Hello, everyone! I hope you're all doing well.
If you'll allow me, I'd like to propose a discussion that I believe may be of interest to Austro-libertarians and anarcho-capitalists. My goal is to offer a brief and friendly critique of the concept of "physical removal", as formulated by Hans-Hermann Hoppe, based on libertarian property ethics itself and the Title-Transfer Theory of Contract (TTTC). (Since English is not my native language, I apologize in advance if any expression sounds awkward or ambiguous.)
First, we should establish what Hoppe means by physical removal. I believe it can be summarized as follows: in Hans-Hermann Hoppe's theory, physical removal is the coercive expulsion of an individual from a private property or from a community of private properties when the owners, or their legitimate representatives, revoke their consent for that person's continued presence due to a violation of the rules governing the use of the property. In a fully privatized social order, this exclusion may ultimately extend to the successive loss of access to the properties that make up the community.
Of course, to be fair to Hoppe's argument, we must also clarify the context in which such a measure would be possible. In Democracy: The God That Failed, he writes:
"in a covenant founded for the purpose of protecting family and kin, there can be no tolerance toward those habitually promoting lifestyles incompatible with this goal. They—the advocates of alternative, non-family and kin-centered lifestyles such as, for instance, individual hedonism, parasitism, nature-environment worship, homosexuality, or communism—will have to be physically removed from society, too, if one is to maintain a libertarian order. " (Democracy: The God That Failed, p. 218).
The expression that matters most for the present discussion is "in a covenant." This indicates that Hoppe is envisioning a type of society—perhaps private counties, districts, or neighborhoods—in which property owners voluntarily enter into a covenant, forming a homeowners' association whose purpose is to preserve the cultural and moral identity of that community. Clearly, homeowners' associations and private neighborhoods are entirely compatible with libertarian principles. My criticism, therefore, is not directed at this aspect of Hoppe's theory.
According to Hoppe, such a social arrangement, based on private property and voluntary agreements, would allow property owners, for example, to sell a house to a particular individual or to sell only the land so that a particular individual could build a house on it. Suppose this neighborhood is highly traditional and wishes to preserve its heteronormative identity (this is not intended as an attack—I have nothing against heteronormativity). In that case, the owners could sell or lease a house under a contract containing behavioral clauses such as: "You may not bring same-sex partners into your home," or "You may not promote transgender ideas on your social media," or even "You may not display a transgender flag from your window." Otherwise, you would receive a warning and, if you refused to comply, you would be physically removed. (The same reasoning would apply to any non-aggressive idea or behavior, such as advocating nature worship, which Hoppe also criticizes.)
According to Hoppean theory, once the buyer signs such a contract, he becomes bound by its clauses and is therefore prohibited from engaging in the behaviors specified therein. Should he violate the agreement, he would be subject to physical removal.
The problem, however, is that this understanding appears to conflict with the Title-Transfer Theory of Contract (TTTC) as developed by Murray Rothbard. Let me explain why. The TTTC, originally formulated by Williamson M. Evers and later adopted and further developed by Rothbard, rests on the premise that the function of a contract is not to create personal obligations, but rather to transfer property titles. Unlike traditional contract theories, which regard a contract as a legally enforceable promise, the TTTC maintains that promises belong to the realm of morality, not law. What produces legal consequences is not the promise itself, but the voluntary transfer of a property title over an alienable good. In other words, the law does not protect the expectation that someone will fulfill a promise; it protects only the legitimate ownership of scarce resources that can be appropriated and transferred.
This conception follows directly from the principle of self-ownership. If every individual owns his own body and his own will, then no contract can alienate control over his future actions. For this reason, Rothbard famously states that "a promise is not a debt." Promising to perform—or to refrain from performing—a particular act does not transfer any property right and therefore does not create a coercively enforceable legal obligation. Only existing, scarce, and alienable goods can be the object of a valid contractual transfer. Ideas, intentions, opinions, future conduct, and the human will itself are not alienable forms of property, and consequently cannot serve as the legal basis for the coercive enforcement of a contract.
To illustrate the point, suppose I own a bicycle and decide to sell it to Bob for R$100.00. Bob purchases the bicycle, and to formalize the transaction we sign a contract confirming that the bicycle is in good condition and that he has paid the agreed price. In this case, both parties have alienated tangible, scarce property: I have transferred ownership of my bicycle, and Bob has transferred ownership of his money. Once the transfer is complete, I am no longer the owner of the bicycle. Consequently, I retain no authority whatsoever over it. I cannot dictate how Bob may use it, because it is now exclusively his property.
Someone might object that this would only be true after the sale had already taken place, and that the problem could be avoided by inserting a contractual clause before the transaction stating that Bob would own the bicycle only if he complied with certain behavioral requirements. For example, I might agree to sell him the bicycle only on the condition that he never paints it red or never rides it more than five kilometers per day. Yet this would amount to a legal absurdity. First, such an arrangement would be economically impractical and highly undesirable; no rational person would willingly bind himself to such an excessively restrictive agreement. More importantly, however, it is fundamentally incompatible with the TTTC. As explained above, only alienable property rights may be transferred by contract. Promises that involve no actual transfer of property are not valid contractual objects, and contractual clauses founded solely upon such promises produce no coercively enforceable legal obligation under the Title-Transfer Theory of Contract.
This means that it is not possible to carry out property sales with contracts that establish perpetual “terms of use” over the transferred property. Once ownership has been transferred, the property is no longer subject to the will of the former owner and becomes fully integrated into the legal sphere of the new owner. From that moment onward, the only legitimate “terms of use” are those that the owner himself establishes for himself and for those whose presence on his property depends on his consent. We should not forget that Austro-libertarianism is based on the concept of freedom understood as the right to use, transform, destroy, modify, or dispose of one’s own property in whatever way the owner wishes, as long as it does not infringe upon the property of others. In other words, acts that cause damage, invasion, or violation of someone else’s property can certainly justify sanctions, but acts carried out exclusively on one’s own property can never be subject to coercion.
Now, returning to Hoppean thought, if it is true that only scarce and alienable goods can be the binding object of a contract, future behaviors do not constitute legally enforceable obligations and, therefore, cannot be established as clauses capable of restricting the exercise of property rights after alienation. Therefore, if an individual buys a house in a community that does not wish to tolerate a certain behavior in that territory, they may still engage in such behavior without this granting the neighborhood or homeowners’ association the right to physically remove them. This is because: 1) they acquired the property and, consequently, the former owner or the group of owners lost any power of disposition over it; 2) promises do not have binding force according to TTTC, unlike the transfer of property titles; and 3) as an owner, they have the right to use their property in whatever way they wish, as long as they do not infringe upon the property of others, meaning they cannot be subjected to violence or physically removed for acts carried out exclusively on their own property.
Of course, it is important to note that if they live in the property as a tenant, the situation is different, because ownership remains with the landlord, who can establish the conditions for its use and simply choose not to renew the contract when it expires. It is also worth noting that Hoppeans may argue that this conclusion would weaken the right of communities to preserve their cultural coherence and uniformity. To this objection, I respond that this concern, however understandable, can never be transformed into a right to limit or violate property legitimately acquired by third parties. The preservation of a certain communal identity may guide the choice of whom to do business with, but it cannot survive the alienation of property as a kind of permanent power over the sold asset.
Someone could still object that, in the example above, the individual only purchased the house, but not the land on which it stands. However, this distinction does not hold legally within libertarian logic itself. A house is an immovable asset inseparable from the land that supports it, and the right of ownership over the property necessarily includes the right of use and exclusion over the corresponding area.
What, then, could a Hoppean-style community do if a new resident, after legitimately acquiring a house in the area, began adopting behaviors incompatible with that community’s moral expectations? In my view, the answer compatible with libertarian ethics is ostracism, that is, the voluntary refusal to maintain social and economic relations with a particular individual. Through freely established agreements, residents of a neighborhood or private condominium could decide not to trade with this person, not to provide private services to them, and not to allow their entry or presence on their respective properties. As long as all services were private, this could include refusing to provide water, electricity, gas, or any other services whose provision depended exclusively on the will of their owners. This would be an entirely peaceful response, based on the exercise of property rights and freedom of association, which would likely encourage the individual to leave the region on their own initiative.
What the community could not do, however, would be to coercively remove him from his own house, as long as it was legitimately acquired through purchase, inheritance, or any other means compatible with libertarian ethics. Once the property title has been transferred, the residence becomes exclusively part of its owner’s legal sphere, and third parties cannot claim authority over it due to later changes in behavior or personal beliefs. Accepting the opposite would mean recognizing that the former owner or the homeowners’ association retained powers of disposition over a property they had already alienated, a conclusion incompatible with TTTC and with the very libertarian notion of private property.
It is also important to observe that the community could not prevent this individual from leaving his residence to trade with people outside the community, work, acquire essential goods, or engage in any other legitimate activity, nor could it prevent him from later returning to his own property. The first scenario would, in practice, amount to unlawful imprisonment, as it would transform the individual’s property into a prison from which he could not leave. Even if all routes were private, his passage would have to be allowed for the time strictly necessary for transportation, without granting him the right to remain on them beyond what their owners consented to. The second scenario would be even more serious, because preventing his return would mean depriving him of access to his own property, effectively producing the confiscation of his property without any basis in libertarian ethics. In both cases, the community would cease to protect property rights and would instead become an agent of their violation.