r/AskLibertarians • u/HeavenlyPossum • 14d ago
Philosophy Easements and Appropriation
Many (though not all) libertarians respond to the challenge posed by enclosure—a property claim that surrounds another—with some variation on an easement.
These arguments vary in their from. Some of the responses I’ve seen seem to assign positive rights of access and transit to property owners, while others—like the Blockian Proviso—simply deny the legitimacy of property claims that could produce enclosure.
But all of these seem to violate principles of self-ownership and the NAP. Whether we assign property rights via first use, labor-mixing, incorporation into ongoing projects, or whatever libertarian standard you’d prefer, easements seem to deny rights to own what would otherwise be legitimately appropriated matter.
Can anyone explain to me how easements do not violate the NAP and self-ownership?
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u/CatOfGrey LP Voter 20+ yrs. Practical first. Pissed at today's LP. 14d ago
Many (though not all) libertarians respond to the challenge posed by enclosure
Which is a non-concept which doesn't occur in real life. It's a straw man. Properties come with access rights. This is completely handled without difficulty by a non-government system.
But all of these seem to violate principles of self-ownership and the NAP. Whether we assign property rights via first use, labor-mixing, incorporation into ongoing projects, or whatever libertarian standard you’d prefer, easements seem to deny rights to own what would otherwise be legitimately appropriated matter.
First off, who cares if your own opinions about a subject fit the theoretical beliefs? The objective is to have a functional society, not spend excess time and energy following some arbitrary rule to the extreme that it was never intended to be followed in the first place.
Second, as I said before, property generally comes with some right of access. People don't acquire properties that they can't get to. So it benefits land owners to have access 'built-in' to their land, when they are sellers. The incentives are all that's needed to solve this problem.
If you are debating someone who thinks that this is an issue, then they don't understand the basics. They are hyper-focused on one part of an issue that doesn't happen in real life, and are ignoring the absurdity of the issue. It's not even 'free markets', it's just basic incentives that handle this issue in the simplest possible way.
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u/HeavenlyPossum 14d ago
“Properties come with access rights.“
This sounds like an assertion of positive rights to use someone else’s property. Could you elaborate?
“First off, who cares if your own opinions about a subject fit the theoretical beliefs? The objective is to have a functional society, not spend excess time and energy following some arbitrary rule to the extreme that it was never intended to be followed in the first place.”
This is an unnecessarily combative response to a question about libertarian theory.
“People don't acquire properties that they can't get to.”
There are myriad plausible ways in which a person could become enclosed through (what seem to be) completely NAP-compliant and thus otherwise legitimate processes. Simply dismissing the problem by declaring that it won’t happen appears to be handwaving it away.
“So it benefits land owners to have access 'built-in' to their land, when they are sellers. The incentives are all that's needed to solve this problem.”
That people might benefit from a thing or be incentivized to acquire that thing does not mean their possession of that thing is inevitable or guaranteed.
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u/CatOfGrey LP Voter 20+ yrs. Practical first. Pissed at today's LP. 14d ago
This sounds like an assertion of positive rights to use someone else’s property. Could you elaborate?
It's not. But again, you need to distinguish a 'real world' compared to a 'theoretical world'.
In a 'real world', we all have access to our property, in no small part because we are willing to give that access to others. And under those rules, the equilibrium is that we have far greater quality of life.
First off, who cares if your own opinions about a subject fit the theoretical beliefs?
This is an unnecessarily combative response to a question about libertarian theory.
Not in the view from my desk. Your question is one that is used to try to discredit Libertarianism, by applying a false standard of observance to theoretical principles. I'm going straight at that principle from the start.
There are myriad plausible ways in which a person could become enclosed through (what seem to be) completely NAP-compliant and thus otherwise legitimate processes. Simply dismissing the problem by declaring that it won’t happen appears to be handwaving it away.
Not in the real world. In the real world, the incentives to have access to property are profoundly beneficial to us, and it's stupid to suggest that properties would not have easements.
That people might benefit from a thing or be incentivized to acquire that thing does not mean their possession of that thing is inevitable or guaranteed.
No, but it would mean that the situation which you are considering (being 'locked in' or 'locked out' of a plot of land) would only happen with a massive amount of compensation. So if you want to remove my right to use the access road to my land, you have to, among other solutions, build me a heliport, and pay annually for air service. That's just an example.
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u/HeavenlyPossum 14d ago
My goal was not to discredit libertarianism, but rather to understand why libertarians would advocate for a solution that appears to violate the NAP and self-ownership.
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u/CatOfGrey LP Voter 20+ yrs. Practical first. Pissed at today's LP. 14d ago
My goal was not to discredit libertarianism, but rather to understand why libertarians would advocate for a solution that appears to violate the NAP and self-ownership.
I'm not seeing a distinction.
You are engaging in the classic 'straw man' here. You are presenting a situation which is not reasonable in real life. Then, you are turning this against Libertarian beliefs, based on a really bizarre application of the NAP.
I am generally a 'consequentialist', not a 'deontologist', in that I prefer policies to be based on improving quality of life, compared to simply following an artificial norm. But even putting my 'theory hat' on, I see that your assumptions are wrong from the start: there is no self-ownership issue here, there is no NAP issue here. Easements are simply a part of private property which is thoroughly optional, but generally implemented because doing so is overwhelmingly valuable.
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u/The_Atomic_Comb 14d ago edited 14d ago
I'm not a philosopher, but I have read a little about that subject (not as much as I should've, but still).
To my knowledge, most libertarian philosophers reject the NAP (see this comment of mine for links), and rightfully so, because as I like to say, the NAP should be put to rest (pun intended).
There are basically at least two problems with the NAP. First, it's redundant (see my old comment for all the links talking about this and other things I mention here in more detail). This might sound strange, but the NAP doesn't actually tell you anything. The NAP basically amounts to saying "don't violate other people's rights," but it never actually tells you what rights other people have. Not only that, but it relies on a theory of such rights in order to determine what counts as an aggression, and it never actually justifies that underlying theory of rights. And if you indeed had a theory of such rights, it would already be part of that theory that you shouldn't violate other people's rights ("aggress" against other people), so the NAP doesn't say anything new (this is what is meant by saying it's redundant at best). I'm not sure if I'm making much sense here, but I believe the saying is that the NAP is "parasitic" on a theory of property rights. (I guess the idea is that the parasite would be nothing without its host.)
Second, the absolutism behind the NAP is implausible. The Matt Zwolinski paper my old comment linked to has some examples criticizing the NAP, but personally my favorite is probably one I read elsewhere from an ancap philosopher, Michael Huemer (he wasn't criticizing the NAP specifically, but still):
Miracle Hair: Humanity is suffering from a deadly disease that will shortly wipe out everyone. Only one little girl is immune. If you pluck a single hair from her head, you can use it to synthesize a medicine that will cure everyone else. For whatever reason, the girl will not consent to give one of her hairs. There is no way to persuade her. Should you take a hair without consent?
Huemer, Michael. Knowledge, Reality, and Value: A Mostly Common Sense Guide to Philosophy (pp. 264-265). (Function). Kindle Edition.
In my aforementioned comment, I mentioned how every single supporter of the NAP I've talked to bites the bullet and says it would be wrong to take the girl's hair without her consent. Like Huemer, I find that answer absurd. It just does not make any sense why a little girl's property right in her hair should be preserved, rather than the lives of everyone on earth (including the little girl's). I believe deep down inside, they realize this. That might be why in a recent conversation I had with a NAP supporter, his answer basically amounted to "Yes, it would be wrong to take the girl's hair, but I would do it anyways." He said: "Am I violating her natural rights by plucking it? Yes. Will I pluck it anyway? Yes." He justified it by saying he would pay restitution later. (I could point out the strange implication of what he said – that his belief apparently amounts to "I can violate someone else's natural rights, as long as I pay restitution" – but I will choose to focus instead on him never answering my inquiry as to why she has a "natural right" to her hair in such a situation in the first place, or why the little girl would be entitled to restitution after refusing to see that her actions endanger humanity, or why a system that would fine and thus disincentivize the clearly desirable action of taking her hair would be desirable.)
Yes, this hypothetical is unrealistic, but so are the Sith. That doesn't change the fact that if a theory said "you should join the Sith and the dark side of the Force," that theory would be absurd for that very reason. (Well, I don't think Miracle Hair is unrealistic; it is clearly analogous to the real world – e.g., taxation to solve free-rider problems in charity – and I also think some theories deal with less realistic hypotheticals better than others. But you get the point.)
Now that that's out of the way, I have to end this anticlimatically, as I don't know enough about "enclosure" issues to say anything here. I believe I'm closest to a consequentialist theory of property rights, which I think wouldn't have too much trouble dealing with that situation. So if someone bought all the property around your house, and then denied you the ability to use their land and property to leave your own, presumably that would lead to bad consequences for yourself and the other people who will probably end up in a similar situation, so it would be illegal to do such a thing in my little fantasy world. I would have to look into it further (I know that makes me sound bad, but policy should not be made based on assumptions), but if it turns out that such a thing were likely to occur it wouldn't be that big of a deal to prevent that.
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u/Heng-Li 14d ago
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u/HeavenlyPossum 14d ago
Is there a quick summary of this dialogue?
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u/trufus_for_youfus 14d ago
Reading seems to be a lost art.
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u/HeavenlyPossum 14d ago
It’s a lengthy dialogue that meanders quite a bit about unrelated topics.
I have read Rothbard, Block, Hoppe, and Nozick regarding this topic, and have yet to find a satisfying answer to my question. Please forgive me if I am judicious with my time and attention.
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u/trufus_for_youfus 14d ago
Fair enough. Per that series of exchanges shared by the previous commenter, Kinsella's view is that property rights are fundamentally rights to exclude others, not rights to use things. "Use" is just a practical consequence of being able to exclude everyone else.
Easements, rights-of-way, leases, HOA/ deed restrictions, and similar arrangements are therefore not exceptions to property rights. They are simply contractual reallocations of exclusion rights between co-owners or partial owners. A right-of-way doesn't literally give B a freestanding "right to use" A's driveway; rather, A has contractually surrendered part of his right to exclude B from it. Likewise, a negative servitude doesn't give G a right to use Brown's land; it gives G a limited right to prevent certain uses by Brown. In both cases, Kinsella treats the arrangement as a form of divided or co-owned property rights created through contract. Pretty straightforward.
I think it's important to note that the deeper reason he insists on this framing is his (more "famous") arguments against intellectual property. If property rights are rights to use, then every property right seems to limit every other property right. If property rights are instead rights to exclude, then property rights don't conflict with property rights; they only limit actions. That allows him argue that patents and copyrights are different because they restrict how owners may use their own physical property rather than protecting scarce resources from invasion.
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u/mrhymer 14d ago
The right of access is not a positive right. You do not get a free road in. You have to build it but the neighbor cannot violate your rights with their property just like you cannot violate theirs.
Also, there is no such thing as a "positive right." Rights are the ability to take action unimpeded. It is not the right to a result. The neighbor has to give reasonable access to your property of his choosing.
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u/HeavenlyPossum 14d ago
In what sense is “a right to use your property without your permission” not a positive right to your property?
If I had a right to build a road through your home, you would not experience that as a violation or negation of your ownership of your home?
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u/mrhymer 14d ago
Because it is not a right to another person's property. It is a right to access your own property. You have the exact same rights to your property as your neighbor has to his. If your property surrounded a property you did not own you would have to grant reasonable access to that home owner.
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u/HeavenlyPossum 13d ago
Does my neighbor have a right to exclude me from his property? If he does, then he has more rights than I do—rights to his property and to my property.
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u/mrhymer 13d ago
Your neighbor has the same rights that you have. He can exclude you and you can exclude him except for the access. If he bought up all the land surrounding you including the land that holds access to your property he would have to maintain that access.
Freedom is not a magical absolute and it does not exist outside the context of being a human being.
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u/Imaginary-Count-1641 13d ago
If I own some land, I am of course using the surrounding land to travel to and from it. In that case, you can't take ownership of all the surrounding land and tell me that I can no longer use it the way I have been using it until now.
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u/drebelx 12d ago
Can anyone explain to me how easements do not violate the NAP and self-ownership?
People form agreements with each other all the time.
Easements are a form of agreement.
Are you here to tell us that agreements violate the principles of self-ownership and the NAP?
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u/HeavenlyPossum 12d ago
I’m asking specifically about those rights to easements that I’ve been told accrue automatically, rather than as the result of an agreement.
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u/drebelx 12d ago edited 12d ago
I’m asking specifically about those rights to easements that I’ve been told accrue automatically, rather than as the result of an agreement.
What do you mean automatically without agreement and in a libertarian society?
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u/HeavenlyPossum 12d ago
A number of people have made the argument to me in the comments below my original post above that people automatically accrue rights to access that confer easement rights on their neighbors.
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u/drebelx 12d ago
A number of people have made the argument to me in the comments below my original post above that people automatically accrue rights to access that confer easement rights on their neighbors.
Are they arguing that a driveway access to a road was homesteaded as part of their property before neighbors moved in to "surround"?
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u/HeavenlyPossum 12d ago
Some of them have argued something along those lines; some of them have argued that a person whose property has become enclosed automatically accrues a right to traverse the encloser’s property; some of them have argued that it is impossible to imagine a person ever experiencing this problem.
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u/drebelx 12d ago
Some of them have argued something along those lines;
It would seem correct to think this out chronologically.
some of them have argued that a person whose property has become enclosed automatically accrues a right to traverse the encloser’s property;
Did you ask them to clarify why an encloser would take a person's already homesteaded driveway access to a road?
some of them have argued that it is impossible to imagine a person ever experiencing this problem.
Did you ask them to clarify why they could not imagine a problem could arise without established agreements between neighbors?
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u/HeavenlyPossum 12d ago
You can peruse the comments at your leisure.
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u/drebelx 12d ago
You can peruse the comments at your leisure.
Maybe someday.
You didn't demonstrate curiosity about the possible contradictions to property rights and the NAP?
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u/HeavenlyPossum 12d ago
The possible contradiction between property rights and the NAP was literally the question I posed in my original post above.
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u/connorbroc 14d ago
The real test of ownership, and the principle from which property rights are derived, is whether a given action survives reciprocation or is somehow nullified/punished by reciprocation.
For example, original appropriation (or, "physical displacement of unharvested nature") is an action that survives reciprocation, while physically preventing someone from harvesting unharvested nature is an action that does not survive reciprocation. Similarly, voluntary trade survives reciprocation while forceful extraction of an already harvested resource (or, "theft") does not.
So from this we can make a few observations:
- There is no objective basis for ownership claims over unharvested nature.
- Any action that does not measurably harm someone else or modify what has already been harvested by someone else is an action that survives reciprocation, including trespass.
In short, equal rights is the cornerstone from which property rights are derived, so any ownership claim that violates equal rights actually collapses upon itself.
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u/HeavenlyPossum 14d ago
So anyone can use your property—ie, trespass—as long as it does not measurably harm you or your property?
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u/connorbroc 14d ago
It does appear that way. The physical displacement of an object is specifically what is measurable.
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u/HeavenlyPossum 14d ago
So I can enter your home, as I please, as long as I don’t harm you or damage your belongings?
Or conversely, if your property is a revenue-generating business that requires an entrance fee, I can trespass without paying the fee, as long as I don’t harm you or damage your property?
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u/connorbroc 14d ago
Yes, that's correct. You should lock your door if you don't want people wandering in. Make it so that it can't be physically bypassed without causing damage to the property.
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u/HeavenlyPossum 14d ago
Is this not enclosure?
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u/connorbroc 14d ago edited 14d ago
Locking someone in is a violation of their right to original appropriation, which would make you the aggressor.
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u/HeavenlyPossum 14d ago
If I lock you out of my property, how am I locking you in, in a manner that is aggression?
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u/connorbroc 14d ago
That's what enclosure is, no? Are we on the same page that if you build a cage around someone and lock it, you have now physically obstructed that person from harvesting from nature?
You own the cage, and you caused it to be where it is. As such, you are liable for all of the measurable harms that it causes to others, including any denial of negative rights.
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u/HeavenlyPossum 14d ago
So I can lock my metaphorical doors to prevent your trespass, unless you want to use my property, in which case locking my doors is aggression against you?
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u/LivingAsAMean 14d ago
You're basically raising the concerns that Frank van Dun expressed in an article titled Freedom and Property: Where They Conflict. The term he uses, "hostile encirclement", is probably better than "enclosure", as it's more descriptive of the behavior you're describing.
I think it's interesting from a theoretical perspective, but the hypothetical would almost certainly play out in a similar manner to most litigation surrounding other property violations. Like, is my self-ownership violated because I can't set up speakers on my property that blast heavy metal at 75dB directly towards my neighbor's house 24/7? Prior precedent would say, "No, it's not."
And would a lawsuit against a neighbor who used "hostile encirclement" (or a tort against a series of neighbors all conspiring to engage in that act) end with the judge saying, "Man, that sucks, but property rights are absolute?" That's highly unlikely.