Left-Libertarianism and the Ownership of Natural Resources

To start off: Why should libertarians be bothered about, specifically, rights to natural resources?[1. This paper is a slightly revised version of a paper first published in Public Reason 1 (1) 2009: 1-8] Why single out these entitlements, rather than looking at property rights in general and asking how any of them can be justified, if they can be justified at all? After all, the domain of distributive justice – of moral rights – includes much more than merely rights to natural resources. Natural resource rights are only a subset of moral property rights. And it has to be acknowledged that, for most people interested in problems of distributive justice, questions about the nature and location of rights specifically to natural resources are still not seen as being of any singular importance.

So I’m going to devote the first part of this paper to saying why I think they are of singular importance. That is, I’ll try to set out the conditions under which their special importance emerges more clearly. I won’t, however, spend a lot of time justifying or explaining these conditions and shall, instead, supply references to where I’ve done this elsewhere at some length.

One obvious condition for according singular importance to natural resource rights is that, like Locke, we see them as having a special generative or foundational relation to other moral property rights. Property rights to other things are, in some sense, derived from natural resource rights and their justifiability is therefore seen as at least partly predicated on the justifiability of natural resource rights.

Another, logically anterior condition is that we see property rights, in general, as libertarians standardly see them: that is, as being parametric for any other rights and liberties people can have. Here I’m alluding to the idea that any coherent set of rights and liberties needs to satisfy the requirement of compossibility – a requirement that the various correlative duties entailed by any such set of rights must all be jointly performable and none can be mutually obstructive. This implies that these duties must be the correlative entailments of mutually differentiatable claims: that their respective compliances must take place within non-intersecting portions of action-space. And there are good reasons for holding that only action-spaces whose descriptions are, or are reducible to, references to things can be mutually differentiated in the requisite way. One implication of this is that, in a compossible set of rights, all rights are funded: that is, the sets of items respectively required for compliance with each of their entailed duties are specifiably distinct from one another. Rights to actions (performances or forbearances) which can be described only in irreducibly intensional terms – in terms of their purposes or intended consequences – lack the requisite mutual differentiatability. They are ones which can be incompossible and, hence, the principle implying them needs to be modified in order to eliminate the duty-conflicts and contradictions they would otherwise generate.[2. Incompossibility is what underlies the complaints of many libertarians (and others), when they deplore the ‘rights explosion’ implicit in many policy proposals and the theories offered in justification of them; cf. Robert Nozick, Anarchy, State and Utopia, (New York: Basic Books, 1974), p. 238; also L. W. Sumner, The Moral Foundations of Rights, (Oxford: Oxford University Press, 1987), pp. 1-8. On the nature and conditions of rights-compossibility, see my An Essay on Rights, (Oxford & Cambridge MA: Blackwell, 1994), ch. 3(C, D), and my ‘Working Rights’, in Matthew Kramer, Nigel Simmonds & Hillel Steiner, A Debate Over Rights: Philosophical Enquiries, (Oxford: Oxford University Press, 1998), pp. 262-274.]

Finally, a still more anterior condition is that we understand the concept of rights along the lines proposed by the Will or Choice Theory of rights. That is, that rights are things whose correlative duties are controllable – permissibly waivable or enforcible – solely at the discretion of their holders. On this account, a necessary and sufficient condition of being the holder of a Hohfeldian claim-right (or immunity) is being vested with the powers to waive and, alternatively, demand/enforce compliance with that claim’s correlative duty (or disability). Since property rights are standardly like this anyway, I won’t here try to mount any general defence of the Will or Choice Theory.[3. An elaboration and defence of the Will or Choice Theory is to be found in An Essay on Rights, ch. 3(A), and ‘Working Rights’, pp. 233-301. The rival Interest or Benefit Theory, in regarding possession of such duty-control as neither necessary nor sufficient for having a right, is incompatible with libertarianism inasmuch as it thereby underwrites the possibility of right-holders’ rights being exercised paternalistically (i.e. by others) on their behalf.]

Granted these three conditions, we pretty much have the basis of the case for the salience of natural resource rights. In fact, the last two conditions strongly point to the first. That is, if coherent sets of rights just are (or are reducible to) sets of property rights, and if their correlative duties are controllable by rights-holders, then, since all non-natural (i.e. made) things are immediately or ultimately derived from natural resources, the validity of any rights to those made things inescapably depends on the validity of the rights to their natural antecedents – since those made things can only have come about precisely through various permissible or impermissible uses of those natural resources and of the things successively created by those uses.

Justified titles to made things therefore have pedigrees exhibiting two key features: (i) they consist in a series of previous justified titles to those things or their component factors; and (ii) they thereby originate in justified titles to natural resources. Or to put it only slightly more concisely, nothing gets made from nothing. All made things have natural resources as ancestors. And hence rights to those made things can be no more valid than the titles to each of their ancestors, in roughly the same sense that Elizabeth’s title to the throne of England depends on those of William the Conqueror and his predecessors.

But, of course, natural resources can’t be the only ancestors of made things which, ipso facto, must also include various bits of labour among their ancestors. Labour is the stuff that does the making. Since the justified ownership of made things depends on pedigrees, it depends on the justified ownership of that labour as well as of natural resources. So, to whom does that labour justifiably belong? I think there are good reasons for holding, and libertarians do hold, that justice vests all persons with the titles to any labour which they haven’t contracted away to others. And it does this on the basis that each person is what has come to be called a ‘self-owner’, the owner-occupier of his/her body. This premiss seems to be the clearest basis – and perhaps the only one – for explaining our fairly fixed conviction that the titles to things made from the labour of slaves are not justifiably vested in slave-owners. And, by a complex extension of this argument, things made from exploited labour don’t morally belong to exploiters.[4. Cf. Hillel Steiner, ‘A Liberal Theory of Exploitation‘, Ethics, 94 (1984): 225-241; ‘Exploitation:  A Liberal Theory Amended, Defended and Extended’, in Modern Theories of Exploitation, (ed.) A. Reeve, (London & Los Angeles: Sage, 1987); An Essay on Rights, ch. 5(D); ‘Exploitation Takes Time’, in Economic Theory and Economic Thought: Essays in honour of Ian Steedman, (eds.) J. Vint, J.S. Metcalfe, H.D. Kurz, N. Salvadori & P.A. Samuelson, (London & New York: Routledge, 2010).]

At this point, we need to take a detour into what has seemed to many to be a serious problem besetting this idea of self-ownership and, hence, the labour ownership that’s said to derive from it. The problem is worth the detour, I think, because its appropriate resolution has important implications for our understanding not only of natural resource rights, but also of several other seemingly unrelated issues lying very much at the heart of arguments about distributive justice. This problem arises from the fact that persons themselves are clearly products of other persons’ labour. Regardless of the circumstances of our conception and gestation – whether by conventional means or in some clinical test-tube – other persons were evidently hard at work in operating these processes. It is, I take it, a conceptual truth that owners cannot be owned. How, then, can the ownership of our selves – as made things – be permissibly vested in us and not in our makers?[5. I address this ‘paradox of universal self-ownership’ in An Essay on Rights, ch. 7(B).]

Students of the history of political thought will know that the answer given by Locke’s contemporary adversary, the royalist Sir Robert Filmer, is, simply and boldly, that it can’t. On the basis of the very libertarian principle we’ve been exploring – that made things belong to the owners of the labour that makes them, or to whomever they choose to transfer that ownership – Filmer argued that, as the Bible suggests, God the maker transferred human species ownership to Adam, from whom that title legitimately descends, primogenitally and patriarchally, to some current person who, as the only self-owner in town, is a rightful absolute monarch.

Now the difficulty here is that, even if we set aside Filmer’s historical, theological and sexist premisses, we appear still to be left with the question of how we – as made things – can own ourselves and our labour. Why aren’t we owned by our makers or by whoever owns them? My proposed solution to this problem relies on the claim that, notwithstanding the fact that labour – usually considerable labour – is involved in making us, it’s not the only kind of production factor involved.

Again, nothing can be made from nothing. And in this particular case, the labour required has to be applied to – or in Locke’s terminology, ‘mixed with’ – a lot of other stuff, including germ-line genetic information. That appropriated genetic information, I want to suggest, is a natural resource because, as Darwin and Dawkins tell us, it’s been transmitted from creatures who were neither persons nor made things.[6. An adaptation of this argument, in the light of the possibility of synthesizing germ-line genetic information, is developed in my ‘Silver Spoons and Golden Genes: Talent Differentials and Distributive Justice’, in Justine Burley (ed.), The Genetic Revolution and Human Rights: The Oxford Amnesty Lectures 1998, (Oxford: Oxford University Press, 1999); see also ‘Universal Self-Ownership and the Fruits of One’s Labour: A Reply to Curchin’, Journal of Political Philosophy, 16 (2008), 350-355.] So although Adam and Eve, as primordial moral agents, might truthfully claim that they made their children, they have to acknowledge that one of the factors used in that manufacturing process was made neither by them nor by any other person. Accordingly, their rights over those children cannot be derived exclusively from rights to self-ownership and to labour. Their rights over those children must partly depend upon – and can be restricted by – whatever rule applies to the ownership of natural resources.[7. Compare the claims, to their respective herds of livestock, of those owners who are breeders with those who are not. Ceteris paribus, natural factors account for more – and human labour for less – of the latter’s herds than the former’s.] And cutting a long story short, I suggest that one element of that restriction can be the standard limitation on the duration of parental rights over their children: namely, that those rights expire upon their children’s attainment of adulthood or moral agency, which is a necessary condition of being an owner (including a self-owner).

Now my guess is that many libertarians (and others) will think that this solution to the universal self-ownership problem looks a bit like using a sledgehammer to crack a nut. Why not simply lay it down and declare by moral fiat, so to speak, that everyone just is a self-owner? What I’d like to suggest, however, is (i) that this is an unsatisfactory way of proceeding within the terms of the larger argument we’re considering and, further, (ii) that the genetic information solution implicitly supplies a unifying foundation for many of the otherwise conflicting intuitions we all have about the vexed issue of how justly to distribute the results of persons’ differential endowments of abilities and disabilities.

Let’s take the first of these arguments first. Simply declaring each person morally to be a self-owner is unsatisfactory because it’s going to leave open a question that libertarian and many other conceptions of justice and unjust exploitation want to close: namely, the question of who is morally entitled to his/her labour and to the products of that labour. For if the labour of conception, gestation and post-natal nurturing doesn’t in some way entitle the labourer, then it’s entirely open to others to advance the unwelcome suggestion that neither do other types of labour. Much better, for a variety of reasons including congruence with a large array of our own intuitive judgements in these matters, is a strategy that can consistently reconcile what we all recognise to be the special claims of parents – a strategy that can sustain some entitling effect of their labour – with an affirmation of their offspring’s self-ownership. The fiat strategy of simply declaring all persons to be self-owners not only has the theoretical disadvantage of simply overriding the libertarian principle that labour entitles, but also, and counter-intuitively, it leaves entirely indeterminate the location of liability for the injuries and damage that pre-adult children can cause to others. For we obviously cannot impose that liability on those children themselves. It’s surely myself, and not my three year old son, who should bear the liability for his injuring your child or damaging your property. Our understanding of distributive justice, and of where (in whom) it locates rights and duties, needs to be carefully contoured so as to take account of such considerations. The fiat strategy simply can’t do that.

Why does this way of resolving the self-ownership paradox give us a unifying handle on many diverse intuitions we have about differential abilities and the fair distribution of their results? It’s a common thought – and one by no means confined to libertarians – that, ceteris paribus, people are entitled to the fruits of their abilities. That is, we think this is especially true if those abilities were themselves mainly acquired through their possessors’ own efforts. When it comes to abilities that are primarily the products of others’ efforts, we hesitate a bit. And when those abilities are largely attributable to favourable genetic endowments, we hesitate a lot.

Why these graduated hesitations? Why does it seem to make a morally relevant difference whether the wonderful state of Pavarotti’s vocal chords was chiefly the result of disciplines he imposed on himself, or the result of childhood training secured by his parents, or the result of sheer genetic good fortune? And something more or less symmetrical with this can be said about disabilities and the suffering they engender. Self-inflicted injuries entitle least, brute misfortune entitles most, and harms inflicted by others may come somewhere in between. No doubt, in the real world, all three sorts of factor combine in the production of many instances of ability and disability. And countless research projects and judicial proceedings are devoted to sorting out the relative contribution of each such factor to these production processes.

Now I want to suggest that what these graduated hesitations reflect is a wider distributive intuition we have about what I’ll call choice and circumstance. Gains and losses are most acceptably shifted when they’re primarily the results of circumstance, and least acceptably shifted when they’re principally the products of choices made by those who incur them. And what counts as circumstance, I suggest, is pretty adequately captured by what we would include under the heading of ‘nature’. ‘Nature’ covers a lot: there are places where it rains all the time and places where it never rains; places with oil deposits and places with serious geological faults; crowded and less crowded cyberspace locations; and genes that code for Kentucky blue grass, poison ivy, viruses, koala bears, cystic fibrosis, schizophrenia, Pavarotti-type vocal chords, some elements of human intelligence, and so forth.

Rights to natural resources – to nature, compendiously construed – are rights to bits of all these various, and variously valued, things. So if we follow Locke and a number of other thinkers in that tradition, if we hold that anyone claiming ownership over some bits of nature must leave ‘enough and as good for others’, we’re led by a series of plausible steps to the conclusion that, in a fully appropriated world, each person is entitled to an equal portion of the value of these bits of nature. That is, all owners of natural resources must pool the value of what they own in a fund – ultimately a global fund – to an equal portion of which everyone everywhere has a moral right.

In that sense, our just rights to natural resources entitle each of us to what has come to be called an ‘unconditional basic income’ or, in its non-paternalistic form, an unconditional initial capital grant. And what’s especially important for libertarians to note in this regard is that we’re owed this grant not as a basic positive right – for on this sort of theory, there are no positive rights which are basic, but only negative ones, with all positive rights being derived solely from antecedent contractual understandings or rights-violations. Rather, we’re owed it as a matter of redress by those who do not forbear from acquiring or retaining more than ‘enough and as good’ natural resources – a negative duty which they have by virtue of our ultimately foundational right to equal freedom.

When you appropriate an unowned natural resource, you create an enforcible right to exclude me and everyone else from it. You thereby deny to each of us a freedom that we previously had and otherwise would continue to have. Unless there are equivalent other resources to which each of us has unexcludable access or, if not, unless you compensate us for that loss of freedom, you have engrossed more freedom than we each possess. It’s this fundamental right to equal freedom that gives us both our rights to self-ownership and our rights to natural resources. And all our other just rights are created solely by exercises of these two rights and of the rights successively derived from those exercises.

Before concluding, however, I think I need to say a bit more about abilities and disabilities. As was suggested previously, our distributive intuitions about choice and circumstance tend to allow self-chosen gains and losses to stay where they are and to require circumstance-caused gains and losses to be shifted. And I argued, in essence, that circumstance-caused gains and losses are ones due to nature: they are, if you like, ‘nature-chosen’ ones. As such, they’re required to be pooled and divided equally.

Now the question that needs to be addressed here is this: Is the set of abilities and disabilities that we’re equipped with from childhood a product of choice or circumstance? Rawls and many others seem to take the view that these come entirely under the heading of ‘circumstance’ and, hence, are eligible for pooling. But there are at least two reasons for rejecting this view: one moral and the other empirical.

The moral reason, which is one internal to libertarianism and to many other theories as well, is simply that a pooling of abilities and disabilities – that is, enforced compensation of the disabled by the enabled – is, in itself, an incursion on self-ownership. It implies an enforcible duty in the enabled to deploy their abilities in ways sufficient to generate the amount of compensation they’re each assessed as owing. Doubtless, most of us firmly believe that the enabled should make transfers to the disabled. And we would be absolutely right to criticise – and even stigmatise – those who don’t. But many of us also believe that such transfers must be voluntary and, in that sense, cannot be a requirement of rights and justice.

The empirical reason for rejecting Rawls’ classification, of children’s abilities and disabilities as products of circumstance, is simply that it’s false. And you certainly don’t need to have raised a child yourself to know that it must be false. What’s broadly true, of course, is that children’s abilities are not self-chosen. But the fact that they’re not self-chosen doesn’t even remotely imply that they’re unchosen. What are people doing, if not engaging in just such choices, when they spend long hours in ante- and post-natal clinics, in teaching at home and in schools, in working to pay for kids’ music lessons, holidays and baseball equipment, and so on and so forth? If children’s abilities were typically construed as products of circumstance and not of choice, it would be pretty difficult to know what conceivably could count as a product of choice. Or to put it in Dworkinian terms, a distribution that claims to be ambition-sensitive and endowment-insensitive can hardly afford to ignore the fact that children’s abilities reflect some of the most deeply felt ambitions that adults standardly have.

Well then, what’s the kernel of truth that lies at the core of that otherwise entirely mistaken view? It is, surely, the undeniable fact that, along with the many hard-earned, labour-embodying inputs used to construct children’s abilities, there’s another essential factor employed in these processes that is a deliverance of nature: namely, those children’s genetic endowments. It’s this production factor of those abilities that properly falls under the heading of ‘circumstance’ and that is therefore eligible for pooling.

So, cutting another long story short, the inference seems to be that, under the general rule for rights to natural resources, we should tax parents on the value of their children’s genetic endowments. Or more precisely, we should tax them on the value of the germ-line genetic information they jointly appropriate in conceiving an offspring.[8. See An Essay on Rights, pp. 246-9, where I discuss how this germ-line genetic information, despite being located within the precincts of a self-owned body, can be construed as an unowned (until appropriated) natural resource.] And this tax, like taxes on people holding rights to other natural resources, goes into the global fund, on which everyone has an equal claim. What this tax does is to effect a net transfer from those who have genetically well-endowed children to those who don’t. And those with poorly-endowed children are thereby supplied with extra resources to develop their children’s abilities and, thus, to offset their genetically-predisposed disabilities.[9. Can parents be said to be subject to a correlative duty to apply these resources to that development? The problem here is to identify the holders of the corresponding right – given that minors, lacking self-ownership, lack the conditions for qualifying as rights-bearers. Perhaps one solution lies in the possibility that parents who fail so to apply these extra resources, and who thereby impose on their child a lesser degree of ability development that endures into his/her adulthood (self-ownership), would then be held responsible for that injury and accordingly be then liable to him/her for compensation.]

Let me conclude, then, not by further elaborating the details of this natural-resource-based account of just redistribution, but rather by briefly listing some of the pre-theoretical intuitions it succeeds in sustaining. First, in entitling persons to the fruits of their labour, it rules out exploitation. Second, in generating an unconditional initial grant as a basic right, it gives everyone some minimum material entitlement, some initial portion of action-space. Third, in extending this entitlement globally, it reflects the view that basic rights are universal: that is, that they are human rights. Fourth, in differentially taxing children’s genes, it simultaneously corrects for the unequal advantages these can deliver, but also avoids relieving adults of responsibility for their own procreative and nurturing choices. And finally, in refusing to mandate transfers from the enabled to the disabled, it precludes what Dworkin and others have called the ‘slavery of the talented’ and thereby allows unencumbered occupational choice: brilliant brain-surgeons can abandon their lucrative jobs to become mediocre poets, if they want to.

By locating the line between choice and circumstance in the right place – by isolating all of what counts as nature, and then distributing its value equally – libertarians can more easily do what they want, philosophically, to do: which is to pass, coherently, through the eye of the needle formed by many of our diverse and conflicting moral intuitions. Of course, such intuitions are not – and can never be – the final arbiters of what’s right. We’d have to be very peculiar people indeed to pass through this needle’s eye with all of our intuitions still intact. And anyway, the continuing market for jobs in moral and political philosophy strongly suggests that there’s no immediate danger of this happening.[10. Many of the arguments advanced here have benefited greatly from Jerry Cohen’s pressing criticisms. For a more general account of the family of left libertarian theories, see my entry, ‘Left Libertarianism’, in Gerald Gaus & Fred D’Agostino (eds.), Routledge Companion to Social and Political Philosophy, (London & New York: Routledge, forthcoming); also Peter Vallentyne & Hillel Steiner (eds.), The Origins of Left-Libertarianism: An Anthology of Historical Writings, (London & New York: Palgrave,  2000), and Peter Vallentyne & Hillel Steiner (eds.), Left-Libertarianism and Its Critics: The Contemporary Debate, (London & New York: Palgrave, 2000).]

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  • Cal

    When you appropriate an unowned natural resource, you create an enforcible right to exclude me and everyone else from it. You thereby deny to each of us a freedom that we previously had and otherwise would continue to have. Unless there are equivalent other resources to which each of us has unexcludable access or, if not, unless you compensate us for that loss of freedom, you have engrossed more freedom than we each possess.

    But people are indeed ‘compensated’ for this reduction of of spatio-nomadic ‘freedom’: through the generation of market surplus, material wealth, peace, civilization, physical well-being, the ‘freedom’ to inhabit a contemporary society, to travel, to earn and own and build, etc. which requires property. (E.g. the unappropriated property next to appropriated property will likely increase in value or usefulness, not decrease.) It’s mutual gain. 

    Would you rather, for instance, be teleported to a primitivist planet where there was no appropriated property and hence little-to-no civilization or to a bustling planet of sophistication and economic opportunity that was entirely appropriated? The gift of contemporary life’s luxury (especially in more liberal capitalist countries) certainly seems compensation enough, particularly considering virtually all of us are likely descended from some persons who initially appropriated property somewhere.

    we should tax parents on the value of their children’s genetic endowments. Or more precisely, we should tax them on the value of the germ-line genetic information they jointly appropriate in conceiving an offspring.8 And this tax, like taxes on people holding rights to other natural resources, goes into the global fund

    Are you serious? You think we should compensate ourselves for the mutual crime of civilization by directly incentivizing people with greater genetic endowment to have less children while incentivizing those with less to have more? Have you considered the public choice problems with this in any form as an actual state policy? The power and authority of a governing body that could do this? I can’t believe I actually read an essay on here proposing something this insane… it’s like something out of Idiocracy or a reductio on applied luck-egalitarianism.

  • Jessica Flanigan

    1- How do you draw the line between our genetic information as a natural resource and our ability to choose. Say A is genetically endowed with good choosing abilities, whereas B is a disabled chooser in that he consistently makes imprudent choices. Can this theory really get the cut between circumstance and choice?

    2- This theory of parenting is really counterintuitive to me! You write, “(Parental) rights expire upon their children’s attainment of adulthood or moral agency, which is a necessary condition of being an owner” But surely parents down have ownership-like rights over their children at any point, right? If I wanted to sell my children or have them work as my slaves, wouldn’t that be really impermissible? on this theory, why? 

    3- You think that ‘nature chosen’ gains and losses should be pooled and divided equally gets all the right extensions. Here are two cases where the view seems extensionally inadequate.A)  Cecile Fabre’s proposal that the ‘kidney rich’ have their organs taxed for a collective ‘kidney pool’ that will redistribute kidneys to the ‘kidney poor’ in need, which, in principle, may require kidnapping, restraining, drugging, and forcibly extracting kidneys of people in order to share the gains of nature that they enjoy. B) Any leveling down objection. Insofar as you think that natural resources, including ones that closely attach to our bodies should be pooled and distributed equally, then does this mean that you would be comfortable with such a redistribution even if it made people worse off overall, say because the parents of the naturally endowed would benefit more from not paying the tax than the un-endowed who were compensated would? This seems plausible, if I have a really talented kid and I want to invest in developing his talents I’ll get big returns on my investment. But if I can’t because I need to send money to an untalented kid instead where that kid will not show nearly the gains from that money that my kid would, it seems like everyone is then worse off.

    • Well, to reverse your criticism, if it is fair to extend out the idea of self-ownership outside of the body and into physical space, then there are no limits to what can legitimately be considered part of “you.”

      Self-ownership, as applied to Political Economy, must be necessarily limited to the body and the mind.

      The only non-arbitrary separation between what can be considered “you” and “not you” is the physical components of your body. I admit it does get blurrier if we start to consider prostheses and human augmentation. Yet, acquiring materials voluntarily, and in concert with ideals of justice, for use as prosthetics is perfectly congruent with all these classical liberal notions.

      You also seem to be fixating on the concept of land’s naturalness as the feature which mandates equality. That is simply false. The entire concept of “natural” is suspect, in fact. Almost anything could be considered natural. What matters is not that land is natural, what matters is that exclusionary access rights limit the freedom of others, and maximum freedom is a desirable goal.

      When all access rights over land have been usurped in this exclusionary way, then the great masses of people become like trespassers on planet, and reduced to a position of serfdom, as Herbert Spencer pointed out in chapter 9 of Social Statics.

      • “Self-ownership, as applied to Political Economy, must be necessarily limited to the body and the mind.”

        … including the labor, actions, energy, etc. that proceed from the body and the mind (which extended self-ownership rights are to be determined according to highly-scrutinized Lockean conception of a natural person’s property right in his/her wages).

  • foldvary

    When parents create a child, they are gifting the upbringing to the child.  The parents give the child food, living space, and emotional support.  Likewise by voluntarily creating a human being, they are giving that person its genetic endowment.  This genetic endowment is not purely from nature, but also from ancestral spouse selections.  Self-ownership implies that one’s own genetic endowment too is fully self-owned.  I agree, however, that children should be compensated for the medical costs of genetic disabilities; hence parents have a moral obligation to obtain life-long genetic-disability insurance for their children.  Thus parents with a greater risk for adverse genetic inheritance would pay more.

  • The requirement that a set of rights be mutually compossible is too strong.  The world is always throwing up unexpected and awkward circumstances and, in some of these, rights come into conflict. This is illustrated, for example, by trolley problems (see Judith Jarvis Thomson). It is highly implausible to think that we could anticipate all such oddities in advance and thereby craft a compossible set of rights. But I think it is true that a set of rights could not be taken seriously if the rights come into conflict under normal circumstances: the conflicts have to be exceptional. I argued this point in my paper on welfare rights.

    I deny the principle that people are entitled to the fruits of their labour or abilities. So long as we are in society with others, virtually everything we make or do has positive externalities. But we are not entitled to demand payment from people who benefit from these positive externalities.  For example, if I tell a joke to some friends and I notice that some strangers in the vicinty hear it and laugh, I am not entitled to demand from them a fee  for entertainment.

    The administration of the ‘global fund’ will, it seems, require an enormous (and wasteful) bureaucracy and an overbearing (and intrusive) state. What benefits could possibly be worth the cost of that hell?

    Another problem with your post is the multiple appeals to intuition. Most of the intuitions you appeal to conflict with my intuitions. This kind of a priori procedure seems to me to be hopeless. In my view, the right (or true) set of rights is the one that produces the best results for human flourishing. This shifts us in a more empirical direction.

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  • Adrian B

    Cal, re your answer to the point that appropriating resources limits others’ freedom to use them: Nozick said basically the same thing, asserting that, as long as no one is made worse off by appropriation (vs the state of nature), then one has no right to complain. But why should the baseline for comparison be the state of nature, rather than, say, a Rawlsian or Steinerian distribution, or one that would have otherwise been the result of equal opportunity? As a wage slave I am definitely worse off than if I had had equal opportunities to appropriate, or, even better, had the unequal opportunities some of my employers’ ancestors had.
    In a different vein, even if you, Nozick and Gauthier were right, what if some wage slaves were to value their freedom to roam the open plains more than a chance for indoor plumbing? They would not, then, feel adequately compensated for their loss of opportunity. Why should their preferences carry less weight?

    • Cal

      Well you can compare the actually-existing to any number of counterfactuals and then demand compensation from ‘society’ for what you judge the difference. This seems rather pointless and obviously counterproductive unless we’re talking about specific legal claims to specific property  by specific persons–and then it’s a matter for common law arbitration more than philosophical ethics.

      For instance, the creation of a global state taxing the genetic endowments of children and all ‘natural’ stuff would in practice very likely make the vast swarth of humanity much worse-off economically (never mind the totalitarianisms). 

      I don’t think it’s so clear that you would be better off by most criteria had you been in the circumstance to originally appropriate some land somewhere. Property is an emergent, general rule convention that enables a social order of dispersed agreement and mutual productive gain. In fact, your ancestors almost certainly did originally appropriate land, since most every society that moved beyond mere nomadic hunter-gathering did so. And it is extremely probable that you are much better off than they were, in no small part due to the general privatization of unowned land. A discussion in this direction begs the economics of the matter, as Rawls infamously does. What policies or institutions would in practice make you better off by whatever criteria? A constructivist project undermining the general rule of property with vague and holistic ethical sentiment enforced by a centralized, top-down state looks to be very low on that list…

  • Hillel, referring to your concluding paragraphs, although I had some difficulty digesting your fourth intuition about “differentially taxing children’s genes,” I’m identifying with your left-libertarian school of thought if this Wikipedia description is accurate:

    “Another variant of contemporary left-libertarianism called the Steiner-Vallentyne school affirms the classical liberal idea of self-ownership, while rooting a robust version of economic egalitarianism in this idea. It combines the concept of self-ownership with unconventional views regarding the ownership of land and natural resources (e.g. those of Henry George), residual claimancy vis-à-vis the firm, or both.”

    However, I have two conditions. First, the right to self-ownership must be freely accessible and, once a proper legal claim is made, will not be obstructed in any way by banks, employers and/or the IRS.

    Second, that you really don’t mean “taxing children’s genes” as a kind of dumbing down the populace or actively punishing “the talented,” but rather that the proper enforcement of income tax laws will automatically adjust for the differential in talents (in order to provide for those who have serious disabilities).

  • Hillel Steiner

    Many thanks for these responses. Let me take them in the
    order in which they appear.

    Cal (1):

    You seem to agree that what I
    call ‘under-appropriators’ (those for whom less than an equal share of natural
    resources are left) are entitled to compensation. But you suggest that they already
    have been compensated by the benefits resulting from the appropriations of
    others. The problem with this view is that, under libertarian principles, they’re
    entitled to these benefits only if their owners give or sell those benefits to
    them. This is not what ‘compensatory entitlement’ usually means: persons owed
    compensation don’t usually have to pay for it.

    As for my tax on parental germ-line
    genetic information, I agree with you that this poses a ‘public choice’
    problem, inasmuch as it disincentivises procreation by the well-endowed and
    incentivises the poorly endowed. The problem here is that, while there are many
    valuable aims that we hope people will exercise their libertarian rights to
    achieve, we don’t want those rights to be determined by those aims. Rights are,
    after all, enforcible. And my guess is that we’ve had enough 20th
    century experience to know that the eugenic
    aims that are driving your concern
    here are best pursued by private, voluntary action rather than legal
    enforcement. Incentivising well-endowed procreators, and disincentivising their
    poorly endowed counterparts, have nothing to do with justice and have no
    bearing on what rights people should or should not have.


    Jessica Flanigan:

    1. There is a genuine problem –
    part of the larger problem of ‘free will’ – about the extent to which choosing
    ability is genetically determined. I presume that this is an issue for
    biologists, not political philosophers. We do think that there’s a “cut between
    circumstance and choice”, but it’s only research in other fields that can tell
    us where it is.

    2. Most libertarians do want to
    construe rights as ownership rights. On my construal of rights over minors, the
    powers to exercise them are divided/shared between those minors’ parents and
    others (whose entitlements to them derive from rights over the natural
    resources used to produce offspring). Like most philosophers who subscribe to
    the Will Theory of rights, I think it’s fairly meaningless/misleading to
    ascribe rights to minors who are, by definition, incapable of exercising those

    3. A) My proposal that parents’ germ-line
    genetic information is a natural resource, whose value is to be shared equally,
    in no way implies a pooling of body parts as in Fabre’s proposal.
    Self-ownership very clearly prohibits that.

    B) I think my 2nd
    paragraph in Cal, above, responds to this worry.


    Edward Miller:

    I guess I agree with most of
    this, but not with the claim that “the entire concept of ‘natural’ is suspect”.
    I do agree that “what matters is that exclusionary access rights limit the
    freedom of others” – but that’s true about all owned things, including one’s
    self (body). What matters is that no one’s freedom is limited more than anyone


    Rick DiMare:




    As mentioned above, I don’t think
    that minors can have rights. So, in that sense – and unlike other gift
    recipients – they can’t be said to be the ones who have rights to what their
    parents ‘give’ them. I’ll need to think further on the interesting proposal
    that there is “a moral obligation in parents to obtain life-long genetic-disability
    insurance for their children”. The question is whether “parents with a greater
    risk for adverse genetic inheritance [who therefore] would pay more”, are not themselves
    entitled to some compensation for the inferior hand that nature has dealt them.


    Danny Frederick:

    All sets of rights are necessarily
    mutually compossible – in the sense that, if two rights conflict (i.e. their
    respectively correlative duties are not jointly performable), whoever is
    authorised to adjudicate that conflict is the real possessor of the rights
    involved. The only normative question at issue is how much discretion – how
    many rights – we want to invest in those authorities. Libertarians have well
    known views on that question. Likewise wrt entitlements to the fruits of our
    labour. The fact that many things (not “virtually everything”) we make or do
    has positive externalities just means that circumstances are such that, when we
    make/do such things, we are perforce conferring gifts on others. We can choose
    whether to make/do those things with that in mind.

    I don’t think the administration
    of the global fund will require an enormous bureaucracy – particularly when
    compared with the administration of the tax-and-benefit systems that the global
    fund is meant to replace. Much of the business of assessing liabilities and
    disbursing entitlements can be left to private firms, whose decisions would be
    subject to judicial appeal.

    Appeals to intuition are, indeed,
    undesirable when used as premises in constructing a theory. The point of
    mentioning intuitions is simply to test a theory’s independently derived
    implications against common moral standards/beliefs.


    Adrian B

    The point about the arbitrariness
    of the baseline for assessing the legitimacy of appropriations is correct. Mine
    is not an argument against natural resource appropriation/privatisation: it
    does indeed deliver benefits of the sort that Cal outlines. But there is
    indeterminacy in the choice of baseline. Instead of first-come, first-served,
    why not say that a resource rightly belongs to whoever will use it most
    productively? That would surely yield still more of those benefits. And it
    would correspondingly impose a lesser opportunity-cost on others, when
    requiring them to be excluded from access to that resource.


    Cal (2):

    I think these points are largely
    answered by various of my above responses.


    Rick DiMare:

    We mostly agree. See my 2nd
    paragraph in Cal (1), re. your “dumbing down the populace” point. I disagree
    that income tax laws will automatically adjust for the differential in talents.
    Income tax laws tax the incomes that people choose
    to make: if talented people don’t maximise their incomes – if they choose to
    become Dworkin’s ‘mediocre poets’ – income taxes won’t adjust for that. In any
    case, though, income taxes are incursions on self-ownership, for the reasons
    that Nozick clearly articulates. That’s why my way of adjusting for
    differentials in unearned talents,
    i.e. genetically determined ones, is to tax parental germ-line genetic

    • Hillel, thanks for your reply. 

      Yes, Nozick clearly does articulate against taxing wages as income.

      On page 172 of Anarchy, State and Utopia he states:

      “Seizing the results of someone’s labor is equivalent to seizing hours from him and directing him to carry on various activities. If people force you to do certain work, or unrewarded work, for a certain period of time, they decide what you are to do and what purposes your work is to serve apart from your decisions. This process whereby they take this decision from you makes them a ::part owner:: of you; it gives them a property right in you. Just as having such partial control and power of decision, by right, over an animal or inanimate object would be to have a property right in it.”

      But my point is that, if U.S. income tax law evolution is properly understood (and it certainly isn’t because I haven’t yet found another lawyer who adequately understands it), wages need not be taxed as income because there is a subtle Constitutional option available to have wages treated as property under the Direct Tax Clauses. Incidentally, the  income tax Nozick is talking about is not a direct tax on wages. The target of the tax is the currency, which has been regulated by income taxation under the Commerce Clause since the New Deal era. In other words, although the tax appears to be direct on labor, it’s really a Constitutional indirect tax. If it was direct, it would be unconstitutional because of not following the rules of apportionment and proportionality mandated by the Direct Tax Clauses. In fact, I don’t think even Milton Friedman understood the fundamental changes to the monetary system that occurred around 1937 because he kept treating and analyzing money as though it was still based on the Quantity Theory of Money, but it had shifted to a “chartalist”  system, otherwise known as Modern Monetary Theory, whereby the income tax, not human labor, actually creates demand for the currency.)

      But anyway, the point I was trying to make is that when income tax law is properly understood and enforced, it’s likely to achieve what your controversial taxation of the “parental germ-line” attempts to accomplish.

  • Thanks for the response, Hillel. But I have some further comments.

    “if two rights conflict… whoever is authorised to adjudicate that conflict is the real possessor of the rights involved.”

    Why should anyone be ‘authorised to adjudicate’? Take the trolley driver who has a choice between letting the trolley run on, and killing five, or turning it and killing one. The decision is his; but he is not authorised to adjudicate; he is just in the unfortunate position of having to make a difficult decision. And even if he were authorised to adjudicate, he would be adjudicating between other people’s rights, not his own. He does not own the rights to life of those six people. To call him the real possessor of those rights seems at best an ad hoc way of saving a pet theory. But would it even save the theory? I don’t see how. Even if the conflicting rights are the trolley-driver’s, they still conflict: whatever decision he makes, someone is going to die, a right to life will be violated.

    “The fact that many things (not “virtually everything”) we make or do has positive externalities just means that circumstances are such that, when we make/do such things, we are perforce conferring gifts on others. We can choose whether to make/do those things with that in mind.”

    I said ‘so long as we are in society with others’ virtually everything we make or do has positive externalities. That is almost obvious: the mere fact that people know what we are doing can generate fear, hope, disappointment, etc. But your response does not seem to me to answer the objection. First, it is false that we can choose to make/do things with the positive externalities in mind, because we are not omniscient. We might have an idea of what some of the positive externalities might be (though we may be wrong even about those), but we cannot know all of them. Second, even if we did know beforehand what all the positive externalities were going to be, and could take that into account when making our decision, we would still not be entitled to charge people for them. We might contact people beforehand and ask if they would be prepared to pay for a service that they never asked for and were going to get anyway; but few, it seems, would be inclined to answer in the affirmative. We would be stuck with the fact that we are not entitled to all the fruits of our labours.

    “I don’t think the administration of the global fund will require an enormous bureaucracy – particularly when compared with the administration of the tax-and-benefit systems that the global fund is meant to replace.”

    Tax and benefit systems have a much easier job, even if we keep the ‘global fund’ at a national level. But once it is really global the work seems to increase ‘exponentially.’ If I have understood you, the administrators of the fund will have to know the market values of all natural resources, including those that are now part-and-parcel of manufactured goods. And they will have to keep track of these values as they fluctuate over time, so that they can constantly recalculate the total value. They will also need to know the total number of people in the world so that they can calculate each person’s share. And every time someone is born or dies, the recalculation will have to be done all over again. And every recalculation will require a redistribution of resources between all the world’s citizens. This is the ‘calculation problem’ with knobs on.

    “The point of mentioning intuitions is simply to test a theory’s independently derived implications against common moral standards/beliefs .”

    I agree there is a role for intuitions in testing theories; though that can only be a small and fairly weak part of the testing procedure.  But a particular problem in this case is that the intuitions are disputed. As I said before: I share few of the intuitions to which you appeal.

    Excuse me if I have not got the hang of what you are saying or if you have published answers to all these queries elsewhere. I am responding to what you have said here.

  • Adrian B

    Please help me out here, everyone. I teach political philosophy and would like to present what I take to be referred to here as ‘right-libertarianism’ as at least a defensible candidate, but I’m having trouble in light of the objection represented by E. Miller’s succinct point:

    “What matters is not that land is natural, what matters is that
    exclusionary access rights limit the freedom of others, and maximum freedom is
    a desirable goal.

    When all access rights over land have been usurped
    in this exclusionary way, then the great masses of people become like
    trespassers on planet, and reduced to a position of serfdom, as Herbert Spencer
    pointed out in chapter 9 of Social Statics.”


    This is why any version of libertarianism involving absolute property rights in land and such seems so obtuse. The standard answer (and I would be interested
    in hearing others) seems to be (a) the compensating benefits of capitalism vs. the state of nature and/or (b)
    taxation is slavery.

    As for (a), what about the black lung factory worker or the
    Filipino reduced to selling his kidney, or the much-overlooked person who does not measure
    value entirely in material terms?

    (Further, (a) is a strange argument to make for a pure self-ownership based philosophy–why should what is in the public interest be a consideration at all, if self-ownership trumps everything?)

    As I asked earlier, why is the baseline for comparison the state of nature, as opposed to some other arrangement? Alternatives include humane
    socialist democracies like, say, the Scandinavian and other European states, which have markets,
    innovate, have differential rewards for effort, while allowing all a chance to
    effectively pursue a meaningful life. Freedom is supposed to be the point of libertarianism. With its extremist approach to property rights, it seems as though we are asked to
    believe that industrial revolution England in 1850 or Somalia would be better from a freedom standpoint than contemporary
    Which leads us to (b). 

    The contemporary socialist democracy, it seems to me, does a pretty good job of mediating between valid competing interests and rights claims by the hard-working Galts and the dispossessed masses who otherwise would never have a fair shot. Effort should be rewarded, but it seems patently unjust for the many to have no option but to work for the few based on some ancient land grab. Denying or ignoring this last point (or offering a horrible factory job as ‘compensation’) is what really makes so much libertarian writing seem obtuse in the extreme.

    (The whole genetic lottery thing, and the natural/unnatural dividing line, raises corresponding theoretical concerns for the liberal, but why does this really have to be resolved at the theoretical level rather than the practical one? Tax the rich (some, not too much) and provide job training, health care, handicapped parking spaces, access to education, etc. Genetic lottery problem solved, without some scary taxation system aimed directly at DNA.)

    I was excited to happen across this blog discussion because I am hoping for a reasonable answer on why
    the airless abstraction of formal self-ownership PLUS vastly unequal access
    rights to land and natural resources (based on, at best, a first-come, first
    served principle of acquisition and a proviso that needs to be satisfied, at best, at the moment of acquisition) is justifiable, given that the answer that it
    is justifiable because preferable is a non-starter, and (b) this combination ignores the importance of actually being in a position to pursue a meaningful life. Sweden balances self-ownership with the recognition that natural resources are limited and are not created by their owners.

    •  See reply below.

    • martin

      I’m having trouble in light of the objection represented by E. Miller’s succinct point:
      “What matters is not that land is natural, what matters is thatexclusionary access rights limit the freedom of others, and maximum freedom isa desirable goal.
      When all access rights over land have been usurpedin this exclusionary way, then the great masses of people become liketrespassers on planet, and reduced to a position of serfdom, as Herbert Spencerpointed out in chapter 9 of Social Statics.”
      This is why any version of libertarianism involving absolute property rights in land and such seems so obtuse.

      This is why any version of libertarianism involving absolute property rights in land and such seems so obtuse.

      How would you react if I used that as an argument to go sit in your living room uninvited?

      And of course “exclusionary access rights limit the freedom of others”. But if I’m not allowed to set up my tent in some spot because that would limit your freedom to set up your tent there, that doesn’t help you much, because you of course would not be allowed to set up your tent there either.

      Sweden balances self-ownership with the recognition that natural resources are limited and are not created by their owners.

      Two things:

      1) My guess is that Sweden (the Swedish state) restricts access to land a lot more than any private landowner.

      2) The fact that (some) natural resources are limited is the reason we need property rights in them. That’s why we are arguing over property rights in land, not over property rights in air.

      • Adrian B

         Martin, I drew a contrast between a hard-core right-libertarian conception of rights and property and a more nuanced approach that takes into account legitimate competing claims. The alternatives are not limited to a  libertarian minimal state and a propertyless communism. Sweden has private property, plus some reasonable redistributive policies in response to the Spencerian point–which seems to me indisputable; thus the problem.

        • martin

          The Spencerian point is about people occupying land and excluding others from that land. The worry is that at some point al land is occupied and because of that a group of people will have nowhere to go.

          That is what I was responding to.

          First thing to note about that prospect is that it can happen, but it’s by no means certain that it will happen.
          Second thing to note is that if it will happen we’re not there yet.

          So it seems like a strange argument against people occupying land (putting it to use) and exluding others now, because of what might happen at some point in the future.

          I was trying to illustrate that with the example of me using the Spencerian point as an excuse to go sit in your living room uninvited.

          (Talking about things that might happen in the future: if the human population grows big enough, there will not be enough room for everybody to stand…)

          But it’s truly bizarre to propose the modern state as a remedy for the Spencerian prospect, since states go much further than claiming land that’s been put to use, they claim unused land as well. To use Sweden as an example again, much of it is unused, but the Swedish state claims it as its territory anyway.

          And of course other states do the same. So something like the Spencerian prospect is already here, only it’s not occupation by private parties, but claimes by states. Because most of the worlds land is currently claimed by states. (And trying to occupy some land not currently claimed by any state is a sure way to have some state lay claim to it in an instant.)

  • The standard answer is simply to point out that private owners of land have incentives to invite people on to their land. The shop owner has an open door, the pub/bar owner, too. The owners of privately-owned roads would love you to travel on them (and pay their tolls, or perhaps read the advertising hoardings along the way). Disneyworld welcomes visitors. I have visited art museums in New York that are privately owned. Once land is privately-owned it is much better looked after and developed than land in the hands of government or just common land (the tragedy of the commons). You might want to read Milton and Rose Friedman’s ‘Free to Choose’ which would introduce you to the basic ideas.

    • Adrian B

       Thanks, Danny, but this doesn’t go to my question–Sweden has private property and the benefits you describe.

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