Colorado. "Round up" on the Cimarron, a photochrom print from 1898. Library of Congress
Perhaps the most interesting thing about libertarian thought is that it has no way of coherently justifying the initial acquisition of property. How does something that was once unowned become owned without nonconsensually destroying others’ liberty? It is impossible. This means that libertarian systems of thought literally cannot get off the ground. They are stuck at time zero of hypothetical history with no way forward.
You don’t have to take my word for this. Serious libertarians have more or less conceded this point. Here is Robert Nozick:
It will be implausible to view improving an object as giving full ownership to it, if the stock of unowned objects that might be improved is limited. For an object’s coming under one person’s ownership changes the situation of all others. Whereas previous they were at liberty (in Hohfeld’s sense) to use the object, they now no longer are.
Here is Matt Zwolinski:
If I put a fence around a piece of land that had previously been open to all to use, claim it as my own, and announce to all that I will use violence against any who walk upon it without my consent, it would certainly appear as though I am the one initiating force (or at least the threat of force) against others. I am restricting their liberty to move about as they were once free to do. I am doing so by threatening them with physical violence unless they comply with my demands. And I am doing so not in response to any provocation on their part but simply so that I might be better able to utilize the resource without their interference.
Again, what’s so funny about this insight is not just that it is a persuasive counterpoint to libertarianism, but rather that it seems to suggest that libertarian principles themselves forbid property ownership.
To be sure, libertarian philosophers have developed various ways to muddle through this issue. Locke famously constrains acquisition by the proviso that there is “enough and as good” property left for others. Nozick goes on to show Locke’s literal proviso is impossible to satisfy and offers a similar constraint that property acquisition not worsen “the position” of others where “the position” is defined in vaguely welfarist terms. Zwolinski goes one step further than Nozick even and says the harms of initial property acquisition must be offset with a basic income.
None of these moves resolve the basic issue that property acquisition violates the liberty of others. They just try to compensate for it in some way, sort of like an initial-acquisition version of eminent domain. That’s fine as far as things go I suppose, but it tends to suffer from the problem that most libertarians are quite opposed to the kinds of ongoing transfers implied by these compensation schemes.
In her debate at Liberty Con, Elizabeth Bruenig asked Bryan Caplan how unowned property becomes owned. He struggled with the question at the debate but his eventual answer, which is now more eloquently elaborated at his website, relies on half-baked intuition pumps (“folk morality” as he calls it elsewhere):
There are many clear-cut cases of righteous acquisition; once we understand them, we can use them to analyze fuzzier cases. What are some clear-cut cases? An individual living alone on an island grows some food, builds a house, carves a sculpture, or quarries some rock. If someone else shows up on the island, the new arrival seems morally obligated to respect that property.* This isn’t just “seems to me” or “seems to libertarians”; it’s “seems to almost everyone other than self-conscious socialist philosophers.” Other clear-cut cases: If two people mutually agree to pool their resources and effort, then split the rewards according to an explicit formula — whether 50/50, 90/10, or whatever. Or: I pay you ten pounds of food to build me a new hut.
There are two issues here, one narrowly related to the case he selects, and another more broadly related to the method he selects.
The problem with the case is that, by clearing out all other people from the island, it eliminates the liberty destruction that makes property acquisition so obviously problematic. What if instead of one individual washing up on an island, ten of them do? Then one of them asserts that certain resources and land areas are his and that those who do not respect that claim will be violently attacked? This is more analogous to a real-life case of property acquisition where there exists more than one human being. It also clearly presents the problem of property acquisition rather than trying to get around it by creating a hypothetical society of one.
The problem with the method is that the general folk morality of people, when taken as a whole, is not libertarian. Any assessment of how people generally feel about things in the economic realm would not generate the conclusion that they generally feel like laissez-faire capitalism is correct. We know this because no society ever selects those institutions and because libertarians write books all the time about how democracy is bad precisely because people as a whole are not sympathetic to the libertarian worldview.
An honest assessment of where folk morality is on economics would probably be something like: people have somewhat contradictory ideas about economic morality that roughly sum to the worldview that there should be property rights but also that those rights should give way to fairness and welfare goals to some degree. I am not saying I agree with that general view or even that you should build your normative views this way. But if you are going to say the proper normative method is folk morality, as Caplan does, then it seems like you should actually take a comprehensive account of what that folk morality is, not just opportunistically pick off one piece of it.