 It's my pleasure to introduce the Marian Roth Bar Memorial Lecture sponsored by Stephen and Cassandra Torello. When Jiru and Joya is a senior lecturer at the University of Exeter Law School, a fellow of the UK Higher Education Academy and a research associate of the Center for Business Research at Cambridge University. She has previously taught law at the University of Oxford, LSE, and Queens University in Kingston, Ontario. She has published several articles supporting capitalism, free markets, and freedom of contract in the context of employment relations. Her critique of equality legislation is published in the Journal of Libertarian Studies. Her recent books include Economic, Freedom, and Social Justice, a classical ideal of equality in context of racial diversity. She is also the author with Dr. David Gordon of Redressing Historical Injustice, Self-Ownership, Property Rights, and Economic Equality. She will address us today on Defending Private Property, Principles of Justice in Rothbard's Ethics of Liberty. Please welcome. Dr. Joya. Thank you very much to the Mises Institute for inviting me to speak about property rights. Thank you to Dr. Joselano and thank you to David Gordon as well for all the work that we've done together on Marie Rothbard's Ethics of Liberty that I'm going to speak about today. I have come a long way from the southwest corner of England to honour Marie Rothbard. It's such a great privilege and a great pleasure for me to be here today to give this lecture. So I'm going to talk about how we can defend private property in the context of many of the political debates that we hear going on around us. And I'm going to defend the ideas of self-ownership and property rights in the context of what is often referred to as the culture wars. So my aim is to evaluate the extent to which the common law concepts of property are just. And I evaluate this by asking to what extent does the common law of property uphold principles of justice set out by Rothbard in the Ethics of Liberty. So before I begin, I just want to say a little bit about the questions that I want to address because I'm not looking at justice in a sort of general and broad way. I'm not trying to develop a theory of justice. I have specific questions that I'm concerned with. So I just thought it would be helpful if I set out what those questions are. And first is the threat to private property that comes from ideas that are themselves labelled as justice. So when people say it's social justice, you need to dismantle property rights for social justice. You need to dismantle property rights for land justice. Sometimes they say, or people who say this is stolen land. So quite clearly if it's stolen, we want it back. So the attack on property rights is itself couched in the language of justice. And so we have to ask in that context, is that really just? It's not just about the label. Anybody can call anything justice, but we need some kind of benchmark or standard or guidepost to tell us whether what people call justice really is just. So that's one of the questions that I want to look at. The precise form of the claim that's mounted in relation to property rights varies. But the gist of it is that the British Empire was founded on theft. So anything that they can trace to the legacies of empire, they will call the legacy of stolen property, the legacy of theft. And the idea is that any resources that flow from that are resources that have been acquired from theft and critically that some form of wealth redistribution is now required to redress that theft that historically occurred. So that's the gist of the claim. And the reason why I've said from the British Empire is because I also want to emphasize the double standards that we see when people talk about redressing historical injustice. They're not looking at what the Romans did to England. They're looking at specific claims of injustice that are derived from the legacy of empire. So in that context, I want to ask what is meant by land justice? How can we ascertain whether entire cities are built on stolen land as we have seen some cities now? City authorities declaring that the city is built on stolen land, we must have some test to ascertain whether that is the case. And if we can show that a historical injustice occurred, if that is clearly established, what is the appropriate remedy? It's not just a question of saying there was a theft. We have to ask what is the appropriate remedy. And we want to be sure that the remedy is just. So that's really what I'm looking at in my lecture today. Now, the position in the law is very clear. And here I have a quote from the Chicago Law Journal. Sorry, the Columbia Law Journal from 1922 by Earl C. Arnold, where he says, it is an elementary proposition of law, of all civilized communities that no person can be deprived of his property except by his own voluntary act, this much we know, or by operation of law. And that's where it starts to get tricky when we say by operation of law. Because law can be, and these days, tends to be anything that people say, every day in the news there's somebody saying, we need a new law to do this and we need a new law to do the other. So when we say you can be deprived of your property by operation of law, that can't be the end of the question. We must still ask, is the law just? And that's what I want to ask today and to just see what we can learn about that from the ethics of liberty. I'm looking here for a normative guidepost from the ethics of liberty and want to make the point that justice is not simply what anybody desires or what anybody wishes, or the world as anybody wishes it would be. Justice, as I define it, is to give each man his own. To give each man his own. I say as I define it, because even though this comes from Justinian's principles, I know that classical scholars debate exactly what the old Roman Latin words mean, whether it means to give each man his own or whether it means to give each man his due, because of course, if you say to give each man his due, then we can debate what is his due. I define it as to give each man his own, meaning property, things that belong to a person. And here again, John Locke would agree with that. Every man has a property in his own person and things that are derived from his own labor. And Rothbard in the ethics of liberty sets this out in three elements, that each man has ownership of his own self, of unused resources that he has occupied and transformed. So we're going to be talking a lot today about what that means to occupy and transform, and also has ownership of titles derived by voluntary exchange or voluntary gift. And notice, and this is the distinction I wanted to draw. He doesn't go on to say, all by operation of law. It is simply what you own, unused resources that you have transformed, or titles derived by voluntary exchange or gift. And this just highlights how important it is to ensure that law is just, because that's where all the problems begin. So that's an outline of what I want to cover today. I'm going to present libertarian theory as a normative guidepost, just meaning that I'm not looking for rules of law that will decide particular cases. I am looking for the normative values that should underpin the law. And for the rules here, I'm looking at the English common law tradition. What do I mean by that? I mean the tradition of law that has been developed by the courts as distinct from legislation or statutes. And then I'm looking at this in the context of the culture wars. I think all of us who read newspapers know what's been going on, but I have a few examples to give, because the point I really want to highlight about the culture wars is that the threat to private property doesn't just come from the outrageous things that people say. I mean, people can say anything and they do. You know, they say, I want my justice. That's not where the real threat comes from. The real threat comes from these demands being translated into legal obligations. Because once it's law, you can't say, well, that's ridiculous. It's outrageous because it's the law. So for strategic reasons, that becomes something that you probably would have to pay more attention to no matter how ridiculous you think it may be. So the examples that I'm drawing upon are examples that have been translated into legally binding obligations. I have some examples from unjust acquisition, because the idea is that these are titles derived from an originally unjust acquisition. And then I want to finish with a point about state violation of property rights to emphasize that the threat that we need to be concerned about is the threat that comes from ideas backed by the state, that is to say, from legislation and rules that have the force of law. So I begin by defining why property rights are important. Property rights are human rights. This point has been made by philosophers of many different stripes, not just libertarians. Property can only accrue to humans. So their rights are rights that belong to human beings. And a person's right to his own body, his personal liberty, is a property right in his own person, as well as a human right. So this just shows the fundamental importance of property rights, which I'm highlighting, because a lot of the time in these debates, we hear people saying, oh, well, they've demanded it so much. So just give it to them. We don't say that when human rights are at stake. We know that we should defend them. Not only are there no human rights, which are not also property rights. So all human rights are property rights. That's where they're derived from. They're derived from the idea of self-ownership. But human rights lose their absoluteness and clarity. This is exactly what we see happening in the law. They become fuzzy and vulnerable. They become uncoupled from their moorings. And property starts to mean anything. It carries the label, property, but there's no content behind it. It could mean anything. And that's what happens when property rights are not used as the standard, or when people don't understand what is meant in any case by property rights. So human rights, when not put in terms of property rights, turn out to be vague and contradictory. It's left to the courts to reconcile rights that are in fact irreconcilable, because they are contradictory, inherently contradictory. And this causes liberals to weaken those rights on behalf of public policy or the public good. That is in the end what courts use as a balancing tool to measure conflicting rights, which have become completely fuzzy and undefined. And that's the problem that I want to talk about today, and to show how the idea of property helps to give meaning and content to the idea of property rights. So I take the principles of libertarian law that I'm looking at today as a normative standard, a guidepost for shaping and reshaping the positive law. Because positive law, unfortunately, doesn't follow any particular ideal standard. It tends to be very politically driven, tends to be very instrumental, very expedient, and often judges are not thinking about what ideal they're upholding, they're just trying to resolve the case between the two parties. So when we look at the positive law that we have, we need a normative guidepost that enables us to say whether the law is just or not, and that's the purpose for which I am using the ethics of liberty. So when I say the English common law, I just want to clarify what is meant by that. And here I'm talking about law that has been developed by the courts in the context of deciding ordinary cases. I know that it's been very much shaped by legislation in recent years, and I'm aware of that, but I'm trying to find the root of the principle which in the English common law comes from the Roman law. I agree with Bruno Leone on this point that it is to the common law courts that we look for the organic way in which legal principles develop. We don't expect law never to evolve and to just remain as it was when it was first created. In fact, the common law has evolved so much that a strict Roman lawyer might say it's barely, the principles of Roman law are barely recognizable in the common law. But the point there is that it evolves through the courts and not by edict from a statute. I also distinguish between civil law and criminal law. I thought this was an important clarification to make because I know in the libertarian framework we don't have these artificial distinctions between the civil and the criminal or between the different causes of action, whether a claim arises in property, in contract or in tort which is very important of course in looking at the way law actually functions in the courts. So I'm not dealing here with the common law that concerns crime. I realize theft is a crime, but I'm dealing with claims in private law, in civil law where people are just asking for the return of their property. They're asking for some restitution. They're not asking for a criminal to be locked up. In the ethics of liberty Rothbard says, a criminal is anyone who initiates violence against another man and his property, this I think we know. And he adds, anyone who uses the coercive political means for the acquisition of goods and services, that in Rothbard's view is also a criminal. So this is not somebody who's shown up with a weapon to say your money or your life, but it's somebody who uses the political means to get you to pay taxes that will be used to fund reparations. That is a criminal as well because they're using political means to acquire goods and services. So I realize that in the libertarian framework, a criminal has the sense of anybody who uses aggression to take your property and that's the sense in which I understand the idea of the criminal, rather than in the common law sense where you'd be looking at the criminal code. And the third point I wanted to make is about the adversarial process of the common law, which is a tradition that decides a case between two opposing parties that are before the court. This is really important to mention because not all legal systems work this way. I know, for example, continental European jurisdictions have an inquisitorial function where if there's a dispute concerning property, there's a possibility of finding out who the owner of the property is so that the judge can say, well, we need to know who owns this property. In the common law, it's a case you could have, for example, a case between two squatters. Neither of them is the owner of the property. Neither of them claims to be the owner of the property but the squatter number one is trying to evict squatter number two. And the judge can't just say to them, the two of you are both squatters, so be gone, okay? The judge will have to decide which of these two squatters has the better title. So this is something that we have to be aware of. The common law does not follow the Roman concept of dominium of ownership. It's rooted in possession. So we're going to be asking what does possession mean? We're not going to be asking who is the owner and remedies in the common law are also really important and artificially linked to causes of action. So if you bring your claim in property or if you bring your claim in contract, there are different remedies that you can get. If you bring your claim in contract, you are 99% of the time going to get your remedy in money damages. Whereas if you bring your claim in property, you don't want money, you want the thing that you're asking for. So of course, in the libertarian framework, we don't have to worry about that. I think Rothbard talks about this in the ethics of liberty. You can give the appropriate remedy, but in the common law, you do have to worry about that because if you bring a contractual claim and you win, you can't say to the judge, I want the thing because you should take your remedy in money. So these are things that we need to think about when we are evaluating how the common law stacks up against what is just. We then also have to look at principles of equity. I have quoted here from the Encyclopedia, Fritanica, because I wish to emphasize that equity in law has a meaning. I realized, I realized the word equity has been co-opted by the types of people who like to use words that will be guile and that will make people think this is a very good thing. And so they take a word and they stick it as a label on some nefarious scheme that they've cooked up. And that's what they've done with the word equity, which now you hear being used to mean equal outcomes for everyone, which is of course not what the word equity means in law. In Anglo-American law, it simply means the custom of courts outside the common law or coded law. It's a jurisdiction you could say in conscience or a jurisdiction in fairness. The common law has no concept of good faith. Okay, if you take something that belongs to somebody else, you have to give it back. You can't say, well, I did it in good faith and I was, you know, this is irrelevant at common law, but it is relevant in equity. It could be relevant, it may be relevant in equity. So that's what I'm referring to here. This idea of good faith and how it shapes the cases. It was a very established system of law by the 14th century, which means it also has developed a body of case law. It is not simply a matter of the judge deciding what do I think justice requires. The judge must follow precedent in exactly the same way as the common law. But it's really important to bear those two legal jurisdictions in mind because often Rothbard's view of what the law should be follows what the common law says, that is the principles of Roman law, but not what principles of equity say because equity introduces principles of good faith. So we're going to see how that makes a difference to some of the outcomes to these cases. So the common law is rooted in the idea of relativity, of title. This is the first thing that we really have to think about because the idea of ownership in the ethics of liberty is a universal and absolute idea. Your property rights give you an absolute entitlement to the thing, whereas in the common law, it's a relative idea. It's a cherished tenet of the common law. In fact, this example is taken from American law, but it's a cherished tenet of the common law that a thief acquires no title to stolen property. It's as simple as that. There is no ifs or buts. A thief acquires no title to stolen property nor may a thief pass title not even to a good faith purchaser. And this is the point I was making about equity bringing in good faith obligations because at common law it doesn't matter if the purchaser bought stolen items in good faith. But behind that simple doctrine lies a possibility that thieves can acquire good title in the common law. And already here you can see the law starting to deviate from the position set out in the ethics of liberty because at common law, yes, a thief can acquire good title and a good faith purchaser of stolen property can also acquire new and paramount title to the goods. In fact, here, this is a quote from D.A. Thomas on an article on adverse possession. So he's talking about adverse possession where you acquire title over time and the idea of adverse possession is mainly statutory, but even in equity, there's an idea that as time passes, you can lose your rights if you sleep on them. So the idea is that if you, beyond a certain length of time, if you've slept on your rights and your property's gone, I don't know, suppose you abandoned it and then you changed your mind and you came back, it's gone and you slept on your rights and a court of equity will not intervene in your favor. So already you can see that the idea of title being relative starts to introduce some modification to the idea of absolute ownership or absolute rights to property that we see in the ethics of liberty. That's going to be a concern that I would like us to bear in mind as we consider the attacks on private property. Social justice has been used as a way of making claims, entitlements to things that people say the reason why they should be given the transfer, wealth transfer that they're asking for is because social justice demands it. Land justice demands it. We have many examples from Southern Africa, from Zimbabwe in South Africa where people say there aren't meant to be white people here. Therefore, I want their farms. And the reason I want the farm is because of land justice. They will simply make the claim like that and they will call it justice. And the idea of using the word justice in that way is that people should collapse when they hear the word justice. And it's a really difficult problem for somebody like myself who really thinks justice is important because you're trying to say no to people who are being ludicrous but at the same time you don't want to say justice be gone. Justice is important, justice matters. We want to uphold justice but we want to say that isn't justice. Well, what is? When you have people saying you stole my thing and now I'm just going to steal it back which is actually what's been happening to white farmers in South Africa. There have been mobs gathering at the gate saying to these farmers chanting war songs and saying to these farmers, you stole my farm I'm here to steal it back. Okay, so when you have conflicting claims of theft we must have a way to ascertain who's the thief as between the two and who's the aggressor. In the ethics of Liberty Rothbard gives the example of somebody, I don't know, he describes him as some kind of mugger. He tries to grab a watch of somebody on the street and he says, well, we don't know if that's somebody mugging an innocent passerby trying to steal his watch or whether that's the owner of the watch trying to get his watch back from the thief who's walking along. So this is exactly the case that we have here. Now Hayek had some choice words to say about social justice. He says the people who habitually employ the phrase social justice simply do not know themselves what they mean by it and just use it as an assertion that a claim is justified without giving a reason for it. They don't know what they mean. They just mean I want this thing. They don't know what they mean by justice. That does not mean that they are not influential and that does not mean that their claims will not be translated into law. So we must have an answer. We cannot just dismiss them, I think, in the almost cavalier way that Hayek did. He said, well, they don't know what they're talking about. So there's nothing, the phrase is empty, he said. Well, it may be empty, but it is powerful, increasingly so as we can see over time. We need an answer to them. I have an example here, some examples of the threat and the nature of it. From Glasgow, great city in Scotland, where the city authorities, so I'm not talking about random people in, I don't know, in the newspaper, politicians who will say anything, these are city authorities who have power to decide what rules people must follow. Announcing, first they started with an apology for Atlantic slavery, so they made their apology. They said, Glasgow is sorry, we're all sorry. And then they followed that by saying, follow the Atlantic slavery money trail and its tentacles reach into every corner of Glasgow. So the poor people of Glasgow now are on the hook for this. That's a serious matter. The city authorities, their own authorities have just put them on the hook and they said every corner of Glasgow has got that money and should be paying it back to whomever they took it from. An example from Vancouver, those of you who've been following Canadian news will know. The city authorities announced that rights and title holders of Vancouver are the native tribes within the meaning of the United Nations Declaration on the Rights of Indigenous Peoples, which they are now translating into Canadian law. Okay, so this is the point I was making about binding law and the city says they are the original stewards of the lands known as the city of Vancouver and they have throughout history and to this day lived in relationship with their lands and waters. These are their lands. The city stands on other people's lands and now we have to pay, they say. It is a declaration of basically being a squatter on somebody else's property and I was just looking just yesterday actually I got an invitation to an event where we were going to be told about this relationship of native peoples with their lands which was described as sacred. Not only does this property belong to other people but it is a sacred relationship that they have with the property. So you can see here the nature of the claim becomes ever-graver and this is what Bruce Pardee says about this in his article entitled 13 Things That Can't Be Said. He has 13 things to say that can't be, can't but should be said about Aboriginal law and policy in Canada and one of the points he makes there is that the United Nations law, well it's international law being translated into domestic law provides that indigenous people amongst other things own the land, they own resources that is resources to be extracted from the land. They have the right to self-government and the right to their own political, legal, economic, social and cultural institutions and educational systems and that the federal government shall pay for all of it. Yes, the federal government shall pay for all of it. In fact, I think in the case of Vancouver they said we're happy to pay, we're really happy to pay all this. So we must ask what is the root of this claim? What is the nature? What is its root in the idea of property? And again here the Encyclopedia Britannica tells us about what happened when Vancouver in cities like that first arose, that the Europeans in continents like North America and Africa, when they arrived there were people there of course who were primarily hunters and gatherers, hunters and gatherers. This is going to be interesting for us when we ask what we mean by possession. And they were nomadic people, meaning they would not be in the same place all the time, which is also an interesting point to bear in mind when we ask about settlement. And the Encyclopedia Britannica says Europeans perceived, meaning it was their perception rather than the truth, they perceived that they had found a pristine country. That was their perception when they looked around. And so we have to ask what does that mean for the idea of possession as the root of title? If you perceive that you have found a pristine country, what signs would you be looking for? So in the Ethics of Liberty Rothbard says, well it's pretty obvious if land is inhabited. Well really? Okay, so we're going to ask what signs you would be looking for. Or rather what signs the law expects you to look for? If you, as far as you can see, the land looks uninhabited and people later, hundreds of years later, say well actually no, that's our land because our ancestors lived there. So this forces us back to the root of title that we thought we had moved on from. We're back to John Locke and the idea of first possession. In his article, Property in Thin Air, Kevin Gray searches for what he calls the propertiness of property. What is it he asks that makes property property? What gives property its essence? And he basically argues, which is why it's called property in thin air, that there's nothing really, he says, there's no content to property because it's all about relative titles. So there's nothing to it. It's just about who has a claim or the best claim to possession. And he says, a pervasive influence on all philosophical thinking on property is still the brooding omnipresence of John Locke. People haven't been able to get away from John Locke. And he says, well, we really ought to have outgrown John Locke by now because there's no more virgin land anywhere for anybody to go and first possess. In fact, he writes about the idea, the preposterous idea of anybody picking up an acorn, which is Locke's example, and saying, you know, I'm the first person to pick this acorn. This, he says, doesn't have any meaning now that titles are derived. Nobody is first acquiring a title. But we can't escape it. This question when we ask about ideas of justice because that's what people are claiming that their ancestors were the first people to possess this land. So we have to go back to John Locke and back to the idea of possession. And we have to ask what needs to be established so these are the questions that we have to ask. First, was the property stolen? And second, must it be returned to the claimant? If so, now the cases that I'm talking about in the culture wars are often depicted as analogous to returning stolen property to its owner. And if you accept that the property is stolen, that's if you answer the first question in the affirmative, it follows that you should return it. Why wouldn't you return a thing that you stole? This is the question that I ask my Canadian friends who like making land declarations. My house sits on stolen land. Well, give it back. Rothbard says no one has the right to aggress against the legitimate or just property of another. The criminal has no natural right whatever to property that he has stolen. No natural right whatever to the retention of property that he has stolen. The aggressor has no right to claim any property that he has acquired by aggression, right? So if you stole something, if you say, yes, I stole it, then it follows that you should give it back. So that's the first question that we want to ask, was it stolen? Because if we answer that in the affirmative, we know what the answer is. I think it's very clear Walter Block has an example there of the rule that applies. So the person, the claimant in this case is the true owner of the property or the heir to the true owner of the property, that's A. This is somebody saying this is my land that was stolen or saying this land was stolen from my predecessor in title. The rule that applies is simple. If the claimant, if A is the rightful owner and B steals property from A and sells it to C and then disappears, there is only one correct answer to the question of who should keep it according to libertarianism, and that is A. There is only one correct answer to that. We don't do what equity does and say, well, wait a minute, let's look at the good faith of all the parties. No, there's only one correct answer, C is out of luck. He has to return the stolen thing and he has no remedy unless somehow he can locate the thief, the person who did the wrong thing and he can try to get compensation out of that person or whatever other remedy he seeks. But once we accept that a title is stolen, the answer becomes clear. I have clarified that where the claimant is the person making the demand because we also have to question when hundreds of years have passed, if the person making the demand is in fact the true owner of the property, even if we say that the property was stolen. So that's just something to bear in mind. Now, how would we know if the property was stolen? First, we have a number of assumptions that we make. First, that the claimant is the rightful owner, that the case can be proved and that the property is identifiable. Those are the assumptions that we make in a clear case where we're saying, oh, give it back because we know there has never been any acceptance in the law that you can keep something, you stole or transfer it to somebody else. So, and this is not, it's not only libertarians who take this view. I think anybody who knows anything about property rights would take that view. I have an example from Posner and Vermeula who wrote an article about reparations. Reparations for slavery, legacies of harm derived from slavery. So they are not concerned with justice. You know, these are Chicago economists. They're not concerned with justice. What they're concerned with is this, how's this going to work anyway? Who's going to be paying? How are you going to decide how much to pay? Where's the money going to come from? What about people who are mixed race? What about all these types of questions that they're asking? Can California afford $569 billion that they've proposed to pay in reparations? So these kinds of questions they're asking. But even they do not contest the idea that if you prove something is stolen, you should give it back. They say in their example, if a communist government seizes property as communist governments sometimes do, and hands it to cronies of the regime, that is unjust enrichment and the property must be returned. So unjust enrichment is a jurisdiction inequity where you're saying somebody got the benefit, wrongfully got the benefit of something that really belonged to me and they should make restitution for that. So many of these claims are framed as restitution claims. And if all these factors are clear, then nobody would contest that some sort of remedy has to be found. But I want to ask whether all these facts are really clear. If the claimant is not the original owner, because these are events that happened hundreds of years ago, who was? Because often they don't tell you. You know, like in the South African example, when people are marching on other people's gates and saying you stole our land, well, it was 400 years ago and you were not there, but they don't tell you whose property it was. We're just supposed to assume, I don't know because they're the same race that that's their property. So that's the first question. We want to know who the owner was. No, specifically, we want to know who the owner was. Not just what is said about the types of people who we want to know in whom did this land vest. What evidence is required to prove the original acquisition and the subsequent theft? So it's not just about making assassins but about proving the case. We can only find the answer through investigating the concrete data of the particular case that is through historical inquiry. That is a quote from the Ethics of Liberty where Rothbard says, we need a historical inquiry. We need the concrete data of the particular case. We need all these details to substantiate the case. Can you say, well, my people lived on this continent, does that suffice? That's Rothbard's example of Robinson Crusoe who lands on an island and he's so pleased with himself. He says, I own this entire island. This island is mine. Is it his? No. The only part of his is the part that he settles and transforms into use. So nobody can claim ownership of an entire continent. Only what is settled is known. And we see the same principle in the common law. The case I have there is Payne Graham. The point could be taken from any case. It's a very well-established principle. I only cited Payne Graham because it's a recent House of Lords decision where a squatter acquired farmland worth 20 million pounds didn't pay a single penny for it just because he used it for over 12 years, which was the time frame required for adverse possession. So the test set out is that you need to prove two things to show that you have acquired title to the land. The facts of having physical custody and control of the land, not just I was nearby or I used to walk across that field every day to take some air. No, you must have a sufficient degree of physical custody and control, and you must have intention to possess. That means intention to exercise such custody and control on your own behalf and for your own benefit. So we are looking for two things, the facts of control and the intention, the intention to control, not just the intention to go to a park and have a picnic. That is not intention to control. How do we know whether we have the sufficient facts and intention? Well, that has to depend on the land in question, the nature of the land. So in the example of Pai and Graham, it was farmland. So they used it for grazing their cattle, growing hay, the things you'd expect a farmer to be doing because it's farmland. It also depends on the manner in which the land is normally used. So you're using the land for what you would expect it to be used for. And you're dealing with it as an owner would. So these days, that includes things like putting up a fence, putting up a lock, exercising some sort of control that people would expect, behavior that people would expect of an owner. So not just that you are present, but that you are behaving as the owner of the place would and that you are doing so exclusively. You're not behaving the same way as everyone else in the place behaves because property is an exclusive right. It's about the right to exclude. So really, as an owner, you're saying, this is mine and I have a right to exclude people. If these things are absent, then that is not possession at common law. Neither is it possession in Rothbard's example because that's just a declaration backed up by nothing. If you can establish possession, you are entitled to exercise all the rights of an owner, including the right to exclude. Whether you are there rightfully or wrongfully, says the common law. We don't ask whether the squatter is there rightfully or wrongfully. In fact, many squatters break into the property. So here you can see that the common law departs from the point that Rothbard made because the common law doesn't care how you came there. As long as nobody has a better right to possession. So it's not just about the conduct of the person in possession, but it's whether there's anybody present who has a better right to possession. So I could say, any pen that I find here, I could say, this isn't my thing. I just found it here. But that doesn't mean that anybody can snatch it off me, who also isn't the owner and doesn't have a better right than I do. The fact that it's not mine is irrelevant, says the common law. So you look for the degree of occupation or physical control coupled with the animus posidendi. That's the intention to possess. And dispossession is anybody taking possession in the same way with the facts of possession and the intention to possess without license or consent of anybody else. Then they become the person who has dispossessed you. So there you can see that there's quite a lot of overlap between the cases. Other than that, here we have the idea of people who've wrongfully acquired possession being able to retain possession, which, according to the ethics of liberty, would be unjust. So what sort of historical evidence are we looking for? So Rothbard says, you can acquire title to land that is unused and unowned if it has obviously never been transformed by anyone. That is to say there was nothing to give you the indication that anybody had transformed it. The common law framework says whoever claims possession of land must be in exclusive possession of it openly. It should be clear to anybody who looks that you are in possession of that land notoriously. So this should not be some kind of hidden secret, adversely, meaning adverse to anybody who's claiming a counter-entitlement exclusively. That's of the essence of ownership and continuously not intermittent ownership. So that's what we would be looking for. If all the facts are clear, that is to say they are not disputed, if you can establish the facts that I've just outlined, then the property must be returned. But if not, if not, and in many of the cases that I talked about, they've proved nothing. They're just making amorphous claims. So if nothing is proved, then there has been no dispossession. If this is the example in the ethics of liberty, if Green comes upon land that has obviously never been transformed by anyone, he can move on to it at once and with impunity. For in the libertarian society, no one can have a valid title to land that has never been transformed. So all this language that people use about sacredness, they're trying to evade this, say, in my sacred ownership of land, I'm not allowed to transform it. In my sacred ownership of land, I must leave no sign that of my presence, because that's how I understand my relationship with the land. Here, I don't have time to go into this, but we look at this in more detail in our book, where we ask, is property a cultural construct? Can somebody come up and say, well, in my culture, we don't do possession and acts of use and intention to possess. We just do a spiritual thing, and then we become the owner. No, because property rights are human rights and they are universal and they're absolute. And we have an entire chapter talking about that, actually. So if none of this can be shown, then there has been no dispossession. The burden of proof and the presumption of innocence apply to cases where the historical evidence is not clear or historians are all in conflict about what happened. The burden of proof lies on someone who disputes a land title to make good his claim. If he cannot do so, the present possessor owns his land legitimately. So if somebody comes up and says, well, I don't know because it was 400 years ago, absent a clear proof by the objector that the land has been forcibly arrested from him or his ancestors, the current possessor's claim holds good. So the current possessor's claim is a just claim. It is not simply, I found myself here and what did I know? No, it is a just claim. It is not stolen property. It is a just claim to ownership of that land. And I think that pretty much covers the case of whether property is stolen. And now we must think about the remedies. In a case where it is proved, suppose the historians are clear that the people lived here and they were dispossessed and now we're looking for the remedy, must it be returned to the claimant? And my answer, I might as well spoiler alert, is no. We have to ask if the property has been materially transformed over time, if it is recognizably the same property that was stolen. So Rothbard's example of a watch, you can tell that that's the watch, right? It's the same thing. So that's a clear example. But with land that has been used over time, questions may arise if it is the same property. And then we must ask, would it be just to return property that has been materially transformed? It's not the property. It's pretty much a new thing. Does justice require that you give it up? Here's what equity says. If the thing has been transformed by somebody else, you know, he's put money and labor into it, to give it its value, nearly all its present value, then equity will intervene. And to say that the person who's transformed it acquires a good title to it, because equity is a jurisdiction in fairness. So, you know, you could criticize this. And in fact, this case has been criticized because otherwise you could steal anybody's thing and work really hard on it and improve its value and then say, now I have title to this thing because I've done all this work on it. And it is true that equity looks to good faith. So if you did that deliberately, you wouldn't get the remedy. But you can still see that that doesn't fit with the idea that property rights are absolute. Now, the types of examples we have in relation to land things like cities built on what used to be a riverbed. They've literally re-rooted the river and built a city there. Can people come later and say, my ancestors used to fish in that river, that used to flow where the city now is, so now the city belongs to me? That's the type of question we're dealing with. Or grassland, that used to be just open grassland and now there's a city. Can you say, well, I used to walk along that grassland, you know, going wherever on my nomadic tour. And now there's a city and the city belongs to me, so that's the question we're asking. So Jeremy Waldron, talking in the context of New Zealand, says that surely over time, rights are transformed in their nature. If you have a right to fish in a river, it doesn't mean you have a right to the city that's built there now. He says, even if we are sure that the right had survived, we have to ask whether the rights remain stable over time or in the same form. Because sometimes things get extinguished and the thing that you owned doesn't exist anymore. You can't say, well, the thing I owned doesn't exist, so I want that thing instead, because that's not your thing. Now you are the thief stealing somebody else's thing. So that's the question that we're looking at here. The common law has rules of accession and transformation to decide whether the thing that you're demanding is really your thing. And the classic example in the Roman law is the ship of Theseus. Okay, so assume that the ship of Theseus had been stolen and finally it was found and they said, well, we'll have that back, that's our ship. Well, is it really their ship? So that's the question. And there are so many complex rules that apply. For example, if it's land, things become a fix to the land or if it's personal property, you ask whether you can separate what's been added to the property or whether you can't. And Rothbard says, if the addition is not separable, but an integral part of the property, well, too bad, you improved somebody else's property, you've still got to give it back. You can't say I'm keeping it because I improved it. So he would not agree with the position in equity. He would say give it back anyway. But, and I think this is important, Rothbard says, if it's separable, you are entitled to separate the thing you added to it and return the thing. So he gives the example of putting a radio into a car. If you can retrieve it without damaging the car, retrieve it by all means. And this is interesting. He says, if you built buildings on somebody else's land, well, move the buildings and return the land or demolish the buildings, return the land. This would please the objectivists. You know, objectivists say, if you built something on land and somebody comes and takes the land, it's your thing, you built it, destroy it. Okay, so if you can, if you can, if you are able to retrieve the thing that you built, then by all means, you should retrieve it. And just to conclude, this is Rothbard's conclusion, you must ask before you decide that you're giving things back. Ask whether the victim, that is the person, the property owner originally aggressed against, is clearly identifiable and can now be found. That's a prerequisite. And ask whether or not the current possessor is himself the criminal who stole the property. That relates to his other point because Rothbard thinks that thieves should be punished. Okay, so that's the kind of thing, you know, to do with the criminal element of the fact that theft is wrong. So that then it becomes relevant if the person in possession is the actual thief. And just to conclude with the idea of the role of the state, because the threats that we're looking at come not from the claims, but from the law that backs up these types of claims with force. And here again, I have a quote from Walter Block. He asks, if someone stole something from you, having the state steal from someone else altogether different does not really solve the problem, does it? And if the state robbed or more accurately allowed somebody else to pilfer something from your ancestors, does it make sense for them to now steal something from everyone else and give it to you? Not at all. Thank you. Thank you.