Many, perhaps most libertarians believe in some version of what is known as Lockean homesteading. You remember it from intro to philosophy: you mix your labor with unowned land and it becomes yours, "land" being defined as basically anything not man-made. The elephant in the living room for this way of thinking is, as so often for clever philosophical types, actual human history. Save Antarctica and some islands in the South Pacific still occupied by the original Polynesians, every square foot of land on Earth currently owned by anyone was at some point stolen from someone else. The classic example is the Native Americans, but if you push back far enough the principle holds just about everywhere.
Now, under these Lockean principles, theft is illegitimate, and buying things off a thief doesn't make the things any less stolen. So, our homesteading friends have a few options. First, they could blow up everything and start over, because it's all illegitimate and immoral. Second, they could abandon silly ideas like "rights" and "natural law" and recognize that "morality" is in fact a collection of sentiments and hypothetical imperatives. Neither of these are very popular. The most popular one appears to be the third: contort yourself into a rhetorical pretzel in order to figure out how, exactly, it's totally okay to take all the Indians' land.
The way this is done is pants-wettingly hilarious to anyone who has ever read three sentences of Marx: they figure out how rights are tied to certain modes of production. No, I am not kidding. Murray Rothbard, in Conceived in Liberty, tells us that since "the bulk of Indian claimed land was not settled or transformed by the Indians," the settlers were therefore "justified in ignoring [their] vague and abstract claims." In other words, people who do not live a settled lifestyle cannot own land. Convenient, no? But why?
For the life of me, I can't figure it out. As best I can tell, there is some arbitrary degree of alteration one must effect in order to become the owner, and nonwhite people are congenitally incapable of so effecting. Okay, the last part is unfair, but more seriously: the line appears to be drawn along those modes of production the libertarians in question prefer. Hunting alters a forest, as even a sixth-grade understanding of ecology will tell you, but it doesn't alter it "enough." Hunting, gathering, cutting trails- none of these are sufficiently altering to create "legitimate" title.
Rothbard writes that "the pioneer, or homesteader, is the man who first brings the valueless unused natural objects into production and use." Is the hunter not using the forest? Game does not pop into existence and subsist on air. The deer are using the forest, and the hunter is using the deer. Is he not producing? Venison is a product. Deerskin moccasins are a product. Totally sweet beaded leather vests are a product. Clearly the hunter is producing. He is turning a component of the natural system into totally sweet beaded leather vests.
The immediate objection is that the hunter's transformation isn't as obvious and as thorough-going as the farmer's. Farmed land has plainly been thoroughly transformed. A forest someone has hunted in has not. In reply I will make two points. First, while I can see the practical value of clearly marking one's property, it is hard to see the ethical significance. While it is plainly unreasonable to shoot trespassers if the land being trespassed on isn't clearly demarcated, arguing that a failure to demarcate one's property invalidates one's claim would invalidate quite a lot of property.
The argument regarding transformation is more sophisticated but also fails. The alteration wrought by a hunter is more subtle, but no less real. The forest is a system, not a collection of discrete elements, and anything that affects one element affects the rest. If a forest is regularly visited by hunters, these hunters take a place in the forest system, an ecological niche. They out-compete other predators and change the functioning of the forest system. True, the change isn't as total as the change wrought by the farmer, but again, it is difficult to see a non-arbitrary reason to value one mode of production over another insofar as creating rights is concerned. Both farming and hunting use the land to produce; both hunting and farming transform the natural world.
But isn't the hunter just transforming his prey? Again, no. At the risk of sounding like a starry-eyed eco-mystic, the deer is quite literally made of the forest. It consumes plants and transmutes them into meat and hide, antler and bone. A farmer who taps a tree for syrup is using the forest to produce just as the hunter is. Without the forest, there is no deer.
But is the hunter "mixing his labor" with the forest? The argument runs like this: We own ourselves, therefore we own our labor. Therefore, when we expend our labor on an unowned good, that good becomes ours, by virtue of our owning the labor we expended in gathering, producing, or transforming it. The hunter does not "mix his labor" as visibly as the farmer, but he surely mixes it. He hunts using knowledge garnered over countless days of his life and learned by his tribe over countless years. He knows the forest, and his knowledge is productive knowledge, useful knowledge- capital. Capital he has created through expending labor in the forest, which he must surely own. He uses this capital to enhance the forest's productive capacity. He owns the forest.
The argument that the Indians could not own their hunting grounds because they did not alter or improve them serves the very useful purpose of discrediting transhumance, hunting and gathering, and other pre-agricultural modes of production incompatible with agricultural and industrial societies. The farmer uses the land directly; the hunter uses it indirectly. But both use it, and both change the natural world in purposeful ways.
To deny that the Indians had a right to their hunting grounds and yet to insist that the white newcomers had a right to clear and farm them is to claim that the Indians' culture somehow lacked legitimacy and, by implication, to deny them equal moral standing with the Europeans. Arguing, as Carl Watner does in his 1983 article "Libertarians and Indians," that the Indians had a right to the land where they built their homes but no right to the land where they acquired their food is to deny, by proxy, their equal right to life. An Indian tribe driven from its hunting grounds faces destruction, just as farmers deprived from their farmland do, whether or not the former keeps his wigwam or the latter his farmhouse.
The rebuttal will be made, "Then how can we establish legitimate ownership? If all ways of 'living off the land' are equally valid ways of establishing ownership, then a man who gathers a few berries owns the whole forest." My response is to abandon the fiction of Lockean homesteading entirely. Ownership is established and maintained by consent backed by force; "legitimacy" is a sentiment, an emotion regarding the act of owning. We feel that some property is legitimate and some is illegitimate and we try to justify these feelings rationally. But we cannot establish a non-arbitrary, entirely consistent method of rationally distinguishing between the two without delegitimizing virtually all existing property. Instead of trying, we should identify what ends we wish to achieve, use our knowledge of the physical and social sciences to identify the best means to achieve them, and then implement these means, without pretending to have discovered any eternal verities in the process.
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