Property Law in a Stateless Society

Wolf DeVoon, in "The Rule of Law," speculates on the development of libertarian common law in a stateless society.

The most interesting part for me is this exchange he reproduces with Hogeye Bill on property rights:

Hogeye: Getting more directly to the meat of the property issue: You write "Your title deed exists only in the sense that your neighbors consent to that privilege." I agree with that. But I also agree with Locke, that initial use bestows ownership. Are these views at variance? I don't think so. Even the hunter-gatherers understood use as a claim. Our more advanced modes of production and longer range of planning have changed things quantitatively, but not qualitatively.

DeVoon: I like to think in particular cases. Does capturing a slave or feeding a child 'initialize' ownership? If it's possible to fence an unoccupied river basin, does that 'initialize' part ownership of the headwaters? Okay, we could elaborate a general theory with special rules (which grounded seems to prefer). But I think Lockean first-use made more sense two centuries ago, in the context of unopposed homesteading. Where it never made sense was blowing off the native Americans or aboriginal Tasmanians and taking their 'unowned' lands by force.

Hogeye: Moving to an important related issue: Can anarcho-capitalists and anarcho-socialists just get along? (If these two can, then combination systems such as anarcho-Georgism should be compatible, too.) It seems to me that they can if they are able to agree on or negotiate the three attributes on a meta-property basis. By that I mean: Internally the anarcho-capitalist and anarcho-socialist societies/enclaves have their preferred system... If one enclave wants to buy land (or whatever) from another, they have to agree on the parameters of the three attributes, and also indemnify defense of the exchanged property against interlopers from their enclave. I.e. Each society may run off squatters without the other society forcibly retaliating. Wolf's assertion, "Your title deed exists only in the sense that your neighbors consent to that privilege" is a statement about meta-property in the sense above. It acknowledges that even neighbors may have different notions of property, and parameters for the three attributes. Within a single homogeneous property regime, such as an anarcho-capitalist enclave, the rules are more fixed and objective. What does this mean for a jurist? Hell, I dunno. Ask Wolf.

DeVoon: Fixed rules (legislation) almost certainly means tyranny, unless we adopt the methods of common law (case law) to ameliorate traditional bullying by a well-armed, well-capitalized landed gentry. I suppose we could rely on stupidity as a cure, since propertyless peasants are often more ingenious than their landlords -- but I specifically fear a blanket legal defense for the 'first users' and their heirs and assigns. The modern state is supposed to be a referee among contending economic classes, which Madison saw as inevitable and which became a pivotal argument in the Federalist debate....

But the end of law is not to frustrate and postpone conflict. Justice delayed is justice denied. So, I ask 'Who rightly possesses this thing?' (land, improvements, roadways, rivers, children, animals) on a case by case basis, expecting that each litigant will have a novel argument that fixed rules cannot predict a priori.

In a similar way, I'm open to any theory of property that jurists can use as a reasonable maxim, if not exactly a fixed rule. Scarcity implies greater value, and creation de novo (intellectual property) seems like a slamdunk -- until we consider the rule of law. If it's enforced with vigor and rigidity, based on a libertarian 'social contract,' there will be a few smug winners and many disgruntled losers. I am particularly eager to uphold and defend the fundamental right of innocent liberty, which implies unrestricted immigration and some public property (roads and rights-of-way) to get from point A to point B unhindered.