KOL479 | Co-Ownership Revisited: Property Rights, Exclusion, Contracts, and Edge Cases, with Nick Sinard
2025-12-11
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Kinsella on Liberty Podcast: Episode 479.
Libertarian Nicholas Sinard asked me to field some questions about the referenced issues, so we did so. (Recorded Dec. 10, 2025.)
https://youtu.be/DlbDlmuUPW0
Regarding our discussion of my previous comments about the definition of rights, and what rights are justified. As a definitional matter, a legal right is a legally enforceable claim to the exclusive use of a resource. As to what rights libertarians think are justified, I have discussed the idea that the only rights that are legitimate or just are those that the assertion of which cannot be coherently criticized. The reason is rooted in the logic of argumentation ethics and my estoppel defense of rights, e.g.
society may justly punish those who have initiated force, in a manner proportionate to their initiation of force and to the consequences thereof, because they cannot coherently object to such punishment")
Stephan Kinsella, "A Libertarian Theory of Punishment and Rights," in Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023). See also chapters 6. Dialogical Arguments for Libertarian Rights, 7. Defending Argumentation Ethics: Reply to Murphy & Callahan, and 22. The Undeniable Morality of Capitalism, et pass.; and other writing such as KOL451 | Debating the Nature of Rights on The Rational Egoist (Michael Liebowitz) (from the transcript):
[12:25–19:47] I think when people say that I have a right to X what they’re really saying is if "I were to use force to defend my claim to this space" I can’t be coherently criticized. In other words, my proposed use of force to defend this space, is just, is justified. Which is why it ties into what laws are justified. Because a law is just a social recognition, by your society—your local neighbors, the legal system—that they recognize your claim, and they’re willing to endorse or support your use of force to defend yourself.
So ultimately when we say there’s a right, what we’re saying is that if the legal system uses force to defend your claimed right, that use of force itself is justified. So this is a complicated way of saying what libertarians often say, something like: it’s either ballots or bullets. It always comes down to physical force in the end. So when you have a law, what you’re saying is that the legal principle that we’re that proposing—like defending my house, or my body from rape or murder—we’re saying that if you were to use force to defend yourself, or if the legal system would do so in your name, then that would not be unjustified. And I think that’s ultimately the claim. So what you’re saying is ... the reason I call it a metanorm (( Rights as Metanorms; Rights and Morals as Intersecting Sets Not as Subset of Morals. )) is because ... Well, I distinguish between morality, and the justice of the legal system. So for example—and I think maybe Rand might agree with me on this, I’m not sure (( See, e.g, these tweets by Objectivist Michael Liebowitz, admitting that in some cases it might not only be moral to violate a right but immoral not to: 1, 2 ("Suppose a guy is driving with his son, and someone shoots up his car, badly wounding the son and taking out the tires. There is no one around, and he needs to get his son to a hospital. He sees an unattended parked car and steals it, getting his son the help he needs. That would be both virtuous and a crime."), 3, 4, 5, 6, 7 ("The person who wouldn’t steal a dollar to prevent his children from being tortured is the person who should face harsh moral judgment."), 8. ))—but a simplistic view of morality, which most libertarians might have—and I don’t mean to be critical by saying simplistic, because it’s an attempt to distinguish between... so most people would say that "you shouldn’t do drugs" and therefore they’re not opposed to a law outlawing drugs, because to their simplistic linear mind, if it’s immoral, it should be made illegal. But if you have a kind of a more nuanced view of things, you understand that, well just because something is immoral, doesn’t mean it should be illegal. That’s the libertarian view—its like, okay, doing drugs, being a drug addict might be immoral, it might be harmful to your life, but you’re not violating someone’s rights. So the government [the state] is not justified in outlawing it.
So that’s like a second level. So when you explain that to your normy person, then you might say, well that’s because morality, or that’s because rights violations are a subset of morality. So that’s kind of a first approximation about how you explain to people why everything that’s not that’s immoral should not be illegal. It’s because a rights violation should be illegal, but that’s only a subset of immorality. But when you put it that way, the assumption is that every rights violation is immoral although not everything that’s immoral is a rights violation right.
And my personal view that I’ve I’ve come to adopt over the years is that's that’s actually slightly incorrect. In other words it it’s incorrect to say that everything that’s a rights violation is necessarily immoral. And the reason is because I view rights as a metanorm. This is the view as a human being, living in society, who wants to have a moral view of matters and the way human Society should operate, what law would I favor as a justified law? So I would say that we should have a law that says you can’t steal from people. But what that means is that it’s justified if the legal system uses force to stop crime, or to stop theft. It’s justified. Which which means that if someone is caught being a thief or a rapist or a murderer and they’re punished or dealt with in a certain way, that response by the legal system, or by the victim using the legal system as its proxy—you can’t criticize that itself an immoral action; it’s justified. So to my mind the ultimate purpose of law, and to think about this, is to think about what’s justified. But it doesn’t mean it doesn’t mean that every rights violation is necessarily immoral. And again, it’s because when you classify the legal system’s response to a crime as justified, what you’re saying is, it doesn’t violate the aggressor's rights if force is used against him. But it doesn’t necessarily imply that what he did was immoral.
So this is why my view is that we have to view rights violations not as a proper subset of immorality, but as its own set which is mostly overlapping with immorality. So I would say that 99% of all rights violations are actually immoral, just like I would say that it’s immoral to be a dishonest person in general but I don’t think that it’s logically necessarily true. And the reason is because the purpose of morality is to guide man’s conduct in his everyday affairs, but the purpose of political ethics is to tell us which legal system is justified.
So that morm is aimed at determining which laws are just; it’s not aimed at telling us how we should act on a day-to-day basis. So given a legal system, which I think is a just legal system—let’s say we have a legal system where which outlaws murder and theft and extortion and rape and robbery and all this kind of stuff—that doesn’t necessarily mean that I am always immoral if I choose to violate someone’s rights in that system. It probably is in most cases, but I’m not sure it's logically the same thing. [Then the example of someone in the woods breaking into a cabin to save their baby's life.]
Shownotes (Grok)
Show Notes: Stephan Kinsella & Nicholas Sinard on Co-Ownership, Property Rights, and Related Issues
(Full conversation – Parts 1 & 2 combined)
Opening Summary and Defense of Co-Ownership (0:00–4:41)
Kinsella summarizes his long-standing view: co-ownership of scarce resources is unproblematic and historically unquestioned.
Property rights exist to avoid interpersonal conflict over rivalrous (scarce) resources; contracts can split the “bundle of rights” in ways that still prevent conflict.
Examples: state-owned property is actually co-owned by taxpayers/victims; homesteading-by-proxy creates temporary co-ownership; wills can be structured to achieve the same result even if death technically ends the testator’s existence.
Hoppe, Easements, and Collective Homesteading (4:41–8:22)
Sinard: critics are taking Hoppe too literally when he says “only one owner per resource.”
Hoppe himself recognizes easements, servitudes, and even collective homesteading (e.g., a commonly used village path).
Practical co-ownership (spouses, roommates, joint heirs) already works via contracts and arbitration/divorce/sale when conflict arises.
Meta-Norms and the Duty to Avoid Conflict (8:22–9:53)
Even when no perfect rule exists, parties still have a background duty to seek peaceful dispute resolution rather than immediate violence.
Property rights are not self-enforcing; they presuppose arbitration.
Compossibility and the Essentialist Project (9:53–13:18)
Sinard is working on an “essentialist” test: a proposed property-rights rule is only justifiable if it is logically compossible (no built-in conflicts).
Kinsella links this to Hoppe’s and Hülsmann’s emphasis on compossible rights.
Do Critics Really Oppose the Substance or Just the Word? (11:43–17:50)
Kinsella suspects the dispute is merely semantic: critics accept contractual arrangements that achieve the same result as co-ownership but refuse the label.
Sinard thinks critics mistakenly believe Kinsella derives property rights from contract (rather than contract from prior property rights).
Tangent on contractarianism, mutual recognition, and argumentation ethics: mutual respect for rights is a proto-agreement, but contracts remain downstream of property.
Consent, Revocability, and the Guest/Tenant Distinction (31:42–36:04)
Bare consent (dinner guest, kissing) is revocable at will.
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