Whatever Mileage We Put On, We’ll Take Off

June 26, 2009

Stephan Kinsella:

Even if private property owners were not prohibited from inviting whomever they wish onto their own property, the guest would have a hard time getting there, or leaving, without using, say, the public roads. So merely prohibiting non-citizens from using public property would be one means of establishing de facto immigration restrictions. It need not literally prohibit private property owners from having illegal immigrants on their property. It need only prevent them from using the roads or ports – which it owns.

Note: the above quotation and link is not intended as a claim that Stephan ultimately supports state immigration laws or closed border (see comments) but to compare the argument he describes in light of other considerations.

Roderick Long (mp3):

Suppose that you homestead an area like this [draws square] and then I come along and homestead an area like this [draw a larger, concentric square]. You want to leave your property now. And I say, “Sorry. Unless you have a helicopter or something, you’re not leaving; or at least you’re not leaving unless you pay me a heck of a lot” or whatever. Is that legitimate? I would say no, I don’t have the right to interfere with your coming and going and so I have to allow you some form of getting onto and off of your land. In law, this is known as an easement.

It seems to me that if you hold the latter to be the right position then it would be difficult to hold the former position without some creative juggling. Long’s position, which does seem prima facie correct, would apply to the following case:

Say Stephan lives on a plot of land in Uttar Pradesh and Roderick wants Stephan to come to his plot of land in Santiago, Chile (I just picked some fun sounding places that are really far apart, nearly antipodes in fact). Now imagine that every conceivable plot of land or square mile of ocean between them is owned. Can Stephan not be allowed to visit Roderick and vice versa? I see no reason why the size or complexity of the barrier should have anything to do with allowance covered by the general easement concept.

Let’s say that Stephan has an easement to get to the airport near him and flies to the Santiago airport. All the airports along the way give him permission to be there (after all, that’s how they make money). Standing in the taxi line, a taxi driver with permission to drive on the road to Roderick’s place gives him a ride. Now at Roderick’s, Stephan would like to go exploring the wonders of Santiago. It looks like Stephan is really in no different position than Roderick at this point, the only difference being that Roderick can make Stephan leave his plot. Whatever methods, agreements, contracts and easements Roderick can use or make, Stephan can use or make.

It is difficult for me to see how a de facto immigration policy could develop if anyone on the interior of the supposedly closed off area granted permission to an outsider. So if there is a person who wants to go somewhere and another person that wants them there, Roderick’s argument appears to require a path from A to B. Now what the details are and how it all works out is anybody’s guess, but anything resembling the de facto immigration policy that Stephan describes would only exist in the case where no one on the interior of the area under discussion wanted anyone to come in. That’s not very robust and would probably best be described as de facto open borders in the general case and de facto closed borders only in the exceptional case.

It is also unreasonable to expect that someone would have to prove the existance of the person granting them the permission (e.g. “Papers please?”). This would imply that if some free-roaming person is moving along a public road, there is good reason, given what roads are for, to assume they are going somewhere they are allowed to be and that as long as they “move along now” that there is no real issue. Easements don’t even mean that you shouldn’t still be able to seek compensation, as long as that compensation isn’t so great as to stretch the meaning of easement beyond recognition. Easements, I expect, would tend to take the least obtrusive form. Roads and undeveloped land, even if owned, by their nature are going to be less obtrusive means of moving people along than asking people to jump through hoops (perhaps literally). Telling someone they can’t use your road but must instead convince his neighbor to let you pass through his house (I’m reminded of Ferris Bueller’s race through people’s backyards to beat his sister home) would be pretty uncivilized and likely to lead away from the minimization of conflict that is always touted as a foundation for private property. If you want to own roads, then I think there is an argument to be made that you accept the nature of roads as “paths of least resistence” in situations where easements are needed, i.e. where these roads are surrounded by less transportation-conducive forms of property.


9 Responses to “Whatever Mileage We Put On, We’ll Take Off”

  1. Frank Gas Says:

    I see this argument regarding access to property to justify statism all the time and the private sector solution is very simple: access insurance.

  2. Neverfox Says:


    We certainly don’t want that! I’m certainly aware of the danger of abusing the easement idea so I’m very intrigued. Would you share some details about this access insurance idea? I always appreciate a creative, market solution to problems.

    More generally though I’m not sure I see easements based on a reasonable principle of proportionality (i.e “If I aggress against you, you have the right to coerce me in whatever way is necessary to remove me from your sphere of authority, so long as your coercion is not disproportionate to the seriousness of my aggression.” RTL) turning into statism. I would certainly like to hear how a state could operate through a combination of easements and a principle of proportionality. I expect that the latter would eviscerate it. If someone wanting to be a state wants to turn their car around in my driveway, I don’t give damn; but if they want to move in, what’s the easement defense there? I don’t see it.

    Also, using something as an argument for statism isn’t the same thing as having a valid argument for statism. People also “use” liberty as an argument for statism. So what?

  3. Neverfox,

    1. It seems to me that Stephan’s way of talking presupposes that the state’s claim to own these spaces is legitimate. Since I deny the legitimacy of state’s claim to property, as I would have thought Stephan did as well, I’m not sure (perhaps I need more context) what he might mean when talking about denying illegal immigrants access to “public” roads. I don’t see what would ground the state’s purported authority to control access to these spaces.

    2. You and Roderick have to be right about easements. That is, no sane property system would be without them. On my view, at any rate, a just property regime is one grounded in basic moral principles, like the Golden Rule (as well as in the recognition of a range of interests served by property rights, including productivity, autonomy, efficiency, etc.). To fail to include reasonable easement rights for individuals would be to ignore the underlying principles grounding the system.

  4. Neverfox Says:


    I’m not sure if you’ve had a chance to read Stephan’s article but he doesn’t hold that view. Instead he argues that it is reasonable to assume that some of the state’s laws, like the existence of roads, are reasonably likely to exist in anarchy via the basic exercise of private property rights. In other words, some of the state’s actions, while their ultimate role as caretaker can’t be defended, are those likely to be given to some caretaker, namely the owner’s of property in a community, perhaps one as large as a state.

    My argument is that the basic principle in Roderick’s example would make it unreasonable to assume that all mobility could be shut off in all but the tightest of communities; any “point B” that a someone was trying to travel to that was blocked by private property to the point that it would require unreasonable sacrifice to circumnavigate makes the idea of “immigration laws” unlikely.

  5. Thanks for the clarification re. Stephan’s point. Relying only on the quoted portion, I focused on the language about “public” land and roads and understood him to be talking about the current status of state-owned property. My bad. In any event, I think, as I say, that you and Roderick have to be right about easements in general–no just or sensible property system could be without them, and there would have to be some that were implied and relatively non-negotiable–and about their implications for immigration restrictions in a stateless society.

  6. Neverfox, Gary: I am not for closed borders. I am not for the INS. I am for its abolition. My article was “an argument for”–I was trying to present the best argument I could think of for some mild limitation on immigration by the state controlling roads for the benefit of its real owners (to simplify: current US residents and taxpayers). Gary, the “authority” (arguendo) would come from the owners (the US taxpayers) who have a natural ownership claim to the road. But in the end, I am not in favor of the power of the state being used to limit immigration.

  7. Neverfox Says:


    And you can see that I don’t ever claim that you hold those beliefs. I think the closest I came was to say that you “described” it. I simply linked to an article of yours (which people can read for themselves) and then discussed what aspect of the “argument for” is problematic in my opinion.

    My analysis can likewise be viewed as “the best argument I could think of” and wasn’t intended to label you as a supporter of “the power of the state being used to limit immigration” anymore than it is intended to label me as a supporter of say eminent domain based on “easement” rationalizations. I thought your article made that clear beyond doubt and I hope that people will read it because it is interesting in its own right.

    I will, however, in good faith, add a note making this point clear.

  8. Rad Geek Says:

    [X-posted from Kinsella’s reply on his own blog.]


    I understand that you don’t necessarily mean to endorse the argument you are presenting. But, just to get clear on the details of the setup:

    1. In the argument, as presented, the people who you claim to be the rightful owners of the road system are “U.S. taxpayers” (since it was their money that was stolen to build and maintain the roads). You then suggest that this is a reason why rules of the road could legitimately be adopted which exclude or condition access for “outsiders,” which apparently you read as people who are not U.S. citizens.

    But “taxpayer” and “citizen” are not the same category. Not all citizens are taxpayers and lots of taxpayers aren’t citizens. Many citizens are net tax recipients; all immigrants, both government-approved and undocumented, pay at least some taxes to the local, state, and U.S. governments (gas tax, sin tax, sales tax, property tax through markups on rent, often income tax, etc.) and many, probably most, are in fact net taxpayers (since immigrants are ineligible for most welfare benefits that citizens are eligible for). So if you’re considering “taxpayers” to be the class of people who rightfully should have joint ownership of the roads, wouldn’t that suggest that your average undocumented worker has a substantially better claim on having a say in forming rules about who can use of government roads than upstanding citizens like Fritz Henderson, military-welfare recipients like Jim Gilchrist, or milfare administrators like Marvin Stewart?

    2. Presuming, arguendo, that U.S. taxpayers (not necessarily citizens) are the rightful owners of government-funded roads (certainly the government is not, so…), do you think it likely that the shares and distribution of rightful ownership would be uniform across all taxpayers and across all roads? So, for example, have I, living on Rochelle Ave. in Las Vegas, earned a vote over what people living and working on Cass in Detroit can or cannot do with their road? Have the folks on Cass earned an equal say to me over who can or cannot use Rochelle here? When we’re trying to figure out what a private property owner would do, do we have to conceive of, say, the policies of a single private proprietor or a single private entity who owned all 2,500 miles of I-10? Or might the patterns of rightful ownership — hence the distribution of use policies — be somewhat more decentralized than that?

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