Symposium on Libertarianism and Land, Libertarianism

In Defense — Such As It Is — of Usufructory Land Ownership

I may be writing under false pretenses. Although I was invited here to make a case for the “occupancy-and-use” or usufructory land property theory of P.J. Proudhon, J.K. Ingalls and Benjamin Tucker, I’m going to devote most of this article to what it has in common with other libertarian land rights theories.





All the principled systems of land property rules – occupancy-and-use, non-Proviso Lockeanism, and Georgism – are designed to take into account, in one way or another, a unique characteristic of land: its immobility. The occupant of a piece of land cannot pick up the labor she has embedded in it, in the form of buildings and improvements, and take it with her when she decides to quit it. These different property rights systems all seek to maximize the land owner’s ability to recoup her sunken labor when she quits her property.

The other value to be optimized – the minimum possible rent extraction – assumes a fundamental distinction between natural and artificial property rights. A natural property right is a direct extension of the act of occupancy and use, and follows directly from it. It results from natural scarcity – i.e., the exclusion of others requires no act beyond maintaining one’s own occupancy, and follows from the finite nature of tangible property. By the very act of maintaining personal occupancy, one unavoidably excludes other claimants. And natural property rights maximize the individual’s right to the product of her own labor.

An artificial property right, on the other hand, results from artificial scarcity. It requires the active intrusion of the coercive state to prevent others using their own tangible property as they see fit. For example, the enforcement of “intellectual property” rights requires the invasion of another’s property to make sure she is not using her own hard drive, or pen and paper, or lumber and nails, to combine material elements under her own ownership in a pattern on which some other party has been granted a monopoly. Artificial property rights enable their holders to extract rent from other people’s labor, merely by threatening to obstruct or impede their productive activity unless they pay tribute.

Thorstein Veblen referred to privileges or artificial property rights as “capitalized disserviceability”: that is, one collect income, not by productive efforts or positive contributions, but by extracting tribute in return for not impeding the productive efforts of others.

Maurice Dobb, the 20th century Marxist thinker, illustrated the principle with a special class of toll gate owners granted rights by the state to collect tolls from those passing along major highways. The revenues weren’t for actually maintaining the highways, mind you – just for refraining from obstructing access to them. Under the standard marginalist paradigm of John Bates Clark, the “marginal productivity” of such toll gates would be whatever they added to the final price of goods, and tolls paid to the gate owners would be payment for the “factor of production” of allowing free passage on the roads.

The purpose of all such artificial property rights, or monopolies — whether holding vacant land out of use, enforcing copyrights and patents, enforcing oligopoly cartels and the attendant price markup, or enforcing local laws that require the unnecessary rental of stand-alone commercial property or other unnecessary capital outlays to undertake small-scale enterprise — is to compel the laborer to work extra hard to support a rentier in addition to herself.

The overall effect is a drag on the system, at every level of production, comparable to that of severe edema in a person with congestive heart failure. At every level — as the English market socialist Thomas Hodgskin noted almost 200 years ago — productive resources are held out of use on which laborers might have comfortably supported themselves, because they are not productive to support a parasite in addition to the laborer. At every level, artificial overhead is added to the production costs of what would otherwise be lean and agile forms of activity. At every step in the production process, the economic actor is laden with tolls and tributes and burdens of all kind, like those imposed by the Handicapper General in Kurt Vonnegut’s short story “Harrison Bergeron.”

I believe occupancy-and-use best serves both the maximization of individual recoupment of labor and the minimization of rent extraction, compared to the other principled land property systems. Although both the non-Proviso Lockean and occupancy-and-use systems prohibit holding undeveloped land out of use, the Lockean system permits the owner of developed land to quit it and subsequently hold it out of use, or charge rent for access to land she is not herself using. So Lockeanism permits the holding out of use of land – a good which is for all intents and purposes fixed in supply, and given free with the Earth – to a greater degree than occupancy-and-use.

The major principled land rights theories all differ fundamentally from the actual system of property law (which I call utilitarian or bastard-Lockean) extant in most Western countries, in one way that they share in common: they hold the only legitimate manner of initial appropriation of vacant land to be personal occupancy and use, or alteration of the land – in Locke’s terms, the admixture of one’s labor with the land. That is, they all regard absentee ownership of vacant and unimproved land as morally repugnant. And this one difference from the actual regime, shared by all, would – if fully implemented – have more practical effect on lowering the gross rent of land than any other difference between them.

Implementing this shared principle – voiding out all absentee titles to vacant and unimproved land, and all titles traceable to such original title – would probably go more than halfway to eliminating gross landlord rent. It would eliminate both what is called feudal or quasi-feudal land tenure, and the engrossment of vacant land.

Both non-Proviso Lockeanism and occupancy-and-use would destroy the Latin American hacienda or latifundia system, and return the vast majority of land in the Third World to the peasant cultivators who either are currently excluded from it (the landless or land-poor peasants who are excluded from the 80% or more of land held out of use on haciendas), or are paying rent on land that they have developed with their own labor.

In Western countries like the United Kingdom, vacant land held by the Crown or the landed nobility would be immediately opened up for unrestricted homesteading free of charge, and all tenants paying rent based on titles traceable to feudal grants would instantly become owners. In the United States, all vacant land held out of use by absentee title would likewise become freely available, and all tenants or mortgage payers on land held by the heirs or assigns of illegitimate grantees (like the Southern California real estate still held pursuant to the railroad land grants) would be held free and clear by the present occupants.

By a simple stroke of the pen, hundreds of billions – on a global scale, trillions – of dollars worth of rent would be abolished, and kept in the pockets of those currently paying it.

In many ways, the difference between the occupancy-and-use standard and non-Proviso Lockeanism is one of degree. Bill Orton, as we saw above, argued that Lockeanism differed from occupancy-and-use mainly in its degree of “stickiness”: that is, the length of the time period required for abandonment. Even non-Proviso Lockeanism has rules of constructive abandonment – salvage, adverse possession, etc. – under which land or goods left unused by a previous occupant are presumed to be unowned after some lapse of time.


The non-Proviso Lockean system, likewise, would go a long way toward minimizing the forms of differential rent – based either on location or fertility – that the Georgists attempt to deal with through land value taxation. The opening up of undeveloped urban lots to unrestricted homesteading, free of charge, would probably have a significant effect on rental values. Depending on the practical definition of the threshold of labor-admixture required for appropriation of a given quantity of land, and the length of time required for constructive abandonment, a greater or lesser share of vacant lots might be opened for homesteading. For example the land occupied by the South Central Farmers in Los Angeles, under relatively modest standards for constructive abandonment, might well be presumptively owned by the local residents using it.

And a great deal of differential rent is, arguably, an externality of subsidized public infrastructure. The current model of suburban sprawl and monocultural development is heavily subsidized by freeways which are not fully funded by tolls, roads which are extended at taxpayer expense to new subdivisions, and below-cost utilities provided to suburban developments at the expense of rate-payers on older, centrally located neighborhoods. Abolish these subsidies, provide roads and utilities to new subdivisions at full cost, and eliminate zoning mandates for monocultural development, and the new development would likely follow the old railroad suburb of small, mixed-use communities with residential areas in easy walking, bike or public transit distance of commercial centers. Under those conditions, as a matter of simple geometry, differential rent would be far less. The larger a particular community, and the greater the distance between commercial and residential property, the greater the differential rent. In a world of relocalized manufacturing, permaculture, and walkable mixed-use communities, the World Trade Center would likely have become a roost for pigeons.

Some critics of occupancy-and-use raise practical issues about its disadvantages. Some, like whether letting a portion of one’s land lie fallow, or making an extended stay elsewhere might leave one’s home open to adverse possession, are dubious at best. Others, like the difficulty of an owner-occupant who must quit her property under adverse circumstances, and as a result faces difficulties in recouping the full value of the labor sunk in her property in the form of buildings and improvements, are entirely valid.

Regarding the spurious hypotheticals, we can start by assuming that a mutualist land-rights regime would exist in a community of small owners whose primary concern is to minimize the evil of large-scale absentee ownership. Given that civil disputes would be judged by local juries of such small owner-occupants, it seems unlikely that their practical application of the law would be such as to put themselves in danger of having their house squatted every time they went out to buy a quart of milk. It seems a matter of basic common sense that the rules worked out in the case law of such communities, by such juries, would define the length of time required for constructive abandonment so as to prevent such inconveniences.

Regarding the legitimate criticisms, I can only say that all principled land theories have practical drawbacks. And these drawbacks all result, for the most part, from the difficulties attendant on mixing one’s labor in a fixed medium – the soil – from which one cannot pick it up and take it along when one leaves. This difficulty affects all the principled land systems, in different ways. In a mutualist system, the person who must sell her land under urgent time pressure to quit it, like the necessity of permanently moving away for family reasons, would have difficulty recouping the full value of her buildings and improvements. Anyone deciding to move elsewhere for any reason at all, even relatively non-urgent, would probably have less bargaining power as a seller than someone under comparable conditions in a non-Proviso Lockean community. But Lockeanism has its own difficulties. A tenant who rents a property for several years and uses soil amendments and green manuring to improve the fertility of a garden will likewise lose the value of her efforts when she stops renewing her lease. Such difficulties result, unavoidably, from the peculiar nature of land.

Finally, I doubt that any particular system of land rights rules will be universally adopted in a post-state society. I expect the collapse of the centralized state, and of the giant corporations which are dependent on it, to come about from internal contradictions rather than the conversion of a popular majority to any particular form of anarchist ideology. The successor society will be a panarchy including local enclaves of every imaginable sort – and this will extend to local property rights regimes.

And I expect these local enclaves will eventually work out a modus vivendi based on the mutual recognition of one another’s property rights rules – mainly because the cost of enforcing property rights claims in a community which hold those claims to be repugnant will exceed the value of the property rights claims themselves.

Imagine an anarcho-capitalist community (Rothbardville) based on non-Proviso Lockean rules. An individual appeals to the community’s protection agency to enforce her property claim in a neighboring community which holds to the Ingalls-Tucker occupancy-and-use property rules, and collect rent from an occupant who refuses to recognize her title to the property. Given the enormous cost of enforcing such a claim in a community which regards it as repugnant, the anarcho-capitalist protection agency would likely have an exclusionary clause for such claims, or require the payment of an additional premium that would exceed the rental value of the property. In the mutualist community of Proudhonia, the mutual defense association would likely have a similar exclusionary clause for owner-occupants seeking protection from self-styled landlords in the anarcho-cap community.

My guess is that the overall level of enforcement of absentee ownership, in a post-state society, would be significantly less. Under capitalism, the state provides exogenous enforcement of property rights claims even in cases where the cost of enforcement exceeds the value of the property rights claim. That is, state enforcement of absentee title in many cases is a positive externality to the holders of such titles. So a good many titles, which in many cases are exceeded in value by the cost of enforcing them, would be unenforceable in practice in a society where the full cost of enforcement was paid by the title holders. And for rural areas, given the comparatively low value of property and the high cost of excluding squatters, occupancy-and-use would likely be the default rule.


  • 3cantuna

    Just an empirical point for now. Land is not as fixed as it once was.  The city of Boston MA sits on filled-in marshland; the same process is happening in the Everglades. Rich folk can now buy tailor made islands… 

    •  Two replies:

      First, marshland is “fillable”, therefore has non-zero value prior to filling. The filling itself is a capital good — an improvement — so what appears as “land” is actually a combination of land and capital. You can’t  — presently, at least — do the same thing in the middle of the ocean.

      Second, — and here I depart somewhat from the thinking of other Georgists, so just take it as my own opinion — at some point fixed improvements to land effectively become land itself. When the improvement is a given, something that was done long ago by parties long dead, it has the same functional characteristic as bare land. For instance, who rightfully owns the Great Pyramids of Egypt? They’re clearly built things, yet for all contemporary economic actors they are part of the landscape as much as a mountain or stream.

      •  That’s not a departure. George said essentially the same thing, although his example was Roman roads.

        Marshland is indeed fillable, but it has a market value (in most cases) only because more desirable dry land is held out of use. If it costs $10,000 an acre to fill a swamp, you can bet that otherwise comparable dry land will cost $10,000 more. Under a land tax, more of the dry land will become available at lower prices, and, except for exceptional strategic cases, draining wetlands will no longer be economic.

        The land tax approach is an alternative to environmental micro-managing.

  • Kevin, as usual, you display an acute awareness of rent and its ill effects, but not a keen sense of the Law of Rent. You state that the two pillars of justice that are to be sought in a system of property rights are to allow laborers to keep as much of the product of their labor as possible, and to have a minimum amount of rent extracted from production, and go on to claim that a
    consistent non-Proviso Lockean system would reduce the artificially inflated rents of the Latifundistas because they did not homestead that land.

    Unfortunately, the ability to pocket rent itself will naturally drive wages towards a bare minimum, not the existence of particular latifundistas. Over time, in a Royal Libertarian non-proviso system, individual landholders are likely to gain as much land value as Latifundistas through normal purchase… as Donald Trump and Ted Turner show.

    Even when landownership is relatively diffuse, the simple nature of parceling out all the available land leaves little room for people to “escape.” That ability to escape is the “margin of production,” and the better that option is, the higher that “margin of production” is. When it is high, that necessarily sets a higher natural floor for wages, and automatically achieves both pillars of justice.

    While usufruct and proviso Lockeanism provide that, non-Proviso does not and cannot. And usufruct, although it does raise the margin creates a lot of confusion and inefficiency. Uncertainty in the market can put a halt to all economic activity.

    I have yet to see a decent explanation for how a factory of any significant size could work under usufruct, unless we are dealing with a “race of Angels.” Landownership really is like mini-governments, and we ought to be as skeptical to landlords as any other sort of “lord.”

  • Befreer

    you are not referring to “land” in it’s historic economic usage (everything that preexists human labor), but rather “capital”. See Fred Foldvary’s article for more.

  • One question is where the funds would come from to pay for the juries who would adjudicate land disputes, or protections from invasions from states built on other systems, etc., since occupancy and use generates no public revenue. (That is, perhaps, its main attraction, but it is problematic.)

    Another is what happens when a city is hemmed in by people who are putting adjacent land to a farm or ranch use. Or, what happens when someone improves land and then rents it out in an improved state. Or when he hires people to work the improved land in an arrangement that is transparently similar to renting the land, or when he offers to sell the improvements at an inflated price that absorbs the land value.

    Rent simply is. That is, it arises wherever there is exclusion. While the continued occupancy principle would eliminate the complete monopolization of *all* land, it would not eliminate occupancy of the *best* land. Moreover, if people holding land under a minimal use were able to continue holding that land for free, and were not able to collect a comparable benefit from allowing others to use that land, there would be no incentive for them to accommodate those who would put the land to a better use.

    A farm in the middle of Manhattan would still be far more valuable, even as a farm, than a farm in an area that is more suitable for farming than for office buildings. The Manhattan farmer would have an ideal market for people willing to pay a premium for getting the freshest possible produce,  but this would be nothing compared to what they could get if they were allowed to sell the land or rent it out.

    Occupancy and use was, in fact, the prevailing system of pre-monetary societies. Jefferson noted that the American Indians operated on this principle. So did common-law Saxons, although those who held the best land were expected to do the most work maintaining roads, etc., which was a sort of pre-monetary land value tax, enforced by custom rather than by a state.

    It is an adequate system where rent cannot be monetized and land monopoly cannot be systematized. (This is what Locke was getting at toward the end of his essay on property.) It becomes problematic in a modern monetary economy where extreme land values attach to centers of commerce, where the ownership of a mere parking space worth of land in lower Manhattan makes one a millionaire, occupancy and use does not rise to the occasion.

  • When I see phrases like “non-Proviso Lockean” and  “anarchist libertarian” I think of the South Park episode where several rabbis are sitting in a conference room and one rabbi introduces himself as being from the “Jewish anti-Semitic sect.”

    These are all oxymoronic terms to me.

    •  Indeed, Locke’s proviso was the whole point of his essay, and he referred to it fifteen times in a mere 26 paragraphs. Usually, the neolibertarian distortion is to interpret Locke as if his proviso only applies at the moment of first claiming the land, in which place it would be no proviso at all, but a mere tautology. Obviously, if land is unclaimed, there must be enough and as good left to others, or someone else would have claimed it.

      However, Locke was clear that his proviso applied *continuously*, such that a person’s title is always contingent on their being enough and as good left to others.

      he knew what to do with, or his industry could reach to.” [Sec. 34. Emphasis added.]As an analogy, a person might get on a nearly empty bus with several packages, spread them all over the seats, and even sprawl across seats in order to be more comfortable. Yet, as the bus fills, the person who only paid one fare is only entitled to one seat. He must end his sprawling posture and gather his packages, placing them under his seat and on his lap. Some people are reluctant do do so, and are rude enough to make others stand for their convenience of sprawling. This is essentially what landowners do, in violation of Locke’s main proviso.At the end of his essay, Locke noted that there was no serious incentive to violate this proviso before the introduction of money, and that, at that point, social customs had to be created to limit property in land. This recognizes the fact that money entices people to claim land in order that others will pay them to release the claims. Imagine what the situation would be like if rude people got on a bus at the beginning of a route, occupied all the seats with whatever items they brought on board, and then charged subsequent riders for the privilege of sitting.Or, look at the history of homesteading the American West, where people did the minimum in order to establish a claim in hopes of selling that claim to those who came after, or where “land sharks” filed bogus homesteading claims in order to coerce the actual homesteaders to settle, or where full-scale battles (such as the Johnson County Wars) broke out between ranchers and farmers. The assumption that there would be few disputes over what constitutes occupancy has to explain historical examples to the contrary.

  • Cal


    A convenient assumption. Do you think it likely that enough people somewhere will actually have as their primary concern this apparently moralised opposition to ‘the evil of large-scale absentee ownership’ (however ‘large’ is defined)? Does mutualism require fervent ideological support or is it an equilibrium tendency without state interventionism? Seems like you’re arguing both, somewhat contradictory, points. 

    It may well be the case that sans state, the general rule of abandonment wrt to property titles would be on average be less demanding than now. Maybe not. Who knows. If that is what distinguishes mutualist from private property, then it is a distinction without a difference. As you correctly point out, this is an issue of degree, to be determined by the relevant law-making mechanism–case law, common law, municipal law, ‘juries’, whatever.

    The central economic problems regarding use-ownership per se are not ‘walking out to buy milk’ or ‘going on holiday’ (though the latter is indeed a legitimate issue) but rather the stable ownership of capital necessary for investment and production: the ownership of manufactures, land, private developments, rental properties, and so forth.There are other more theoretical problems here–the moralized employment of a labor value theory, both wrt to production and land, the bunk notion of economic rent wrt private resource ownership… but the biggest problem is the way these ideas are presented as if they were a new constructivist order replacing ‘capitalism’ and metanormative ‘private property’ and all that ‘evil’ stuff; akin to standard definitions of socialism, which can play out rather tragically (Marxism, Spanish Anarchism, etc.) regardless of the purported anti-statism of the adherents.

    • Along with Marja, I also wonder where this pre-state perpetual ownership existed. Certainly not among the civilized tribes of eastern North America, nor among the ancient Saxons, nor among most African tribes, nor among the Chinese prior to the Shang dynasty, nor among the nomadic tribes of Northern Africa and the Middle East, etc.

      We enjoy the benefit of our forefathers mingling with Native Americans and learning from them. Jefferson wrote, from first-hand interaction with native tribes in Virginia,


      – Batture at New Orleans, 1812. ME 18:45


      – Letter To Isaac McPherson , Monticello, August 13, 1813

      • Cal

        Numerous non-state societies have had private property. It is the general rule as a group moves beyond nomadic hunter-gathering via e.g. swidden agriculture contra leftist projection of communism onto such groups (  and empirical evidence indicates a negative correlation between personal versus communalistic norms and state formation (e.g.  Regarding Native Americans in particular, see the especially the work of Bruce Benson e.g.

        • Swidden agriculture can be associated with individual/small group ownership, but generally for the duration of occupation. Can you point to any examples where it is associated with individual/small group ownership in perpetuity?

          • Properal

            I do not know of a single property system with ownership in perpetuity.  There are always limits to how long someone can  own something.  I think the key difference between occupancy-and-use and private property is absentee land ownership.Stateless medieval Ireland had absentee land ownership see:PROPERTY RIGHTS IN CELTIC IRISH LAW byJOSEPH R. PEDEN
            The base client was also a free man, an owner 
            of  some land, but  usually  a commoner. He 
            received a grant of  either stock or land from a 
            person of higher rank in return for the payment 
            of  an  annual rent  in kind  (a food-rent) pro- 
            portionate in value to the value of the borrowed 
            land or stock.  In addition  he  owed specified 
            labor services to his “lord”  or creditor, and this 
            is why his clientship was “base”.

            The Icelandic Sagas ( about tenants and rent in pre-state Medieval  Iceland.

            Stateless ancient Harrapa is thought to be ruled by landlords and merchants.

          •  The Norse examples are not particularly good for libertarian purposes, because the Norse had slaves and prospered by plundering other societies. Calling them “pre-state” indulges in the neolibertarian confusion between government and the state. “The state” is a system of status or privilege, enforced by government. While big government tends to be more statist, there are small governments that are thorougly statist.

            The Irish example flies in the face of Irish history. Yes, there were lords and rent, but these were feudal lords, not landlord owners, and the rents were nominal, being used to run minimalist local governments. True land ownership was introduced by Cromwell, and there is plenty of documentation, from both the Irish and English sides, describing the difference between the Irish and Cromwellian land tenure systems.

            There is a tendency among polarizers (from both sides) to glom onto statements and “spin” them into something that supports their position. One such spin is to assume that landlords collected rent before there was a state to confer ownership, when in fact landlords collected rent as agents of the state, not as land owners. The term “landowner” did not even appear in the English language until the 1550s. “Landholder,” “freeholder” and “yeoman” were the common terms up to that time.

            There is also a tendency for polarizers to cite others from their own camp, rather than to cite the most authoritative sources from the historical period in question, namely the period when feudal lords were converting themselves to proprietors over their feudal domains. That was the beginning of private property in land.

          • Properal

            I was using the standard social scientist
            definition of a state “the monopoly of force and law”. And not redefining it as something to favor my argument like you did by claiming it is “a system of status or privilege, enforced by
            government,” a definition that I can’t find anywhere online.  Your definition of state seems to include a system  that maintains property rights so by tautology you are correct, and you can dismiss any evidence to the contrary.

            If a tenant has to pay rent to someone for living
            on their land that seems like absentee land ownership to me.

            According to the dictionary a landholder
            is one who owns land. The term sovereign
            did not appear until after 15050.  And Modern English started
            around 1550 so words older than that would likely be  Middle English and be very different.  If usufruct was the standard why isn’t usufruct
            part of the English language until 1750?

            I referenced sources that sight many authoritative sources from the
            historical periods in question.  You dismiss them in a ad hominem attack as polarizers
            to diminish them.   Can you link me to the documentation, from
            and Cromwellian land tenure systems.

          • You clearly want to fight more than think if you are going to trash Nock’s “Our Enemy, the State” as an interpretation of the difference between government and a state. This is one of the seminal works of libertarianism, heralded by Rothbard as such. (Nock was also the founding editor of *The Freeman*.) Perhaps we should also disallow the scholarly anarchists to define
            anarchism, and instead take the standard dictionary definition. Oppenheimer’s “Der Staat,” which was translated into English, is also an important work on the genesis, evolution and nature of the state, and the difference between a state and a mere government.

            Anyhow, Blackstone’s *Commentaries* continues to stand as the authoritative legal document on common law. He extensively cites earlier works. Book II is substantially dedicated to chronicalling the evolution of common-law tenures into feudal and then modern tenures. As to Irish tenures, a great deal was written by Bishop Nulty of Meath. Also, “Ireland of Today” by Margaret F. Sullivan, 1881 outlines the catastrophic effects of changes that the English land tenure system imposed. Or, if you read the writings and speeches of Irish revolutionaries, from Wolf Tone to Davitt to Parnell, you will see that they keep coming back to landlordism as the evil that oppressed them.

          • Properal

            I did not trash your or Nocks definition of the state. The
            definition of the state I think is most accurate is an organization that has a
            monopoly of crime over a territory.  This is a definition that Nock showed
            sympathy for in  “Our Enemy, the State”:
            However, in order to discuss the state with other people such that we don’t have
            confusion we should start with the standard definition and not select our

            I do not know what is wrong with the dictionary definition of anarchism.
            It is important to use standard definitions, until people in the discussion agree on non-standard definition, otherwise people talk past each other.

            Blackstone’s Commentaries are written in a time (1765-1769) much later than state formation in England.
             The anglo-saxon legal system that had its origin in the borh surety
            system that existed prior to the kings monopoly over law.  Gradually the
            kings took more and more control over the provision of law.  It was taken
            over almost completely by the state after the Norman conquest in 1066.
             The Commentaries do not even mention the borh , so the common law in
            Blackstone’s Commentaries is not likely to represent the older traditions.

            I can see how many Irish writers would be against landlordism from the history of the English state taking the land from people, as noted in your reference  “Ireland of Today” by Margaret F. Sullivan.  I skimmed the text and did not find evidence in that text yet that indicated there was never
            private property in Ireland.

            The first paragraph of Penden’s essay explains why his interpretation of Irish property tradition may seem to fly in the face of Irish history:

            “Itis impossible at  the present  time to  present a systematic, coherent description  of  the ancientIrish  law  of  property.  The  reason is  that a considerable portion  of  the  sources have  not  been published  in modern  scientific textual editions  and translations.  The principal sources used repeatedly by historians in the  19th  and early 20th centuries  are  the multi-volumed editions  of the  old Irish  law tracts edited and translated by
            Eugene O’Curry and  John O’Donovan  and  published
            posthumously by other editors between 1864 and 1901. While both these
            pioneer scholars were competent in their understanding of Middle and early  Modern Irish, the
            language of  the glosses and commentaries, neither  was  able
             to  cope  too successfully with the archaic and very technical
            terminology of the Early lrish texts of the law-the oldest and most valuable
            strata for understanding Irish  legal  concepts and  principles.  The later editors
            of  the O’Curry-O’Donovan transcriptions  and  translation
             were, with  one exception, almost wholly ignorant  of  the
            Irish language, and the result was that their footnotes were misleading
             and inaccurate,  their  introductory essays teemed with misinterpretations, and  the printed  texts themselves were
             full  of glaring errors.”

            Penden finds evidence of private property:
            “My  survey  of  the  literature  indicates  that (1)  private  ownership of  property  played  a crucial and essential role in the legal and  social institutions of ancient Irish society; (2) that  the Irish law  as   developed
             by  the  professional jurists-the brehons-outside
             the  institutions of  the  State,  was  able to
             evolve  an extremely sophisticated  and flexible legal
             response  to changing social  and  cultural conditions
             while preserving principles  of   equity  and
              the protection of property rights…”


            This seems to echo Margaret F. Sullivan:

            “…the native law, known as the Brehon
            Code, was fair and just, and contained many admirable provisions for the
            protection of life, the security of property and the advancement of


            Bishop Nulty of Meath seems more like an advocate for the abolition of Landlordism than an authoritative expert on the archaic and very technical terminology of the Early Irish texts of the law. I find Prenden’s work more convincing.

  • “Perpetual ownership based on first possession is the long-standing general rule in civilization…”

    Actually, perpetual ownership based on force of arms has been the general rule in most civilizations.

    Both communal ownership with regular redistributions and individual ownership with occupancy-and-use have been common among non-state societies. Are there any examples of individual ownership in perpetuity among non-state societies?

  • Properal

    With ownership based on occupancy-and-use, if and individual owner of a bed and breakfast hires someone to make repairs on the building is their ownership now in question, because someone else is maintaining it?

    • Shawn P. Wilbur

       You have had these precise questions answered on other forums.

      • Joe Shmo

        can you link to them please?

    • I don’t agree with tenure through occupancy and use alone, but that’s a pretty silly objection, and one that requires suspending all sense of reasonableness.

      It is the kind of question that supposes rules to be enforced by some sort of computer program instead of a community of peers exercising common sense. Either that, or it is the kind of question asked by someone who is preoccupied with shooting holes in a proposal rather than interested in understanding how it might work.

  • Properal

    With ownership based on occupancy-and-use, can people own vacation homes?

  • Properal

    With ownership based on occupancy-and-use, would a farmer lose his farm for hiring neighbor kids to harvest his crops?

    •  As Kevin noted, such questions would be resolved by juries. Some of your more spurious examples would unquestionably be resolved in favor of the current landholder. However, I can see real limits on claims that rely on vacation homes, especially if the value of the claim exceeds the value of the home (the building) itself. After all, there is no limit to the extent of such claims, except as juries establish custom.

      Under a land value tax system, one can safely assume that a person who is paying the tax is sufficiently using the land to make the payments worthwhile. Thus, one needn’t pry into what use the landholder is actually enjoying, how often he visits his vacation home, whether he charges others to use it, and so on.

      • Properal

        If local juries determine who can use and occupy the land
        then it seems these local juries are the owners of the land.  This makes me curious about how the juries
        are selected. Are the jurist professions, voluntary, or conscripted?  How is, the jurisdiction of the juries is determined
        and are there competing juries? Do you know of any literature on the local
        mutualist jury?

        • It is important to distinguish ownership from stewardship or trusteeship. (The royal name Stewart derives from their having been charged with stewardship.) Ownership arose as these noble stewards enclosed the ladns for themselves, driving ordinary citizens into cities and thereby triggering the industrial revolution. The jury only exists to resolve disputes. It no more owns the land in question than a modern jury owns the money it might award to a plaintiff.

          My own belief is that jurors should be paid well enough that at least half of the invited jurors, on average, volunteer to serve. This does make juries expensive ways to settle land disputes, however, which is why the occupancy and use mechanism is problematic.

          The question of jurisdictions is a tangent of this tangent, but there are good works on voluntary confederation and secession.

          Ancient common-law juries were often composed of interested parties, the role of witness and juror being comingled. I would advocate that juries be selected totally at random, but put in charge of their duty. The “judge” would be advisory and serve at the pleasure of the jury – a hireling engaged for his expertise on procedure, but not a superior dictating procedure.

          Or, we could have juries select (or, at least recommend) judges. That would give judges pause to consider before they lord it over jurors or even litigants.

      • Dang Nabbit

        So those in control of the taxing mechanism not only get to dictate to the taxed property holder, but live exempt from the Georgist intention? Plus, taxation invites corruption because of the unique power invested in the tax collector.  Quis custodiet ipsos custodes?

        • You are describing degenerate feudalism and the current system. The landlord governs land that others use, keeps the revenue, and lives exempt from the Georgist intention. Corruption already arises because of the unique power invested in the landlord (and the banker). A jury based democracy would pretty much solve that, because the ultimate, sovereign agency is composed of ordinary citizens who are selected at random to serve for a specified time and then return to their private lives.

      • Properal

        I would like to point out that my examples were everyday examples and not spurious.

        • Objections based upon them would be spurious objections. Still they beg the question of how grey areas are dealt with.

          • Properal

            Changing ownership from private property to occupancy-and-use, makes these common events gray areas.The purpose of property rights is to reduce conflict between people by clearly defining ownership i.e. reducing the grey areas.  By increasing the grey areas the potential for conflict is greater.  The conflict resolution system in a occupancy-and-use society will need to be more robust. That is why I am curious about these grey areas and how the juries will work.

          •  The real grey areas are when someone leaves a property for a number of years, but has made significant improvements that are still standing, or when somone claims an exceptionally large amount of land as a buffer, or when someone who has hired others to work the land is only nominally on-site himself, or when someone builds houses on the land and rents out the houses, etc.

            These were not particularly pertinent issues in pre-monetary societies where occupancy and use prevailed. Today, there are specialists who travel to an area for a number of months and benefit from renting improved space from someone else, etc.

            Monetary systems are also what enables rent to arise in the first place. At some point it becomes less problematic to assess rent and share it than assess each user’s legitimacy.

            The most legitimate libertarian concern is that, just as the old landlords converted their stewardship duties into ownership, the local governments collecting land rent might convert that into ownership. There are mechanisms to prevent this, such as government budgets requiring authorization, with all remaining revenues to be distributed on a per capita basis.

            Although my next reason goes off on a different tangent, I think it is also necessary that a jury-based democracy replace majority rule. It’s much more difficult to manipulate an independent, self-actualized jury of 12 randomly selected citizens who are studying an issue (or a set of candidates) closely than to manipulate a million voters who are barely paying attention.

            The error of feudalism is that, when they found juries too cumbersome and turned power over to lords, they did not engage juries to periodically confirm or reject the continued tenure of those lords.

          • Damien S.

             “Monetary systems are also what enables rent to arise in the first place”

            Eh?  “Give me half your crops” works fine as rent or taxes.

            12 random people aren’t that representative.  Athens used juries of 501 or more, and 500 happens to give about 4.5% margin of error in sampling the population.

          • Sharecropping is not true rent, for it incorporates a tax on the skills of the farmer. That is, a skilled, hard-working farmer will get a greater yield on the same quality of land than an unskilled farmer. Moreover, people did not hold prime land out of use in large numbers until they discovered that people would pay them money to let go of it. See Locke “On Property” or Blackstone’s “Commentaries,” Book II.

            The point of jury size is not just to create a representative sample, but to allow for intelligent deliberation. The quality of deliberation decreases as size increases, while the conformity of the samle increases as size increases.

            I am not wedded to 12 jurors, but people involved in litigation say that it is much easier to manipulate grand juries (24 jurors) than 12 jurors, because it is more cumbersome for 24 people to deliberate.

            This has to be worked out by trial and error, however. It is quite possible that, when juries are supreme, rather than passively subordinate to judges and lawyers, they will be able to intelligently deliberate with larger numbers.

    • Not at all, but the farmer would need to pay employment taxes on any wages paid, plus a tax on income derived from property sources on his profits (where the labor he hired was the property source), plus he would owe another income tax if incorporated (a tax on income derived from a non-property source).

      Also, if a land value tax was in operation, there would be no grey areas if land was held idle or under utilized, even for a number of years (because a tax would have to paid on the value of the underlying land regardless of use).

      •  That is all true in a modern state where land is not taxed. I think Properal was looking at a utopian state in which there is no taxes. Such a place would either have private roads, in which case the land owner was at the mercy of the road owner, or have no roads at all, or either obligate or supplicate the land owners to come together to build roads.

        Again, this might work in a primitive society that can get by on dirt roads and paths. Even the pre-state Saxons obligated landholders to maintain roads, provide for defense, etc., with the holders of the best lands having the most obligations.

  • Mike Ellis

    My understanding of the Land question that invariably pops up in libertarian and anarchist circles is that land represents non-portable wealth and as such needs special laws and agreements to determine ownership from a libertarian point of view.  Agriculture and manufacturing both require land in order to operate.  Much of the argument seems to revolve around homes or living space, however it seems that most of the reason that land is so valuable is because of its proximity to areas where there is industry or agriculture. In short, people live where the jobs are.  I only mention this because it seems few people question the basic idea of land ownership.  Why exactly must land be owned?  It can be controlled, or occupied or used but how can it really be owned.  In short, at least when viewed through the logic of libertarian/anarchist philosophy, it can’t.   Without someone acting as original owner (I.E. a government, corporation or individual) ownership cannot be conferred.   I am of the opinion that all claims that governments have as to land title are illegitimate and fraudulent.  Land ownership has been one of the major reasons for war for thousands of years.  War, force, violence, these are what have given the governments of the world the “right” of land ownership.  Voluntary contract as to land use is, I believe the only way to logically maintain land use without resorting to the violence of law to establish ownership.  
    For instance, say you were to go out into the middle of the wilderness and wanted to farm 600 acres.  Let us also say that you have no obvious neighbors surrounding the land you intend to use.  So you make a public announcement as to the land you are claiming that states the amount of land and what it will be used for.  If anyone is using said land for anything else or if there are people using nearby land who have an interest in what you will be doing, they will be able to see your public announcement (over the internet or via a local newspaper, etc) and respond to it in a reasonable amount of time.  If you get a response from someone saying that they use some neighboring land and would like to arrange a land agreement so as to not encroach on each others claim, you could then arrange for arbitration and a contract could be made.  This keeps the land from being owned and it also keeps the people from encroaching on the use of land claimed for use by someone else. 
    It may not be a perfect system but I think you can see that it avoids having to deal with issues of ownership of the land itself and deals only with the right to use the land and allows for clear distinction on who has the right to use any lands in question.

  • Mike Ellis

    One other thought crept up on me while I re-read what I just wrote.  Many libertarians (myself included) have questioned how one can deduce land ownership rights from self ownership. As I explained above, I believe the whole idea of land ownership is a direct result of the agricultural and later industrial revolutions. This made land ownership necessary for continued growth of the state.   Although some would like to go back to the pre agricultural golden age of anarchy, this is of course unlikely to happen.   The idea I proposed above was based on the idea that land ownership is really a fiction and that only voluntary and contractual land use is truly a libertarian solution.  However, I could be wrong. Land ownership may not naturally follow from self ownership but that may be just a technicality.  Most people believe in land ownership and in fact dream of it.  So we may be stuck with that paradigm.  However, I believe that the current artificial scarcity of land is directly the result of governments monopolizing much of the available land.  More than half the land in the USA is owned by government!  If all of that land was transferred to the open market, I believe that the resulting doubling of available land would cause land prices to plunge and would make land available to even the poorest among the populace.  It may not be strictly defensible via self ownership but with the huge amount of available land and with complete allodial rights to the land. People would for the first time in recorded history have the right to do whatever they wanted to do with their land and no government or other group would have any superior rights to the land.  

    • Some Georgists argue that even government land should be taxed. If you couple that with budget limits set by referendum (or jury), then the government is under the same pressure to “use it or lose it” that private landholders would be under. I would note in passing that government landholds are not half of the total, even if you count streets and roads that function to serve private land, that government-held land tends to be land of lower values, and that much of this land is not “monopolized,” but is made available to ordinary citizens as parks, etc.

      I would also note that government landholding does not enrich government itself, but enriches private landholders. That is, if government were to put a substantial amount of land on the market, private land prices would fall. Similarly, zoning laws artificially increase the demand for land by prohibiting people from doing more with less land. These laws are also demanded by large landed interests.

  • geoih

    Your definition of “use” is arbitrary. Just as not making a choice between two options is really just making a third choice, why doesn’t owning land and not “using” it, simply another kind of “use”? Suppose a person acquires some land with the express desire of not “using” it for anything but having it in it’s present natural condition? Why is this “use” not as valid as any other “use” a different person might want to use that land for, whether agriculture, mining, building, or again, just leaving it as it is?

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  • DavidCheatham

    I want to comment on one of the most absurd example of modern land ownership law: Mobile home land rental.

    In my state, as in many, you cannot move mobile homes once they have been in position X years. By law. And X is often around ‘five’.

    And in a lot of places, mobile homes are owned, but the land is rented.

    Resulting in the absurd situation where people not only are paying rent on land they improved themselves, by placing a mobile home on it, but they cannot take their improvements with them. 

    And not because of how hard it is to move, it’s because the law has  decided it’s ‘unsafe’ or something to move older mobile homes. (Despite _constructed_ homes being able to be moved…I really don’t understand this.)

    Granted, this could happen in theory for other types of land, people can’t easily move standard houses either, but it is not a standard model for people to rent empty lots and build a house on them, or even make large improvements for free. In fact, that’s usually discouraged. Whereas that _is_ how it usually works for mobile homes parks…everyone is renting land.(1)

    I just thought I’d throw that out there, as people often miss just quite how absurd the standard behavior and laws are WRT mobile homes. They seemed designed to not only encourage rent-seeking behavior, but to encourage a situation where renters who choose to leave the rent-seeking situation are forced to leave valuable property behind. (Or if, as is the case in my community in the situation that made me think about this, the landowner comes up with another use of the property and shuts the entire mobile home park down.)

    It actually seems like it would be easy enough to fix this sort of behavior via three or four different legal approaches. Allowing mobile homes to be moved, requiring that house+land either be both rented or both sold, requiring long term leases instead of rentals, etc…

    1) Sometimes this ‘rental’ is excused via the park providing services to the renters, like roads and internet and sewage and a pool and stuff…but homeowners associations show that such a setup can work just as well with owning the property. That excuse would work in 1970, but not today.

    • It does seem odd. I would think some kind of safety inspection would suffice. What state are you in?

      Anyhow, these arbitrary rules go well beyond the question of land tenure, except that, in an indirect, convoluted way, privilege compounds upon itself.

      • DavidCheatham

        I live in Georgia.

        Half the problem was that various counties made it outright _illegal_ to install older mobile homes, although recently a state law has overridden that:

        So someone already noticed that local governments were insane and tried to fix it.

        However, countries have cleverly gotten around that law by simply not issuing moving permits. Sure, you have the right to install them, but you don’t have the right to use public roads to move them. (Perhaps you should use helicopters or hire Superman.) I couldn’t find my county’s rules, but here’s a nearby one:

        Strangely, that county has seven years when moving one into the county from outside, but since 1976 when moving one internally. (And it’s perfectly willing to let you _remove_ them from the county without any cares at all, which rather puts the lie on ‘This is about travel safety concerns’.)

        Of course, instead of ‘You can’t move them.’, they instead say ‘You can only move them with a variance’, but I have to wonder exactly how many variances they issue.

        I did find something about it from my county. Warning, stupid .doc file:

        Money quote: Section 1000. Additional Requirements: In an effort to provide for the safety and welfare of the citizens of Lumpkin County; to insure an appearance that more closely resembles that of conventionally constructed homes within the County; to avoid aesthetic problems that have existed in the past without these requirements and to aid in maintaining property values for it’s citizens, Lumpkin County establishes the following requirements:

        OMG, the poor’s housing is so ugly! How DARE they live in cheap pre-fab buildings! We must ban their houses!

        • This is akin to zoning and occupancy laws that create minimum standards. Within the context of the monopolization of land, these standards can be counterproductive. People are not allowed to live in “substandard” structures even though people are living under bridges.

          My opinion is that all zoning is snob zoning. While there might be an exception somewhere or other, the overwhelming pattern is that zoning prevents poorer people from using less land amid richer people who want to to live only among people who can afford to use more land. It accelerates the artificial shortage of land that speculation creates, enhancing the return to speculators at the expense of producers.

          Examples of irrationality abound. In Shadyside, Pittsburgh’s most urban residential neighborhood, served by over 1600 buses per week, one cannot legally build housing without providing one parking space per unit, and more than one space if the unit is large. Richer residents insist that this is necessary to prevent a shortage of parking, invoking Yogi Berra’s quip, “Nobody goes there anymore; it’s too crowded.”

          • DavidCheatham

            “My opinion is that all zoning is snob zoning.”

            I’m with zoning laws for _businesses_. I can see the logic in forbidding someone from building a 24/7 gas station right next to someone’s house. Same with constructing a factory next to someone’s house.
            Any sort of restrictions on housing, however, are snob-based. No, you don’t get to bitch about property values…if the value of your property is based on some random attribute of someone else’s property, I have to suggest that property valuation is done by idiots.

            And, of course, there’s building code, which is what should actually be used to decide what property is habitable. I mean, it would be perfectly reasonable to say ‘No residences, mobile homes or otherwise, may have plants growing out of the ground under them’, as that seems to present obvious concerns.

            However, parts of the building code itself is snob-based. For example, I currently live in a house that _could not be built_, because it is too small. It’s roughly the size of a double-wide trailer, about 1300 sq feet.

            Granted, it’s very poorly laid out, with three bedrooms that are too small, doors that are too narrow, a huge living room, and a microscopic bath-and-a-half. But you could certainly build a reasonable two-bedroom house this size. (In fact, I’ve draw up plans to turn it into one.) Or, heck, I don’t see why houses have to have two bedrooms.

            Except, well, you can’t build one, as now houses here must be 1500 sq ft. Meanwhile, many people in New York City are _wishing_ they lived in 300 sq ft apartments. Granted, houses have washer and dryers and a few other things apartments don’t need, but, seriously, it is clearly possible to live in 300 sq feet. (I mean, I did when I I was at college. If you went and added up my dorm room, a slice of the communal bathroom containing one toilet, one sink, and one shower, and the entire communal kitchen, that was less than 300 sq ft and I fit fine.)

            I understand that it would be a bad idea to let people buy houses with, for example, not enough electrical outlets, to use as an example of building code hat often gets mocked. That’s a rule because otherwise people start fires with extension codes everywhere, and the shortage is something that might not be obvious to a homeowner.

            But minimum size restrictions are idiotic.

          •  I agree with your sentiments. I would only point out that building standards for safety differ from zoning laws, and that there are also nuisance laws that prevent noisy businesses from locating next to houses. The difference between nuisance laws and zoning laws are that nuisance laws do not involve bureaucratically drawn maps. Rather, they prohibit “extraordinary uses” that impinge on the ordinary use and enjoyment of neighbors. While building codes and nuisance laws are subject to abuse, they also serve legitimate purposes.

          •  I would also point out that there are legitimate, practical, reasons for having usage zoning that goes beyond not bothering the neighbors. I drive a semi for a living and so have to make deliveries to warehouses, malls, factories, etc.

            My rig is 65 ft. long, 8 ft. wide, 13′ 6″ tall, and can weigh up to 80,000 lbs. Navigating such a behemoth on standard residential streets is nearly impossible and it would tear up paving designed for passenger cars. So having areas that are designated industrial, light manufacturing/warehouse, and commercial means that those streets can be designed to handle that kind of traffic while keeping us out of the way of your cars.

            That isn’t just bureaucrats drawing maps for the hell of it; it serves a very real purpose. And I guarantee you that any kind of an-cap city would do exactly the same thing.

          •  Certainly I do not oppose load limits on roads according to their capacities, and I cannot imagine people intentionally building warehouses in locations that are inaccessible to deliveries. I note that, in a land taxing community, underused land would be available at reasonable prices, so the forces that drive people to build in inappropriate locations would be reduced.

          • Dan Sullivan

            What makes you think that traffic congestion from your truck would not fall under the purview of nuisance laws?

  • Jano Szabo

    In re the WTC:

    ” The site for the World Trade Center was the location of Radio Row, which was home to hundreds of commercial and industrial tenants, property owners, small businesses, and approximately 100 residents.[5] The World Trade Center plans involved evicting these business owners, some of whom fiercely protested the forced relocation.[5] In June 1962, a group representing approximately 325 shops and 1,000 other affected small businesses filed an injunction, challenging the Port Authority’s power of eminent domain.[15] The dispute with local business owners worked its way through the court system, up to the New York State Court of Appeals, which in April 1963 upheld the Port Authority’s right of eminent domain, saying that the project had a “public purpose.”- Wikipedia.

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  • P James

    There’s no such thing as a “non-proviso Lockean system’. Without Locke’s ‘proviso’, it’s not Lockean. It’s something else.

    • Dan Sullivan

      Indeed, he made reference to his proviso 15 times in 26 pargraphs. It ws the whole point.

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