Use-and-Occupancy: Practical Issues
Robert Kirchner’s Response to Kevin Carson

I have no desire to exchange ‘salvos’ with anybody, least of all Kevin Carson, whose work I greatly admire, who has greatly helped me to clarify my own thought on a range of economic and political issues, and who has strengthened my hope in anarchist strategies of social transformation. This piece is therefore not intended as a critique of the mutualist use-and-occupancy position on land tenure, but rather an attempt to point out some lacunae, where it seems to me this position needs to be more fully worked out.

Before examining these matters, however, let me explain why the mutualist position seems crucial to (my understanding of) a freed-market anarchist society. In this respect, I find I am somewhat more doctrinaire than Kevin, who is at pains to minimize the differences between the various land tenure positions. It may be, as Bill Orton has claimed, that the difference between mutualist and Lockean positions is merely one of degree, with respect to the “stickiness” of property claims, but 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 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/her neighbours to dependancy, 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.

So, I am committed to the mutualist use-and-occupancy position. Nevertheless, 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.

Kevin’s piece (sketchily) addresses one such dispute class — namely claims of abandonment of land, and factors that might be relevant in determining whether a certain physical absence amounts to abandonment, such as the duration of absence, and the reasons for the absence (e.g. holiday travel, leaving it fallow). Here and in other sorts of disputes, it may be useful to consider the current treatment of such issues under the Common-Law tradition — not because the law is necessarily worthy to be followed, but because it reflects a history of reasoning around that issue, which probably at least points out the relevant sub-issues. With respect to abandonment of land, the Common Law of real property (i.e., having to do with land) already recognizes the doctrine of adverse possession, whereby a former owner who fails to prosecute a claim against the current possessor of a piece of land within the period of the statute of limitations (normally twenty years for real property cases), is deemed to have abandoned that land, and the current possessor acquires title. Moreover, as we can see from this example, property law already has a notion of “possession” of land, which turns on concrete facts of the possessor’s use and control, similar to use-and-occupancy, distinct from the more abstract notion of “ownership” or “title” to land.

Another class of dispute that I haven’t seen addressed by C4SS writers concerns property boundaries, despite the fact these make up, I suspect, the vast majority of current land disputes. In addition to the various other things that make property in land different from movable property, we must recognize that, except for somewhat marginal cases involving natural boundaries (e.g., small islands), land does not come pre-divided by Mother Nature into discrete parcels in sizes appropriate for individual human use-and-occupancy. Under current law, such disputes are generally resolved by asking, “Well, where did the property line use to be?”, with appeal to some property description in a land records office. In the mutualist regime, the situation is potentially much more volatile. 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.

Further clarity is needed as well with respect to how transfers of land would occur under the mutualist regime, by sale, gift or inheritance. If I wish to abandon my land for reasons of my own (e.g., I’m marrying someone from another town, or I’m moving away to take care of my aging father), or if I abandon it by dying, precisely what property right, under the use- and-occupancy criterion, do I have to transfer? A would-be buyer could simply wait until 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. 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.

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 (Chapter 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.