I listened to the debates on the subject that took place on August 10th on the “Gorbushka Istorii” channel. Boris Strannik, who defended his invented concept of the right of way, and Alexei Sherstnev, who opposed him, were the discussants.

I will admit my bias right away. I like Boris. When he was in Montenegro for a few months, we met; he stayed at my house for about a week. It didn’t go beyond kissing, but nevertheless, he left me with the most positive impression. I dislike Alexei. He used to be rude and dogmatic, so I removed him from my echo chamber quite quickly, especially since there was no ideological novelty in his views, meaning there were no reasons to tolerate his tone. Therefore, I will not comment on who was more convincing in the debates.

Next, I want to note one point in the debates, simply because I was mentioned there. One of the listeners asked the opponents what “right” (pravo) is. Alexei formulated a rather confused idea of right as a spontaneous order of human interaction, clearly drawn from Zolotovrev (I prefer to operate with a narrower concept of right as a spontaneous order of conflict resolution, to separate it from morality as a spontaneous order of entering into conflicts). Boris, however, began to speak not about “right” (law/pravo) but about “rights” (prava), and quoted my definition: “rights are claims that have been accepted.” Only he said it in the singular. And, naturally, when the moderator summarized his impressions of the debates, he said he was appalled that Boris gave some irrelevant slogan instead of a definition. Here we have a banal misunderstanding related to the features of the Russian language, in which “right” and “law” are expressed by the same word “pravo.” The debaters understood the question differently, and the moderator didn’t even grasp what was happening. Well, it happens.

I will not say more about the debates; you can listen to them yourselves and form your own impression. I would rather reflect on the concept of the right of way itself.

After Montenegro, Boris visited several other countries and is currently living in South America. In Uruguay, he saw countless latifundia enclosed with barbed wire and realized that, although the country is not small, one can effectively only walk along the roads—no cozy paths through fields and woodlands. He began to reflect on this within the framework of libertarian ideology and reached certain conclusions.

Originally, the entire surface of the earth is unowned. When someone, according to the homesteading principle, appropriates a plot of land for use, they acquire the right to the resource they use for their economic activity—but not an absolute property right to everything located in the area of space limited by rays from the center of the Earth passing through the boundaries of the land plot and extending to infinity (this is the purely geometric approach to drawing land property boundaries that Alexei Sherstnev defended in the debates). But by acquiring the right to dig in the soil, he does not automatically acquire the right to forbid anyone from moving across that land. At most, he can insist on a certain penalty for the destruction of crops and similar specific measurable costs. The right to move in space belongs to every person according to the same homesteading principle—simply by the fact that they love it, know how to do it, practice it, and cannot exercise their self-ownership without it. A ban on movement is traditionally called deprivation of liberty, so why on earth does some latifundist deprive people of liberty? These are roughly the arguments in favor of the existence of an unconditional right of way.

What proposals does Boris make next, having presented arguments for the existence of such a right? In essence, it is about changing the defaults. If existing legal systems that provide for private land ownership assume by default the owner’s right to impose a ban on movement across their property, and then specify certain exceptions where the owner must still provide the right of way—then now a reverse scheme is proposed. By default, the landowner does not have the right to prohibit passage through their territory, however, they can present various grounds why in a specific case a ban is nonetheless appropriate.

Boris is quite radical, stating approximately the following: yes, a landowner can physically enclose themselves with a wall, but they cannot thereby steal from other people the right to pass through the wall-enclosed area: they can climb over the wall and continue moving. If the space is covered by a roof, then that’s great—the traveler will simply move across the roof; thus, their right of way is not infringed. And whatever is under the roof is already fully private. Generally speaking, exactly such a legal system existed long ago in the Neolithic settlement at the site of present-day Çatalhöyük: houses are built tightly together, and the roofs of the houses are public space. Thus, Boris’s legal intuition finds direct reflection in history.

Of course, supporters of full private property have their own arguments: the right of way is too easy to abuse. Once you allow the possibility of moving across someone else’s territory without permission and without compensation, tomorrow you could organize a flash mob on the lawn in front of an unpleasant person’s house, trample the flowerbeds, and so on, not to mention the constant stomping on the roof. But since rights (claims that have been accepted) are merely a generalization of principles that allow for the implementation of right (a spontaneous order of conflict resolution), constructive compromises are entirely possible between those who defend the right to prohibit trespassing and those who defend the right of way. They boil down to the landowner agreeing to a limited right of way if those passing through minimize the inconveniences caused to the landowner, and perhaps even compensate for them. The landowner, in turn, takes measures to simplify passage across their land: by laying paths. Why? First, a path organizes the flow of people, reducing the load on the rest of the territory. Second, the landowner’s appeal to the fact of providing a path is a strong moral demand in favor of limiting passage to the path specifically, and in some cases—in favor of charging a fee for passage (more often for driving).

However, for such practices to spread more widely, it is indeed necessary to change the presumption from “forbidden by default” to “allowed by default,” and here Boris is likely right. I will add that changing presumptions in this direction also prepares the ground for a future ancap, where all land becomes private. Just as the abolition of state social welfare forces people to be more responsible regarding the prevention of life’s difficulties, the abolition of the concept of state-owned public land will force people to approach the issues of freedom of movement more consciously.