Academic journal article Libertarian Papers

The Blockian Proviso and the Rationality of Property Rights

Academic journal article Libertarian Papers

The Blockian Proviso and the Rationality of Property Rights

Article excerpt

1. Introduction

THE PRESENT PAPER confronts the general question of the lawfulness (1) of forestalling both potential owners from originally appropriating unowned land and actual owners from exiting their property. This kind of forestalling, which poses problems for libertarian theory, consists in a pattern of appropriation that allegedly puts a given individual in such a position that it is impossible for him to appropriate an unowned tract of land or to exit his property without trespass. in the libertarian literature, forestalling has been a subject of discussion for a long time. For instance, Nozick (2014, p. 55) identified the "possibility of surrounding an individual" as "a difficulty for a libertarian theory that contemplates private ownership of all roads and streets, with no public ways of access." For van Dun (2009), the problem of encirclement reflects a fundamental tension between freedom and property within libertarian theory, and stems from the absolute character of the latter. He proposes "the free movement proviso" as a way out of the encirclement problem, although the "proviso is a far-reaching restriction of the property right of route owners as it would be defined according to the 'freedom as property' conception" (p. 234). In turn, according to Rothbard, anyone who "uses violence to prevent another settler from entering upon this never-used land and transforming it into use" is a "criminal aggressor" (Rothbard, 2002, p. 64). (2)

As the above quotations indicate, the problem of forestalling is connected with many important social issues of interest for libertarian scholarship. For instance, it serves as one of the arguments raised against the idea of private ownership of roads, as, for example, in the case of Tullock, according to whom "if you had private and total ownership of roads, it would be possible to purchase all of the houses around a given plot of land" and then "collect the full rental value of the enclosed land" (1996, p. 590). The possibility of forestalling might even suggest that the whole project of full privatization of roads is doubtful since, as pointed out by Nozick, "anyone can be surrounded by enemies who cast their nets widely enough" and therefore there always "remains the question of 'exit to where?'" (2014, p. 55). For the same reasons, forestalling is also an important consideration in the context of migration. The answer to the question about how the movement of people would look in an anarcho-capitalist society and whether "the free movement proviso" would lead to "a far-reaching restriction of the property right" (van Dun, 2009, p. 234) or even that "no such thing as freedom of immigration would exist" (Hoppe, 2001, p. 139) partially depends on whether it is lawful or unlawful to forestall. In the case of children's rights, the thesis that it is impermissible to forestall has been proposed as an explanation for requirements placed on parents to inform potential guardians about abandoning children without resorting to the concept of positive duty (Block, 2004).

Besides the aforementioned links between the forestalling problem and sundry issues vividly debated within libertarianism, the question of forestalling plays a fundamental role in the theory of property rights. As I will demonstrate, whether forestalling is lawful or unlawful determines one's conception of natural property rights. Since, as I will argue, allowing forestalling leads to "incompossible duties and rights" (Steiner, 1994, p. 82), one's conception of natural property rights cannot accommodate the Hoppean idea of property rights as conflict-avoiding norms (Hoppe, 2010, pp. 18-19; 2006, p. 319; Kinsella, 2008, p. 29). What is more, one's conception of natural property rights cannot treat them as rationally justified norms because nothing that runs against the law of non-contradiction can be rationally justified (Lukasiewicz, 1987, p. 172; 1988, pp. 108-09). For all these reasons, the problem of forestalling is crucial for a libertarian theory of rights. …

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