Rebirth of Reason


Rights, Games, and Self-Realization - Part II
by Stephen Boydstun

In the Introduction, a formal definition of rights was made. That definition was rendered in terms of moral right and wrong; the connections between being right and having a right were charted. A substantive, but general, ultimate moral value was asserted.

In Part I, rights against personal injury and rights to liberty were examined in light of game theory, supplemented by the postulated moral ideal and the purely formal definition of rights. We considered rights only between two people absolutely isolated from wider society. It was seen that, in such an extraordinary circumstance, there could be rights to self-defense and rights of retaliation for the sake of deterrence, but unless the subject of aggression were far more powerful than the aggressor, no real meaning could be given for rights to restitution nor for rights to punish.

Now come property rights, first for two in social isolation, then in society. Things get more interesting.

Rights to Property for Two in Isolation

Prior to interactions between them, A and B can each venture his labor on the creation and maintenance of instruments, and each can possess those instruments. There will be, however, no need for the concept of ownership until A and B come to interact. In facing the possibilities for interaction, A and B, each possessing instruments and each foregoing the previously discussed options for conquest, face the following payoffs regarding the possession of instruments (x, y, u, and v are each either 2 or 3; 1 is preferred over 2 over 3 over 4).
A yields p and B yields q: (x,y)
A keeps p and B yields q: (1,4)
A yields p and B keeps q: (4,1)
A keeps p and B yields q: (u,v)

A initially possesses instrument p, and B initially possesses instrument q. A and B here each prefer most of all to possess both instruments, but the (1,4) and (4,1) outcomes are discouraged by the fact that if either attempts to bring about one of those results, he may trigger a violent conflict. Now A owns p, and B owns q.

Those ownerships are fully, morally rightful under the hypothetical history of the case. It is here morally right to use force to retain possession; it is wrong to use force to take possession. The moral ideal entails productivity. The production of instruments for the support and enrichment of one’s own life is good. We should value productivity in ourselves and in others.

If A and B each prefers over his own possession the instrument possessed by the other (x,y is 2,2 and u,v is 3,3), face to face exchange can proceed, the take-and-run option being deterred by the threat of immediate violence. After the voluntary exchange of instruments between A and B, each rightfully owns his new possession. There is in this situation no need to speak of a right to trade; there is here no possibility of third-party intervention.

The contemporaneous exchange is facilitated not only by the possible visitation of violence upon defectors, but by the prospects for future exchanges (and other pleasant transactions). Interest in future exchange facilitates also those exchanges that must be consummated over time, with one player fulfilling now and the other player later.

Taking the rightful possessions of A through misrepresentation or covert theft is not directly coercive; B does not initiate the use of force against A, nor does he threaten to do so. Eric Mack has articulated the senses in which such non-consensual takings are nonetheless coercive. In misrepresentation B brings it about that A acts through ignorance; B thereby renders A’s act involuntary (Mack 1977). In theft B sets aside, without the consent of A, the purposes for which A would retain the instrument.

Loren Lomasky has emphasized the importance in human life of the pursuit of personal projects, of commitment to long-term designs in light of which one orders one’s activities. He espouses “a conception of personal identity over time which incorporates not only criteria of memory retention and bodily continuity, but also persistent attachment to one’s ends. As an active being, one’s identity is not simply a given, but is created and recreated through identifying oneself with one’s projects” (Lomasky 1984, 42). Whether or not B resorts to overt coercion, he is not, in his non-consensual takings of A’s rightful possessions, properly responsive to A’s status as a project pursuer.

David Kelley correctly observes that although the non-consensual taking of another’s rightful possessions is coercive, an elementary notion of coercion will not suffice to mark off which takings are not rightful nor which possessions are rightful (1984). It remains true that no one has the right to initiate the use of force, but how do we identify the presence of force in takings that entail neither direct attack nor confinement of persons? I say as follows.

Direct coercion is clear because the boundary of a person’s body is (generally) clear. To identify property rights, we must know the boundaries of possessions and the history of their possession.

When a cigarette comes into existence, it is a possession with plain boundaries. One can stand in a strong possessive relation to the object within those boundaries over the entire history of its existence. The boundaries of the land from which the cigarette was produced, the boundaries of land use, are also objective boundaries.

One can use unowned land in various ways, and those ways can then confer various kinds of possession—all of them weak—up to the boundaries of use. Until we draw up boundaries for land to forestall use by others, we cannot possess the land in the clear way that we can possess chattel. Possession is always an incident of ownership, but in the case of land, it cannot arrive before ownership.

What Thomas Schelling said of the role of national boundaries for the process of limiting war also applies to limiting violent conflict between A and B over the use of land. A property line is useful as a stopping place. It is useful to both A and B
in default of any plainly recognizable alternative since both sides have an interest in finding some limit. . . . The rationale behind the limit is legalistic and casuistic, not legal, moral, or physical. The limits may correspond to legal and physical differences or to moral distinctions; indeed, they usually have to correspond to something that gives them a unique and qualitative character and that provides some focus for expectations to converge on. But the authority is in the expectations themselves, and not in the thing that the expectations have attached themselves to (Schelling 1960, 259–61). 
The convention that a first user of land be accorded ownership of that land is a rule on which A and B can easily converge in many circumstances. There is usually enough land such that production and exchange will better the conditions of both A and B (Nozick 1974, 174–82; Rothbard 1962, 504, 522–28). It can be economically better than non-interaction. It can be far better, economically and morally, than violent conflict.

In such circumstances, it will be right for each to respect the convention, and it will be wrong to breach it. A breach will be reasonably seen as an attack. Taking care not to drop the context, we may say that a first user has a right to appropriate land and defend it.

Imperfect Rights in Land

There is a conventional element to property rights in land. We saw in the preceding section that the rule that a first user of land be accorded ownership of land first used is a rule to which two possible claimants, having available other useful land, might converge without violent conflict. David Hume’s analogies are appropriate to the circumstance: “Two men, who pull the oars of a boat, do it by an agreement or convention, tho’ they have never given promises to each other. . . . In like manner are languages gradually establish’d by human conventions without any promise” (1737, 490). No explicit contract between the parties is necessary to establish ownership in land. What Russell Hardin called contract by convention is sufficient (1982, 155–72, 208–11).

Like Thomas Schelling’s prominence solutions for certain coordination games played with restrictions on communication (1960, 54–58), a rule must possess a psychological prominence to peacefully found a convention (Hardin 1982, 141–42; Sugden 1986, 47–52). Furthermore, particularly for large groups, the rule must be simple (Hardin 1982, 188–200). The first-use rule is simple, and it remains a prominent solution for the drawing of ownership boundaries on land, however large the community.

The first-use rule is, however, not the only plausibly just rule that appears natural and obvious. Furthermore, what should count as a use is not always clear. Mere declaration of intent to use is surely not a use. Murray Rothbard maintained that first preparation of a site for use should confer ownership. As title-conferring first preparations, he would count the activities of draining, filling, clearing, tilling, or paving (Rothbard 1970, 131; 1962, 147–49; see also Becker 1977, 32–56). His focus, like Locke’s, is on productive uses.

What about the reservation of virgin land for esthetic enjoyment or ecological study? Are not those uses? What about occupation, the use of land for a place to be?

Ellen Frankel Paul offers a somewhat different rule for initial appropriation: Title should go to the one who has, through purposive activity, transformed matter into something valuable to humans (Paul 1987, 224–36; cf. Kirzner 1978, 394–406). Richard Epstein adheres to a third rule, the rule of first possession. This is the standard rule at common law. This rule, too, is natural. In addition, like the others, it has some ambiguity. What if A’s occupation is prior to B’s, but B first fenced the land? (Epstein 1985, 10–11, 23–24, 61; see also Becker 1977, 24–31, 75–80).

Even if a just rule for appropriation of parcels of surface land could be settled upon by all the possible claimants (say, Rothbard, Paul, and Epstein), there would remain the questions of the extent of ownership to be recognized above and below the surface parcel. Consider only space above the land. One obvious solution would be the ad coelum doctrine of the common law. Under that rule, ownership would extend to all space directly above the land.

Rothbard would object. He would insist that the landowner only have rights in the space above to the extent that use by someone else can be excluded if it interferes with the landowner’s own health or his use and enjoyment of the land. Furthermore, if noise from aircraft were already a regular presence when the land was acquired, the landowner should have no complaint; the aircraft owner would already own the air for her limited purposes. Epstein would object. Paul would rejoin. (Rothbard 1982, 76–81; Epstein 1985, 117–21; Paul 1987, 89–90, 128–29, 217, 258).

Conflicting reasonable rules arise also for the transfer or conveyances of land titles. Consider the future interest in land known as the possibility of reverter. Thus, A, owner of Blackacre in fee simple absolute, conveys it “to B and his heirs so ling as the premises are not used for the sale of liquor, and if the premises are so used, they shall revert to A and his heirs” (Moynihan 1962, 98). Should such a future interest be recognized? Should such an estate be recognized only for some definite period of years after its creation? (ibid., 97–103).

Consider also a simple conveyance of A’s entire estate in Blackacre to B. What conventional signs of the transfer should be recognized? If B claims, upon the death of A in this case, that Blackacre was given to him, what conventional device should be accepted by C? If B’s claims were false, C might have had a rightful chance to appropriate the land as the next “first possessor” (or user, etc.).

Conventions are social. It is not reasonable to suppose that there exists some unique and complete set of rules for just land ownership that is so natural and obvious (once discovered) that it could be a set of universally accepted conventions upon which a universal contract by convention could be based. That a particular set would be just, if only everyone would buy into it, is not, on this earth, a completely adequate basis for anyone’s particular rights to property in specific land. Justifying private property in only a general way is all too easy (Becker 1977, 23).

The general problem is this: What is required for a would-be landowner to gain a just land title that is good against the world? The solution is this: alliance.

(To be concluded in Part III.)


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