Ownership and Possession - Where Do You Draw the Line?

0:00This really is, just once more, okay, let me start again. I'm motivated to write anything I write by sort of conscience, which is to say, I don't know what the hell is going on in a particular area, right? And I can't find anybody else whose story is completely satisfactory, so I gotta DIY it. That's the only reason, okay? So this is part of a larger project, and which I'm working on, it's the book I'm currently working on, on liberty and property. And I'm really, really not at all happy with the accounts of property that I find in the literature. It's not to say that they're all defective, radically defective. It's just that they're not all completely satisfactory. And it's really problematic. And what's most problematic for me is the relationship between liberty and property.

0:45I regard myself as a libertarian, not a propertarian. And it seems sometimes that the emphasis on property in libertarian literature runs the risk of devaluing liberty, right? And I'm concerned about trying to work that out. So that's the framework within which this little paper sits. And it's much more tentative, by the way, than my exuberantly natural dogmatic manner I might suggest. So, okay, I can't stop doing that, that's the way I am, but it is actually very tentative. I'd be grateful for any comments you might have. My sons often tease me by suggesting that the best way to send me to sleep is to put a film in glorious technicolor on the DVD and make me watch it. Watch It. According to them, I manifest signs of life only in the presence of black and white films. Now, whatever about the aesthetic advisability of preferring black and white over color in cinematic matters, black and white thinking, the application of rigid, sharply delineated distinctions may not always be appropriate or even possible in intellectual

1:46and conceptual matters. I want to run a little experiment here. I'd like to do it in full if I have time, but I don't, so this will be a truncated form. What I want you to do I want to show off hands in response to various questions. Taking the class of male human beings and the concepts of tall and short, I want to show off hands how many people would consider a man six foot six to be tall? How many people would consider a man of six foot six to be short? Here's another one. How many people again would consider a man 4 foot 4 to be short? How many would consider him to be tall? Okay, third question. How many people would consider a man 5 foot 7 and a half inches to be tall? How many people would consider a man 5 foot 8 and a half inches to be tall? Okay, you don't like 8 and a half? How about 9 and a half? Okay, thank you, Roderick.

2:45Okay, I feel like an auctioneer. Okay, five foot ten. Now, notice what happens here. I mean, if you were my unfortunate students, I could torture you at a much greater length, but you're not. So, what happens is, there was complete unanimity on six foot six. No dissenters, okay? Complete unanimity on four foot four, for short. I had only one taker for 5'6", so that show, obviously, I'm in North America, people are generally taller and thank you very much for being the only one to put your hand up, okay? Don't feel a bit embarrassed, she's back there if you all want to look, okay? Okay, but as you move towards 5'8", 5'9", you tend to happen, and I've tried this experiment with my students, and what tends to happen when you hit the kind of midpoint, hands go up and down and then you get this kind of up and down thing where people are kind of thinking, You get the half-arm, not the full one, not the down, but the kind of half-arm.

3:41What I'm talking about here is the phenomenon known as the sorites. The paradox of the sorites, the so-called S-O-R-I-T-E-S, has been around for ages. The making of binary distinctions between things like tall, short, good and bad, beautiful, ugly, generous, mean, is commonplace, but all such distinctions appear to be beset by the scourge of the sorites. In the sororities, by traversing a series of incremental steps or stages between two countries we can show that one shades into the other in a seemingly inexorable manner, thus eroding or appearing to erode the distinction between them. The standard example of it, the very name sororities comes from the Greek word for a heap. The idea is you've got a heap of sand and the story goes, will you take away one grain? What have you got left? Well, it looks like you've got a heap. You take away another one. And then another one.

4:30and, of course, you can see where we're going in this, because eventually, even if it's going to take you a long time, there's not going to be any sand in the heap, it's all going to be scattered and then it's gone. At what point does the heap cease to be a heap, right? Or for most of us, the men approaching my age, the more dramatic one is hair loss, okay? When you start losing bits of hair and eventually you have to confess you're bald, right? Okay, I haven't reached that stage yet. Okay, so the sororities problem can be applied to libertarian topics and, in fact, has been so applied in a 2008 article written by Walter Block and William Burnett. They identify what they call the continuum problem, that is the sororities problem, in law and political economy and they argue, or at least they appear to argue, that there is no real solution to it. So they begin with this example. What, they wonder, constitutes a genuine threat

5:18of violence. So they imagine somebody shaking his fist three inches away from somebody else's Presumably under circumstances such as it's not being playful or a joke or part of rehearsal for a play or something like that, okay. And then they imagine him doing it three miles away. Now they then go on to say, if the same action is a thread at three inches but not at three miles, it follows ineluctably that at some point in between these two distances its very nature changes from the one to the other. But the point of change where, for example, 30 yards and fist shaking at 29 yards 11 inches would still be a threat, but not at 30 feet 1 inch, which seems a little bit odd to me, okay?

6:07Now, as we saw in the little experiment I did here, on any continuum we can move progressively from a given point which can correctly be described as, let's say, to take the example I gave short, to another point which can correctly be described as tall, so that as we move along To return to Block and Barney's example, at one point on their continuum, what we have is clearly not a threat, and at another it clearly is a threat. However, it doesn't follow that the change occurs at a point. That's, I think, the problem. Some people are clearly and unambiguously short, others clearly and unambiguously tall, and others, well, who can tell? To return to Block and Barney's example, at one point on their continuum, what we have is clearly not a threat, okay and another clearly is a threat and in between we have a fuzzy area where we simply can't tell for sure whether someone is making a threat or not and they concede as much when they

7:00when they conclude quote how then can we solve the problem of whether or not a response or retaliation against the threat is justified or not given the conditions depicted above and they say the only answer is there is no answer at least not one that admits of geographical extension that is no single cutoff point will be both reasonable and non-arbitrary. So while we may be unable to draw a dimensionless dividing line between threat and non-threat, it doesn't follow that there is no difference between them, or that there is no way of making a reasonable judgment as to which is which. Now they come down to this conclusion. They say there is a way to address this problem that does not rely upon some necessarily arbitrary point along the continuum. It is to resort to common, that is to say economically efficient, practice. End of quote.

7:48Such reasonable judgments, in fact, are the function of municipal systems of law. That's what you go to a jury for. They're the ones who try to make a reasonable judgment in circumstances where it may not be entirely clearly one situation or another. In response to such problems, the law elaborated the concept of assault as a symptom battery to signify any act that created a reasonable apprehension in another of an imminent, harmful, or Offensive Contact. Such an act to consist of a threat of harm accompanied by an apparent present ability to carry out that threat. That's why, for example, in English law, where silent phone calls were held by the courts to constitute assault. Not battery, obviously, since it's a little bit difficult to touch somebody through a telephone. But assault, it's quite, and And so the objection against it was, of course, where is the imminent threat?

8:44The other person is at the end of the phone line, unless it's a mobile phone and they're just outside your window. Anyway, leave that to one side. Whether or not an act of fist shaking constitutes assault is a matter of judgment, but the judgment while requiring the exercise of discrimination is not based upon arbitrary factors. So their overall conclusion is that libertarian theory, and I would argue, in fact, that not has continuum problems in which it's not possible simply to set arbitrary cut-off points and they conclude from this that this is not a shortcoming in the principles of non-aggression but rather the importance of private institutions in the law industry. Now, I've just taken this thing about the continuum in the particular example from Block and Barnett to illustrate the point and I want to apply it now to the concepts of ownership and possession.

9:32This is the tentative bit. So, in daily speech, property is taken to be such things as car and bicycles, houses and TV sets, robust physical entities of various kinds. Unless, of course, you're watching, by the way, these programs where they buy and sell houses, because everything in there is described as a property for some reason. I don't know why that is. And it's never a house, okay? It's never a cottage. It's always a property. But anyway, that's nothing to do with me. Property, however, is not so much a bunch of things such as cars or TVs, and rather a right to dispose completely or partially of such things in whatever ways one sees fit, subject only to not infringing upon the property rights of others. Possession, that is, mere possession, is a factual matter that can for the most part be determined by observation and any living thing can possess other things. So, you know, a dog can possess a bone, quite clearly, as you'll find out if you try to take it from it.

10:26Ownership, on the other hand, is a normative notion and implies the right to dispose of things in a variety of ways, by use, by exclusion, by transfer, even things that one doesn't currently possess. You can, of course, own things and not possess them, and you can possess them and not own them. E. Adamson Hubel takes the conventionalist approach to the concept of property, arguing that possession only becomes property when recognized as such by society at large. Research. Things don't become property, he says, quote, until the members of the society at large agree tacitly or explicitly to bestow the property attribute upon the object by regulating their behavior with respect to it in a self-limiting respect, end of quote. On the other hand, Anthony de Jaese energetically disputes the idea that property is socially produced.

11:11Which idea, if true, he says, would imply that individual owners hold their property only by the grace and favor of the rest of society. is not necessarily a social product, it can come about by individual effort, totally isolated from society. It would seem that these two positions cannot both be true at the same time and in the same respect, yet there is something intuitively plausible about both of them. Hubel's conventionalist approach recognizes that rights are dual matters and are therefore necessarily embedded in a human social context. Ownership is not something that can be seen, heard or touched. It is, rather, a trilateral relationship among persons, at least two, in relation to an object. In contrast, and I think incorrectly, the J.C. defines ownership as a bilateral relation between an owner and the thing owned, such that the owner is at liberty to use it, to concede specific rights into others and to alienate it, as well as to exclude access to it by others except with his consent.

12:11Defined trilaterally, property has two aspects, the object owned and the network of social Social Relationships that establish the connection between persons and the object. On the other hand, and here I think Tijese is correct, property rights are not, at least not initially, arbitrary social creations, but in some sense a recognition by the members of society of the validity of a pre-existing claim by one or more of its members. Alright, so let me then start from the position of mere possession. Actually when I wrote this, first of all, possession suddenly mysteriously turned into If you start from a position of mere possession, where no one owns anything, how do you arrive at a position in which people actually come to own things?

12:59Consider the following. There are two opposing positions in respect of the ownership of natural resources. We can hold that such resources are initially owned by mankind in common, or we can hold that they are initially unowned. These two basic options are often taken to be equally tenable. A moment's reflection will show, I think, that this is simply not so. Imagine a world without human beings. Who owns it? Well, leaving theological reflections to one side, the answer would have to be no one because there's no one around to own it. Okay. Now let's admit Adam and Eve onto the scene frolicking happily in the garden of Eden. Can you do that in the state of original Do they own the whole world, including those parts of it that they've never heard of, visited or used, but which they might, such as Alaska or deep as Siberia, assuming that presumably the Garden of Eden isn't in either of these two places?

13:50If you are inclined to answer yes to this question, ask yourself if by parity of reasoning they could be said to own Pluto or Betelgeuse, entities whose existence they are similarly not aware and of which they have no prospect of ever reaching. Now substitute for Adam and Eve all the human beings in existence in, say, 35,000 BC, living somewhere in East Africa. Suppose they number 50 or 500,000. Do they own the whole world, Alaska and Siberia included collectively? See, claims of ownership cannot be constituted merely by existence. In order to acquire property originally, you have to do something specific. You have to, you know, mix, I beg your pardon, I beg your pardon, you have to mould this piece of clay or fence this piece of open ground or clear this section of woodland with the intention which can be latent to exclude others from its use.

14:39The core of the lock-in, the very controversial lock-in metaphor, is that one must do something to acquire natural resources. One acquires nothing by sitting around and looking pretty. And that doing must have the effect of altering those resources or controlling them or demarcating them in some significant way so as to exclude others from using them. Exclusion is, I believe, the key element in the notion of initial acquisition. It's not enough merely to be first. The key element in the notion is you have to be first in acquiring, and acquiring means appropriating resources in such a way as to exclude their use by others. Now, how this exclusion is to be manifested, of course, depends on the nature of the resources appropriated. Something of this notion of exclusion can be seen in the Roman law doctrine of usucapio, and Remains of it is, you can be found in the Common Law Doctrine of Adverse Possession.

15:29So, I want you to imagine this. Suppose, again, let's go back to our desert island. How could I actually give a lecture without mentioning a desert island? I don't know. Suppose you were on a desert island and you cleared some ground, plant some carrots and give them the tender loving care that they need until they're ready to be picked and eaten. Wouldn't you own the carrots? No. Oh, why? Because I'd rather say that if you were to live in such a radical social isolation, you would neither own nor not own the carrots. The question of ownership simply doesn't apply. There's nothing for the concept to latch onto in that situation. But now suppose another person were to appear and attempt to appropriate the carrots. What then? Well, in that case, you would be in a position to make a counterclaim that all things considered would seem to be better grounded than that of the would-be carrot snatcher.

16:17In so doing, you would be attempting to actualize a kind of latent or virtual ownership that pre-existed any actual claim or recognition of that claim by others. So it would seem, here's my likely story, and you'll recognize this, of course, I'm stealing this from Grossius. Who else? I mean, this is the, hey, Grossius is the flavor of the day, right? It would seem that in the course of human history, after the first agricultural revolution, when people began to cultivate crops and domesticate animals, When it was required to bring land under cultivation and to make it suitable for pasture, this work represented an expenditure of labour that could not easily be recovered if the one who expended it could legitimately be forced to give up by others. At this stage, however, we still have de facto possession rather than ownership, or if ownership, then only virtual or latent ownership. That virtuality became actualised when other land users settled around the original user and, requiring undisturbed possession of their own tracts, were able

17:13to demand this only if there was mutual recognition, not just of the fact of possession, but of the right so to possess, in a word, a recognition of property. Now these reciprocal claims, of course, require that the boundaries between adjacent properties be reasonably clearly demarcated, a requirement celebrated in the proverb that good fences make good neighbors, and as people began to lay claims to territory and to market by signs what they regarded as their territory, neighbors started, in some cases at least, to accommodate themselves of these claims. To do this though, it had to be true that neighbors could discern and were prepared to respect the boundaries of territorial claims. You can see where the stuff about the sororities here because again, if you were to ask me at what precise point do you move from possession to ownership, the answer has to be there is no precise point.

18:05Does it follow therefore that we can never get from possession to ownership and the answer Acquisition, possession or occupation is a kind then of virtual ownership that becomes actual ownership eventually by means of reciprocal recognition. In this way, Hubel's and the JSA's approach can be reconciled. The JSA's account provides the matter to Hubel's form. My settled use and reuse of my possessions requires you to refrain from interfering with them, but your use and reuse of your possession requires me to refrain from interfering with M. Mutual recognition of one another's exclusive control amounts to the transformation of factual possession into normative ownership. Cicero wrote that private property has been endowed, he said, not by nature, but by long-standing occupancy in the case of those who settled long ago on empty land, since what was by nature common property – and he meant by common here, common in a negative sense, that is, not belonging to anybody in particular – has passed into the ownership of individuals. Each should retain what has accrued to him

19:07and if anyone seeks any of it for himself, he will transgress the law of community. The requirement of reciprocal recognition then cannot sensibly be made a universal requirement but must be limited to one's immediate neighbors in space and time. Recognition of your property claims by those geographically remote is not required. Still less is it the case that your property claims demand the recognition of those yet to be born. Okay, so the conclusion. There was a time when nobody owned anything. There must therefore have been a point when we went from mere possession to ownership. So where do you draw the line between possession, mere possession and ownership? And the answer is you don't, because there was no point. There is no point where the transition suddenly happens, but the transition happens nonetheless.

19:57And many of the conceptual tangles we get ourselves into regarding property come from assuming that all the human beings suddenly arrived on earth as if from nowhere and we This, of course, only needs to be stated to be seen to be nonsensical. We have to be historical in our approach to the emergence of the notion, or rather, at this stage I'm inclined to say, to the notions of property, and the story I told a little earlier was adumbrated in the 17th century by such as Grotius and Profendorf. That doesn't mean it's right in every respect, but it does suggest perhaps a less sterile way to approach the vexed question of property than the ahistorical, analytical approach used by many theorists of property. The task, by the way, of a speaker in a conference such as this is to speak, and the task of the people in the audience is to listen.

20:45It's usually a good idea if the speaker finishes first.