Re: “The First-Appropriation Principle”

Almost a couple of years ago I made a reply to a Tumblr post that quoted Konrad Graf about the “First-Appropriation Principle.”^[1]If you don’t know who Konrad Graf is, then you should since his paper on Action-Based Jurisprudence is brilliant. I’ll include the full context and then my reply. ^[2]I made this reply back when I was steelmanning Mutualism for a comparative argument against private property rights, so some context is missing until I turn notes and thoughts into an actual post.

“The relevant axioms, in the sense of irrefutable starting places, are non-contradiction, action, and argumentation. The first appropriation principle is something that logically follows. I personally have also been taking this in the direction of “self-ownership” (which is a confusing concept anyway) being a special case of the first-appropriation principle, which is the more precise and universalizable concept. Also, the word “homesteading” seems a little silly to me, as it has such strong historical associations with government-run farm and ranch land parcelling programs, and we are trying to talk in this context about timeless and universal social principles.“

— Konrad Graf

Stephan Kinsella: I think we can actually dispense with the word homesteading (and use “original appropriation” or “first use” instead) and also with the word property, which is sometimes used to refer to the right or relation between and owner and a given scarce resource. However, I am dubious of the idea that self-ownership–or, yes, body-ownership–is rooted in “first appropriation.” If it was, parents could own their children. I tend to think body-ownership is based on the idea of direct control, as Hoppe argues. Direct control establishes the best connection or link between the person and his body. In the case of external resources, then original appropriation and contractual transfer are the basic principles needed to determine ownership or property rights.

Michael Conaghan (Conza): Were you able to take a read of: http://conza.tumblr.com/post/30150211860/self-ownership-and-original-appropriation (linked in the text above).

I definitely agree re – parents not being able to own their children, given as per Hoppe:

“It is worth mentioning that the ownership right stemming from
production finds its natural limitation only when, as in the case of
children, the thing produced is itself another actor-producer. According
to the natural theory of property, a child, once born, is just as much
the owner of his own body as anyone else. Hence, not only can a child
expect not to be physically aggressed against but as the owner of his
body a child has the right, in particular, to abandon his parents once
he is physically able to run away from them and say “no” to their
possible attempts to recapture him. Parents only have special rights
regarding their child – stemming from their unique status as the child’s
producers – insofar as they (and no one else) can rightfully claim to
be the child’s trustee as long as the child is physically unable to run
away and say “no”.
— Hoppe, A Theory of Socialism and Capitalism,

Kinsella: Yes, I think it makes sense, though I still don’t think the self’s ownership of the body is really based on first appropriation, unless this is a special type, that really amounts to the “direct control” Hoppe refers to.

Conza: That’s the way I see it. Saying the same thing essentially. Except instead of really being presented as a two step approach, it’s one. In which: “The physical body is one case of first appropriation in which it is basically impossible for it to be otherwise. (I say, “basically” because, in extremis, one could imagine a hypothetical human who was born, but never developed in such a way as to be able to discernibly act or make choices. Such a person would never develop the ability to “take over” the reigns of their own life from their initial caretakers and would presumably remain a ward of a parent or guardian).“

Can call that ‘special case’ if need be.

Kinsella: Yes, I agree in that case. But this means then that there are two types or two classes of first appropriation, and these distinctions are just why the body is in a sense inalienable. We can sell acquired things *because* we acquired them; if you acquire something that you didn’t previously own, then you can “un-acquire” it. The same does not seem to me to be quite the same with respect to ownership of your body, since it’s hard to conceive of a “you” that does not “have” or “is not” a body. Or, put it this way: first-ownership of unowned, external resources *presupposes* a human actor–a person-having-a-body–who can physically possess and use and emborder the resource. So the nature of original appropriation presupposes a human actor-owner.

So if we call body-ownership “first appropriation,” it’s different because it does not presuppose an owner-actor is the one doing the homesteading. Unless you say that the owner-actor in a sense “comes into existence” at the very same time as, or in the act of, first-appropriation of his body. I suppose you can say this but … even so, there is still a distinction between the two types of homesteading. This is why it is possible to sell an owned thing: the owner-actor exists both before and after that act of de-acquisition. But if I say to you “I hereby sell myself to you”…. i am in no way severing the connection between myself as owner-actor and my body. It’s lke I am continually and always re-homesteading my body with every microsecond of my existence as a person. Therefore the attempt to sell yourself always misfires.

My reply that Disqus marked as spam: I agree with Kinsella in that to call body-ownership “first appropriation” is a misnomer. I do think they are connected together in a one step way; that way is the “objective, intersubjectively ascertainable link (action)” requirement.

When reflecting upon the concept of a (property) right we can see that its function/purpose [I despise both of those terms in this context because the former seems associated with the natural sciences and the latter seems associated with some “designer-creator-actor” of rights] is physical conflict avoidance. A theory of rights assigns ownership of particular rivalrous resources to specific individuals.

What is left then is to find out what the reason(s) is that a specific individual might come to own and continue to own a particular rivalrous resource. In other words, we must find what the link between actor and owned resource must be. This, of course, requires a reason, and is not to be left to some whim or some other arbitrary “reason.” It also requires a reason because otherwise it would result in physical conflict, the possibility of physical conflict, or the possibility of unresolvable physical conflict. A failure for any rights theory as it would be in contradiction with the very concept of a right/ownership.*

This reason(s) must avoid physical conflict. In regards to body ownership the only reason or “link” is direct control. Indirect control being the reason necessarily requires physical conflict. In regards to external resource ownership the only possible reasons are first-use-first-own and contractual exchange. Any latecomer rule either requires physical conflict, allows physical conflict, or allows for unresolvable physical conflict when the first-use-first-own rule does not allow for it. All those reasons are rooted in action, and as such are “intersubjectively ascertainable” and “objective” in the senses that Graf explained in his Action Jurisprudence paper.

I also think Graf is incorrect here on the 3 a priori statements. It should be existence, action, and argumentation. The law of non-contradiction follows from something existing or being existant. It is what it is. It is not what it is not. The claim, “It is what it is not” is contradictory and as such false. This might seem trivial but I think it is important enough to point out.

*I do think there is a type of case where even the first-use-first-own rules fails to prevent unresolvable physical conflict short of agreeing to disagree or negotiations; however, this is not a failure on part of the theory. This is the nature of the type of situation. I’ll illustrate first and then get to the essential point.

Suppose three people are in some unowned woods. Person C sees Person A and Person B approach a stick at the same time that is equidistant between the two. Both wish to use the stick. If neither agree to disagree nor negotiate, then there is unresolvable physical conflict. The first-use-first-own rule is useless here as nobody had used the stick beforehand.

There are rights theories that have a resolution to this problem, but they all are arbitrary. For example, this conflict could be resolved under a theory that states, “If there is a disagreement about the use of a means between a Greek and a German, then the Greek has the right to use the means in question.” Supposing A is Greek and B is German, then it would be resolved by Person A taking ownership of the stick. The obvious problem with this theory of rights, however, is that it is not universalizable. They favor one type or group of person over others before any conflict arises without reason.

 The generalized form of this is “There is a (possible) physical conflict, but there are no reasons why one has ownership of the (possibly) contested rivalrous resource while the other does not.” Neither have a better claim to ownership of a rivalrous resource than the other. Any claims (reasons given) are arbitrary. This is not a failure on part of any theory of rights, but is inherent with the nature of the problem.