How Rothbardians Occupy Part of the Occupancy-and-Use Spectrum
Jason Byas’s Response to Kevin Carson
Are We All Mutualists Now? Maybe: Lockeanism as Occupancy & Use
The first thing to say in response to Kevin Carson’s opening essay is that he’s largely right. As this exchange’s representative Rothbardian, I agree with his suggestion that the differences between occupancy-and-use theorists like him and Lockeans like me are much smaller than they often appear. I’d even go as far as to agree with his bold claim that “Lockeanism is occupancy-and-use, but with somewhat more lenient occupancy requirements for maintaining ownership than most explicit occupancy-and-use advocates call for.”
More substantively, I think that the language of occupancy-and-use does a much better job of framing what’s morally going on with Lockean homesteading than the more usual explanations. Talk of “creation” or “labor-mixing” often gives the misleading impression that the principle at work is desert. It sounds as if when I plant corn, I get the land I’ve planted it on as compensation for my labor. This is what unfortunately leads some Lockeans to endorse intellectual property — that since you put intellectual labor into creating a given idea, you deserve property rights over it as a result. In his own treatment of property in land, Herbert Spencer wrote what I take to be a devastating objection to this interpretation of Lockean “labor-mixing.” No one would say that if I mixed my labor with your house by painting it that I’ve thereby acquired rights in your house. The bare fact of labor seems irrelevant here. So something more than just “creation” and “labor-mixing” needs to be going on with a Lockean account for it to get off the ground.
I think occupancy-and-use is a good candidate for that alternative explanation. Assuming the typical libertarian picture of “self-ownership”  or “self-sovereignty” is correct — which I will assume, because I don’t have the space here to justify it — then, as Rothbardian Roderick Long has pointed out, property in external objects (including land) has to be a function of that. This is because property means a right to, within proportion, violently exclude others from whatever you have property rights over. Property means a right to violence , so we need to know if that violence is defensive or aggressive.
Communists (and others who are skeptical of private property’s compatibility with self-sovereignty) are going to say that, at least for some kinds of objects, a unilateral right of exclusion is aggressive. To see why that’s wrong, consider the cases where even the communist is likely to agree that individual property ownership in external objects is justified. Let’s say that you’re holding your  toothbrush, toothpaste on it, and about to brush your teeth. Then say that I take it out of your hand, put it in mine, and proceed to wash off the toothpaste, put paint on it, and it use it as a paintbrush. I take it that everyone — communists included — would agree that if self-sovereignty is a coherent idea at all, your self-sovereignty has been violated in this instance. Your toothbrush doesn’t need to be a literal part of your body for my taking it to count as aggression. The same is true if instead of taking it out of your hand, I’ve taken it out of your bathroom while you’re gone.
Where the communist is going to part ways with the libertarian (Rothbardian, mutualist, or otherwise) is in what sorts of external objects are subject to individual (or at least non-common) ownership.  With an explanation for why self-sovereignty requires that I don’t take your toothbrush, though, I think we should also see why it means I can’t take your (whether “you” means you as an individual, or “you” as a worker cooperative) factory.
Why is it aggressive for me to take your toothbrush, and not for you to take it back, or even to bat my hand away to stop me from taking it in the first place? One answer, which seems to fit our intuitions well, is that your use of the toothbrush is what brings it in as part of your self-sovereignty. Human beings have physical bodies and operate in a physical world. In order to put our plans into action, we have to make use of physical objects. Assuming that the things I’m using either were unowned  or given to me voluntarily by others, my use of those objects constitutes non-invasive action. There is no plausible understanding of your brushing your teeth that takes it to be an invasion against me or my similarly non-invasive plans. When I try to take that external object from you, my action is morally different, because I’ve invaded against one of your non-invasive actions, which is inextricably tied up with the toothbrush. Your use of the toothbrush — or as Long would put it, your incorporation of the toothbrush into your “ongoing projects” — gives you individual property rights over it. You can justifiably exclude me from the toothbrush, because your use of it as a clean toothbrush, and my intended use of it as a paintbrush, are incompatible. Similarly, your continued occupancy of your house is a non-invasive use, and my decision to bulldoze your house would be an invasive one. 
The skeptic of individual ownership in land or certain other objects will agree with me about toothbrushes and personal homes, but hold that things like land or the means of production are separate cases altogether. Maybe that’s so, but the ball’s in their court to show why, because everything we’ve said about toothbrushes and personal homes certainly seems like it could be said about land or the means of production. You can clearly put something like land into your own use non-invasively, and someone else trying to put it into their own use in a way incompatible with yours is disrupting that pre-existing use. Prima facie, the cases are morally identical, and should render a morally identical conclusion that this thing you’re using is your property. Any appeal to a “personal property” / “private property” distinction without explaining the difference in light of that similarity would be question-begging. 
Taking Lockean property norms as justified through an occupancy-and-use standard also helps us work through an area that Carson helpfully pinpoints in his lead essay: abandonment. Why is it that when I leave my bicycle in an empty lot without saying anything for several months, the person who decides I’m not coming back for it and just takes it isn’t stealing? One could say that that’s because while homesteading or voluntary transfer entitled me to permanent ownership of the bike, practical problems give us reason to allow for constructive abandonment. But that seems ad hoc, especially when we’re talking about an issue of rights. A better explanation is that there is no plausible reading of my actions under which I’m still using the bike. Even if I hunt you down later and tell you that the bike’s actually mine, you have a pretty good case for disagreeing. Like I said earlier with homesteading (converting something into property), I think we can justifiably extrapolate from our intuitions about abandoning (converting something out of property) objects like bikes and toothbrushes to principles for abandoning land or the means of production. At least until someone can give us a good reason to treat the latter as meaningfully morally distinct.
This use understanding of Lockean property norms also helps to explain inheritance. As Aristotle observed in the Nicomachean Ethics, our plans and the actions we took to carry them out often outlive us. To the extent that that’s true, we can retain ownership over property long enough for some projects we put into action when we were alive to follow through. For instance, passing on our belongings to our loved ones can be the completion of our will that those objects go to them once we’ve died. This explanation is not available to Lockeans who don’t clarify their view as a use theory.
So, not only do I agree with Carson that Lockeans are a particular kind of occupancy-and-use theory. More than that, I take an occupancy-and-use understanding of Lockeanism to be the most plausible way of explaining talk of “labor-mixing” without running into problems. A theoretical framework that puts the inevitable fact of scarcity front and center is most likely to clarify where “labor-mixing” confuses. In order for property norms to be consistent with our commitments to self-sovereignty and non-aggression, we need to understand them as being based in occupancy-and-use.
The Moral Irrelevance of Rent
I know very little if anything about the economics of land, so my comments here will be brief. What Carson says about rent from land sounds plausible, and so does what economists who are skeptical of rent from land say. I’m personally agnostic on the question. However, I don’t find anything in what either Carson or Georgists say about rent from land that gives us reason to treat land as different from any other sort of external object that we might justifiably convert into property. I’m not sure if Carson thinks that his response that economic rent is sufficiently taken care of by his occupancy-and-use norms only applies for his stricter view, or if it would also work for the kind of view I’m putting forward here — but I’m not sure that it really matters. Either way, though, to the extent that this is a discussion of rights, more needs to be said for such considerations to have any bearing on our strong presumption that putting something into use converts it into property. Because nothing about rent accruing from land seems to change the fact that that land is a part of your ongoing projects. I’m not sure that Carson is saying that economic rent would be a legitimate reason to enforce one form of property norms rather than another, but if he is, that seems mistaken.
Are We All Mutualists Now? Maybe Not: Problems with Tuckerite Mutualism
Even as much as I’m willing to follow Carson in his suggestion that the difference between Lockeans and occupancy-and-use mutualists is more one of degree than of kind, I don’t think it’s totally true. I agree completely with his opening summary of the occupancy-and-use doctrine, at least as written: “not only must land be occupied and put into use to be legitimately appropriated, but continued occupancy is required to maintain ownership (with obvious common-sense exceptions for travelling, let some land periodically lie fallow, and the like).” Where we differ is what constituted ongoing occupancy-and-use.
For example, when given some direct questions about what constitutes occupancy-and-use, Benjamin Tucker told a correspondent  that those who provided security in an anarchist society “would not collect your rent, and might not even evict your tenant”. In the same response, he clarified that only those who personally work in physical labor at a work site can be said to be occupying and using it, and thus ownership by someone else would not be protected. I take these answers to be flat rejections that someone could own homes that they don’t personally live in, nor workplaces that they don’t personally perform physical labor in. If this is what Carson has in mind by occupancy-and-use, I don’t think it’s going to work.
Moreover, I’d say that the differences between that kind of view and a Lockean view is one of kind, not just degree. That’s because to the extent that rental properties and businesses owned by those who don’t physically labor in them are categorically ruled out, using property in those ways is taken to necessarily signal abandonment. A difference in the length of abandonment periods might just be quantitative, but this is qualitative.
Carson doesn’t specify in his opening essay whether or not he’d join Tucker in these sorts of judgments. If he does, though, refusing to count these uses of property and property-preserving ones seems ad hoc. That’s not to say that there aren’t cases where those uses should be taken as abandonment. If I rent out a house, but literally do nothing but collect money from tenants, then it seems right to say that I’m not continuing to use it in any relevant sense, and that it should be treated as abandoned. Yet if I do continue to use it more substantively — pay for repairs, provide for pest control, or just generally work towards keeping the place livable for current and future tenants — I see no reason to not call this an ongoing use.
To better explain my point here, think about the sort of straw-mutualist position that Carson and every other actual mutualist rightly objects to. Obviously, no occupancy-and-use standard is going to say that if you physically leave your house, it’s suddenly up for grabs. Any objection to mutualism on these grounds is silly, and deserves only laughter in response. That said, why is it that this should be counted as an instance of occupancy-and-use? Carson says that the evolved property conventions to come out of decisions by actual juries isn’t going to settle on straw-mutualism, since no one wants to live in a world where they can’t go on vacation, or even go to the store to get some milk. I think this is a good enough answer as far as it goes, but it’s still an unsatisfactory explanation for the same reason that a Lockean who appeals to the undesirability of strict perpetual land tenure has an unsatisfactory explanation for constructive abandonment. Insofar as we’re talking about a theory of property rights, this appeal to consequences seems awkwardly ad hoc.
A more principled explanation is that not all property-preserving uses of property look exactly like our paradigmatic cases of it. The person who’s gone on vacation, and thus has put the object of their house and its contents into apparent inactivity, isn’t not using their house. They’re just using it in a different sort of way than when they’re actually in it. With that in mind, occupancy-and-use theorists who agree with Tucker’s previous answers need to explain why those uses he categorically rejects can’t possibly be property-preserving uses. It is, at the very least, not immediately apparent to me why they couldn’t be.
Even If We’re Not All Mutualists, Can’t We All Just Get Along? Maybe, Maybe Not.
I’m also not sure what I think about Carson’s pluralistic proposals at the tail end of his essay. As a practical question, he’s probably right — different communities will have some variation in what constitutes abandonment, and to preserve peace, it’s better for groups that deal in defensive violence to largely respect those. Even so, assuming that there are right or wrong answers to questions like the justice or injustice of rental property, it seems neither likely nor desirable that there will be a patchwork of communities with strong differences on qualitative issues. If I’m wrong, and those who follow Tucker in rejecting rental property are right, then anyone who ever gets evicted by a landlord is having their rights violated. If they’re wrong, and Rothbardians like me are right, then tenants who seize rental properties (assuming those rental properties were justly acquired, and the landlord has been sufficiently contributing to upkeep, etc.) are violating the rights of landlords. Tolerating either means tolerating injustice. Maybe that toleration (whichever it would be) would evolve out of a stateless legal order, and maybe it would be desirable in order to prevent greater injustices stemming out of conflict. But that’s not obvious. Especially not in an increasingly cosmopolitan world, where hard territorial differences like this might not be as common, if not for territorial monopolies on law.
1. I take “self-sovereignty” to be a better descriptor, since “self-ownership” could give the misleading impression that one’s ownership of themselves is of the exact same kind as their ownership of external objects. Since the former is inalienable, and the latter is alienable, it might be worth using a different word than “ownership.”
2. Admittedly, this might be an oversimplification. Anthony Gregory has pointed out to me in the past that property need not mean a right to violence. You could imagine a society of perfect pacifists who were also firm believers in Lockean property norms. Even though these norms wouldn’t be enforced violently, it would seem odd to say that they didn’t have them as norms, assuming that they used those norms to morally judge infractions, and responded to them in some nonviolent way. For our purposes here, though, I’m assuming that pacifism is false, which would mean property gives us a right to violence.
3. Some might object that it’s question-begging to use a word like “your” when trying to demonstrate the legitimacy of a property right. If that’s so, just substitute “the toothbrush you regularly use” for “your toothbrush.”
4. Obviously, a defense of non-common ownership is not a rejection of common ownership. I agree completely with what Carson says in his original post on that topic.
5. For reasons outlined by Roderick Long in his previous critique of Kevin Carson, I think the best understanding of land not yet homesteaded is as unowned, not commonly owned. Carson has previously rejected this claim, but since he didn’t rely on it in his opening essay for this exchange, I won’t spend any time on it here.
6. Maybe this means that “occupancy-and-use” should just be “use.”
7. I’m also not positive that such a distinction is even all that coherent.
8. “Pertinent Questions,” Benjamin Tucker. In Frank Brooks, The Individualist Anarchists: An Anthology of Liberty (pp. 161-164).