Property and propriety

16 November 2003

Michael Freund proposes that the Israeli Foreign Ministry pressure European governments to return Jewish land that was seized, not just by the Nazis and Soviets, but by medieval European governments.

Eugene Volokh objects:

The principles that bona fide purchasers can’t get rightful possession of stolen property, and that corporate bodies may have obligations that persist over long times, are sound over the short-term, but they become less and less just over the long-term.

From a strict libertarian point of view, such claims become more just over the long term, not less just. If I steal a bushel of seeds from some farmers, and it takes a whole year for them to recover their property, I have not just deprived them of the seeds, but of the produce that they would have grown from the seeds. Thus, quite appropriately, when a court convicts someone of a tort, the defendant must pay back the plaintiff with interest. Furthermore, everyone agrees that if the victim of a tort does not live to collect on his or her claim, the victim’s heirs have the moral right to prosecute the case. Someone who really believes that property rights are a supreme value should be very, very concerned about how to settle 500-year-old stolen-property claims.

I’m not a strict libertarian (and, to be fair, neither is Prof. Volokh), so I don’t particularly care about recovering the assets that were looted from my great-great-great-grandparents. However, if the Anarcho-Libertarian Revolution sweeps the world and various disposessed groups start lining up at the courts, I can propose a simple way to satisfy them.

Simply invite everyone to join a Stale Property Claim Mutual Insurance Fund. The fund would estimate how much property each member would owe to other members to compensate for past historical wrongs, and how much others would owe to that person. Depending on which number was greater, the fund would send the member a bill or a check for the difference. The fund would also use the combined premiums of its members to sue non-members who appeared to be sitting on ill-gotten ancestral gains, and to defend any member from similar suits by non-members.

Of course, the more money you have, the more likely it is for some of it to be tainted by a previous theft. And no matter what ethnic group you belong to, there was probably some period of history in which your ancestors were rich and then some invading hooligans made them poor. So, in practice, a fund like this would be taking money from the rich and giving it to the poor.

Hey, maybe I should become a strict libertarian, after all. I mean, I’m very much in favor of private property. I think everybody should have some.

• Later: This is not Genesis 16
• Earlier: What you can observe from a verb