I’d like to consider some criticisms of anarcho-capitalist theories of property acquisition raised by Jesse Spafford in his article “Social Anarchism and the Rejection of Private Property,” included in The Routledge Handbook of Anarchy and Anarchist Thought, edited by Gary Chartier and Chad Van Schoelandt (Routledge, 2021). Spafford, a research fellow at Trinity College Dublin, is a “social anarchist,” who rejects private property rights.

Spafford appeals to a plausible moral intuition shared by most people, certainly including anarcho-capitalists. By “intuition,” I don’t mean a hunch or guess but rather a judgment about a case, not based on an explicit moral theory. An often-cited example of such as intuition is “torturing babies for fun is wrong.” Philosophers who use appeals to moral intuitions start with intuitions that seem plausible and try to draw controversial conclusions from them. Other philosophers reject this procedure as too subjective and unsystematic.

The plausible intuition that Spafford starts from is that the use or threat of force requires justification. Suppose that you think that smoking is bad for people and on that basis use force to prevent people you know from smoking. To most of us, it seems to that you aren’t justified in doing this. The anarcho-capitalist philosopher Michael Huemer uses examples like this to bring into question the legitimacy and authority of the state. If you can’t do this, why is it all right for the state to do it? What is the difference?

Spafford suggests that arguments like Huemer’s can be used to bring private property rights into question. If you have a property right in something, you have the right to exclude anyone else from using it without your permission. If you use force against someone to exclude them, why isn’t this wrong? Spafford offers this example:

Consider the case of a cruise ship that docks at a previously undiscovered island. The passengers are excited to spend the day exploring the island, but, before they have a chance to disembark, one passenger runs to the end of the gangplank and declares, Sorry, but I have decided that this island is for my personal use only! I forbid any of you from setting foot on it—unless, of course, you pay me $50 and take off your shoes before getting off the boat. When the first passenger in line ignores this edict and walks onto the island, the declaration-issuer’s friends rush over and seize the “trespasser” and begin binding her wrists and ankles. She struggles a bit, but after they spray sunscreen in her eyes, she stops resisting and is carried back onto the ship and locked in one of the cabins until she agrees to stay off the island.

Isn’t it reasonable to think that the passenger does not have the right to appropriate the island and exclude others? If so, where does this leave property rights?

The answer to this is obvious, and Spafford anticipates this answer; but I do not think he is able to counter it. Defenders of property will say that the passenger hasn’t met the correct conditions for acquiring property. If the ship had docked on an island that someone owned, why wouldn’t the owner have had the right to force the passengers to leave the island?

Stafford answers that the standard Lockean accounts of property acquisition don’t work. He uses some examples from the philosopher Ed Feser, who at one time held a Lockean view:

According to Feser, a person gains rights over previously unowned natural resources by either (a) gaining control of or (b) sufficiently modifying those resources. Thus, a homesteader who tills the soil of some unowned patch of land or builds a sizeable fence around its perimeter would thereby come to own that land. However, consideration of other cases casts doubt on Feser’s proposal. Consider, for example, the case of a person who deliberately starts a wildfire that scorches an entire forest, blackening thousands of acres of trees and earth. Suppose that a hiker then tries to enter the forest to survey the damage. May the fire-starter have the hiker imprisoned or threaten to shoot her if she does not leave the burned area? Surely not. Thus, the mere modification of land and objects seems insufficient to render coercive.

But, if we agree with Spafford that burning down the forest doesn’t establish ownership of it, this hardly invalidates all claims that doing something to unowned resources is sufficient for acquiring them. Spafford will then demand to know what are the conditions that do result in property acquisition, and specifying them is no easy task. All I claim here, though, is that Spafford hasn’t given us a general reason to doubt that there are legitimate ways to acquire property. What, for example, is wrong with owning your house or your car?

Spafford deploys a bad argument against property rights. He says,

Note that the use of force to control some resource is only necessary if non-coercive forms of control prove inadequate—i.e., one has not established control of the resource through non-coercive means alone. In other words, even if one grants that the non-coercive control of resources entails the permissibility of coercive control of those resources, any use of coercion entails the absence of such non-coercive control. Thus, there can be no instance of coercive exclusion that is permissible in virtue of there being prior non-coercive control of the resource.

This argument has at least two things wrong with it. If you use force against someone who is trying to take your car away from you, it is trivially true that you aren’t while you are struggling with the thief in control of the car. But the relevant fact is that you gained ownership of the car without coercion. Spafford has wrongly carried over intuitions from a case where someone claims ownership while pushing other claimants away to all cases of initial acquisition of property.

A second problem with the argument is that a right to exclude others from using your property does not entail that at every moment while you have this right you are exercising it by coercing others. Your right to exclude means that it is permissible for you to exclude others, not that you are actually excluding them. Spafford has trouble seeing the distinction between your right to something and the activities you engage in in exercising that right. In another example, he says, discussing a case in which a mechanic has worked on your car, that while the work is being done, you have waived your exclusion right over the car. This isn’t correct. The mechanic is using the car with your permission, but you haven’t waived any of your rights. You can tell him at any time to stop work on the car.

Spafford faces a problem that confronts many critics of Lockean appropriation. What is the justification for his own account of the morally proper use of resources? He assumes without argument that people have an equal right to use all resources, so long as they respect the equal rights of others. He is firmly committed to this position, and at one point, he says something incredible. He first suggests that some social anarchists would allow certain kinds of coercive exclusion of others from resource use. He says,

Consider the case of two castaways stranded on an island lush with peanut plants. One castaway is allergic to peanuts but good at catching fish, whereas the other lacks the arm strength and coordination needed to catch fish. The net result of these differences is that the two are able to live equally good lives, one fishing and sleeping on the beach while the other forages for food inland. However, suppose that one day the allergic castaway begins clearcutting the densest area of peanut plants so that she has a place to play soccer. Further, suppose that the destruction of these plants would impose a great hardship on the uncoordinated castaway, as she would then have to spend many more tedious and difficult hours each day foraging for the scarce peanuts that remain. Given these stipulations, would it be permissible for the uncoordinated castaway to use coercion to prevent the allergic castaway from destroying the plants on which her quality of life depends? Some egalitarian anarchists might answer in the affirmative, contending that the permissibility of the coercion is grounded in the fact that it is necessary to ensure that the uncoordinated castaway doesn’t live a worse life than her companion (due to no fault of her own).

He now gets to the incredible part. He says,

Some social anarchists might reject the intuition that coercion is permissible in the peanut case. Given this rejection, they would insist that the coercive control of resources is always impermissible, except when it has been consented to by the victim or, perhaps, when such control is necessary to avoid some sort of moral catastrophe. This position imposes stricter limits on what forms society can permissibly take. Specifically, it would sanction only two forms of resource management, each with its own drawbacks, but both of which avoid the coercion that is omnipresent in regimes of private property (and that persists in a more limited form in the egalitarian anarchist society).

(I don’t think it’s necessary for our purposes to describe these two forms.)

A society where the division of labor is subject to a constant threat of interference would be vastly less productive than a market economy. But never mind this—equal access to all resources must be preserved!