Gary Chartier, “Intellectual Property and Natural Law”

This is a superb article by libertarian law professor Gary Chartier, arguing that IP cannot be justified by natural law reasoning, and in fact is incompatible with natural property rights: “Intellectual Property and Natural Law,” Australian Journal of Legal Philosophy vol. 36 (2011): 58–88.¹

As he writes:

I sent Gary the following note about one part of his article (and cc’d Roderick Long and Gerard Casey who had been on an earlier email thread with me and Gary).

Gary,

I’m reading your intriguing and excellent article “Intellectual Property and Natural Law,” Australian Journal of Legal Philosophy vol. 36 (2011): 58–88. I’m going to blog about it on my c4sif.org site shortly and add it to a list of recommended IP writings.

I had a few comments about your property rights observations. I figured I’d leave Roderick and Gerard on the cc since they might find this of interest and Roderick is invoked.

You write:

“the Golden Rule is doubtless compatible with multiple schemes of property rights. But these considerations, which may be seen as grounding a range of complementary rationales for a just system of property rights, clearly constrain the range of systems likely to count as just, especially because they tend to overlap with each other and to reinforce each other’s implications. Taken together with the Golden Rule, they are strongly consistent with, and provide substantial support for, a simple set of rules with respect to physical objects: (i) the first person to establish full-blown possession of an unowned object is its rightful owner; (ii) to be a rightful owner is ordinarily to have full control over what happens to each physical object one has justly acquired; and (iii) the rightful owner of a physical object may dispose of it freely by gift or as part of an exchange on any terms she wishes. We may call these rules, taken together, the baseline property rules.”

I think the way you formulate your set of rules is mostly right. In particular, (i) and (iii) express original appropriation and contractual title transfer as the main rules for determining ownership of a resource. And (iii) is mostly compatible with the Rothbard-Evers title transfer theory of contract, see, e.g. KOL197 | Tom Woods Show: The Central Rothbard Contribution I Overlooked, and Why It Matters: The Rothbard-Evers Title-Transfer Theory of Contract, and links therein.

However, I would adjust your list somewhat, by modifying (ii), and by adding a third property-rights determination rule; and also by making a comment about the alleged problem of conquest in history.

First, I would add another rule to your rules (i) and (iii): transfer of property rights may also occur not by normal contract (your rule (iii)) but as a result of an offense–a tort or crime; that is, as rectification or restitution. (Again, I’m including Roderick b/c he’s written on this before (quoting Nozick).) I suppose you can view this as a subset of the contractual rule (iii), or implied by it–that is, you can say that by committing a tort/trespass, a voluntary action, you thereby agree to transfer title to some of your resources as compensation/rectification to the victim; but i think it’s better to break it out and treat it as a separate rule. [Update: Gary informs me that in his updated work, ch. 2 of his book Anarchy and Legal Order: Law and Politics for a Stateless Society, he does address the rectification issue.]

That’s why I did so in the new Plank 2.1 of the LP Platform, in Reno this past May: See Aggression and Property Rights Plank in the Libertarian Party Platform.

It reads:

“2.1 [Aggression,] Property and Contract
[Aggression is the use, trespass against, or invasion of the borders of another person’s owned resource (property) without the owner’s consent; or the threat thereof. We oppose all acts of aggression as illegitimate and unjust, whether committed by private actors or the state.]
[Each person is the presumptive owner of his or her own body (self-ownership), which right may be forfeited only as a consequence of committing an act of aggression. Property rights in external, scarce resources are determined in accordance with the principles of original appropriation or homesteading (whereby a person becomes an owner of an unowned resource by first use and transformation), contract (whereby the owner consensually transfers ownership to another person), and rectification (whereby an owner’s property rights in certain resources are transferred to a victim of the owner’s tort, trespass, or aggression to compensate the victim).]

I had also drafted a more concise version, but the Mises Caucus went with the more detailed one. The more concise one was:

[Aggression is the initiation of force, or the threat thereof, against, or the unconsented-to use of, another person’s body or other owned resource (property) without his or her consent, including fraudulent takings of property. We oppose all acts of aggression as illegitimate and unjust, whether committed by private actors or the state, and all laws that commit aggression.

Property rights in external, scarce resources are determined in accordance with the principles of homesteading of unowned resources, contractual title transfer of owned resources, and restitution to compensate a victim of aggression.

See also my post “The Limits of Libertarianism?: A Dissenting View”:

What distinguishes libertarianism from other political philosophies is its particular answer as to how property rights should be allocated in scarce (i.e., rivalrous, contestable) resources. And that answer is: property rights ought to be allocated in accordance with Lockean principles of initial appropriation, sometimes called homesteading; contractual transfer; and other transfers as a result of torts or crimes. As Roderick Long puts it, citing Robert Nozick,

Libertarian property rights are, famously, governed by principles of justice in initial appropriation (mixing one’s labour with previously unowned resources), justice in transfer (mutual consent), and justice in rectification (say, restitution plus damages).¹

1. Long, Why Libertarians Believe There is Only One Right.

The first two of these principles correspond to your rules (i) and (iii). As noted above, I think it might be better to explicitally call out the third one too.
I make this point also in a recent article, “Against Intellectual Property After Twenty Years: Looking Back and Looking Forward”:

Thus, IP rights amount to a taking or infringement of property rights otherwise established in accordance with the principles of original appropriation and contract.[42]
[42]Kinsella, “How To Think About Property,” StephanKinsella.com (April 25, 2021). A third principle, related to contractual transfer, is a transfer of resources made for purposes of rectification. This can be viewed as a special case of a contractual title transfer. See Kinsella, “The Limits of Libertarianism?: A Dissenting View” (citing Roderick Long and Robert Nozick);

One final point about these 3 property rights rules: when we say that we determine ownership in accordance with original appropriation (plus contractual transfer or transfer for purposes of rectification), one common retort (usually made by people who want to undermine property rights) is that the history of property lies in conquest so rarely can title be traced back to “Adam”, so that no property rights are legitimate–presumably so that no one can complain when the state or whatever comes in to redistribute property rights.

The response to this is that you don’t need to trace title back to the first owner; all disputes are between two existing people, and you only have to show which one has a better claim. You don’t need to trace it back to Adam but usually only to a common ancestor-in-title. If A and B both claim Greenacre, and they both admit that Z owned it 300 years ago, then even if Z stole it from Y, it doesn’t matter. Now if A claims from Y then he would win even if B has possession and claims back to Z. Etc. I go into this a bit here — “What Libertarianism Is” [see now: ch. 2 of Legal Foundations of a Free Society]:

More generally, latecomers’ claims are inferior to those of prior possessors or claimants, who either homesteaded the resource or who can trace their title back to the homesteader or earlier owner.25 The crucial importance of the prior-later distinction to libertarian theory is why Professor Hoppe repeatedly emphasizes it in his writing.26
25. See Louisiana Code of Civil Procedure, Art. 3653, providing:

“To obtain a judgment recognizing his ownership of immovable property … the plaintiff … shall:

Prove that he has acquired ownership from a previous owner or by acquisitive prescription, if the court finds that the defendant is in possession there of; or Prove a better title thereto than the defendant, if the court finds that the latter is not in possession thereof.”

When the titles of the parties are traced to a common author, he is presumed to be the previous owner.

See also, on this topic: Rothbard on the “Original Sin” in Land Titles: 1969 vs. 1974 and Mises, Rothbard, and Hoppe on the “Original Sin” in the Distribution of Property Rights.

***

Finally, regarding your principle (ii): this is about what the right is so probably should be separated from (i) and (iii), which have to do with how we determine who owns a given resource.

And I think your principle (ii) could be clarified. The more I’ve thought about this issue, I think it’s incorrect to view property as a “right to use” a resource. The ability to use is a consequence of the right, but technically speaking, a property right in a resource is only the right to exclude or prevent others from using it. The difference matters because if you say it’s a right to use, then this opens the door to the criticism that since you can’t “use your property” to violate others’ property rights, this means property rights are always “limited”, and “therefore” the criticism of IP that it limits property rights, is not a good criticism–“after all”, they argue, “all property rights limit other property rights.” So, they argue, just because IP limits how you can use your property, this doesn’t mean IP is illegitimate since all property rights are limited. This is wrong. Property rights don’t limit other property rights—they limit actions. I am entitled to engage in any action at all (and all action employs scarce resources–some owned, some not) except using someone else’s owned resource (their body or owned external object) without their consent.

In other words, instead of saying property rights are the right to use, as you imply: “(ii) to be a rightful owner is ordinarily to have full control over what happens to each physical object one has justly acquired” — it should be seen as the right to exclude (to prevent others from using it). The difference is subtle and perhaps hard to understand at first, but I think it is critical and important.

Ironically, what helped me to see this was the nature of patent rights: they too do not give the inventor/patentee the right to use or practice his patented invention, but only the right to prevent others. For example A invents a stool: a seat attached to 3 or more legs. B later improves on this and adds a back, thus patenting a chair: A seat, with legs, and a back (or: a stool plus a back)). B can prevent A or anyone else from making a chair, but B can’t himself make the chair since the chair would violate the stool patent–since a chair would have a seat and legs, which is what A’s patent claims cover.

Likewise for normal property rights. Suppose I own a nuclear bomb. That doesn’t mean I have a “right to use it” since a use of it might violate my neighbors’ rights. Likewise if I have a gun I don’t have an unlimited right to use it–I can’t point it at your body and shoot it. But this is not a limitation on my property right, it’s a limitation on my actions. I don’t have a right to use a stolen gun to shoot you either. It is your property rights in your body that limit what actions I can perform.

Or as I wrote in “Against Intellectual Property After Twenty Years: Looking Back and Looking Forward”:

[55]To be even more precise, I would say that a property right is not a right to use a resource, but a right to exclude others from using a resource. In practical terms this gives the owner the ability to use it as he sees fit so long as he is not using trespassing on others’ property rights. This follows from the analysis in Kinsella, “The Non-Aggression Principle as a Limit on Action, Not on Property Rights,” StephanKinsella.com (Jan. 22, 2010) and “IP and Aggression as Limits on Property Rights: How They Differ,” StephanKinsella.com (Jan. 22, 2010). However, we need not delve into this nuance here.

Thus, when IP rights limit your existing property rights, it is in fact illegitimate. I explain this in this section, “IP Rights as Negative Easements[36]“, of “Against Intellectual Property After Twenty Years: Looking Back and Looking Forward”. Or, as Gary writes in his article:

1. Gary informs me that an updated version of this article is incorporated into ch. 2 of his book Anarchy and Legal Order: Law and Politics for a Stateless Society (Cambridge, 2012; online at zlib dot org). [↩]