Honest Melbourne Case Study Questions And Answers

Honest Abe (A): Do you recall Lord Acton’s statement, “[a] people averse to the institution of private property is without the first element of freedom?”
Rattlesnake Pete (P): I do; a libertarian message.
A: And you agree?
P: Yes; liberty is secured through private property.
A: So the implementation of point four, “Nobody may work another miner’s registered claim without his consent,” will contribute to achieving this freedom?
P: Exactly. I believe the right to exclude is constitutive of private property. It follows that if someone does not have this right, they do not have property.
A: What about the inverse? Right now I occupy this chair and therefore exclude you from its use, but I do not own this chair.
P: I don't follow.
A: bundle of
rights – Australia preference for this conception. Term which recognises and illustrates the elements involved in property ownership.
P: I am not familiar with having multiple interests in property; my conception is simply my rights in relation to a thing. My mining claim is part of what constitutes me in this world.
A: Here your conception is in a Hegelian sense?
P: Yes. Hegel promulgates that to achieve proper self-actualisation, an entity must exercise control over resources in the external environment. It follows that individual freedom cannot exist without private property providing freedom’s external sphere.
A: And the right of control is absolute? You may do anything with your claim without regard for others?
P: Yes, “mankind has the absolute right of appropriation over all things.” This conception of property is the only way to ensure personal autonomy.
A: The only way? Isn’t that essentially the sentiment of Blackstone who described property as “that sole of despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual.”
P: I suppose it is. So you agree?
A: Not exactly. If we adopt a Blackstonian standard that always enables a landowner’s right to exclude, we will compromise public rights. Generally speaking, as a landowner I can exclude my neighbour from entering my land. But I cannot if he has an easement granting right of way, nor can I exclude the police with a valid warrant.
P: These are certainly issues for mining claims as well as general property conceptions.
A: Perhaps we can rephrase: “Exclusion is combined with governance, and the latter is often implemented by overriding or making exceptions to the right to exclude.” Unless you can provide an exception, permitting the Blackstonian standard in our situation?
Can you provide an example of property in the Blackstonian sense which exists in the world as we know it today?
P: I am not sure.
A: Well how do you ensure your claim is not interfered with?
P: With my physical ability.
A: So you would continually stand guard over your property, in order to assert that it is yours? How unproductive! Surely our society would be more prosperous if every person was free of the burden of physically defending their property.
P: I'm not personally concerned for society.
A: I thought not. Your conception of property as a linear relationship between you and your claim speaks for itself. In order for property to exist, the right holder must exercise not only a relationship with respect to an object, but also rights against others. Hobhouse says:
In a developed society a man’s property is not merely something which he controls and enjoys, which he can make the basis of his labour and the scene of his ordered activities, but something whereby he can control another man and make it the basis of that man’s labour and the scene of activities ordered by himself. The abstract right of property is apt to ignore these trifling distinctions…
P: Could you propose a different conception of property which would be more conducive to this
distinction?
Property as a positive right
A: Yes, property as a positive right as opposed to a natural right. Bentham rejected property being a natural right, instead asserting that man's only entitlement to resources is the guarantee provided by laws sponsored by the State. The State makes such laws to deal with social and legal issues as society requires them.
P: So what about excludability along these lines?
A: The power to exclude is divided into two categories: physical power, and power derived from the government. Let me illustrate this. If a security guard is hired to prevent people entering a given claim, his ability to exclude does not demonstrate anything in relation to property. Instead, a normative right to exclude is required, which is exerted within society itself by the landowner holding the proprietary interest.
P: But if I rely upon the State for this power, I lose a degree of autonomy.
A: Yes but you gain an amount of security as a return. Comparatively, we know that in other gold rushes, when miners had no permanent stake or security in their diggings they suffered a detriment. Their fear of losing resources to other miners meant resources were not used properly which sacrificed overall utility.
P:
P: I can see the need to balance my right to personal autonomy with the greater good, but only to a certain extent.

A: Back to Bentham, he writes: “[t]he idea of property consists in an established expectation; in the persuasion of being able to draw such or such an advantage from the thing possessed, according to the nature of the case. Now this expectation, this persuasion, can only be the work of the law. I cannot count upon the enjoyment of that which I regard as mine, except through the promise of the law which guarantees it to me.”

Section conclusion
A: There should be limits on the power to change rights to suit the particular interests of those in power - but the argument can be raised that sometimes it is necessary to alter the nature of individual rights in order to provide rights that will benefit the greater good of the overall community.
So “exclusion is not all or nothing, or always or never.” Rather, the “composition of these property rights represents a societal balance of interests, which should be subject to constant re-evaluation and revision in light of current needs and norms.” After all, property systems are a “major battleground” where conflicts are resolved between liberty/privacy and community/equality. In the context of our plan, this broad conclusion is clearly consistent with the proposed point; the excludability is limited to other miners, and only to them working another’s claim.

We're moving towards statehood with an independent legislature…

Taken from page 979 of Radin: “Thus, if Hegel’s claim is that property is justified because it is a condition necessary to produce or sustain free individuals, his theory carries the inherent limitation that any form of property incompatible with free individuals is not justified.

Contextualising the right within the plan
P: I have one final concern. Should excludability be a separate enshrined right, rather than merely one point in the plan?
A: Yes I have heard it described as “the most fundamental of all property rights.” Tentatively accepting this argument, it should still belong in the plan though. What do you mean by 'separately enshrined'?
P: I understand excludability to be a constitutional right, and it's also protected by laws including trespass to land.
A: Let's take a step back. Without this plan, all miners are trespassers on Federal land. With this plan, each claim becomes their respective property, so potentially enabling those rights under the Constitution and in tort. However, for this discussion we must consider ourselves in a scenario that is a hypothetical vacuum, where we cannot necessarily rely on such externalities. As it is merely the 1850s, this plan will lay the foundations for the rights in torts to build and rely upon. Also the Constitutional protection is partial in Australia, for an example. In 1946 the High Court’s interpretation of the terms “acquisition” and “just terms” limited the protection of property rights.
P: This difference in circumstance must be why excludability was not conceptually included in similar regulations made for Rockwell Hill in Nevada County, which had otherwise very analogous points to ours.
A: So you agree we must include excludability in the plan itself?
P: The fact that we are in an independent scenario unable to rely on externalities is convincing; it is therefore imperative that it is included.
A: Great! The result is societal recognition of the property, and further contributing to self-realisation by respecting human agency.
Conclusion
A: So we can both clearly support the notion that nobody may work another miner’s registered claim without his consent. On the broader concept of excludability, we find the following statements amenable:
1. Excludability, like property law itself, is a circular and liquid value which must adapt to societal change.
2. Excludability is not a free standing feature of property. Excludability is only meaningful if it emerges out of in rem relations. Without those relations, only physical excludability is possible.

3. Taken from page 979 of Radin: “Thus, if Hegel’s claim is that property is justified because it is a condition necessary to produce or sustain free individuals, his theory carries the inherent limitation that any form of property incompatible with free individuals is not justified. T
P: Agreed.