On occupancy and use


[This piece first appeared at the Forums of the Libertarian Left, in a thread on “Occupancy and Use.” It seems to add enough to the current series on mutualist land tenure to repost here. The thread began with some very basic questions about how occupancy and use land tenure would play out, and how to respond to the common silliness about people out shopping losing their homes to mutualists, etc.]

With any of the basic principles of “property,” you’re going to have to eventually confront a bunch of messy details before you’ve got the “anarchic common law” that could justly regulate it. There’s certainly nothing self-evident about how true lockean and neo-lockean property would actually work. In the homesteading model, “something” of the person is “mixed” with unowned resources, which annexes those resources to the person. Neo-lockeans throw up their hands because they can’t make practical heads or tails of the “enough and as good” proviso (and generally ignore the proviso against waste), but, arguably, the provisos are a lot clearer and more clearly practicable than the mechanism of appropriation. Of course, neo-lockeans don’t focus on appropriation anyway, skipping ahead from the “state of nature” to the exchange economy, where division of labor and exchange will have effects virtually “as good” as proviso-appropriation. But, yikes! If the original standard was impracticable, then how hard to practice is its virtual equivalent? Rather than basing itself on a principle that’s about as close to self-evidently universal as you’re going to get—and then confronting the problems of applying the principle—neo-lockean property simply abandons the principle, and asserts that which is far from self-evident: that an exchange economy in which the appropriation rights of others are simply not considered will have virtually the same effect as one in which appropriation is direct and guided by the provisos. Seems like an easy way to go astray. And, sure enough, true lockean property is virtually non-rivalrous (and amenable, at least in principle, to adjustment to account for long-term sustainability and ecological effects, for which “good fences” are hardly a solution), while neo-lockean property is rivalrous by definition, and inflexible (mostly unconcerned, really) with regard to the material, systemic complexities of actual property in the real world.

Compared to all of that, how difficult a principle is “occupancy and use”? Take the lockean provisos seriously, and add the fact that natural processes “unmix” all the while—observe that anything in perpetuity is about as un-natural a principle as you can imagine—and you can derive it from the same roots as neo-lockean theory, with less opportunistic reasoning and jimmying of the basics.

The straw-man depictions from propertarians probably reflect a basic difference in political aims and cultures. Mutualists are not occupancyandusitarians: our theory of real property comes a couple of steps after our account of “self-ownership” or “property in person,” and it is certainly not prior to the principle of reciprocity. You could, no doubt, construct a mutualist account in which “all rights are property rights,” but the “property” certainly wouldn’t have the exclusive, perpetual character of most propertarian systems. From a propertarian perspective, the notion that property isn’t forever—or isn’t at least dependent on the intentions, however inert, of the proprietor—seems outrageous, so there really isn’t that much difference between moving into your house when you nipped out for a carton of milk and opening the land of some distant holding company to occupation by the landless. Having jettisoned the provisos, and no longer being able to fall back on the actual homesteading mechanism (the effects of which market exchange is supposed to approximate), neo-lockean theory doesn’t have a lot of guidelines to fall back on, so it makes a virtue of being “tough, but fair.” If you question the “universal right of first-come, first-served” stuff, chances are the propertarian isn’t even going to see a problem.

Anyway, apart from any mutualist reimagination of property, possessory occupancy and use conventions are going to be based on the principle of reciprocity. When propertarians insist that without their form of property, mutualists will “steal” anything that nailed down, my first question has to be: Dude? Is that the way you imagine the Golden Rule playing out?

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About Shawn P. Wilbur 2703 Articles
Independent scholar, translator and archivist.


  1. This is not meant as a gotcha or anything, and I do not know if you have thought about this same conundrum I have with an occupancy and use standard or not.

    That is, if someone takes control of an object already being occupied and used by another person without the first person’s permission, would not the second user then become the legitimate owner of the object in question, according to an occupancy and use standard?

    You might say that the Golden Rule would mean that others would not likely respect that new ownership claim; and I would agree. But it seems to me that an occupancy and use standard would break down into a might-makes-right type of arrangement, nullufying the concept of property rights altogether. That would not be acceptable to most people, let along supporters of a stateless society, so I have a hard time seeing an occupancy and use standard being adopted.

    Now, I also agree with your criticisms of neo-Lockean property rights, which I do not think would be the best practice either.

    I could see people adopting a “right to possess” standard, to which they might say that someone has a right to possess an object if it was consensually acquired from the previous owner. In any event, it would give way to a discussion about what constitutes the right to possession, not possession, in and of itself.

  2. Well, the standard for occupancy and use is obviously not “might makes right,” so if you interfere with the occupancy and use of the first possessor, you’ve simply violated their rights.

    If you follow Proudhon’s early critique, the there’s really no question of might making right in the realm of property, since the argument is that nothing can make a right of property—with the possible exception of equality (which is essentially the standard for proviso lockean property anyway). Occupancy and use property conventions are a product of association. The would-be appropriator is pretty obviously not an associate, and can’t just conjure up a property right out of mere seizure—particularly as such a seizure runs counter to the existing standards.

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