A moral consequentialist property norm?

So the context of this is the social contract and one statist's attempt to defend it. David John Wellman says, "It would be more accurate to characterize my beliefs as if there is such a thing as legitimate property, then the US legitimately owns governing rights to its territory. If this is true, then it is true by the same means as anyone or anything else has gained property over the ages: purchase, donation, bequeathement, or conquest. As for whether property is legitimate, it depends on whether the fruits of initiation of force or credible threat of the same is moral."

So, first of all, let's consider the possibility that there is no such thing as legitimate property. If David were to take this approach, though, it would undermine parts of his argument for the legitimacy of what he considers to be the social contract between his state and the people living on the land it claims. How would this—how does this work? We recognize that a landlord's right to charge tenants for living in his property stems from the fact that it is, in fact, his property. A landlord has no right to charge you for the privilege of living in a house that you built yourself, for instance, because he doesn't own that house.

And this doesn't change even if the landlord improves the house you built—uh—somehow by installing a satellite dish, for instance. It's still not his house, so he has no right to claim payment for its use. Imagine that this landlord invites me to sign a contract, and the contract states that I will pay for the privilege of living in the house I built, one pain of being evicted by force, and wanting to avoid being abused by the landlord/landlord's agents. I signed the contract, but even now the landlord has no right to demand payment from me because he doesn't own the house. Even though I signed the contract and even though I might be going along with his demands, he doesn't have that right, and the contract is formed.

So that's why the issue of ownership of land is crucial to the success or failure of social contract apologetics. If we treat property rights as invalid, if we say there's no such thing as legitimately owned property, then the state cannot be the legitimate owner of the land it claims to own. Either the social contract is illegitimate because it depends on the assumption that the state is the legitimate owner of the land that it's generously offering for use, or the statist has to make a watertight case for the validity of contract in general and the social contract in particular in a property-less order. I think that's going to be very difficult.

At the end of the passage, David says, "As for whether property is legitimate, it depends on whether the fruits of initiation of force or credible threat of the same is moral." If I'm interpreting it correctly, it means that David means that violent conquest is a legitimate way of getting ownership of a thing if the result of doing so leads to a more morally optimal outcome than not doing so. This is a kind of moral consequentialist approach to property rights.

The homesteading principle—I'm just going to take a short diversion for a moment. When talking about homesteading, the homesteading principle is very valuable as a reliable means of conflict avoidance, and it seems reasonable to suppose that this is why homesteading norms arose in different parts of the world. Even though there might be regional variations between what are considered acceptable homesteading criteria, those criteria, once they emerge via common law, can be met objectively, and land claims can be objectively tested to assess whether they fulfill the criteria according to the homesteading principle.

In the context of common law, there's an objective and relatively easily discoverable fact of the matter about whether a person owns property or not. As a result, property claims are secure, and people can shift their energy to other productive pursuits instead of defending their homes. The objectivity offered by homesteading norms is totally absent if we treat property the way David advocates.

To recap, his idea seems to be that a claim of property is legitimate if the possession of the thing leads to a morally superior outcome than non-possession. This property norm is a recipe for conflict rather than a conflict avoidance mechanism. So what's moral and who decides? And even if we are able to agree about what's moral, which course of action is likely to have the morally optimal outcome, and over what kind of time span should we be considering this? How widely should we consider these—try to anticipate these kind of causal ripples? Even a crystal ball wouldn't be able to settle disagreements in these areas.

So the proposed norm is defective because it can be expected to lead to conflict rather than to avoid it. With regard to the attempt to establish the legitimacy of the social contracts, the moral consequentialist approach to property has an undermining effect too. Assuming we could agree on what's moral, did the state's violent conquest of land lead to a morally superior outcome? I don't think so, but no one can say for sure. I think I don't see any way of settling the question.

So to recap once more, I explained why there's reason to believe that the validity of the social contract assumes and depends on the validity of the land claims of the state, and the defense of the social contract depends on the acceptance of property rights. I also showed how a moral consequentialist view of property leads to irresolvable subjective conflicts that undermine the attempt to defend the social contract. David must concede, then, that on his view of property—or the view he expressed, at least—the validity of the social contract is indeterminate at best, and that we don't yet have enough—or we never will have enough information—to be able to say whether it's valid or not. This means that his rejection of anti-statism is premature.