Homestead principle

Last updated

Under the homestead principle a farmer putting unowned land to use gains ownership over it KerbauJawa.jpg
Under the homestead principle a farmer putting unowned land to use gains ownership over it

The homestead principle is the principle by which one gains ownership of an unowned natural resource by performing an act of original appropriation. Appropriation could be enacted by putting an unowned resource to active use (as with using it to produce a product), joining it with previously acquired property or by marking it as owned (as with livestock branding).


Proponents[ who? ] of intellectual property hold that ideas can also be homesteaded by originally creating a virtual or tangible representation of them. Others such as Stephan Kinsella argue that since tangible manifestations of a single idea will be present in many places, including within the minds of people, this precludes their being owned in most or all cases.

Homesteading is one of the foundations of Rothbardian anarcho-capitalism and radical neoliberalism in the form of right-libertarianism.

In political philosophy

John Locke

In his 1690 work Second Treatise of Government , Enlightenment philosopher John Locke advocated the Lockean proviso which allows for homesteading.

Locke famously saw the mixing of labour with land as the source of ownership via homesteading:

Though the earth and all inferior creatures be common to all men, yet every man has a property in his own person. This nobody has any right to but himself. The labour of his body and the work of his hands, we may say, are properly his. Whatsoever, then, he removes out of the state that Nature hath provided and left it in, he hath mixed his labour with it, and joined to it something that is his own, and thereby makes it his property. [1]

However, Locke held that individuals have a right to homestead private property from nature only so long as "there is enough, and as good, left in common for others". [2] The Lockean proviso maintains that appropriation of unowned resources is a diminution of the rights of others to it, and would only be acceptable if it does not make anyone else worse off.

Murray Rothbard

Radical neoliberal philosopher and Austrian School economist Murray Rothbard argues that homesteading includes all the rights needed to engage in the homesteading action, including nuisance and pollution rights. He writes:

Most of us think of homesteading unused resources in the old-fashioned sense of clearing a piece of unowned land and farming the soil. … Suppose, for example, that an airport is established with a great deal of empty land around it. The airport exudes a noise level of, say, X decibels, with the sound waves traveling over the empty land. A housing development then buys land near the airport. Some time later, the homeowners sue the airport for excessive noise interfering with the use and quiet enjoyment of the houses.

Excessive noise can be considered a form of aggression but in this case the airport has already homesteaded X decibels worth of noise. By its prior claim, the airport now "owns the right" to emit X decibels of noise in the surrounding area. In legal terms, we can then say that the airport, through homesteading, has earned an easement right to creating X decibels of noise. This homesteaded easement is an example of the ancient legal concept of "prescription," in which a certain activity earns a prescriptive property right to the person engaging in the action. [3]

Rothbard interprets the physical extent to which a homesteading act establishes ownership in terms of the relevant "technological unit", which is the minimal amount necessary for the practical use of the resource. He writes:

If A uses a certain amount of a resource, how much of that resource is to accrue to his ownership? Our answer is that he owns the technological unit of the resource. The size of that unit depends on the type of good or resource in question, and must be determined by judges, juries, or arbitrators who are expert in the particular resource or industry in question. [3]

Anthony de Jasay

Hungarian political philosopher Anthony de Jasay argued that a homesteader, having a claim prior to any other, must be prima facie considered the owner of the resource, in accordance with the principle "let ownership stand":

[If] taking first possession of a thing is a feasible act of his that is admissible if it is not a tort (in this case not trespass) and violates no right; but this is the case by definition, i.e., by the thing being identified as “unowned.” Taking exclusive possession of it is, in terms of our classification of possible acts, a liberty, and as such only a contrary right can obstruct or oppose it. 14 The opponent of this simple thesis is trying to have it both ways: he is both asserting that the thing has no legitimate first owner from whom a second or nth owner could have legitimately obtained it by agreed transfer, and that there is nevertheless somebody who has been and still is entitled to use the thing and therefore can validly object to being excluded from it. But an entitlement to use the thing is an at least partial antecedent ownership claim needing an owner, or the permission of an owner, before it can be made; ownership cannot both exist yet not exist. If, on the other hand, the objectors have been using the thing without being entitled to it, because no third party had excluded them by taking first possession, and because they were unable, unwilling, or uninterested to perform the act of taking first possession themselves (whatever that act may consist of), their enjoyment of the thing was precarious, not vested. Its appropriation by a third party may have deprived them of an uncovenanted advantage, but it did not violate their rights. [4]

Hans-Hermann Hoppe

Similarly to de-Jasay, Hans-Hermann Hoppe argues that the denial of the homesteading rule entails a performative contradiction. That is because honest argumentation must presuppose an intersubjectively ascertainable norm (i.e. justifiable), and all norms not relying on the original establishment of a physical (and therefore evident) link to the owner are subjective in nature, and therefore contradict the presuppositions of argumentation. He writes:

Further, if one were not allowed to appropriate other resources through homesteading action, i.e., by putting them to use before anybody else does, or if the range of objects to be homesteaded were somehow limited, this would only be possible if ownership could be acquired by mere decree instead of by action. However, this does not qualify as a solution to the problem of ethics, i.e., of conflict-avoidance, even on purely technical grounds, for it would not allow one to decide what to do if such declarative claims happened to be incompatible. More decisive still, it would be incompatible with the already justified self-ownership, for if one could appropriate resources by decree, this would imply that one could also declare another person’s body to be one’s own. Thus, anyone denying the validity of the homesteading principle—whose recognition is already implicit in arguing two persons’ mutual respect for each other’s exclusive control over his own body—would contradict the content of his proposition through his very act of proposition making. [5]

Ayn Rand

Ayn Rand has not elaborated on the characteristics of homesteading, but she had expressed support for compatible laws such as favourably citing the Homestead Act (1862):

A notable example of the proper method of establishing private ownership from scratch, in a previously ownerless area, is the Homestead Act of 1862, by which the government opened the Western frontier for settlement and turned "public land" over to private owners. The government offered a 160-acres farm to any adult citizen who would settle on it and cultivate it for five years, after which it would become his property. Although that land was originally regarded, in law, as "public property," the method of its allocation, in fact, followed the proper principle (in fact, but not in explicit ideological intention). The citizens did not have to pay the government as if it were an owner; ownership began with them, and they earned it by the method which is the source and root of the concept of "property": by working on unused material resources, by turning a wilderness into a civilized settlement. Thus, the government, in this case, was acting not as the owner but as the custodian of ownerless resources who defines objectively impartial rules by which potential owners may acquire them. [6]

Linda and Morris Tannehill

Linda and Morris Tannehill argue in The Market for Liberty that physically claiming the land (e.g. by fencing it in or prominently staking it out) should be enough to obtain good title:

An old and much respected theory holds that for a man to come into possession of a previously unowned value it is necessary for him to "mix his labor with the land" to make it his own. But this theory runs into difficulties when one attempts to explain what is meant by "mixing labor with land." Just how much labor is required, and of what sort? If a man digs a large hole in his land and then fills it up again, can he be said to have mixed his labor with the land? Or is it necessary to effect a somewhat permanent change in the land? If so, how permanent?...Or is it necessary to effect some improvement in the economic value of the land? If so, how much and how soon?...Would a man lose title to his land if he had to wait ten months for a railroad line to be built before he could improve the land?...And what of the naturalist who wanted to keep his land exactly as it was in its wild state to study its ecology?...[M]ixing one's labor with the land is too ill-defined a concept and too arbitrary a requirement to serve as a criterion of ownership. [7]

In law

Common law

Under the ad coelum doctrine land ownership extends in a cone from the earth's core up to the exosphere Earth-crust-cutaway-english.svg
Under the ad coelum doctrine land ownership extends in a cone from the earth's core up to the exosphere

Common law provides the ad coelum doctrine by which landlords own everything below and above the land, up to the sky and below the earth to its core, with the exception of volatile minerals such as natural gas. The rules governing what constitutes homesteading were not specified by common law but by the local statutory law. Common law also recognizes the concept of adverse possession ("squatters' rights"). [8] Murray Rothbard criticized this doctrine as incompatible with his own homestead principle as a literal application prevent aircraft from traveling over someone's land, further arguing:

But is the practical problem of aviation the only thing wrong with the ad coelum rule? Using the homesteading principle, the ad coelum rule never made any sense, and is therefore overdue in the dustbin of legal history. If one homesteads and uses the soil, in what sense is he also using all the sky above him up into heaven? Clearly, he isn't. [9]

So long as the aircraft did not damage or disturb the land, the owner would not have a claim. By the same principle, ownership of mineral and water resources on or under the land would also require homesteading, otherwise being left unowned.

Statutory law

In the 19th century, a number of governments formalized the homestead principle by passing laws that would grant property of land plots of certain standardized size to people who would settle on it and "improve" it in certain ways (typically, built their residence and started to farm at least a certain fraction of the land). Typically, such laws would apply to territories recently taken from their indigenous inhabitants, and which the state would want to have populated by farmers. Examples include:

See also

Related Research Articles

Anarcho-capitalism is a political philosophy and economic theory that advocates the elimination of centralized states in favor of self-ownership, private property and free markets. Anarcho-capitalists hold that in the absence of statute, society tends to contractually self-regulate and civilize through the spontaneous and organic discipline of the free market which they describe as a voluntary society. They support wage labour as a voluntary trade, and believe that neither protection of person and property nor victim compensation requires a state.

Property in the abstract is what belongs to or with something, whether as an attribute or as a component of said thing. In the context of this article, it is one or more components, whether physical or incorporeal, of a person's estate; or so belonging to, as in being owned by, a person or jointly a group of people or a legal entity like a corporation or even a society. Depending on the nature of the property, an owner of property has the right to consume, alter, share, redefine, rent, mortgage, pawn, sell, exchange, transfer, give away or destroy it, or to exclude others from doing these things, as well as to perhaps abandon it; whereas regardless of the nature of the property, the owner thereof has the right to properly use it, or at the very least exclusively keep it.

Geolibertarianism is a political and economic ideology which integrates libertarianism with Georgism. It is a moderate, softly propertarian strain of left-libertarian thought, often associated with radical centrism.

Free-market environmentalism argues that the free market, property rights, and tort law provide the best means of preserving the environment, internalizing pollution costs, and conserving resources.

Finders, keepers is an English adage with the premise that when something is unowned or abandoned, whoever finds it first can claim it. This idiom relates to an ancient Roman law of similar meaning and has been expressed in various ways over the centuries. Of particular difficulty is how best to define when exactly something is unowned or abandoned, which can lead to legal or ethical disputes.

Adverse possession, sometimes colloquially described as "squatter's rights", is a legal principle which a person who does not have legal title under to a piece of property—usually land —acquires legal ownership based on continuous possession or occupation of the land without the permission of its legal owner.

Self-ownership, also known as sovereignty of the individual or individual sovereignty, is the concept of property in one's own person, expressed as the moral or natural right of a person to have bodily integrity and be the exclusive controller of one's own body and life. Self-ownership is a central idea in several political philosophies that emphasize individualism, such as libertarianism, liberalism, and anarchism.

<i>Cuius est solum, eius est usque ad coelum et ad inferos</i>

Cuius est solum, eius est usque ad coelum et ad inferos is a principle of property law, stating that property holders have rights to not only to the plot of land itself, but also the air above and the ground below. The principle is often referred to in its abbreviated form as the ad coelum doctrine.

Unowned property refers to tangible, physical things which are capable of being reduced to being property owned by an individual, but are not owned by anyone. Nearly every piece of land on the Earth is property and has a maintainer (owner). The class of objects, "unowned things", are objects which are not yet property; either because it has been agreed by sovereign nations that no one can own them, or because no person, or other entity, has made a claim of ownership.

The non-aggression principle (NAP), also called the non-aggression axiom, the anti-coercion, zero aggression principle, or non-initiation of force, is an ethical stance asserting that aggression is inherently wrong. In this context, aggression is defined as initiating or threatening any forceful interference with an individual or their property. In contrast to pacifism, it does not forbid forceful defense.

Left-libertarianism, also known as egalitarian libertarianism, left-wing libertarianism or social libertarianism, is a political philosophy and type of libertarianism that stresses both individual freedom and social equality. As a term, "left-libertarianism" is used for several related yet distinct approaches to political and social theory. In its classical usage, it is an anti-authoritarian varieties of left-wing politics such as anarchism, especially social anarchism, whose adherents called "libertarianism". In the United States, it represents the left-wing of the libertarian movement and the political positions associated with academic philosophers Hillel Steiner, Philippe Van Parijs and Peter Vallentyne that combine self-ownership with an egalitarian approach to natural resources. This is done to distinguish libertarian views on the nature of property and capital, usually along left–right or socialist–capitalist lines.

Lockean proviso

The Lockean proviso is a feature of John Locke's labour theory of property which states that whilst individuals have a right to homestead private property from nature by working on it, they can do so only "at least where there is enough, and as good, left in common for others".

Propertarianism, or proprietarianism, is an ethical philosophy that advocates Lockean sticky property norms, where an owner keeps his property more or less until he consents to gift or sell it, rejecting the Lockean proviso.

Labor theory of property

The labor theory of property is a theory of natural law that holds that property originally comes about by the exertion of labor upon natural resources. The theory has been used to justify the homestead principle, which holds that one may gain whole permanent ownership of an unowned natural resource by performing an act of original appropriation.

In Roman Law, Occupatio was an original method of acquiring ownership of un-owned property by occupying with intent to own. According to the Roman jurist Gaius, any previously unowned thing becomes the just property of the first occupant able to "capture" it:

Appropriation is a process by which previously unowned natural resources, particularly land, become the property of a person or group of persons. The term is widely used in economics in this sense. In certain cases, it proceeds under very specifically defined forms, such as driving stakes or other such markers into the land claimed, which form gave rise to the term “staking a claim.” "Squatter’s rights" are another form of appropriation, but are usually asserted against land to which ownership rights of another party have been recognized. In legal regimes recognizing such acquisition of property, the ownership of duly appropriated holdings enjoys such protections as the law provides for ownership of property in general.

Libertarianism is variously defined by sources as there is no general consensus among scholars on the definition nor on how one should use the term as a historical category. Scholars generally agree that libertarianism refers to the group of political philosophies which emphasize freedom, individual liberty and voluntary association. Libertarians generally advocate a society with little or no government power.

United States v. Causby, 328 U.S. 256 (1946), was a United States Supreme Court Decision related to ownership of airspace above private property. The Court held that title to land includes domain over the lower altitudes. The United States Government claimed a public right to fly over Causby's farm, while Causby argued such low-altitude flights entitled the property owner to just compensation under the takings clause of the Fifth Amendment." The findings were two-fold. The court rejected the United States Government's assertion to "possess" and "control" airspace down to ground level, and it nullified the doctrine that property extends indefinitely upward.

Title-transfer theory of contract

The title-transfer theory of contract (TTToC) is a legal interpretation of contracts developed by economist Murray Rothbard and jurist Williamson Evers. The theory interprets all contractual obligations in terms of property rights, viewing a contract as a bundle of title transfers. The TTToC stands in oppositions to most mainstream contract theories which view contractual obligations as the result of a binding promise. Proponents of the approach often claim it is superior on grounds of both consistency and ethical considerations. The TTToC is often supported by libertarians.

Left-wing market anarchism is a strand of free-market anarchism and an individualist anarchist, left-libertarian and libertarian socialist political philosophy and economic theory associated with contemporary scholars such as Kevin Carson, Gary Chartier, Charles W. Johnson, Roderick T. Long, Chris Matthew Sciabarra, Sheldon Richman and Brad Spangler, who stress the value of radically free markets, termed freed markets to distinguish them from the common conception which these libertarians believe to be riddled with statist and capitalist privileges. Proponents of this approach distinguish themselves from right-libertarians and strongly affirm the classical liberal ideas of self-ownership and free markets while maintaining that taken to their logical conclusions these ideas support anti-capitalist, anti-corporatist, anti-hierarchical and pro-labor positions in economics; anti-imperialism in foreign policy; and thoroughly radical views regarding issues such as class, gender, sexuality and race.


  1. Locke, John (1689). The Two Treatises of Government, Bk II, Chap 5, Sect 27. London: A. Millar, et al. Retrieved March 16, 2015.
  2. Second Treatise of Government, Chapter V, paragraph 27.
  3. 1 2 Rothbard, Murray N. (1997). Applications and criticism from the Austrian school. Cheltenham [u.a.]: Elgar. ISBN   1-85898-570-6.
  4. DeJasay, Anthony (1997). Against politics : on government, anarchy, and order (1. publ. ed.). London [u.a.]: Routledge. p. 173. ISBN   0-415-17067-2.
  5. Hoppe, Hans-Hermann (2006). The economics and ethics of private property : studies in political economy and philosophy (PDF) (2nd ed.). Auburn, Ala.: Ludwig von Mises Institute. p. 199. ISBN   0-945466-40-4.
  6. Rand, Ayn (1964). "The Property Status of Airwaves". The Objectivist Newsletter. 3.
  7. Tannehill, Linda and Morris. The Market for Liberty. pp. 57–58.
  8. "Homesteading". West's Encyclopedia of American Law (2nd ed.).
  9. Rothbard, Murray (1982). "Law, Property Rights and Air Pollution" (PDF). Cato Journal. 2 (1).