Nathan Smith vs. Hans-Hermann Hoppe

When I wrote Principles of a Free Society, I believe that I very dimly had in mind Hans-Hermann Hoppe as an intellectual adversary, but for some reason– some stray remarks at the Cato Institute which I over-interpreted, I think– I had the impression that Hoppe was so disreputable that it would be a kind of sin to mention him or read him. Thinking it over now, that’s hardly fair! My views on the Iraq War would, I suppose, make me at least as heretical from a Cato Institute perspective as Hans-Hermann Hoppe for his views on immigration (and homosexuality, but that’s not relevant here). Hoppe seems, like me, to aspire to a thoroughgoing rationalism, and to like Lockean homesteading as an origin for property rights. We have enough in common to provide the basis for an argument. Moreover, what I realize now is that even before I wrote Principles, I had heard a rumor about Hoppe’s argument for migration restrictions, guessed the nature of the argument from that rumor, and wrote Principles, among other things, to refute it. But since my argument against Hoppe is spread out throughout Principles and does not explicitly mention Hoppe, it seems worthwhile to bring Hoppe’s argument and my refutation together in one place. This is my contribution to the debate summarized at our anarcho-capitalist counter-factual page.

First, Hoppe’s argument, from “Natural Order, the State, and the Immigration Problem.” Hoppe starts by suggesting, without really arguing for it, that:

People of one ethno-culture tend to live in close proximity to one another and spatially separated and distant from people of another ethno-culture. Whites live among Whites and separate from Asians and Blacks. Italian speakers live among other Italians and separate from English speakers. Christians live among other Christians and separate from Muslims. Catholics live among Catholics and separate from Protestants, etc.

Well, no, they don’t tend to, really, except when the government compels them to. Segregation occurs often in history, but so does integration. And anyway, given that the suggested groupings of people overlap greatly– there are white, Asian, and black Christians; there are white Christians and Muslims and atheists; there are people who speak both Italian and English– the proposed regime of spatial segregation doesn’t seem to make sense (unless the segregation is very fine indeed, e.g., “only Italian-speaking white Catholics in this neighborhood”… but that’s hardly typical). But Hoppe’s next move is what makes his argument distinctive:

Let us take one more step and assume that all property is owned privately and the entire globe is settled. Every piece of land, every house and building, every road, river, and lake, every forest and mountain, and all of the coastline is owned by private owners or firms. No such thing as “public” property or “open frontier” exists. Let us take a look at the problem of migration under this scenario of a “natural order.”

First and foremost, in a natural order, there is no such thing as “freedom of migration.” People cannot move about as they please. Wherever a person moves, he moves on private property; and private ownership implies the owner’s right to include as well as to exclude others from his property. Essentially, a person can move only if he is invited by a recipient property owner, and this recipient-owner can revoke his invitation and expel his invitees whenever he deems their continued presence on his property undesirable (in violation of his visitation code).

Given this assumption, the rest of the argument is rather predictable, at least to me. Still, we may as well follow Hoppe a little further. First:

In a natural order, there is no such thing as “freedom of migration.” People cannot move about as they please. Wherever a person moves, he moves on private property; and private ownership implies the owner’s right to include as well as to exclude others from his property.

Second, on roads and other transportation:

There will be plenty of movement under this scenario because there are powerful reasons to open access to one’s property, but there are also reasons to restrict or close access. Those who are the most inclusive are the owners of roads, railway stations, harbors, and airports, for example. Interregional movement is their business. Accordingly, their admission standards can be expected to be low, typically requiring no more than the payment of a user fee. However, even they would not follow a completely non-discriminatory admission policy. For instance, they would exclude intoxicated or unruly people and eject all trespassers, beggars, and bums from their property, and they might videotape or otherwise monitor or screen their customers while on their property.

To this we will return. Finally, it is in residential property where Hoppe expects to see the highest degree of segregation:

It is in the residential housing and real estate market where discrimination against and exclusion of ethno-cultural strangers will tend to be most pronounced. For it is in the area of residential as contrasted to commercial property where the human desire to be private, secluded, protected, and undisturbed from external events and intrusions is most pronounced. The value of residential property to its owner depends essentially on its almost total exclusivity. Only family members and occasionally friends are included. And if residential property is located in a neighborhood, this desire for undisturbed possession—peace and privacy—is best accomplished by a high degree of ethno-cultural homogeneity (as this lowers transaction costs while simultaneously increasing protection from external disturbances and intrusions). By renting or selling residential property to strangers (and especially to strangers from ethno-culturally distant quarters), heterogeneity is introduced into the neighborhood. Transaction costs tend to increase, and the peculiar peace-and-privacy-security—the freedom from external, foreign intrusions—sought and expected of residential property tends to fall, resulting in lower residential property values.

Many very interesting things to note here. First of all, Hoppe’s scheme must create a strong bias in favor of the right to invite. Second, Hoppe’s scheme justifies not only immigration restrictions but also domestic residential segregation of the kind that existed in the US before the 1960s. I suppose one must give Hoppe credit here both for consistency and for political incorrectness. Hoppe does not presuppose the moral relevance of countries and assume a right to free migration within but not across national boundaries. He explicitly envisions a society of ethno-culturally homogeneous neighborhoods, based on a generalized preference that he seems to regard as an indelible human propensity to stick with one’s own kind. Though Hoppe is much too complacent about this, Robert Putnam’s work probably demands that this view be taken more seriously than political correctness might admit. Hoppe goes on to introduce the state, and argue that the lack of freedom of migration that, he supposes, would prevail in a “natural order” should cross-apply to a society ruled by a state. Even then, the right to invite persists:

If a domestic resident-owner invites a person and arranges for his access onto the resident-owner’s property but the government excludes this person from the state territory, it is a case of forced exclusion (a phenomenon that does not exist in a natural order). On the other hand, if the government admits a person while there is no domestic resident-owner who has invited this person onto his property, it is a case of forced integration (also nonexistent in a natural order, where all movement is invited).

It’s not clear to me that VDARE restrictionists are right to claim Hoppe as an ally within the libertarian camp. After all, an unlimited right to invite might not look much different from open borders– many US natives would quickly learn to sell their rights to sponsor immigrants to the highest bidder– and limiting the right to invite violates Hoppe’s principles. But I’m not not too interested in how to apply Hoppe’s argument at this stage, because my dissenting argument branches off at the stage in the argument where Hoppe defines the “natural order.”

The starting point for Principles of a Free Society is what I call the habeas corpus, or “you should have the body” principle, which I derive from telos– Huemer would derive roughly the same principle from everyday morality– and which protects a person against arbitrary arrest. From there I launch my main argument against Hoppe’s “natural order”:

Violence may be defined as any violation of the habeas corpus principle, when person A trespasses on the body of person B.  A crudely spatial notion of violence, as an action trespassing on the physical space occupied by someone else’s body, is sufficient to capture most of the actions that are usually and properly considered violent: blows, stabs, pistol shots, seizure and abduction, etc.  But the concept of violence must be extended beyond these simple cases, as is clear if we consider Edgar Allen Poe’s short story “The Cask of Amontillado.”  In this story, a secret enemy of one Fortunato lures him into a hollow place and builds a wall of masonry behind him, trapping him.  There is no trespass on the physical space occupied by Fortunato’s body, yet he is deprived of liberty and, in due course, of life, by the deliberate action of another.  It would be absurd to define violence too narrowly to include this situation.

We must recognize, then, that the spatial needs of the body extend beyond the space that it physically occupies at any given time.  Habeas corpus implies some degree of freedom of movement, but how much?  A prison cell is too little.  But we cannot grant to every man a right complete freedom to go wherever his legs will carry him, if for no other reason than that the sustenance of modern human populations requires the practice of agriculture, and crops must not be trampled underfoot.  To the question, “how much freedom of movement does a person have a right to?” the answer “more than a prison cell but less than the whole face of the earth” is a start, but is obviously insufficiently specific.

We may invoke the concept of telos again as a placeholder for further discussion in Chapter 4.  The body cannot, without violence, be spatially confined by the action of another so as to deny it the ability to flourish.  This is vague, but I can propose at least one regime which is not consistent with the principle, namely, a certain kind of libertarian utopia in which all land is privately held.  In this hypothetical society, a person’s neighbors might box him in, denying him the right to leave his land in any direction; or a person might sell his land and not have the right to exist anywhere.  I claim that such a society would violate the habeas corpus principle.  A person “has the body” by natural right; has a right for that body to exist in some place as it necessarily must; has a right to enough freedom of movement to fulfill the body’s needs; and is deprived of these rights if he can be excluded from all bits of land, or compelled to remain in a piece of land arbitrarily small and perhaps inadequate to sustain human life. A regime of private property rights in land cannot justly be made so comprehensive that the basic rights of habeas corpus are violated.

So from the beginning, I rule out a “natural order” such as Hoppe envisions, on the ground that it would violate natural rights. Let me expand on this.

Case 1. What if, in Hoppe’s “natural order,” a certain individual holds quite unpopular views, or perhaps he simply happens to be very ugly, and no one chooses to admit him to their land? Perhaps this individual owns a small plot of land, but can’t sustain life on it. Must he be content to starve?

Case 2. It gets worse. Suppose an individual is actually quite popular, in general, but his immediate neighbors don’t like him. They choose to starve him. He pleads to be allowed to cross the (say) ten feet of land to the estates of friends who will gladly feed and clothe and hire him, but his neighbors ruthlessly refuse. Here we have a curious variation of the Starvin’ Marvin example, for in Hoppe’s “natural order,” a person would seem to be required voluntarily to starve to death rather than violate the property rights of his neighbors, even if they are unarmed. Not only is there no “freedom of migration” across international frontiers; there is no “freedom of migration” to go to the market to buy food even within a single ethno-cultural zone.

Case 3. In Case 2, Starvin’ Marvin seems to have alienated his neighbors, and it seems likely that that’s his own fault. But consider another scenario. Evil Jake wants Marvin dead, because Marvin is a rival of some sort, perhaps in love– Evil Jake’s dream girl is in love with Marvin– or perhaps in business– Marvin is undercutting Evil Jake’s prices– or perhaps Marvin is a better poet or singer. Since we’re envisioning an ethical, Lockean-style “natural order,” however, Evil Jake can’t kill Marvin directly. Instead, being a rich man, Evil Jake buys all the land around Marvin’s homestead, and forbids Marvin to leave. Marvin starves, to the satisfaction of Evil Jake, who has the additional benefit of an untroubled conscience, since in Hoppe’s system of ethics, he did nothing wrong, but scrupulously respected the rules of the natural order.

Case 4. But at least in Case 4, Marvin has the option of behaving ethically, though it means submitting to a miserable death as the penalty for being outflanked in the real estate market. We may just as easily suppose, however, that Marvin, in a few decades on the earth, has never had the good fortune to acquire any land, and has lived for many years on the land of various friends, of whom he has many, who are always happy to be his hosts. Unfortunately, one day, the friend Marvin is living with dies, and his heirs decide they don’t want Marvin around anymore. Unfortunately, the immediate neighbors of his late friend also don’t want Marvin to come onto their property. Poor Marvin can’t avoid trespassing! “Ought implies can” is a principle of most ethical systems, but seemingly not of Hans-Hermann Hoppe’s.

While I don’t see how Hoppe could deny these logical possibilities, he seems to feel that they won’t happen. He supposes that the owners of roads will find it in their economic interest to allow fairly free movement, merely charging user fees. He seems to have in mind some sort of competitive market in road access, in which prices would be determined by the impartial and transparent mechanism of the invisible hand. But the nature of space and movement makes this impossible. Competitive markets require many competitors. Often economists talk as if the number of competitors has to be virtually infinite, and even if one is partial to the Bertrand model (in which two competitors suffice to establish perfect competition), the typical lot has only one road link to the rest of the world. So for a private market in road access to be tamely competitive is the last thing we should expect. We should expect rampant price discrimination, and nothing except perhaps private morality would prevent spiteful deals in which profiteering road owners accepted payment in return for settling other people’s old scores by trapping a payer’s foe on his lot, to starve.

What is needed here is my theory of streets. In fact, I think anarcho-capitalists ought to adopt my theory of streets as one of their standard doctrines (though I’m not a self-identified anarcho-capitalist myself). It’s a long-standing embarrassment for libertarians that they have to use government streets. My theory of streets says they have nothing to be embarrassed about: the government may have paved them, but they’re not government property, properly understood. It starts from Lockean homesteading principles, but with this twist: that appropriation through labor, according to Locke, confers the right to use, not to waste, and by using a bit of land as a street, one appropriates transit rights in it, which can’t be violated, but which can’t exclude others from also using it for transit (which would be wasteful). From Principles:

A street is not a slab of pavement.  It is not even a strip of land.  It is a bundle of overlapping non-exclusive transit rights.

A street is not a slab of pavement because it would still be a street if it were unpaved.  If (say) Grant Street used to be covered only with gravel or dirt, it was still Grant Street.  If the city decides to replace the asphalt of Grant Street with charming cobblestones, it will still be Grant Street.

A street is not a strip of land because the land was there before it was a street and may still be there if it ceases to be a street.  If Grant Street used to be a private hunting park, it was not a street.  If Grant Street is abandoned and a forest grows on it and someone starts to use it as a hunting park, it will be the same land, but it will not be a street.

Grant Street consists of a bundle of transit rights, and it continues to exist as long as those transit rights exist, and is destroyed when they are destroyed, and changes to the material substance of the street matter only inasmuch as they affect these rights.  Suppose Rogue Developer Dan puts a wall around Grant Street and starts building structures on it.  If Dan does this without authorization, the rights of local residents to use Grant Street as a street still exist, though Dan is violating them, and we can still call Grant Street a street.  We would complain that Dan has closed off access to a public street—thus bearing witness in our characterization that it is still a street.  But suppose Dan gets the city government to endorse his takeover of Grant Street, and the citizens resign themselves to the usurpation and move out of their Grant Street homes.  In this case, Grant Street has ceased to be a street.

Who owns Grant Street, then?  The city?  No, because the city cannot justly dispose of Grant Street in any way that it sees fit, by, say, selling the street to Developer Dan.  It has to take into account the rights of Grant Street residents.  We can solve the riddle by revisiting and extending the argument of Locke.  The earth is originally common to all mankind, but we can appropriate it by mixing our labor with it.  The residents of Grant Street have mixed their labor with Grant Street by walking or driving on it.  Maybe they even turned it into a street physically by trampling down the natural vegetation that impeded movement.

A person who has transit rights—natural transit rights—in a street does not have the right to exclude others from the street, because their use of the street as a street does not preclude his.  We can appropriate only to use, not to waste, and to exclude others from the street would be to waste it.  He may justly object, however, if someone tries to grow crops or build houses in the street.  He may have a right to object if someone tries to pave and drive cars on a street which he prefers to use as a pedestrian.  This objection is weakened if a sidewalk is provided.  If he and his neighbors were accustomed to play soccer in the street, the objection may be strengthened.  Streets are not public, then, because the government declares them to be.  Their public nature is a side-effect of the natural rights which comprise them.

My theory of streets can serve as a platform from which to critique Hoppe’s conception of the “natural order.” How could Hoppe’s comprehensive property rights regime justly originate? By Lockean homesteading? But is it really just for someone to settle in a well-used thoroughfare and start plowing, getting in everyone’s way? Or will all the land be turned into homesteads before any of it has come to be used as streets? But that can’t be the case, because how will people get to their homesteads without using some of the land for travel? Clearly not. As the property rights regime grew up in the process of settlements, zones of overlapping non-exclusive transit rights, i.e., streets, would naturally grow up in their midst.

Alternatively, my theory of streets could be incorporated into Hoppe’s conception of the “natural order.” He could imagine a society in which all land was either privately owned outright or else had been turned into streets. But such a “natural order” would be characterized by freedom of migration or something close to it, since it leaves everyone including migrants free to roam the streets as they please (though I explicitly argue in Principles, perhaps congenially for Hoppe, that gated communities can be just). In addition to being more defensible starting from a natural rights deontology, my theory of streets also mitigates the economic problem with streets. Streets as zones of non-overlapping transit rights can’t be monopolized and used by private interests for ruthless price discrimination. By the way, while I more or less invented this theory of streets directly out of Locke, it’s been discovered before. The common law has long possessed the concept of an easement. In effect, I conceive streets as easements.

Hoppe is far superior to the vast majority of restrictionists in that he has really thought through the matter, deeply, seriously, and from fundamental principles, and has offered a rational defense of immigration restrictions. It fails, but at least he’s done enough of the epistemic legwork to have a right to his opinions. Most restrictionists exhibit nothing like this degree of intellectual responsibility. The fact that Hoppe’s argument for migration restrictions seems to be just about the best one out there, and it’s still this bad, underlines how powerful the case for open borders is.

Nathan Smith

Nathan Smith is an assistant professor of economics at Fresno Pacific University. He did his Ph.D. in economics from George Mason University and has also worked for the World Bank. Smith proposed Don’t Restrict Immigration, Tax It, one of the more comprehensive keyhole solution proposals to address concerns surrounding open borders.

See also:

Page about Nathan Smith on Open Borders
All blog posts by Nathan Smith