Potholes in Ancapistan

Why maintaining roads may turn out to be a serious problem

‘But who will build the roads?’ It is an often-asked question of anarcho-capitalists, and, has been answered by economists and historians such as Walter Block, Richard Wellings and Stephen Davies. The really challenging question for the anarchist though is this: ‘But who will maintain the roads?’ For while rights of way exist down roads, privatisation, and the imposition of toll roads, remains impermissible. Hence, there emerges the very real problem of roads in Ancapistan being full of potholes, as no funds could be raised for maintaining them.  In these thoughts I outline the maintenance problem further, ponder some ethical fixes, and many ethical problems, and then propose two commercial solutions, if the least plausible ethical fix has to be adopted. Naturally, I rule out all solutions involving taxation.

John Locke’s Theory

Two theories of original acquisition permit the creation of rights of way. These are John Locke’s and Billy Christmas’s, which I only outline here. Let us begin with the older theory. Locke maintains an individual may come to acquire property where he has `mixed his labour` with virgin resources, for given he owns his labour, he owns that which it embodies (Hillel Steiner argues it is your energy which is mixed). Labour mixing is interpreted loosely by Locke, who takes all of the following activities to count: ‘Thus the grass my horse has bit, the turfs my servant and the ore I have dug…becomes my property’. Nonetheless, I take Locke to not permit homesteading via merely placing your bare foot or car tire on the ground, yet, I think he would take an individual creating a cleared track across a piece of woodland (via cutting brambles, clearing fallen branches, and churning up the ground) to entitle him to it.

Hence, there exists a threshold of steps, car journeys, or brambles cut over which homesteading occies in the cleared track. This permits multiple individuals to all engage in the labour mixing, meaning, when the threshold is met all of those who have cleared the way and stirred up the ground are entitled to some ownership of it. Anyone claiming exclusive private property in the cleared path would be making a claim to the mixed labour of the other track creators, which is impermissible, since it is `the unquestionable property of the labourer`. Roderick Long has maintained this form of collective-like property will be limited in scale, `since it would be difficult for humankind as a whole, or even a substantial portion thereof, to mix its labor with a single resource`, he cites the village level as the possible practical extent of this collective-like property. Now the maintenance problem arises if all of the homesteaders are granted a right of way, because, the collective-like owners could then not charge a toll to any of themselves for access to the track to fund maintenance.

This issue could be partially, or perhaps even fully, overcome because the collective-like owners could charge outsiders tolls. The issue with this is there are some places where charging outsiders may simply generate insufficient funds for road maintenance. Another serious drawback to this theory of original acquisition is it would rule out most footpaths in the countryside, seriously confining the movement of individuals in the process. (I hesitate to use the term freedom, because libertarians simply define the term in relation to individual rights, so, until the allocation of rights is sorted there is little point talking about freedom). This is because most people have not mixed their labour, or had their ancestors mix their labour with them passing down the right, with most footpaths around the country. Another issue with this interpretation of Locke’s theory is it allows some to acquire the same rights as others while doing the most minimal labouring, because someone would be entitled to the full right of way simply by doing the very last item of labouring to meet the threshold. 

A means to overcome the problem of charging outsiders not being enough to maintain the roads is by interpreting the result of homesteading differently. If each labour mixer was entitled to a share, proportionate to the labouring they conducted, in the control of the track they could charge, if the majority voted to do so, each other for up keep of the road. Crucial to this full collective ownership solution is no one has a right of way down the track, instead they all simply have the privilege to go down it granted by the collective. I think this could lead to some very unpalatable situations. Imagine Ben has homestead with his neighbours a road to his house and then his neighbours decide, because he has put ugly gnomes in his garden, to charge him £100,000 a year to access his farm (way above the maintenance costs). Or imagine they simply exclude him outright (which does not deprive Ben of his share because he can still sell his share and vote in collective decisions). Both instances show this form of full collective ownership to be pernicious. For this reason, I prefer the first interpretation of Locke’s theory, even if this does lead to worse roads than the second interpretation.

Billy Christmas’s Theory

Billy Christmas in his recent book, Property and Justice, has offered an alternative theory of original acquisition to underpin rights of way. Unlike Locke’s theory, Christmas does not believe it is strictly material which is homestead, instead he takes undertaking extended activity on an object or space to entitle the instigator of the activity to the right to the activity (and all alternative activities which are subsumed within it) concerning the object or space required for its continuation. All property rights ultimately boil down into use rights under this theory. To make clear the distinction between Christmas’s theory and Locke’s, given both produce very similar conclusions, it is worth considering an example of acquisition creating private property before we consider that acquisition which creates public or collective property. Take Jim planting a crop of wheat, for Locke planting these seeds would at most involve acquiring the right to the surface of the soil, for only that area has had labour mixed with it. In contrast, Christmas would claim Jim has homestead much more, for to grow his crop it must also have access to the water table and sunlight, because these conditions are essential to the continuation of the activity, hence, he has rights to these conditions too. This would mean no one could block all the sunlight over his plot (e.g., by building huge skyscrapers all around it) or drain the water table below what is required for his cultivation.

Now when `an individual uses a resource in a way that leaves action space open to others, her acquisition of the relevant use-right is consistent with the resource’s use by third parties, so long as those new uses are non-interfering`. If someone has established a right to use a path by walking down it often this use right is in no way impinged by others also having the same right to use the path, for there is no interference in the activity of walking down it: The same applies just as well to roads. Rights of way, whether embodied in footpaths or roads, are said to be public property. In contrast to Locke’s theory, which strictly delimits who may use footpaths and roads, Christmas’s theory allows anyone in the world the right to use the footpaths and roads we enjoy today (or so it initially appears). This has its advantages in stopping the situation Ben was thrust into under the second interpretation of Locke’s theory.

It may be argued the flipside of this coin though is the maintenance problem will be particularly prevalent, as even outsiders to your area could not be charged tolls. Christmas’s theory has a potential means to overcome this situation, which is best illustrated with an example. Imagine villagers have laid a tarmac road, which they regularly use to get around. However, there `will be some point at which an additional user (even making light use) [such as another tourist or commuter] will interfere with the existing users` This will occur because the road will become potholed and cracked, which is to interfere in existing motorists use right to have easy travel across the road. For this reason, Christmas argues the existing users, at this point of over-crowding, have the right to exclude newcomers, to maintain their uninterfered with condition (i.e., freedom according to Christmas). And, if, and only if, they incorporated their use rights, by establishing a road company, they could charge tolls (no one could unilaterally charge tolls because the increased wear would interfere in the activities of existing users). The road would move from being public property to being collective property. This would make the results of Christmas’s theory very similar to those created by the first interpretation of Locke’s, and, as with that interpretation, existing users maintain their right of way.

The issue with this account of establishing rights of way is the indeterminacy. We can see this in two problems. First, there is the issue of how much wear and tear is acceptable before it is permissible to exclude outsiders, I cannot see any clear answer to this question. Second, there is the issue of how much congestion is acceptable too. Some (probably new users) will argue congestion is acceptable, and does not infringe upon existing users’ rights to get from A to B easily, which would mean a congested road would remain public property. Others (probably existing users) though would argue the contrary, and, hence, maintain congestion warrants excluding outsiders (and possibly charging them tolls). Nimbys could certainly have a field day in the courts when it comes to traffic from new development under this theory. However, if this issue could be overcome the theory would have significant benefits over Locke’s. Among them being those footpaths and roads, which are not over used, would remain open to everyone in the world.

As the reader will note Locke’s and Christmas’s theories are only partially capable, at least in their present form, without more flesh on the bone, of addressing the maintenance problem. And this is to disregard many of the problems with these theories, raised by political philosophers such as Jeremy Waldron, mounted outside the road context. Evidently, I have not attempted to solve the maintenance problem once and for all here. Instead, the preceding has simply been an honest discussion directed at anarcho-capitalists who dismiss concerns about roads too quickly. Nonetheless, it should be noted, toll roads could easily be formed by farmers, who owning their land as private property outright, could do whatever they so pleased with it. Creating and maintaining new roads is of minimal issue, it is the existing roads and their maintenance which is the real problem. I should note some may reasonably believe the solution I am looking for, i.e., open access roads with no obligation to pay for them, does not exist. Perhaps – maybe the choices for libertarians really are limited to the aforementioned. 

Commercial Solutions

For the moment let us take the worst-case scenario for the maintenance problem, say Christmas’s theory where a right of way across a road is interpreted so loosely, as long as you can make it from A to B, almost no matter how many potholes, it remains public property. Are there any commercial solutions to this problem? I can think of two.

1.      Private Covenants

There exist many roads between East Grinstead and Crawley which could become unpassable under the theory we are considering here. One way this could be overcome is by large new developments in between Crawley and East Grinstead putting covenants on the properties requiring new residents to contribute to a fund to maintain the roads going from them to the two towns (this would not infringe upon anyone’s right of way). Potential buyers would be willing to undertake this obligation because they would value the convenience of a nice tarmacked road over the cost of payment. Yes, those commuting between Crawley and East Grinstead from those locations would be able to free ride, and this is unfortunate. And admittedly there is the issue of large developers waiting for other large developers to put in place road maintenance covenants so they do not have to burden their own house buyers with the cost. Maybe this will stop all such covenants from being put in place. I doubt this will always occur though because there will be some roads where it is clear only one large development is going to occur at most. Therefore, the developer will install the covenant immediately, because they know no one else will, and their buyers would pay more for good access into the town or city nearest to them, making installing the covenant a profitable option.    

2.      Advertising

Another means for roads to be financed would be for companies to advertise on the actual road. If the road was very badly damaged, to create the flat surface for painting anything on it, tarmacking would be required. But even if the road was in semi-repair, companies could still benefit from filling in potholes and then spray painting their logo on the patched area. I suspect many would caricature this solution as being McRoads, but so what? Nor is this just speculation on my part, Domino’s Pizza in America even has a whole page dedicated to their Paving for Pizza scheme of fixing pothole, i.e., exactly what I have just proposed, and that is today with the government supposedly maintaining the roads! Similar to above solution is business simply taking the hit and paying for the road improvements themselves, even if it benefits neighbours, to make their business more easily accessible, and, at the same time putting their logo on the new surface.