Reaffirming Occupancy-and-Use
Further Clarification in Response to Robert Kirchner

Robert Kirchner is in the unusual position, in a symposium on occupancy-and-use land tenure, of defending it more uncompromisingly than my kick-off essay in favor of it. He emphasizes that he is “somewhat more doctrinaire” than me, and contrasts his position to my own of taking pains “to minimize the differences between the various land tenure positions.”

This is probably a good thing — certainly a welcome change from my usual position of anchoring the left end of such discussions in free market libertarian circles.

Even if the difference between the Lockean and mutualist position is simply in degree of stickiness, he writes, nevertheless

this degree of stickiness precisely corresponds to how quickly and how completely the freed market runs off its rails back into capitalism. If we adopt a property regime that allows an individual to extract unearned rent from others simply by virtue of already owning wealth that the others lack, we have built in a mechanism for the concentration of wealth, for the subversion of a freed-market society and the return to rule by a rentier class. The property ‘right’ of a Lockean absentee landlord/lady — who is neither using the land in question for production through his/her own labour, nor occupying it as a place of residence, but merely holding it so that others will have to pay him/her to use or occupy it — is precisely such a mechanism. The landlord/lady can use the rents extracted to buy up more land, iteratively, accumulating ever more wealth, and reducing ever more of his neighbours to dependency, without check, so far as I can see. It hardly need be said that anarchism is all about liberty; and I take it as self-evident that people cannot truly be at liberty in a society with a substantially unequal distribution of wealth. That is, when a handful of individuals control a wildly disproportionate share of resources, the life-choices of the have-nots will be so seriously constrained that they cannot honestly be characterized as free. This is therefore a matter of no small significance to the project of freed-market anarchism.

While I would certainly prefer a society built around the full occupancy-and-use system of land ownership, I think a Lockean system with thoroughgoing nullification of all absentee titles to vacant and unimproved land would do much — perhaps most — of the work of occupancy-and-use. Given the widespread availability of previously enclosed land newly opened up for settlement, and the greater ease of developing such land with vernacular building technology, the ratio of available rental properties to potential renters would likely shift radically towards vacant rental properties competing for tenants. And given the way the reduction in rents even under such a Lockean regime would interact with the destruction of other rent-creating monopolies, and the removal of entry barriers to small-scale production and cheap comfortable subsistence, I think the growth-potential of wealth resulting from such remaining land rents would level off at a fairly low level beyond which it would not be self-sustaining.

On the other hand, Robert is far less optimistic than I am about leaving an actual mutualist society to work out the mechanical details of an occupancy-and-use regime for itself.

the non-stickiness of this position raises a host of messy questions about how such a property regime might work in practice, when parties A and B make conflicting claims to a piece of land. I appreciate that many details would have to be worked out in the event of an actual dispute, on a case-by-case basis, by the parties, perhaps through the mechanism of Tuckerite local juries or whatever other dispute-resolution institutions might be used in the affected community. Yet, one can foresee certain broad classes of dispute, and I believe it incumbent upon proponents of the mutualist position to think through some mechanisms for dispute resolution, and principles that could be appealed to in such disputes. We need to be able to articulate why this property regime need not lead to endless property conflicts escalating into a war of all against all.

All I can do here is restate my reasons for regarding this sort of thing as unnecessary, although I’ll briefly comment on some of the specific issues Robert brings up below. I’m quite optimistic about how the details of an occupancy-and-use system would evolve in practice, as the members of a community applying the basic principles in a commonsense manner. If I weren’t optimistic about the ability of ordinary people to work out practical rules among themselves, as equals, I wouldn’t be an anarchist. My main influences are people like Kropotkin, Colin Ward, Elinor Ostrom, James Scott, and David Graeber, whose main area of study is the endless ways that people have done just that around the world and throughout history.

As much as I appreciate the ingenuity of some writers’ world-building in utopian fiction, attempting that kind of speculation in a non-fiction venue is too much like a utopian socialist designing a phalanstery. And it’s certainly as anti-Hayekian as all get-out.

Any system, for its practical application, requires large elements of seemingly arbitrary convention worked out in the light of practical experience under the unique conditions of a given locality, that cannot be logically (or at least necessarily) deduced from its basic principles. And aside from stating the basic principles, I’m really not interested in second-guessing or micro-managing how a particular community might decide to apply them. When it comes to such matters, Robert’s guess — or anyone else’s — is probably as good as mine. In response to practical concerns quite similar to Robert’s raised by Auberon Herbert, Benjamin Tucker argued:

Any rule is less rigid by the rigidity of its terms than by the rigidity of its enforcement. Now it is precisely in the tempering the rigidity of enforcement that one of the chief excellences of Anarchism consists. Mr. Herbert must remember that under Anarchism all rules and laws will be little more than suggestions for the guidance of juries, and that all disputes, whether about land or anything else, will be submitted to juries which will judge not only the facts, but the law, the justice of the law, its applicability to the given circumstances, and the penalty or damage to be inflicted because of its infraction.

I start from the assumption that the basic principles of occupancy-and-use will be applied by a community of actual small occupier-owners, whose primary guide in enforcing the basic principles of occupancy-and-use will be to prevent things that would be seen as evils or inconveniences to people like themselves. Obviously, therefore, they would not want to set precedents that might open up small occupier-owners like themselves to dispossession by squatters while they were vacationing with relatives, or make it unnecessarily difficult to get the value of buildings and improvements out of a piece of land when transferring it, and so forth.

Regarding the first point Robert brings up — rules for determining the abandonment of land — I would expect them to be set by the convention of the particular community, most likely aimed at a commonsense happy medium of preventing land from being opportunistically seized while someone was on an extended vacation (as mentioned above), while also avoiding the existence of long unoccupied “orphan” tracts of land, the whereabouts and intent of whose previous occupant were unowned.

Next Robert raises the question of property boundaries:

A neighbour can simply assert that I am not fully using or occupying the land I possess, and claim a slice of it for his/her own use or occupancy. I can’t see any way of avoiding constant disputes along these lines, except by the community retreating from an actual use-and-occupancy criterion, substituting some more stable criterion, such as ‘one quarter hectare per household’, if only as a rough rule of thumb.

I don’t see that as a “retreat” at all, any more than adverse possession and constructive abandonment are “retreats” from Lockeanism. It’s the kind of convention that any system requires for practical application — and exactly the kind of “tempering of the rigidity of enforcement” that Tucker was referring to in the quote above. In fact, Tucker was writing in response to a question from Herbert, almost identical to Robert’s, about the practical enforcement of occupancy-and-use. Absent some “rigid crystalline custom,” Herbert said, there would be a “scramble” of people adjusting their boundaries with each other with no objective standard for what constituted adequate utilization of land to justify continued occupancy. Eventually, Herbert said, the community would “tire of scramble” and “silently frame for itself some law or custom that would decide all these disputed cases” — such as “no man should hold no more than two acres” — and this rule would “tend to become rigid and crystalline, and be very difficult to alter, just because there was no machinery for altering it.”

Tucker gave the example, in response, of the majority in an anarchist community deciding “to protect no one in the possession of more than ten acres.” Whatever the specific amount of land, it’s obvious that any standard for how much land an individual could plausibly use for this purpose or that would depend on convention, and would vary from location to location based on geology, soil quality, climate and so forth. And as to the question of rigidity of enforcement, we’ve already seen what Tucker’s answer was.

Next Robert argues that “[f]urther clarity is needed as well with respect to how transfers of land would occur under the mutualist regime, by sale, gift or inheritance.” Specifically, how would someone obliged to move away for some urgent family reason be able to recoup the value of the improvements they had sunk into the property?

A would-be buyer could simply wait till I’ve moved out and take possession, without paying me anything. Depending on my circumstances, I might be able to delay my departure: I might then be able to extract some nominal payment, in consideration for my agreement to leave a little sooner. But is it reasonable or fair that the sale value of the land depends so much on the personal circumstances of the owner — particularly if I need that money to buy land in the place I’m moving to? And if I die, any landless person could occupy the property while my corpse is cooling, provided they get there before my designated heirs show up.

Let me first reiterate my statement in the original article, that all property systems in land are inadequate precisely because the land is immovable, and one cannot extricate their mixed labor from it and carry it away the same way they would a movable good created by their labor. Therefore any particular property system will make it harder to recoup one’s labor under some circumstances compared to other systems, and easier under other circumstances. The increased inconvenience of maintaining possession in order to recoup one’s improvements in return for transfer, under mutualism, is obviously an example.

Even so, there are all sorts of plausible ways a community might mitigate this inconvenience. I speculated on one several years ago:

I can… imagine, consistent with mutualist principle, a local jury enforcing a contract to pay amortization costs of labor and improvements in return for a transfer of possession. There’s no reason they could not do this, consistent with mutualist principle, and still refuse to enforce an extended rental agreement.¹

After the passage quoted above, Robert immediately continues:

This outcome doesn’t seem likely to promote good-feeling within families or communities. To avoid such outcomes, it seems, again, that we must retreat somewhat from a pure use-and-occupancy standard. Perhaps community approval might be required for land transfers, and considerations of equity and social harmony might enter into the community’s decision whether such approval is granted.

Again, that word “retreat,” which I fundamentally take issue with. Applying the spirit of occupancy-and-use in a manner calculated to promote good-feeling within communities is not in any way a retreat, but exactly the kind of convention — not deducible from the principles of the system on an a priori basis — that any system requires for its enforcement. Robert himself suggests one possible expedient above. Any number of others are possible. They’re all likely more or less workable, each having some mixture of advantages and disadvantages, which can only be seen by experience. And I’m more than willing to leave it to the experience of the communities that know where the shoe pinches.

In the end, one can hold only one of two attitudes. Either one will be fearful of any system enforced by ordinary people degenerating into a “scramble” or “war of each against all” absent some set of carefully designed protocols for enforcement put in place ahead of time to limit their discretion, or they can be optimistic — like Ostrom and Graeber — about the kinds of institutional mechanisms that ordinary people will put into place when they deal with each other face-to-face as equals. I prefer to take the latter approach.

The final point Robert raises — judging the ahistoricity of labor appropriation theories in light of colonialism and indigenous land rights — is, I think, the most valuable.

Finally, and more generally, I am bothered by the ahistoricity of Enlightenment-based philosophical traditions of discourse about property rights. In his Studies in Mutualist Political Economy, ch. 4, Kevin grounded his critique of capitalism’s unequal distribution of wealth in an examination of the actual history of European capitalism and its emergence from the violence of bastard feudalism, thereby demolishing Adam Smith’s just-so story about capitalists reaching their position through thrift and diligence. I wish Kevin, in the present piece, had similarly demolished Locke’s just-so stories about unoccupied land and the like (not to mention Locke’s defence of slavery), by grounding his defence of the mutualist land program in an examination of the actual history of colonial settlement and genocide in the New World, Africa and Asia. Kevin does make passing reference to European bigotry towards indigenous land rights in the course of taking a swipe at Ayn Rand. But in light of the glaringly odious history of native dispossession in North America (where most of us C4SS readers are based), this is not sufficient. Moreover, though Kevin makes cautious noises towards recognizing collectively owned property, and even public (albeit non-governmental) property, in light of this history of genocide, something further is required: some recognition of the role of a particular land base in sustaining the collective identity of an indigenous people, and what that might mean for a use-and-occupancy based property rights regime.

First, I should clarify that my use of Locke was and is quite narrow, in regard to appropriation by actual use and alteration as the only legitimate way of appropriating vacant land. It carries no implied endorsement of Locke in any other regard (his position on the use of slave labor for the vicarious appropriation of land, his attempts to recreate the Whig Oligarchy on American soil in the charter he wrote for the Carolinas, etc.).

Further, I consider it applicable only to cases where there is land available that is genuinely unused at the time of appropriation. A corollary of my standard of labor appropriation is that when land already is in use by people whose ancestors have occupied and used it time out of mind (European peasants, American First Nations’ hunting grounds, etc.), they are to be assumed the heirs and assigns of the legitimate first labor appropriators, and the legitimate current occupier-owners by right of ongoing labor.

Given these considerations, and my unambiguous respect for collective property rights (my “noises” in the previous article may have seemed “cautious” to Robert, but I have stated the same principle without reservation many times before), I agree unreservedly with him in recognizing “the role of a particular land base in sustaining the collective identity of an indigenous people, and what that might mean for a use-and-occupancy based property rights regime.”