What Property Rights Actually Are

Note: An article based on the transcript (below) was published as Stephan Kinsella, "Selling Does Not Imply Ownership, and Vice-Versa: A Dissection," The Libertarian Standard (Oct. 25, 2022). An updated and revised version of this article appears as chap. 11 of Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023). Archived version below. Conformed version below. See also Pavel Slutskiy, "Yes, You Should Own Bitcoin,” J. Libertarian Stud. 28, no. 1 (2024): 1–19; and KOL274 | Nobody Owns Bitcoin (PFS 2019). Errata: See also On Kissing the Girl, Changing One’s Mind, Reserving Rights, and Voluntary Slavery *** Kinsella on Liberty Podcast: Episode 395. From the recently-concluded Sixteenth Annual (2022) Meeting of the PFS, Bodrum, Turkey (Sep. 17, 2022). The video as well as slide presentation is also streamed below (ppt). I also recorded a version on my iphone. Also podcast at PFP245 | Stephan Kinsella, “Selling Does Not Imply Ownership, and Vice-Versa: A Dissection” (PFS 2022). See the following panel discussion at PFP246 | Hülsmann, Fusillo, Israel, Polleit, Kinsella, Discussion, Q&A (PFS 2022). Transcript below. See published article based on this talk, here: Stephan Kinsella, "Selling Does Not Imply Ownership, and Vice-Versa: A Dissection," The Libertarian Standard (Oct. 25, 2022; https://libertarianstandard.com/selling-does-not-imply-owning-and-vice-versa-a-dissection/); also at Freedom and Law substack. See also Walter Block's response: Walter E. Block, Block, "Rejoinder to Kinsella on ownership and the voluntary slave contract,” Management Education Science Technology Journal (MESTE) 11, no. 1 (Jan. 2023): 1-8 [pdf] For others, see the PFS YouTube channel, including the PFS 2022 YouTube Playlist. [For those interested in the Hoppe ringtone mentioned in the beginning: see this Facebook post or the opening to this podcast by Jared Howe.] https://youtu.be/5Q7chBHfHEQ Odysee: Panel discussion: https://youtu.be/Q3lvh5UqgxU Related: "Against Intellectual Property After Twenty Years: Looking Back and Looking Forward," the section "Selling Does Not Imply Ownership" The “If you own something, that implies that you can sell it; if you sell something, that implies you must own it first” Fallacies Libertarian Answer Man: Self-ownership for slaves and Crusoe; and Yiannopoulos on Accurate Analysis and the term “Property”; Mises distinguishing between juristic and economic categories of “ownership” The Non-Aggression Principle as a Limit on Action, Not on Property Rights IP and Aggression as Limits on Property Rights: How They Differ KOL044 | “Correcting some Common Libertarian Misconceptions” (PFS 2011) KOL049 | “Libertarian Controversies Lecture 5” (Mises Academy, 2011) KOL274 | Nobody Owns Bitcoin (PFS 2019) KOL004 | Interview with Walter Block on Voluntary Slavery and Inalienability Thoughts on Walter Block on Voluntary Slavery, Alienability vs. Inalienability, Property and Contract, Rothbard and Evers “On Conflictability and Conflictable Resources” How We Come To Own Ourselves Aggression and Property Rights Plank in the Libertarian Party Platform A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability Cordato and Kirzner on Intellectual Property On the Danger of Metaphors in Scientific Discourse Hoppe, “A Note on Preference and Indifference in Economic Analysis” and “Further Notes on Preference and Indifference: Rejoinder to Block,” both in The Great Fiction Conformed to LFFS version: 11 Selling Does Not Imply Ownership, and Vice-Versa: A Dissection   I delivered this speech at the Property and Freedom Society’s 16th Annual Meeting, in Bodrum, Turkey, in 2022.* It takes aim, in part, at some of my friend Walter Block’s views on voluntary slavery and body-alienability, a topic we’ve disagreed about for a long time.† The transcript was lightly edited for clarity and to add some headings, references, and links, but the colloquial and informal tone has largely been preserved. I published it on my old, mostly defunct site The Libertarian Standard, to which Walter responded in due course.†† This chapter is a lightly-edited version of that article.§   *    Kinsella, “KOL395 | Selling Does Not Imply Ownership, and Vice-Versa: A Dissection (PFS 2022),” Kinsella on Liberty Podcast (Sept. 17, 2022). †   See Kinsella, “KOL004 | Interview with Walter Block on Voluntary Slavery and Inalienability,” Kinsella on Liberty Podcast (Jan. 27, 2013). ††  Kinsella, “Selling Does Not Imply Ownership, and Vice-Versa: A Dissection,” The Libertarian Standard (Oct. 25, 2022). Walter’s response: “Rejoinder to Kinsella on Ownership and the Voluntary Slave Contract,” Management Education Science Technology Journal (MESTE) 11, no. 1 (Jan. 2023; https://perma.cc/H3AL-WBQJ): 1–8. See also idem, “Toward a Libertarian Theory of Inalienability: A Critique of Rothbard, Barnett, Gordon, Smith, Kinsella and Epstein,” J. Libertarian Stud. 17, no. 2 (Spring 2003; https://perma.cc/79AC-34BZ): 39–85. Some of this material is also discussed in “Against Intellectual Property After Twenty Years: Looking Back and Looking Forward” (ch. 15), Part IV.G.   TWO RELATED FALLACIES I want to explore two related beliefs, which I think are fallacious, and they stem from confusions about core libertarian principles and confusions introduced by the sloppy use of language and overuse of metaphorical thinking. And, by the way, I did touch on this topic in less detail at the PFS [Property and Freedom Society] here in 2011, when I talked about a bunch of libertarian misconceptions, and also in a “Libertarian Controversies” lecture from Mises Academy about 10 years ago.[1] So, the first fallacy: Ownership implies selling. Walter Block uses this a lot. In fact, I heard him say it explicitly last week again in Nashville at the Libertarian Scholars Conference. So the idea is this: if you own yourself—that is, you own your body—you should be able to sell it. So, a voluntary slavery contract should be enforceable. And if the legal system does not permit voluntary slavery, then it means you really don’t own yourself. So the implicit assumption behind this argument is that one inherent aspect of ownership is the right or ability to sell.[2] In other words, it is assumed that “ownership” necessarily includes the ancillary “right to sell.” It’s taken for granted that “if you own something, you can sell it.” This is a mistaken assumption, as I shall explain presently. Fallacy two: Selling implies ownership. So, some contracts that we’re used to are exchanges of owned things. Consider some simple ones: an apple for an orange, 10 chickens for a pig, 1 ounce of gold for a horse, or $3 for a cup of coffee. Now, we also have labor contracts, where it’s considered to be a sale of a service, which implies that you “own your labor” because, after all, you “sold” it. And also there’s the sale of knowledge, information, or know-how—like teachers who get paid to give information, publishers, speakers, contracts for transfer of know-how, and so on. And this argument is also used to argue for intellectual property. People say, “Well, if you can sell your idea, you must have owned it, so intellectual property is a legitimate concept.” Similarly with Bitcoin: people say that Bitcoin can be possessed, and sold, so Bitcoins must be owned and ownable things.[3] SCARCITY AND PROPERTY RIGHTS Now, let’s revisit some elementary categories of libertarian thought. So first of all, action is when humans in the world employ means or scarce resources as tools to help achieve their ends or goals. When there’s society—other human actors—there’s a possibility of conflict in the use of these resources. Now, it’s good that we live in society, because we have the division and specialization of labor, trade, and intercourse with other people. But there can also be conflict among human actors in the use of these scarce resources, including our bodies, because of the nature of these resources. So what this means is the scarce resources, which we employ as human actors in a purely economic sense, are precisely things over which there can be conflicts. So sometimes, to avoid confusion, I will refer to these things as rivalrous, or contestable or conflictable resources.[4] They are the types of things over which there can be conflict. I find I sometimes need to emphasize this aspect and avoid the term “scarce resources” because, quite often, an intellectual property proponent will say something like, well, “I don’t know about you, but good ideas is pretty scarce.” They can’t easily say that good ideas are conflictable (or rivalrous), though. The point is information is not the type of thing that can be subject to property rights or ownership.[5] Property Rights Now, in civilized society, property or ownership rights are assigned to reduce this conflict.[6] So what are property rights? All rights are human rights, and all human rights just are property rights,[7] because the very purpose of property rights is to avoid conflict over scarce (rivalrous, conflictable) resources. So ownership means property rights. To own a thing is to have a property right in the thing. So it’s actually better to refer to property as the relationship between a person and a thing, although, over time, we sometimes are careless with language, and we will refer to the thing itself as property. Like we’ll say, “That car is my property.” But precise language would be, “I have a property right in that thing, in that car,” or “I own that car.”[8] All right: so, ownership and property rights. A property right in a thing gives the owner the right to use it. This is what property rights are. Now, to be more precise, which is—this precision is not necessary for today’s discussion,