Homestead principle

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The homestead principle in law and in ethics is the principle by which one gains just ownership of an unowned 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 (as with placing it in a pocket) or by evidently marking it (as with livestock branding). Proponents of intellectual property hold that original ideas can also be homesteaded by applying them. Homesteading is one of the foundations of the capitalism and libertarianism ideologies.

Interpretation and justifications

John Lock

Enlightenment philosopher John Locke in his work Second Treatise of Government, published in 1690 advocated the lockean proviso, which allows for homesteading. Lock famously sees the "mixing of labour" with land as the source of ownership via homesteading. He writes:

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.

Murray Rothbard

Libertarian philosopher and economist Murray Rothbard argues that homesteading includes all the rights needed to engage in the act of homesteading, 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.

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 use of 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.

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.

Homesteading laws

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 its indigenous inhabitants, and which the state would want to have populated by farmers. Examples:

• United States: Florida Armed Occupation Act (1842), Homestead Act (1862)
• Canada: Dominion Lands Act (1872)
• Australia: Crown Lands Acts (1861)

In maritime law, salvage rights are extended to finders of shipwrecks or other abandoned property.

See also

• Assarting
• Homestead exemption
• Homesteading
• Positive law
• Possession as nine-tenths of the law
• Seasteading

External links

• The Eros Project