The following is an
analysis of how property rights should be obtained when there are
clearly defined rules and enforcement in place. As part of this
brief look at the English philosopher John Locke’s idea of homesteading
it relates to these rights. It will be shown that the justification of
his homesteading theory is not to be found in natural law, as he
contend, but can only be secured through a pre-existing legal system
with judicial oversight of contractual agreements;
hence, in a period before the emergence of real estate law, his
theory was not applicable.
Homesteading is a
time-honored tradition of settling on unowned and uninhabited land. The
essential idea is that if a parcel of land is available for settlement,
settler has a right of easement to utilize and live on the land. Basic
necessities of survival such as obtaining food and shelter can be
Through a period of squatter’s rights or uninterrupted occupancy, the
can claim ownership over the land he inhabits.
is a far cry
from the Lockean principle that demands a value-added proposition as a
requirement for obtaining land ownership. The theory justifies
landownership title based upon a mixing of labor with land, applying
skills of labor to utilize available resources for developing the
and its assets.
shall see, the adherence to this Lockean labor
value as it applies to property, which primarily equates the value
land with the labor infused to develop it, is not objective and
arbitrarily applied. Instead of strengthening the position of free
property rights (as I strongly favor), it unfortunately lends credence
point of view of thinkers like Proudhon and Chomsky who argued there
legitimate property rights.
and ethical perspective, there are a number of sound arguments that can
in favor of the Lockean homesteading theory. It was undoubtedly a
reaction to countless episodes in history of what can rightfully be
"homesteading", where any character appropriated any land he desired
did whatever he wanted on it. In effect, it’s a checks and balance
undue claims. Even government sanctioned homesteading adopts this
Witness the U.S.
Homestead Act of 1862. It transferred about 10% of public land
to private ownership, but
required every homesteader to build a home and labor on the land for 5
If one didn’t know better, he would think that the Biblical character
the author of this act, writing it for his would-be Jacobs and striking
bargain by reducing the sentence from 7 to 5 years!
Yet there are a number of problems with
theory, and Locke’s is no exception. In general, every labor theory of
value mistakingly equates the value of a good with the amount of labor
used to create or discover it. This would mean, for example, that the
value of two different objects (say a large diamond or an ordinary
rock) would be equal if the amount of labor to discover it was the same
(say it was the same miner who found the two objects at the same time).
This is a ridiculous claim, for one of the two objects is
unquestionably more valuable that the other. The true value of a
good, in reality, will be a
product of its utility, quality, craftsmanship, durability,
desirability, and many other factors including its rarity. In fact,
Locke does speak about
some of these factors; however, he primarily relies on the labor
criterion to advance his argument.
But rather than focus upon disproving
labor theory of value, I’ll concentrate upon the homesteading and
aspects of the theory. Generally, the theory has these problems:
are no objective criteria to determine how much work a person would
need to perform to obtain land ownership over a parcel of land. Without
the presence of an arbitrary legal system to set value standards for
owners, there is no way to demonstrate if
homesteader meets the qualifications to become a landowner. Hence, it would be necessary
for the laws to be in existence before the Lockean homesteading occurs. Without such laws, a
"homesteader" could build a skyscraper or kick around some dirt on a
given piece of land for a period of time; yet in theory, each could be entitled to the
same level of land ownership.
Since it's inheritantly
problematic to establish a just system for pre-law homesteading (from
the 1st point), it
boils down to supporting a “let’s get the ball rolling” theory, the
ball in this
case being property rights in a free market economy. This means that
advocacy of an infusion of value is akin to the Cosmological
the existence of God that calls for a primary unmoved mover (to use
Aristotle’s phrase) or initial cause. Both of these theories, however,
premised upon locating an initial point of time to “get the ball
These theories fall apart upon closer analysis of what happened before
singular point. They also break down when we consider that some
external force must be periodically applied to keep the ball rolling,
for any body
of motion will be faced with forces that will counter its inertia.
Anyone care to guess what that external force will be?!
we are to accept the argument that it's necessary for a homesteader to
mix his labor with the land to
a landowner, then to be consistent, there must be a system in place to
that the landowner maintains or improves the quality or value of the
he fails to meet this requirement, he can have his landownership
always will involve government intervention, which is always bad news
With respect to the proposition that there is no reason to
consistent" by implementing a post-ownership set of requirements, and
that the free market can take effect immediately after a homesteader
becomes a landowner, this proposition is routinely defeated by pointing
out that without a legal system in place, there is no method for
determining when a homesteader actually becomes a landowner (this
follows from the
1st point). A homesteader who's steadfastly working to become a
landowner would have no right to sell "his" land, nor would anyone have
a right to buy it. Furthermore, another homesteader could inhabit "his"
land and justifiably reclaim it from the first homesteader merely by
working more diligently to become a landowner. Complicating such
matters would be a fight between the would-be landowners, and deciding
who becomes the rightful owner would be a protracted struggle requiring the
intervention of an impartial 3rd party, assuming one was available. All
of these scenarios would preclude the emergence of a real estate free
was conditioned by a Puritanical work ethic. This work bias, while
virtuous, should play no role in determining the ownership of land.
salaries compensate work performed, not the title to the land one works
mandated linkage of
work and landownership invariably leads to a fusion of employment and
title. With the goal of securing such title, land owners will often
require their employees to work harder, and workers will tailor their
productive labor for that purpose rather than improving the quality of
their work. These factors lead to the creation of labor laws and land
ordinances not for the purpose of improving labor conditions and land
usage respectively, but for maintaining Locke's labor-land linkage.
That is, of
course, an open invitation to more statism.
4 problematic areas will become clearer as we examine the following
relevant scenarios of land utilization and ownership.
Uninhabited and unowned land
A person will only have true entitlement
the land if he
has a just claim to it. In a free market economy, that only happens
owner has a legal title to own the land, and that can only occur when
there is a
mutual voluntary exchange between the seller and buyer. When the land
question is uninhabited and unowned, there are no objective criteria
obtaining a due claim. Homesteading by its very nature is an arbitrary
is sanctioned by the ruling powers, colonialists, conquerors, or
inhabitants. Often, these parties construct suitable criteria to
retroactively justify past actions. That’s how history books are often
What is the difference between an
unproductive drifter who
inhabits an unoccupied parcel of land and a pioneer who magnificently
it? There is only a singular answer to this query: the pioneer is an
productive being. He is the cause celebrity of the market economy; yet
labor doesn’t give him any legitimate title to the land. This argument
applies to the retention of entitlement: a landowner need not be
retain ownership. The landowner can improve the quality of his property
can ruin it; the free market will reward or punish him accordingly.
Neither course of action gives him any more or less title
land (note that we are not considering the widespread reality of a
mortgage company owning a house while there is an outstanding loan;
that situation, the lending institution can call the shots).
Uninhabited but owned land
Let us now handle the situation where the
uninhabited, but unbeknownst to the “homesteader”, is owned by someone
might even entail the inhabitant to unilaterally apply his own
land acquisition. This is what happened to the American Indians who had
inhabited and owned their land (by their own standards of
usage) for over 10,000 years. They were subjected to Lockean
colonialists; yet even by Lockean standards, they certainly mixed their
with the land and hence owned it by such standards. True, there were
treaties where the
voluntarily ceded their land (i.e. to Pilgrims). From a free market
perspective, these were legitimate transactions between “buyers” and
But the vast majority of land “acquisition” was by conquest,
theft, and expansionism. All of these are anti-Capitalist by their very
based on everything except mutual voluntary exchange.
In many situations, the occupying
homesteader can improve the value of the
land he inhabits. By Lockean “labor-land mixture theory”, this gives
title to the land; but what happens when the original owner shows up
the inhabitant to leave? The inhabitant, naturally, will ask for proof
ownership. The owner, in turn, may or may not offer such proof.
there can be no argument that the original owner has the just claim to
land. The current occupant might have used his ingenuity to improve the
of the land, built a beautiful home on it, utilized its resources to
technological marvels or agricultural goods; yet not only does this not
him any title to the land, he is not entitled to any compensation by
owner. This owner may be appreciative of the increase in value of the
may voluntarily compensate the occupant for his work, but he is not
do so. The owner can legitimately evict the occupant without any such
Inhabited but unowned land
Now, we come to the situation where the
land is unowned,
but is inhabited. The inhabitant might have added no value to the land
(certainly by the standards of a prospective land developer), but he
the land to dwell within. He sleeps in the raw wilderness, he picks the
and nuts that naturally grow on it, he might kill the animals that
the land and eat them as food. In other words, he’s done nothing to
quality of the land and might very well even have depreciated its
value; but the prospective
developer has no right to forcefully expel him from the land. Even if
developer does marvels to add value to the land, he has committed an
act by evicting the inhabitant, and hence has no legitimate title to it.
Note that Locke argued, in the Second Treatise of
Civil Government, that work would include such simple acts as the
example cited above: the picking of fruit. In that case, the value of
would not increase, as the labor theory of value would have it, but
would decrease since there is now less fruit available. Certainly, if
it was linked to some pricing model, the value of each remaining piece
would increase since it is now more scarce, and hence in theory that
could more than offset the decrease; but each subsequently picked fruit
would increase the previous depreciation of the value of the land.
Eventually, once all the fruit is picked, no value remains (in terms
of available fruit). Of course if he plants the seeds or pits of
the fruit, he is performing meaningful labor which does increase the
There can be no irrefutable objective
made by the occupant that he owns the fruit he picks. He is picking the
fruit to eat, a basic necessity for his survival, and it's certainly
reasonable to tend to that survival instinct. He might have read about
fruit picking in a book, or actually seen a fellow traveler pick fruit,
or he simple could have obtained the fruit by accidentally bumping into
hence dropping the fruit, but that doesn't give him ownership over the
"fruits of his labor" (ha ha), much less over the land it resides on.
Strictly speaking, if we accept the premise that a living being owns
his own self, then so does a tree; hence, the tree is the rightful
owner of its fruit! Ah, but trees are not rational beings, you say.
Well, what about the Raisin Tree?!
Seems pretty raisin-able to me!
Nonobjective land acquisition
All of these situations demonstrate the
land acquisition and retention. It even shows more clearly that without
system to enforce claims to acquisition, retention, and relinquishment,
system that is inherently arbitrary itself, disputes between parties
extremely difficult to resolve. Land can only be rightfully obtained
through a public discourse of what the people would
deem to be a fair, just, and rational system, and this is an
development of human interactions that is not systematically rooted in
nature, but rather created through experience, trial and error,
scientific discovery, experimentation, acceptance and refutation.
There is no objective system to qualitatively measure this process.