agriculture, not unlike the case of Mormons and Native Americans, they also started to put population pressure on the surrounding hunter-gather cultures. The result was violence in a war of cultures that weren’t compatible with each other.

By the time libertarians came into existent, I doubt there was any useful land anywhere on the earth that hadn’t been stolen dozens or even hundreds of times over. So the Voluntarist account is therefore deficient because it has no choice but to treats current ownership – even if stolen from someone else somewhere in the past – as valid. There is no way to punctuate the process and determine who is the ‘real owners’ by this point.

Yet I find that I am on the libertarian’s side on this issue.  I see no way to go about this now but to start with current ownership and pretend it’s valid. I guess this effectively means I agree with libertarians on “original appropriation” after all — even while I admit that the idea is purely fictional.

But it’s a useful fiction. Starting with things as they are, we can utilize the concept of original appropriation going forward and I suspect it will be a useful concept. It certainly helps that nearly all cultures now have a robust concept of property ownership — precisely because that turned out to be a useful idea that eventually crossed cultures — and that trading land for beads is probably impossible now.

Leave a Reply

Your email address will not be published. Required fields are marked *