VIRTUAL SYMPOSIUM: Land Tenure and Anarchic Common Law

Between now and February 17, the Center for a Stateless Society will conduct a virtual symposium, “Land Tenure and Anarchic Common Law.” Please join the conversation; comments on the questions the lead article poses about the nature of optimal abandonment rules will be especially welcome. Publish your responses to the following essay—which synthesizes remarks by Kevin Carson, Brad Spangler, and Gary Chartier—and post links in the Comments section (you may, of course, leave shorter replies in their entirety) before the end of the symposium. The Center may periodically update this page with links to selected responses.

There would likely be a range of legal regimes—commercial and non-commercial, religious and secular—in a stateless society. Some would be largely territorial, while others would serve people in different regions. The rules enforced by a given regime would presumably emerge from multiple sources: from the decisions of arbitrators, from the judgments of religious and other authorities accepted by participants in the regime, and from the specific contractual agreements made by regime participants. (For instance: property owners cooperating to arrange for road maintenance and other shared needs might also agree to frame their property claims in ways designed to formalize the rules governing the recognition of the transfer and abandonment of each other’s claims.) Whatever their sources, a wide variety of land tenure rules could in principle be implemented by these regimes. Disputes among anarchists about the form such rules ought to take have often focused on the differences between what can, for simplicity’s sake, be labeled occupancy-and-use and Lockean positions.

On a common account of the occupancy-and-use standard, if someone who acquires title to land by homesteading it (or by purchasing it from a homesteader or someone linked by a sound chain of title to a homesteader) neither maintains relatively continuous personal occupancy of her land nor sells it to someone else, the land becomes ripe for homesteading. Thus, while someone might rent out rooms in or a guest-house attached to a home she actually occupied, she couldn’t function as an absentee proprietor, renting out land on which she never set foot. (She might, perhaps, be free to rent out property she had occupied but from which she had made clear her intend to be absent from a limited period.) Because there would be no reason to view a would-be absentee proprietor as the actual occupant and user of the land she sought to rent to others, under an occupancy-and-use regime the land would ordinarily be treated as effectively abandoned, and the tenants would be able to homestead it and claim it as their own. Occupancy-and-use standards are especially attractive because they have the potential to preclude the kind of absentee ownership that could create a permanent feudal aristocracy.

Lockean land tenure standards, by contrast, characteristically permit absentee ownership. Proponents of such standards tend to argue that a legal system that didn’t differentiate between occupancy by a property’s legal owner and occupancy by the owner’s designee would operate more simply, require less interference with owners’ autonomy, and create fewer complications for economically beneficial arrangements than one that required occupancy by an actual owner.

Despite initial appearances, it would be a mistake to treat these positions as diametrically opposed or to assume that they could not co-exist in a just stateless society.

Defenders of both Lockean and occupancy-and-use positions view the just acquisition of land title as rooted in labor: one can’t claim to own land, on either view, absent the performance of sufficient labor to establish actual, effective possession of the land. (The Lockean as much as the proponent of the occupancy-and-use standard can agree that, for instance, a real estate developer would be on shaky ground if she claimed to have taken actual possession of a vacant lot just because of the proximity of her sewer or road network to the lot.)

In addition, a majority of the concerns that motivate occupancy-and-use land tenure proposals would be addressed by a range of measures Lockeans could enthusiastically support. Thus, for instance, if titles to land Lockeans and proponents of occupancy-and-use standards would agree was abandoned, stolen, or acquired primarily through the use of stolen goods (as by capitalists in league with the state) were nullified, so that people were free to homestead this land, the resulting changes in the housing market would drive rent downward dramatically. Legal changes that enhanced access to capital, eliminated building codes and zoning regulations, reduced subsistence costs, and remedied past injustices would surely also contribute to ensuring a more desirable pattern of land ownership. And inequities rooted in rent would also be reduced if the cost principle were consistently implemented, so that roads and utilities were unsubsidized and their users were required to fully internalize their costs.

Lockeans might seek to make the rental of property “safe, legal, and rare” by eliminating ongoing legal privileges and instituting remedies for large-scale background injustices. Some Lockeans might also seek, for multiple reasons, to minimize the risk of large-scale absentee ownership by tightening abandonment periods. They might decline to treat property as abandoned if it is occupied by someone acting under the owner’s authority, even if not by the owner. But these Lockeans—certainly a minority—might judge that actual abandonment, with no presence, even the presence of an agent, for two years or even one, constituted legal abandonment and rendered a property ripe for homesteading.

Implementing a set of land tenure rules featuring a brief abandonment period wouldn’t require inquiry into anyone’s motives or intentions (a proponent might note that, even if one didn’t want anyone living in one’s house in one’s absence, one could reasonably have an agent check in frequently enough to ensure continued occupancy: one wouldn’t have to rely merely on a posted sign), and it would feature a clear standard on which would-be homesteaders could rely. At the same time, it would ensure that land wasn’t allowed to lie fallow while the number of landless people continued to increase, and it would ensure that unused and effectively unclaimed land was put to productive use, to everyone’s benefit. Lockeans could thus attempt to achieve many of the goals sought by proponents of occupancy-and-use standards.

The difference between Lockean and occupancy-and-use positions is further complicated by the fact that proponents of occupancy-and-use standards need not be committed to particularly brief abandonment periods (just as some Lockeans might be quite open to them). Since occupancy-and-use land tenure proposals are motivated to a significant degree by the desire to avoid a resurgence of feudal social arrangements, advocates of these proposals could in principle be open to significant vacancy periods when owners’ absence from their property seemed to play no role in a scheme of absentee proprietorship.

Proponents of occupancy-and-use standards might therefore be quite open in principle to abandonment periods as long as those currently favored by the common law, as long as owners manifested plans to resume occupancy, especially for individual and family-sized units. Someone committed to an occupancy-and-use rule regarding land tenure might see a strong case for letting someone board up her house to spend several years away dealing with some family necessity, with the intention of returning to take up residence without losing all of the labor she had invested in her property. Certainly, an occupancy-and-use legal regime could be expected to give significant weight to an absent owner’s statement of intent to resume occupancy in the future, at least if her property was a reasonable family-sized parcel and there was no concrete evidence that she was misrepresenting her intent. In general, such a regime would be likely to avoid enforcing abandonment policies that were consistently inconvenient for a community of small-holders.

By contrast, Lockeans and defenders of occupancy-and-use standards would both be inclined to agree that, if an owner simply leaves her property and disappears without any statement of her intentions, that could reasonably be construed as abandonment, since she has not taken even the most minimally reasonable precautions to provide for continued ownership.

In addition, while an occupancy-and-use regime might be unwilling to use force to compel compliance with a contractual arrangement permitting someone to be an absentee proprietor, the operation of such a regime would pose no barrier to the imposition of non-violent social sanctions on someone who violated a contract the regime declined to enforce. Social pressure could thus broaden the range of agreements effectively honored within communities committed to occupancy-and-use standards. And, of course, in turn, social pressure could limit the enforcement of land-related agreements perceived to be inequitable in communities theoretically operating in accordance with Lockean property rules.

Thus, the actual distance between communities adhering to Lockean and occupancy-and-use rules need not be great. And the persisting disagreement between such communities can be seen as focused not on rules regarding the acquisition of just title to land nor on rules affecting the extent of one’s control over the use of land to which one is justly entitled nor on the desirability of avoiding a return to feudalism. Rather, it clearly concerns one issue: the nature of abandonment.

  • After how much time does land become ripe for homesteading?
  • Does abandonment require the absence of not only the owner but also her agents from the property for a reasonable period?
  • Should property be treated as abandoned if the putative owner herself is absent for a reasonable period, even if her agents have been present during the same period?
  • Just how present does the owner need to be to establish continued possession: is a visit acceptable, or must she treat the land as her residence or place of business?
  • Is an absent owner’s intent relevant? If so, must it be communicated, and, if so, to whom and in what way?

One salient dispute—orthogonal to the disagreement between Lockeans and defenders of occupancy-and-use standards, but relevant to understanding the institutional arrangements they expect to foster concord between legal regimes committed to their respective positions in a stateless society—concerns the likelihood that such regimes will be linked to particular geographic regions. Those who maintain that they will be emphasize that majority views about legitimate property titles will affect the viability and influence of different regimes, since enforcing a claim will be much costlier in an area in which most people disagree with the rules on which the claim is based. The costs of enforcing a given standard will obviously be higher in a multiple-regime environment—if many of those against whom a standard is to be enforced, and perhaps many of their neighbors, don’t endorse the standard in just the way in which it’s being interpreted and enforced. Those who expect more geographic diversity will be inclined to emphasize that the availability of standard procedures for resolving inter-regime disputes and the obvious advantage to consumers of being able to switch agencies without switching residences could keep multiple agencies serving people in the same region in business.

However their relationships were managed, different legal regimes would doubtless answer some questions about abandonment differently. But the coexistence in a stateless society of legal regimes that answered these questions differently need not pose a serious problem. That’s because a stateless society would feature mechanisms for peacefully resolving disputes between participants in different legal regimes. This legal meta-framework—similar to the one that governs disputes between states and between citizens of different states in the context of contemporary international law—could clearly accommodate both of these approaches (and others) as competing standards. Since—except in the case of outlaws—arbitrators would have to be mutually agreed to by both disputants before a case could even be heard, there would be little occasion for conflict.

And while the market for law in a stateless society will accommodate diversity, it is not unreasonable to expect that, over time, some sort of middle ground—common law standard emerging from the ongoing discovery process that is the market—will emerge. Certainly, if standards tend to be geographically rooted, it’s especially easy to see how particular ones could tend to become sedimented in particular regions. Of course, there might be stable, self-enforcing equilibria in various niches that differed somewhat from each other—it’s not obvious that a middle ground would have to emerge, but there would certainly be pressures that could well lead to some convergence in legal standards.

Lockeans, advocates of occupancy-and-use standards for land tenure, and other anarchists with comparable views of property rights need not be seen as differing theoretically as much as is often supposed, and regimes implementing their preferred property rules could in principle co-exist peacefully in a stateless society.

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