Collectively Homesteaded Easements and the Enclosure Movement

Just as some critics of today’s version of “capitalism” equate it with what we libertarians or advocates of “true capitalism” would call crony capitalism—or, as Gene Epstein calls it, “crapitalism”¹ —some also criticize private property rights as a type of “theft”² based on the English Enclosure movement.

Yet as Hoppe has pointed out, there can be “partial” homesteading of land—homesteading of easements or rights-of-way, by usage—and this can be groups who have been using the land—a path or street—and anyone who seeks to privatize the remainder of the land takes it subject to the pre-existing group-owned easement. After all, the key act that constitutes original appropriation is occupation or use—using, possessing, employing a previously unused and unowned resource, according to its nature, to serve as a causally efficacious means of action. Writes Hoppe:

How is it possible that formerly unowned common streets can be privatized without thereby generating conflict with others? Th e short answer is that this can be done provided only that the appropriation of the street does not infringe on the previously established rights—the easements—of private-property owners to use such streets “for free.” Everyone must remain free to walk the street from house to house, through the woods, and onto the lake, just as before. Everyone retains a right-of-way, and hence no one can claim to be made worse off by the privatization of the street. Positively, in order to objectify—and validate—his claim that the formerly common street is now a private one and that he (and no one else) is its owner, the appropriator (whoever it may be) must perform some visible maintenance and repair work on and along the street. Then, as its owner, he—and no one else—can further develop and improve the streets as he sees fit. He sets the rules and regulations concerning the use of his street so as to avoid all street conflicts. He can build a hot dog or a bratwurst stand on his road, for instance, and exclude others from doing the same; or he can prohibit loitering on his street and collect a fee for the removal of garbage. Vis-à-vis foreigners or strangers, the street owner can determine the rules of entry regarding uninvited strangers. Last but not least, as its private owner he can sell the street to someone else (with all previously established rights-of-way remaining intact).³

In other words, only unowned land or resources may be homesteaded; a resource that is only partially homesteaded may be appropriated in the normal manner but just as an owner can only transfer title to the extent he owns a resource so a not-completely-homesteaded resource can only be homesteaded to the extent not already subject to a pre-existing easement which is, after all, a property right.

Thus, in some sense modern statist “property” is “theft” as Proudhon said, meaning property rights decreed legislatively by the state that trampled on pre-existing easement rights. Thus, from a Hoppean-libertarian point of view,  English parliamentary enclosure was not a vindication of private property but a state taking: commoners had already homesteaded partial, intersubjectively verifiable easements—hunting, grazing, wood-gathering, and rights of way—through long customary use of open fields, forests, and wastes, privileges later reflected in the 1217 Forest Charter and in Robin Hood folklore.⁴ Those group-homesteaded interests had to be respected by any later full appropriator; instead, enclosure statutes extinguished them without consent or compensation, fencing land for elites and thereby committing aggression under color of law. Proudhon’s “property is theft” therefore targets not genuine original appropriation but legislatively manufactured titles that overrode pre-existing use rights; consistent libertarian privatization would honor those easements, permit voluntary negotiation or restitution, and strip away the state distortions that turned common resources into instruments of expropriation.⁵

Looking at homesteading in this nuanced way might also help to address some thorny libertarian dilemmas such “hostile encirclement” and “forestalling” posed by Frank Van Dun and Walter Block.⁶

I was reminded of this by a recent article: Out of Office, “In Finland, you can walk, camp, swim, and pick berries or mushrooms on private land without asking the owner — Every Person’s Right makes access to nature a public freedom, provided you stay away from homes, protect fragile ground, and leave no trace behind,” Scandinavia Standard (Aug 21, 2026):

In Finland, a forest can be privately owned without being closed to everyone else. The principle commonly translated as Every Person’s Right, and still called Everyman’s rights by several official English-language services, lets people move through and spend time in nature without asking the landowner or paying a fee. It is a striking freedom in a world where private property often means a gate, a warning sign and a presumption that strangers must stay out.

The freedom is broad, but it is not a licence to behave as if the land has no owner. The practical boundary is damage or more than minor harm and disturbance. Homes, gardens, cultivated ground, protected habitats and temporary safety restrictions all matter. The rules below are a general guide, not a substitute for checking the current instructions for a particular destination.

There is no single Every Person’s Right Act

Finland’s official outdoor service, Luontoon, defines the principle as everyone’s right to spend time in nature regardless of who owns the area. It states that landowner permission is not normally required and use is free. It also makes the crucial qualification that different laws can grant, guide or restrict those rights.

This is why the Finnish term jokaisenoikeudet is better understood as a legal framework than as the informal generosity of landowners. A detailed Ministry of the Environment guide explains that the framework is assembled from legislation concerning property, privacy, nature conservation, water, littering, traffic and other activities. It also cautions that courts assess a disputed act in its particular circumstances. There is no single national map colouring every permitted square metre green.

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1. Gene Epstein, Austrian Perspective on the Great Recession and its Aftermath (Socratic Seminar) (16 de noviembre de 2011); Gene Epstein (part 01); Gene Epstein, “History Needn’t Repeat Itself,” Barron’s (Aug 17, 2009). [↩]
2. Kinsella, Libertarian Answer Man: Mises [and Proudhon] on “Property is Theft”; KOL374 | The Intellectual Contributions of Hans-Hermann Hoppe: The Great Fiction Podcast Ep. 1; Hoppe: A Précis. [↩]
3. Hans-Hermann Hoppe, “Of Common, Public, and Private Property and the Rationale for Total Privatization,” in The Great Fiction: Property, Economy, Society, and the Politics of Decline, 2nd ed (Auburn, Ala.: Mises Institute, 2021), at Part II; previously published as “Of Private, Common, and Public Property and the Rationale for Total Privatization,” Libertarian Papers 3, 1 (2011) and as “The Rationale for Total Privatization,” Mises Daily (Mar. 14, 2011). See also Kinsella, Rand on the Injuns and Property Rights. [↩]
4. Kinsella, Robin Hood, Magna Carta, and the Forest Charter; Survivors of polygamist sect fence off 1,000 acres of US Forest Service land in southwestern Colorado. [↩]
5. See Hoppe, “Of Common, Public, and Private Property and the Rationale for Total Privatization,” Part III; see also this Grok summary of the problem with the “enclosure” movement from a Hoppean perspective. [↩]
6. See Kinsella, The Blockean Proviso; A Tour Through Walter Block’s Oeuvre, the section “Libertarianism “Abhors” Unowned Resources: Forestalling, Blockian Donuts, and the Blockian Proviso“; KOL426 | Discussing Immigration and Homesteading Donuts with Matthew Sands of Nations of Sanity; Libertarian Answer Man: Homesteading Donuts, Hostile Encirclement, and Prostitution as Selling One’s Body. [↩]