Liberty Matters

Lysander Spooner’s Theory of Property

As our conversation on Spooner draws to a close, I’m glad we’ve debated the issues of legal legitimacy in some detail, but sorry we haven’t really explored the breadth of Spooner’s views on other topics.  As my final contribution to the discussion, picking up on Matt’s comments on restitution, I want to say just a bit about Spooner’s theory of property rights.
Spooner’s approach to property rights is broadly Lockean; one acquires title “first, by simply taking possession of natural wealth, or the productions of nature; and, secondly, by the artificial production of other wealth.”[126]  And we’ve seen from Matt’s post that Spooner accepts what Nozick calls a “historical” approach to distributive justice.[127] 
Unlike both Locke and Nozick, however, Spooner’s rejects the proviso that first appropriators must leave enough and as good for others.  Against the provision that “the first comer is bound to leave something to supply the wants of the second,” Spooner argues, by reductio ad absurdum, that such a provision “would be just as good against the right of the second comer, the third, the fourth, and so on indefinitely,” thus rendering all appropriation impossible.  He likewise notes that under a rule favouring first appropriators, “the last man’s wants are better supplied than were those of the first.”[128]
Many of Spooner’s fellow individualist anarchists were critical of profit, interest, and rent.  Some, like Josiah Warren[129] and Stephen Pearl Andrews,[130] offered moral arguments against these phenomena; others, like Benjamin Tucker[131] and Francis Tandy,[132] offered economic arguments predicting that these phenomena would wither away without state support.  Both groups tended to envision a future society in which one must continually use and occupy land in order to retain title to it.[133] 
Because Spooner moved in the same circles, and published in the same journals, as many of these thinkers and shared their general “free-market anti-capitalist” perspective, it is often assumed that he must have shared their views on profit, interest, and rent as well.  Murray Rothbard, for example, labels the position I’ve been describing the “Spooner-Tucker Doctrine.”[134]  But in fact Spooner had no problem with profit, rent, or interest.  On the contrary, he writes that “there is no more extortion in loaning capital to the best bidder, than in selling a horse, or renting a house to the best bidder”;[135] and far from condemning absentee land ownership, Spooner insists that “the owner of a thing has absolute dominion over it, whether he have it in actual possession or not, and whether he himself wish to use it or not;” and that “no one has a right to take possession of it, or use it, without his consent.”[136]  Spooner did support the rent-strike movement in Ireland, but only on the grounds that the lands in question “were originally taken by the sword and have ever since been held by the sword,”[137] and not because of any inherent illegitimacy of rent.
While I’m generally sympathetic to most of Spooner’s views on property, I regard his position on intellectual property (specifically, copyrights and patents) as a serious mistake.  
Spooner argues that if we own the products of our labor, that must include the abstract products of our intellectual labor.  Moreover, this ownership must be perpetual; if ordinary property rights don’t expire after a certain period of time, intellectual property rights shouldn’t either, for we have the “same reasons” for “allowing men a perpetual property in their ideas” as we do for “allowing them a perpetual property in the material products of their labor.”[138]  Thus if we could trace, say, the heirs of the inventor of the wheel, it seems, by Spooner’s lights, that we could not licitly use wheels without the current heirs’ permission.  We might take this as a reductio ad absurdum of Spooner’s position, but he evidently would not.
I do think Spooner performs a useful service of showing what the consistent implications would be of treating abstract ideas as property.  But I also think that any defense of intellectual property (perpetual or otherwise) conflicts with one’s ability to defend other forms of property.  As Spooner notes:  “if the laborer own the stone, wood, iron, wool, and cotton, on which he bestows his labor, he is the rightful owner of the additional value which his labor gives to those articles.”[139]  But how can one defend one’s right to labor on the material objects one owns if one seeks to defend intellectual property as well.  
Suppose Spooner writes a poem and recites it aloud; I hear it, and memorize (perhaps inadvertently, perhaps not).  I now have a copy of the poem transcribed onto my brain.  If I then pick up a pen (that I own) with my hand (that I own), and transcribe the poem from my brain (that I own) onto some paper (that I own), whereupon I either give it to you, or else trade it to you for something that you own, how can Spooner forbid me to do this, without violating my right to use my own property – my brain, my hand, my pen, my paper?[140]
I’ll also note, in closing, that Spooner’s ideas would probably be much less influential today if they were still under copyright – because they probably wouldn’t be available for free on the Internet.  Hence, precisely because I’m a fan of Spooner’s ideas in general, I’m very glad that his ideas on perpetual intellectual property have not prevailed.
[126.] Spooner, The Law of Intellectual Property; or An Essay on the Right of Authors and Inventors to a Perpetual Property In Their Ideas, Vol. 1 (Boston: Bela Marsh, 1855), p. 21.
[127.] Robert Nozick, Anarchy, State, and Utopia, 2d ed. (New York: Basic Books, 2013), ch. 7.  For the left-libertarian application of Nozick’s historical approach, see my “Left-Libertarianism, Market Anarchism, Class Conflict and Historical Theories of Distributive Justice,” Griffith Law Review 21.2 (2012), pp. 413-31.
[128.] Spooner, Law of Intellectual Property, op. cit., p. 23.
[129.] Josiah Warren, Equitable Commerce:  A New Development of Principles, as Substitutes for Laws and Governments, for the Harmonious Adjustment and Regulation of the Pecuniary, Intellectual, and Moral Intercourse of Mankind, Proposed As Elements of New Society (New York:  Fowlers and Wells, 1852).
[130.] Stephen Pearl Andrews, The Science of Society, No. 1:  The True Constitution of Government in the Sovereignty of the Individual As the Final Development of Protestantism, Democracy and Socialism (New York: William J. Baner, 1851); Andrews, The Science of Society, No. 2:  Cost the Limit of Price: A Scientific Measure of Honesty in Trade As One of the Fundamental Principles in the Solution of the Social Problem (New York: Fowlers and Wells, 1852).
[131.] Benjamin R. Tucker, Instead Of A Book, By A Man Too Busy To Write One:  A Fragmentary Exposition of Philosophical Anarchism (New York:  Tucker, 1893).
[132.] Francis Dashwood Tandy, Voluntary Socialism:  A Sketch (Denver:  Tandy, 1896).
[133.] For a contemporary defense of this view, see Kevin A. Carson, Studies in Mutualist Political Economy (Charleston SC:  BookSurge, 2007), ch. 5; online at:  <> .  For a critique, see my “Land-Locked: A Critique of Carson on Property Rights,” Journal of Libertarian Studies 20.1 (2006), pp. 87-95.
[134.] Murray N. Rothbard, “The Spooner-Tucker Doctrine: An Economist’s View,” Journal of Libertarian Studies, 20.1 (2006), pp. 5-15; online at:  <>.
[135.] Spooner, Poverty: Its Illegal Causes and Legal Cure, Part First (Boston: Bela Marsh, 1846), p. 12.
[136.] Spooner, Law of Intellectual Property, op. cit., p. 80.  See also my “Spooner on Rent,” Austro-Athenian Empire (21 February 2006): <>.
[137.] Spooner, Revolution: The Only Remedy for the Oppressed Classes of Ireland, England, and Other Parts of the British Empire: A Reply to “Dunraven” (1880), p. 4.
[138.] Spooner, Law of Intellectual Property, op. cit., p. 136.
[139.] Ibid., p. 25.
[140.] For elaboration of this argument, see my “Thoughtcrime,” Austro-Athenian Empire (14 September 2003); online at:  <>.