I call them conundrums because there may be some way around my objections to an occupancy-and-use theory for property rights, but I do not possibly see what those could be.
My understanding of occupancy and use is that someone has the right to control a property — something that is ownable — for the period of time that he or she has continued to willfully occupy and use that property, provided that one acquired the right to the property at a time when it was unowned or by means of consensual trade.
My overall take is that this theory of property rights, though sincerely held, neglects the basis on which the right to property is formed and maintained, and so it is in irreconcilable contradictions with the nature of human beings. Granted, I will need to do some explaining.
The first step of my explanation is to address the basis for my understanding of the concept of rights (or normative principles for the actions to take within society) and why they are necessary at all. In doing so before, I discussed why I believe people have sovereignty over their own life. In a nutshell, morality is necessary for conceptual beings without instinctive values to choose among the available pursuable values and the manner in which those chosen values — facts in relation to the requirements of life — ought be pursued. Since the concept of value presupposes, depends on, and is derived from the concept of life, one’s life (if her or she chooses to live) must be the underlying standard of value of all choices. And as life is an attribute of the individual, each individual’s life is his or her ultimate standard of morality, an end in itself.
Now that alone does not explain how rights exist. Rights themselves stem from the fact that human beings are productive and have volition for the conceptual faculty to make reasoned judgements, meaning that it is possible for us to live and prosper together without sacrificing one another. (“Productive” in this context means not only being able conform to nature, but also overcoming the need to conform to what is given by nature.) In fact, our interests align in honoring the sovereign will of others. If all that human beings were capable of is consuming a fixed amount of wealth, preserving one’s life would consist of honoring the law of the jungle, kill or be killed. However, with our incredible imagination as conceptual thinkers, our potential for wealth is practically limitless, and our fundamental interests align in harmony with other rational thinkers.
Misplaces the Origin of Rights
The first interesting thing to take away is that rights are a function of our capacity for productive work. However, the occupancy-and-use theory is evidently based on the misunderstanding that rights are a function of our capacity for consumption, which is what the act of occupying and using is. All living things consume, but we as humans are set apart by their capacity for production, which is made possible and rendered necessary because our values are not instinctual. In this light, the occupancy-and-use theory cannot be said to have an empirical basis in human nature, as property rights manifest as a result of production.
Neglects the Right to Liberty
Rights pertain to the actions necessary for the preservation of an individual’s life — his or her ultimate end — since it is Man’s requirements for life that gives rise to the necessity and possibility for morality. Each individual has the primary obligation to sustain one’s life if he or she chooses to live. This process of self-preservation to act on his or her will is an individual’s right to life. A stipulation is that the right to life, or any right for that matter, does not include the right to infringe on any individual’s equal rights. To know which values to pursue, human beings need some method of survival to gain and keep knowledge and to act on behalf of that knowledge. This is the right to liberty. Every act requires the use of material resources. To achieve our values in the physical world, we must also create and consume the material means of sustaining our life, which is the right to property.
A second problem with the occupancy-and-use theory is the manner in which it conflicts with the right to liberty. Some human beings have lived for over 100 years. Since human beings are able to live for such long periods of time, it is necessary to be able to plan ahead for that potential eventuality. As I said before, the right to liberty is our process of acting on behalf of our values. But the occupancy-and-use theory imposes on the liberty to plan for our long-term values because accumulating property (or deferring consumption) for later use is not recognized as a right. If someone has an immediate use for the unused property another has produced or traded for, the existing owner no longer retains the right to that property, according to the occupancy-and-use theory.
Confuses Where Rights Exist
My third contention is not exclusive to occupancy and use and applies to the broader labor theories of property rights. My point is that rights only have meaning when we are dealing with other human beings within a society. If someone occupied and used resources on an otherwise deserted island, there is no right to that resource, because rights only exist within the sphere of inter-human relations. This principle is not entirely lost upon occupancy-and-use proponents. Benjamin Tucker in his discussion of the four monopolies explained about how property serves a role of reducing conflicts within society. So if there is no society in the first place, there can be no conflict among people and, thus, no role for property rights.
A sensible alternative theory of property rights should conform to the nature of morality, which gives rise to the very concept of rights in the first place. It is with that understanding and in that respect that a proper understanding of property rights should originate as a consequence of acting on one’s liberty.