So how do "anarcho"-capitalists justify property? Looking at Murray Rothbard, we find that he proposes a "homesteading theory of property". In this theory it is argued that property comes from occupancy and mixing labour with natural resources (which are assumed to be unowned). Thus the world is transformed into private property, for "title to an unowned resource (such as land) comes properly only from the expenditure of labour to transform that resource into use." [The Ethics of Liberty, p. 63]

Rothbard paints a conceptual history of individuals and families forging a home in the wilderness by the sweat of their labour (its tempting to rename his theory the "immaculate conception of property" as his conceptual theory is somewhat at odds with actual historical fact).

Sadly for Murray Rothbard, his "homesteading" theory was refuted by Proudhon in What is Property? in 1840 (along with many other justifications of property). Proudhon rightly argues that "if the liberty of man is sacred, it is equally sacred in all individuals; that, if it needs property for its objective action, that is, for its life, the appropriation of material is equally necessary for all . . . Does it not follow that if one individual cannot prevent another . . . from appropriating an amount of material equal to his own, no more can he prevent individuals to come." And if all the available resources are appropriated, and the owner "draws boundaries, fences himself in . . . Here, then, is a piece of land upon which, henceforth, no one has a right to step, save the proprietor and his friends . . . Let [this]. . . multiply, and soon the people . . . will have nowhere to rest, no place to shelter, no ground to till. They will die at the proprietor's door, on the edge of that property which was their birthright." [What is Property?, pp. 84-85, p. 118]

As Rothbard himself noted in respect to the aftermath of slavery (see section F.1), not having access to the means of life places one the position of unjust dependency on those who do. Rothbard's theory fails because for "[w]e who belong to the proletaire class, property excommunicates us!" [P-J Proudhon, Op. Cit., p. 105] and so the vast majority of the population experience property as theft and despotism rather than as a source of liberty and empowerment (which possession gives). Thus, Rothbard's account fails to take into account the Lockean Proviso (see section B.3.4) and so, for all its intuitive appeal, ends up justifying capitalist and landlord domination.

It also seems strange that while (correctly) attacking social contract theories of the state as invalid (because "no past generation can bind later generations" [Op. Cit., p. 145]) he fails to see he is doing exactly that with his support of private property (similarly, Ayn Rand argued that "[a]ny alleged 'right' of one man, which necessitates the violation of the right of another, is not and cannot be a right" [Capitalism: The Unknown Ideal, p. 325] but obviously appropriating land does violate the rights of others to walk, use or appropriate that land). Due to his support for appropriation and inheritance, he is clearly ensuring that future generations are not born as free as the first settlers were (after all, they cannot appropriate any land, it is all taken!). If future generations cannot be bound by past ones, this applies equally to resources and property rights. Something anarchists have long realised — there is no defensible reason why those who first acquired property should control its use by future generations.

However, if we take Rothbard's theory at face value we find numerous problems with it. If title to unowned resources comes via the "expenditure of labour" on it, how can rivers, lakes and the oceans be appropriated? The banks of the rivers can be transformed, but can the river itself? How can you mix your labour with water? "Anarcho"-capitalists usually blame pollution on the fact that rivers, oceans, and so forth are unowned, but how can an individual "transform" water by their labour? Also, does fencing in land mean you have "mixed labour" with it? If so then transnational corporations can pay workers to fence in vast tracks of virgin land (such as rainforest) and so come to "own" it. Rothbard argues that this is not the case (he expresses opposition to "arbitrary claims"). He notes that it is not the case that "the first discoverer . . . could properly lay claim to [a piece of land] . . . [by] laying out a boundary for the area." He thinks that "their claim would still be no more than the boundary itself, and not to any of the land within, for only the boundary will have been transformed and used by men" [Op. Cit., p. 50f]

However, if the boundary is private property and the owner refuses others permission to cross it, then the enclosed land is inaccessible to others! If an "enterprising" right-libertarian builds a fence around the only oasis in a desert and refuses permission to cross it to travellers unless they pay his price (which is everything they own) then the person has appropriated the oasis without "transforming" it by his labour. The travellers have the choice of paying the price or dying (and the oasis owner is well within his rights letting them die). Given Rothbard's comments, it is probable that he will claim that such a boundary is null and void as it allows "arbitrary" claims — although this position is not at all clear. After all, the fence builder has transformed the boundary and "unrestricted" property rights is what right-libertarianism is all about.

And, of course, Rothbard ignores the fact of economic power — a transnational corporation can "transform" far more virgin resources in a day than a family could in a year. Transnational's "mixing their labour" with the land does not spring into mind reading Rothbard's account of property growth, but in the real world that is what will happen.

Which is another problem with Rothbard's account. It is completely ahistoric (and so, as we noted above, is more like an "immaculate conception of property"). He has transported "capitalist man" into the dawn of time and constructed a history of property based upon what he is trying to justify. What is interesting to note, though, is that the actual experience of life on the US frontier (the historic example Rothbard seems to want to claim) was far from the individualistic framework he builds upon it and (ironically enough) it was destroyed by the development of capitalism.

As Murray Bookchin notes, "the independence that the New England yeomanry enjoyed was itself a function of the co-operative social base from which it emerged. To barter home-grown goods and objects, to share tools and implements, to engage in common labour during harvesting time in a system of mutual aid, indeed, to help new-comers in barn-raising, corn-husking, log-rolling, and the like, was the indispensable cement that bound scattered farmsteads into a united community." [The Third Revolution, vol. 1, p. 233] Bookchin quotes David P. Szatmary (author of a book on Shay' Rebellion) stating that it was a society based upon "co-operative, community orientated interchanges" and not a "basically competitive society." [Ibid.]

Into this non-capitalist society came capitalist elements. Market forces and economic power soon resulted in the transformation of this society. Merchants asked for payment in specie which (and along with taxes) soon resulted in indebtedness and the dispossession of the homesteaders from their land and goods. In response Shay's rebellion started, a rebellion which was an important factor in the centralisation of state power in America to ensure that popular input and control over government were marginalised and that the wealthy elite and their property rights were protected against the many (see Bookchin, Op. Cit., for details). Thus the homestead system was undermined, essentially, by the need to pay for services in specie (as demanded by merchants).

So while Rothbard's theory as a certain appeal (reinforced by watching too many Westerns, we imagine) it fails to justify the "unrestricted" property rights theory (and the theory of freedom Rothbard derives from it). All it does is to end up justifying capitalist and landlord domination (which is probably what it was intended to do).