Symposium on Libertarianism and Land, Rights Theory

Natural Rights and Natural Stuff

Since there are many different sorts of approaches to libertarianism – including many different sorts of moral approaches – there are many different sorts of routes to the topic of “Libertarianism and Land.”  Fortunately, the implicit context of this symposium is the natural rights approach to libertarianism – which I would (elsewhere) argue is the most fitting, fruitful, and feasible approach.[1. See, e.g., Eric Mack, “Individualism and Libertarian Rights,” in Contemporary Debates in Political Philosophy, ed. J. Christman and T. Christiano (Oxford: Blackwell, 2009).]  More specifically, the implicit context of this symposium is the contrast between two natural rights oriented positions, viz., (so-called) right-libertarianism and (so-called) left-libertarianism.  It is within this context that the moral status of raw land has been a direct focus of philosophical attention.

As commonly conceived, the first of these two positions asserts one fundamental natural right, viz., a right of self-ownership, and the second of these positions asserts both a fundamental natural right of self-ownership and a fundamental natural and equal right to raw material stuff.  It is not just that every person equally has some right to raw material stuff but, rather, that the content of the right is in some way equal.  So, as commonly conceived, the dispute between the right and the left libertarian is about whether, in addition to a natural right of self-ownership, there is a natural and equal right to raw material stuff.

In this symposium contribution my major goal will be to support disbelief in any fundamental natural and equal right to raw material stuff.[2. For an elaborate discussion that focuses on the powerful work of Hillel Steiner, see my “What is Left in Left-Libertarianism?” in Hillel Steiner and the Anatomy of Justice, ed. S. de Wijze, M. H. Kramer, and I. Carter (New York: Routledge, 209).] If I accepted the standard picture of the dispute between right and left libertarianism, I would then be affirming the right of self-ownership as the sole fundamental natural right.  But I do not accept this picture of the dispute.  That, of course, has been the message of my judicious insertions of “(so-called).”  I do not accept the standard picture of the dispute mostly because I do not think that the natural rights libertarianism that stands in contrast to left-libertarianism is well represented as the affirmation of self-ownership as the single fundamental natural right.

Indeed, the position designated by “right-libertarianism” is in fact almost entirely the creation of G.A. Cohen, who both came up with the labels “right-libertarianism” and “left-libertarianism” and an enormously influential reading of Robert Nozick’s Anarchy, State and Utopia that greatly exaggerates the role and the fundamentality of self-ownership within that work and within natural rights libertarianism at large.  (Check out how infrequently “self-ownership” appears within Anarchy, State and Utopia and how it does not appear at all until chapter seven’s defence of the entitlement theory.  Similarly, self-ownership does not appear in Locke’s Second Treatise until Locke turns to his account of property rights in external things in chapter five.)

I believe that a better approach to a natural rights libertarianism that would stand in contrast to left-libertarianism begins with a defense of a really basic natural moral claim of each individual not to be precluded from living his own life in his own chosen way; and this approach goes on to articulate or codify this moral claim through the ascription to each individual of certain natural rights.  Among these would be a right of self-ownership, a right against manipulation by deception (or something like that), and a natural right of property, which is a right not to be precluded from making (unowned) things one’s own and not to be precluded from exercising discretionary control over what one has made one’s own.[3. See my “The Natural Right of Property,” in Social Philosophy and Policy, v.27 no.1 (Winter 2010).]  Unfortunately, this symposium is not the place to ground and develop this approach or to deal with further aspects of the proper articulation or specification of original moral rights.

So I turn to the more limited topic of what justifies disbelief in any original rights over the earth.  I will advance three claims.  First, the burden of proof rests on those who would affirm such a right.  In the absence of a persuasive case on behalf of such rights, disbelief is the rational stand.  Second, no plausible arguments on behalf of an original substantively equal right to the earth have been offered.  Third, all the specific candidates for such a right that have been advanced are deeply problematic in (so-to-speak) their own right.  They typically suffer from one of two problems.  Either the purported equal right to the earth clashes with a right of self-ownership which the left-libertarian also asserts or advocacy of an equal right to the earth runs into severe problems in explaining what an equal share of the earth would be.

1. The Burden of Proof.

Cohen says that Nozick makes the “blithe assumption”[4. G.A. Cohen, Self-Ownership, Freedom and Equality (Cambridge, Cambridge University Press, 1995) 94.] that the earth is naturally unowned.  But surely there is nothing irresponsible about beginning with non-belief in a natural right to the earth.  Just as rights of self-ownership cannot properly be assumed to exist, so also original rights over extra-personal raw stuff cannot properly be assumed to exist.

Moreover, our pre-theoretical judgments on behalf self-ownership are much more powerful and inescapable than any pre-theoretical judgments that can be mustered on behalf of an original and equal right over raw extra-personal stuff.   Pre-theoretical judgments on behalf of self-ownership powerfully answer to or articulate our sense that it is not merely a very bad thing for any (innocent, non-aggressing) individual to be killed, maimed, enslaved, and so on; they answer to our sense that such harmings deeply wrong those who are subject to them and that each individual has a distinct moral claim against herself being subjected to such treatment.  (So centered within that subject is the moral claim against such treatment that – absent special circumstances – that individual alone can, by her choice, make the harmful treatment permissible.)  These pre-theoretical judgments seem to be inescapable within any rights-oriented approach because the possession of rights confers morally protected choice upon the bearer of rights; so the rights possessed must include rights against the most direct and obvious choice-denying activities, viz., activities like killings, maiming, and enslaving.

My point here is not that these and further judgments in support of a natural right of self-ownership themselves add up to a (fully satisfying) argument for affirming that right (as perhaps one among our natural rights).[5. For a more extensive survey of these pre-theoretical judgments, see my “Self-Ownership, Marxism, and Egalitarianism: Part II. Challenges to the Self-Ownership Thesis,” Politics, Philosophy, and Economics, vol.1 no.2 (June 2002).] For one thing, they don’t provide a grounding account of this right.  Rather, my point is that, in the absence of any inkling of a comparable convergence of pre-theoretical judgments on behalf of a natural right to raw stuff, starting-point disbelief in this latter right is especially reasonable.

2. No Persuasive Argumentation.

As far as I can see, there is a striking dearth of arguments offered to move us from disbelief to belief in an original and equal right to the land.  I will here consider the best arguments I recall encountering.

a. One possibility is that reasoning about these matters is supposed to start with some very strong egalitarian premise that calls in general for an original equality in the distribution of personal and extra-personal raw material – perhaps for the sake of an original equality in the distribution of capacity for action.  An original and equal right to the earth is then taken to be the implication of applying this general and basic egalitarian premise to the distribution of raw material.  However, there are two obvious problems here.

One problem is that the egalitarian premise that is carrying all the water here is at least as contentious as the original and equal right to the earth that this premise is supposed to deliver.  The other problem is that if we go on to apply this egalitarian premise to the distribution of personal resources, we get nothing like self-ownership.  For equality in the distribution of personal resources will require that some persons be only partial owners of themselves while other persons will be full owners of themselves and partial owners of others.  (Or it will require that no one be a self-owner because everyone is simply an equal joint-owner of everyone.)

b. Especially, in his early ground-breaking essays on behalf of what become “left-libertarianism,” Hillel Steiner argued that there could not be just initial acquisition without there antecedently being original titles to the raw stuff that would be acquired.[6. See Steiner’s “The Structure of a Set of Compossible Rights,” Journal of Philosophy vol. 74 (1977).]  For, he maintained, no action could be rightful unless the agent already had title to all the physical components involved in the action.  So, if just initial acquisition is possible and any antecedently existing rights to the earth must be equal, we get the conclusion that persons must possess an original and equal right to the earth.  Unfortunately, this argument depends upon the highly implausible proposition that just initial acquisition requires an antecedent title to whatever will be acquired.  (If this proposition were true, there would be no point to bothering with any acquisition story about just titles.)

c. Alternatively – albeit this might be thought to be merely a rallying of pre-theoretical judgments on behalf of an original and equal right to the earth – one might point, as Steiner often has, to the sort of concrete situation that lead Herbert Spencer to affirm mankind’s original joint-ownership of the earth.  In the early editions of his Social Statics, Spencer wrote,

… if one portion of the earth’s surface may justly become the possession of an individual, …eventually the whole of the earth’s surface may be so held… [I]f the landowners have a valid right to its surface, all who are not landowners, have no right at all to its surface.  Hence such can exist on the earth by sufferance only.[7. Herbert Spencer, Social Statics (New York: Robert Schakenbach Foundation, 1970) 104.]

Spencer thought that the way to escape from this sort of unhappy situation was to affirm mankind’s original joint-ownership of the earth – or, in any case, each society’s ownership of the portion of the earth associated with it.  However, this solution hardly mitigates concerns about an individual’s existence being a matter of others’ “sufferance only.”  This point was nicely made by the American natural rights libertarian, Lysander Spooner.

In asserting its right of arbitrary dominion over that natural wealth that is indispensable to the support of human life, [government or “society”] asserts its right to withhold that wealth from those whose lives are dependent upon it.  In this way it denies the natural right of human beings to live on the planet.  It asserts that government owns the planet, and that men have no right to live on it, except by first getting a permit from the government.[8. Spooner, “A Letter to Grover Cleveland,” (1886) in The Collected Works of Lysander Spooner, ed. C. Shively (Weston, MA: M&S Press, 1971) 34.]

Notice also that an original equal division of the earth would do little to mitigate the problem depicted by Spencer.  For no such equal division will help people who are not already on – or within a quick hop of – their own share of the earth’s surface.  (And maybe some people’s equal shares will not include any of the earth’s surface!)

d. Friends of an original and equal right to property often point to Locke’s assertion that God has given the earth to mankind in common.  In doing so they invoke Locke as a fountainhead of libertarian thought and also suggest that an original and equal right to land is a natural accompaniment of Lockean rights of self-ownership.  But (almost) all that Locke meant by the earth being originally common to all mankind is that by nature neither the earth as a whole nor any part of it belongs to any particular person.  I cannot resist here citing some lines I have just read from the enormously influential, early 17th century proto-liberal (and proto-Lockean) Hugo Grotius, who also repeatedly asserts that originally the earth is common to mankind.

Nature produces the rest of things [i.e., all extra-personal raw stuff] for men, but without distinction, not “this for this one and that for that one.”  Therefore, in order that this thing become the property of that man, some deed of the man should intervene, and therefore nature itself does not do this by itself… [W]hat has not yet been occupied by any people or by a man [Grotius has an occupation theory of just initial acquisition] is still common, that is, belongs to no one and is open equally to all.  By this argument it is surely proved that nothing belongs to anyone by nature.[9. Hugo Grotius, “Defense of Chapter V of the Mare Liberum,” in The Free Sea, ed. D. Armitage (Indianapolis: Liberty Fund, 2004) 85]

The proto-Lockean and Lockean understanding of the idea that the earth naturally belongs to all mankind is entirely consistent with Nozick’s “blithe assumption” that the earth is originally unowned.

e. The last argument on behalf of some sort of original and equal right to the earth is a cousin of the argument that points to the Lockean endorsement of the earth originally being held by all mankind in common.  This last argument points to Locke’s and Nozick’s endorsement of an “enough, and as good” proviso as evidence of a deeper and unacknowledged commitment on the part of these friends of self-ownership to a natural and equal right to the earth.  The thought is that the underlying rationale for such a proviso must be (or is most plausibly understood to be) each persons’ moral claim to equal original ownership of the earth.

The problem with this last argument is that the endorsement of an appropriate and well-crafted “enough, and as good” proviso is very different from the endorsement of a natural and equal right to the earth.  The role of a proviso is to provide each individual with moral protection against a certain sort of worsening of her condition – a worsening that might arise through (otherwise) legitimate acquisition or exercise of property rights.  If the acquisition or exercise of (otherwise) valid property rights would worsen the situation of an individual in the specified ways, the individual has a complaint in justice against the holders of those rights or against the worsening exercise of those rights.  The key point here is that the establishment, development, and exercise of property rights might very well lead to unequal outcomes for individuals without anyone’s condition being worsened (in the specified sense) and, hence, without an appropriately formulated proviso being triggered.

Advocates of a Lockean proviso always begin with an individual being in an especially difficult position in virtue of another’s monopoly ownership of some material resource (the proverbial waterhole) or, more precisely, because of the owner’s specific decision about the deployment of that resource (e.g., a decision not to allow access to the water to anyone who does not sign a slave contract).  The role of provisos in the Locke-Nozick tradition is to protect individuals against these sorts of dire possibilities rather than to protect individuals against inequality of holdings.

A proposed proviso that would be triggered whenever any significant inequality appears (along the relevant dimension) would not really be a proviso, i.e., “an additional bit of complexity”[10. Robert Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974) 174.] that attaches to a freestanding theory of property rights.  Instead, it would be an alternative and egalitarian principle of distributive justice.  I have not here argued against such principle.  But I have argued that such a principle cannot be implicated in the advocacy of a Lockean or Nozickian proviso.

One of the ways in which a well-developed natural rights libertarianism can go beyond the standard “right-libertarian” picture is by motivating a well-crafted proviso (or set of provisos) that will deal plausibly with problems of the sort posed in the Spencer passage.  In the development of such a proviso, the idea is to build on the obvious fact that not everything I can do with my property is permissible.  One builds on this idea by including certain sorts of non-invasive worsening among the impermissible actions.  Although I own this knife, I may not permissibly insert it in your chest.  Although I own this plastic cage, I may not permissibly lower it so that it surrounds and imprisons you.  Although I own this donut shaped piece of land, I may not permissibly preclude you from passing out of the donut’s hole.[11. See the fascinating discussion in Book II, chapter II of Grotius’ The Rights of War and Peace (1625) in light of which Locke’s proposals for provisos must be read.  (Indianapolis: Liberty Fund, 2005).] In Locke’s language, the latter two actions impermissibly (albeit non-invasively) “straiten” you.  Note, by the way, how much better such a proviso handles Spencer’s land problem than any natural and equal right to the earth does.

3. Problematic Construals of a Natural and Equal Right to the Earth.

Everyone knows that there are two basic construals of the purported right to the earth.  There is the joint-ownership construal, i.e., the earth is collective property and all persons are equal shareholders in it.  And there is the equal division construal, i.e., each person has a private right to an equal share of the earth.  The fact that both the composition of the set of persons and the inventory of raw material are constantly changing greatly complicates any determination of what the application of these rights to the real world would be like.  However, even if we put aside these massively inconvenient facts, in well-known ways both the joint-ownership right and the equal division right are deeply problematic.

Part of the problem with the joint-ownership right has already been expressed in Spooner’s response to the early Spencer.  Joint– and, hence, monopoly — ownership of the earth seems to subject individuals to a much more inescapable form of the tyranny that Spencer associates with private ownership. (Many private owners are remarkably eager to have others on their property and are remarkably unable to push people around by excluding them from their individual domains.)   It is worth noting how extensively under joint-ownership the collectivity would be able to exercise power over the individual.

Spencer assumed that “society” would rent land to individuals at the rates that would prevail if land remained privately owned.  Hence, except for land as such, private ownership and private returns from skill, effort, and entrepreneurial alertness would not be fundamentally affected by the societal right to the earth.  However, if society were a single owner of all land, the cost of leases granted by society would at least tend to rise to the point at which leaseholders would barely gain at all from acquiring those leases. Through its monopoly pricing of land the collective would capture almost all of the gains due to leaseholders’ skill, effort, and alertness.  Almost all the fruits of individual labor would accrue to the collectivity.

Moreover, there is no reason why the collectivity should limit to economic matters the assertion of its monopoly-based will over the individual.  Almost anything the collectivity favors individuals doing – e.g., signing petitions on behalf of joint-ownership of the earth – the collectivity will be able to make a condition of being a leaseholder (or even being permitted on any leasehold).[12. I am aware that some people will think, “But the collectivity is us.”  Right.] In more ways than he realized, Cohen was correct when he said that joint-ownership of the earth renders self-ownership nugatory.[13. Cohen, 98.]

In contrast, the well-known problem with the equal division construal of the right to the earth is figuring out what an equal division would be — even if we know how many equal shareholders there are.  (There is also the difficulty of figuring out which equal share goes to which person.)  The most plausible proposal is that equality in shares is a matter of equality in market value of shares of raw material and that shares of equal market value be attained through an auction of all of raw material into which each member of society enters with equal auction vouchers.  Unsurprisingly, I think there are problems with this proposal.  Here I try to spell out some of my concerns.

Participants in this auction may seem to have some idea of how much to bid for which allotments of raw material on the basis of (what may at first appear to be) existing market prices for various types of raw material.  (Will that be the market prices that exist before or after the announcement of the pre-auction social confiscation of all raw materials?)  But are there really market prices for raw stuff as such that might guide our auction participants?

Suppose that there is believed to be a ton of a certain sort of coal in a certain hill.  How much of the current market price for the right to extract that anticipated ton of coal is the market price for the raw coal as such?  How much is the price for that right instead a matter of the expected costs of extraction, or processing, or transporting that coal and a matter of the expected gains from doing so – which expected gains are a function of all sorts of preferences and beliefs people have with respect to made goods (and other raw material)?

Even if we (or some of us) could isolate the contribution that some batch of raw stuff will or might make to the value of some final product, there is still a sense in which the raw material only makes any contribution at all – and therefore only has some value — because of the productive activities of an indeterminable number of people who have created the uses to which that raw material can be put and the means of putting that material to those uses.  For this reason, any scheme for an equal distribution of raw materials on the basis of the market value of that material as such must in part involve a redistribution of (the value of) people’s productive efforts.  Do current people possess natural and equal rights to the past and current productive efforts that give to raw materials whatever value they now contribute to final products?

In addition, some people are going to be much better at assessing the future value of all sorts of bits of raw material than others will be.  What those people purchase at the auction will turn out to be much more valuable than what bad assessors purchase.  Isn’t this as bad as some people being quicker than others at getting to or laboring upon unowned raw materials?  Are the unequal outcomes of people’s unequal insights into future values to be allowed to persist or are they to be taxed away?  If the taxing away is announced in advance, lots of useful knowledge about the future value of different bits of raw stuff will not be developed.

I am uncertain, however, whether these sorts of considerations are theoretically fatal to the idea of a natural right to an equal share of the earth or merely show that no scheme to institutionalize the right is feasible.

A complete survey of the prospects for a natural and equal right to the earth would also look at less robust versions of the joint-ownership and the equal division rights.  On these versions the relevant equal claim to the earth is merely protected by a liability rule so that, e.g., a society’s right to the land would merely consist in its claim to be compensated for any individual’s unauthorized taking of this or that bit of its land.  This attenuation of the right of original joint-ownership would in effect destroy the monopoly power of society over the earth.  However, it seems to make more urgent the need to identify the value of the portions of the earth that are taken without authorization.   I leave the evaluation of these less robust versions of original rights to the earth as an exercise for another day.

Concluding Remarks.

I have argued that the burden of proof rests on those who affirm a natural right to the earth, that this burden is not successful borne by advocates of such a right, and that such rights are problematic in their own right.  I want to close with a different sort of point.

One of the major problems with discussions of an (alleged) natural right to the earth is the implicit background presumption that initial possession of raw material is an important determinant of wealth or welfare.  Since the total supply of raw material cannot be increased, once there are lots of people around, any one person’s possession of raw material will diminish the amount of raw material available (without permission) to others.  If the initial possession of raw material is a key determinant of wealth or welfare, it follows that once there are lots of people around, any one person’s possession of raw material will tend to diminish others’ prospects for wealth or welfare. Hence, the demand for some sort of initial equal distribution of raw material.

However, this background assumption is massively off-base.  We all gain from others getting hold of raw materials and transforming them into resources. We (almost always) gain much more from this than we would by merely getting a first grip on raw stuff.  As Locke points out, the reason that we can all end up as winners even if no raw stuff remains available for initial acquisition is that human beings are creatively productive.   “This shews how much numbers of men are to be preferred to largeness of dominions… [at least when there are] … established laws of liberty to secure protection and encouragement to the honest industry of mankind.”[14. John Locke, Second Treatise of Government (1689) (Indianapolis: Hackett Publishing, 1980) §42.]

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  • fredfoldvary

    There is a distinction between the possession of land, and the ownership of the yield or rent of land.  Homesteading is justified for the rights of possession, but not of the rent.  There is no clear way to determine the parameters of homesteading, such as how much time, area, and exertion is required to establish title.  The rights of possession do not imply a right to the rent of land.  A market only requires rights of possession, because the economic rent is a surplus not needed to be kept by the title holder to have an efficient market.

    A premise of John Locke in the Second Treatise is human equality, and the implication is that there is an equal right to the benefits from nature.  This can be implemented by distributing the rent to all persons equally, in the relevant community.  If people so desire, the rent can be collected by the community governance as revenue for the provision of public goods.  For practical policy options in today’s world, land rent serves as the most equitable and efficient source of public revenue.

    As for material land, such as oil, water, and minerals, the equal-benefit principle is that the economic rent be collected and shared equally.  How this is done is a secondary question to be answered after the primary question is settled, whether the right to the rent belongs to the first comer or to the members of the relevant community.

    The provision of public goods generate a rental which becomes a subsidy if government taxes labor and capital for the provision.  Hence so long as government provides public goods, the avoidance of this subsidy requires the collection of the rental.  If the provision is by private enterprise, then the rental is collected by the firms by contract.  

    • Cal

      While the reduction of state interventionism to a low ‘land-rent’ tax certainly appears theoretically much less suboptimal than the status quo, it would seem that there is no such thing as economic rent accruing from private ownership of land on a market ( So the proposed tax in point of fact looks even better as its actual rate must be zero. Viva George.

      • fredfoldvary

        Caplan and Gochenour in the paper cited mistakenly have a physical rather than an economic definition of land.  In the economic meaning, nature is what is apart from and prior to human action.  Spatial land always remains a natural resource, and its yield is indeed economic rent, as land has no opportunity cost of provision.

  • Tomkow

    I submit that  the Retributive theory of property

    meets the burden of proving that self ownership gives rise to ownership over stuff and

    explains how self ownership can give rise to social institutions of property.

  • Fred states: “A premise of John Locke in the Second Treatise is human equality, and the implication is that there is an equal right to the benefits from nature.”

    I don’t see how such an implication can be derived from Locke’s conception of human equality, nor for example, how a phrase like “all men are born free and equal” has much to do with your “equal right to the benefits from nature.” 

    We’re all born entitled to equal protection under U.S. law as individual natural persons (and to a much lesser degree, corporate persons are also), but no one is entitled to an equal share of the “benefits from nature.”

    Eric Mack does a great job correcting Lockean misconceptions like this in sections 2.d and 2.e above. 


    Fred states: ” … whether the right to the rent belongs to the first comer or to the members of the relevant community.”

    I don’t see this as an either/or problem. The original acquirer generally has an exclusive right to the produce from land in the beginning, but when, for example, s/he starts hiring people or incorporates, and the land begins to produce more than his/her labor can produce alone, the property rights are increasingly diluted and become, at least in part, property of the community, and therefore taxable (usually in the form of “income derived from property sources”).

    • fredfoldvary

      The alternative to equal benefits is homesteading, a doctrine that is arbitrary  and incoherent.  Thus equality implies equal self-ownership and equal ownership of that which is not a product of labor.  The alternative of unequal ownership of natural resources puts some in a superior position, contrary to equality.  There is no moral exclusive right to land in the beginning if there is a market rent, since the rent implies that land of that quality is not freely available.

  • Unconvincing. You did make the very important qualifications that restrictions on the right of free passage must be prevented, but you apparently wish for this to be solved via tort. That is not very efficient and you failed to recognize the constant, although less obvious and egregious, restrictions on freedom of movement that are simply a result of everyone trying to live on the same planet and yet constantly bumping up against one another.

    Pricing those is the least contentious and most efficient way to do this, but no mention of that
    was made. Pigovian taxation for pollution are generally accepted, but one could apply the same logic as an alternative to the Lockean Proviso, and uphold the Law of Equal Liberty without infringing liberty. Indeed, failing to do so is itself an infringement upon liberty.

    I’m sorry to say that there were lots of baseless assertions and value judgements that are unqualified, such as the statement that being considered an equal shareholder in the fruits of nature nullifies self-ownership. I don’t see why anyone should take that as a given, since bold claims like that require lots of supporting evidence. Seems rather silly, honestly. Like an inversion of reality.

    The right to an equal share of the fruits of nature is not only compatible with liberty, but essential for it, as it is the most efficient way to ensure equal access rights. If you do not have a right to equal access to the earth, then you are necessarily restricted, and others placed in a position of privilege. It is possible to solve that via Occupancy and Use if we decide we all want to be poor and in chaos, but that is not necessary… yet it is also unnecessary that we submit to a regime of unequal access rights. Paying for what we use and the value we receive is the most sensible way.

  • Shawn P. Wilbur

    I guess I’m having a little trouble connecting the sort of “appropriate and well-crafted” proviso you see in Locke to the actual “enough and as good” proviso, which seems to call for our appropriations to leave the equivalent of a “whole river of the same water” for others. That’s potentially even a far more demanding criteria than equal division.

  • Property is not a physical property – it is a biological property. We find the idea of property
    rights deep in evolutionary history, in the first territorial fishes.The lobe-finned fishes, from which the land vertebrates evolved,  have been territorial for literally
    hundreds of millions of years. If we ultimately evolved from territorial lobe-finned fish, then there is a deep biological basis for property rights.

    Take another example, the brightly-colored
    gobies, which are very territorial. “For many vertebrates, a clearly
    defined territory for offspring rearing seems to be fundamental. This
    involves aggressive behavior of a great variety on the part of the male
    (and sometimes the female too), usually of a ritual nature, but
    effective in defending an area” (John T. Bonner The Evolution of Culture
    in Animals, 86). These fish establish territories where they live,
    feed, mate, and protect their eggs from predators. Schooling fish, like
    herring, are simple in both coloration and behavior. Why spend energy on
    dangerous bright colors to attract mates when everyone releases their
    eggs and sperm at once, collectively? And why develop complex behaviors
    if there is no reason to, if there is no conflict, since there is no
    need to defend territory if you are a schooling fish in the open ocean? A
    great deal of energy is spent on making literally millions or even
    billions of eggs, let alone sperm – and there is only a limited chance
    that it will be either your sperm or your egg that survives. But with
    territorial fishes, the energy is put into protecting the fewer numbers
    of eggs, but those eggs are more likely to survive. And, more
    importantly for the individual fish, the female knows her eggs are
    protected until they hatch, and the male knows the eggs were fertilized
    by his sperm. Thus, there is a certain advantage to protecting
    territory, since it ensure that any particular individual fish has
    passed on its DNA to future generations. Herring can never know for

    One of the consequences of the establishment of territory by
    lobe-finned fishes was that complex behaviors had to evolve as well.
    This is due to the conflict created by the creation and defense of
    territory. The conflict comes about between the needs to aggressively
    defend territory and to sexually reproduce. If one just defends, one runs
    off potential mates. For example, passive gobies lose territory – and cannot
    attract mates. What develops from the conflict between the
    straightforward actions of defense and sex is the mating ritual, a
    nonlinear feedback behavior designed to allow members of the opposite
    sex to enter one’s private space. It is a dance. It is a dance wherein
    linear elements conflict to create nonlinear systems, which reorganize
    the chaos created by the conflict into a new order. Ritual is the
    emergent system created out of the conflicting elements. It is a safe
    space in which the participants play out the conflicts, to ensure mating
    can occur. One result is that gobies differentiate between individuals.
    Territoriality (notions of private property)
    created individuality through the need to ritualize sex. More, it
    resulted in the creation of ritual itself, which led to more and more
    complex behaviors as different species evolved, including art and
    religion in humans.

    It was, incidentally, the lobe-finned fishes
    that evolved into the first amphibians – and territoriality was carried
    onto the land, and into every land vertebrate. All amphibians, reptiles,
    birds, and mammals are territorial. And this includes humans.

    evolution established property
    rights as a fundamental way of ensuring reproductive fitness. In social
    mammals, this became partly socialized, since it was the tribe or
    family group as a whole that owned the territory they defended. And all
    humans groups have always believed that they owned the land – otherwise
    they would not have spent so much time, energy, and lives on protecting
    it from others. In social animals, including pair-bonding animals, this
    resulted in the development of personal relationships, including love.
    But none of this could be possible without a complex neural system to
    allow for the creation of such complex behavior.

    Social mammals have
    strong social bonds even among those who are not mates. These bonds were
    generated through elaborating mating rituals into things like grooming
    rituals. Primates have strong grooming rituals, which have led to sexual
    pleasure, leading to recreational sex in humans and bonobos, and
    massage in humans. We can see this behavior in the fact that “the human
    neurotransmitter vasopressin, which is closely associated with
    aggression, is also deeply implicated in the drive to stay with and
    cherish one’s mate and protect one’s offspring. Without the resistance
    to strangers there could be no individuality and love” (Frederick
    Turner, The Culture of Hope, 170). The conflict is found even at the
    neurotransmitter level. Which should not surprise us, since we have
    already shown that it is the protection of territory that resulted in
    the kinds of rituals that created pair-bonds in the first

    Animals that have territory not only protect that territory, but
    work to improve it. Gobies organize rocks in their territories, and
    keep the caves they create to live and hide in clean. Bower birds
    decorate their bowers to attract females. Often the male animal himself
    is decorated, or he creates a larger, more beautiful territory – or,
    oftentimes, both. Thus undoubtedly explains why human males feel the
    need to accumulate more and more property, and why we try to decorate ourselves with things ranging from nice clothes to tatoos. And it also explains why, when we own property, we have more of a tendency to take care of it than if we do not own it. When we use private property,
    we treat it like someone else will come along and clean up the mess we
    make, or that if we don’t take what is there, then someone else will. We
    do this because deep in our evolutionary past, in our deepest of
    instincts, we believe that not only do we have to keep our own
    territories in good shape to attract mates, but that if any
    competition’s territory is ruined, then potential mates will be
    discouraged from mating with our competition. This is the purpose of
    raids on the territory of other tribes, or exploiting commons – which
    results in the Tragedy of the Commons (social cooperation to maintain a commons, as demonstrated by Ostrom, stems from our extending our tribal tendency to co-maintain common property). So if we truly want to protect
    the world’s resources and keep the world clean, then to the degree possible, all property must become privately owned, without danger of a government being able to come along and take that property. No amount of social engineering will be able to change this biological imperative to owning property.

    this is certainly best overall. For it is only on our own land where we
    can be free to be who we are. It is only on our land where we and our
    families – our tribes – can be safe. There, we can live and love and
    prosper and speak as we wish. All of our freedoms derive from property rights – and property rights are part of our evolutionary heritage. Thus, there is nothing less scientific than the idea of abolishing private property, as the socialists have wanted to do. The abolition of property is downright unnatural, from a mammalian – and even land vertebrate – point of view.

    Thus, property is very deeply a-rational and quite non-ideological in its origins. This is why property has never been abolished anywhere – all that changes is who controls the property
    and how. Tribes fight to protect territory from other tribes.. Various
    ways have been developed to protect groups’ and individuals’ property.
    Small groups have owned huge tracts of land and allowed others to live
    and work on them (as we saw in slavery throughout the world, various
    versions of feudalism throughout the world, and in more recent forms of
    state like the USSR and Communist China). But there has always been property
    ownership and control. It’s part of being a vertebrate descended from
    lobe-fined fishes. One cannot go against nature without facing severe

    What we should therefore be interested in is discovering what kind of property
    ownership has the most positive results for most of the people most of
    the time (keeping in mind that utopia is not an option – utopia does
    mean “nowhere” after all). Is there a way of organizing society – or
    letting society organize itself – which counteracts many of our negative
    natural tendencies, such as hatred of the Other, resulting in racism
    and genocides (two things which existed before any society larger than a
    tribe developed, contra Rousseau’s unfounded belief in the “noble
    savage,” a creature which never existed – all anthropological and
    primatological evidence to date shows that civilization really is

    • “This is why property has never been abolished anywhere – all that changes is who controls the property and how.”

      Troy, great article. I picked this sentence out from the rest because it describes why I believe Jefferson, Madison and Adams created a fully public corporate entity in 1787, and then gave it legal power to issue “base money” for use by privately-owned banking corporations. We now call this entity the “United States” (which is not to say that the money being issued today comes from that effort).

      In other words, yes, the psycho-biological concept we call “property” will always be with us as individual human mammals, but individuals come and go (die) quite frequently, so we need a reliable, everlasting “parking place” for property rights …. and only an entity modeled on the corporation (which has unlimited life) can provide such a repository or “holding area” for property rights as they transfer from natural person to natural person.

    • fredfoldvary

      The geolibertarian system fully recognizes the importance of property rights.  So long as the land rent is shared, the title holder has full rights of possession, including control and transfer.  The equal right to the rent is also a property right.  

    • Scottinmn

      Well, sure…if by “biological property” you mean something like “if X has enough power to keep Y away from some space, or to eat Y, etc., then said space, or Y itself thereby becomes X’s property.”  But most of us consider “might makes right” to be an inadequate ethical theory, and I’m surprised to hear anyone offer this in the name of libertarianism.  Well, not totally surprised actually, since this isn’t the first time I’ve seen the theory defended on basis inconsistent with its supposed principles…

  • Andrew Cohen


    Re: The burden of proof.  I have no idea how to settle the question of where the burden of proof appropriately lies, but I am not persuaded that your account of pre-theoretical judgements does it.  I say this because while I think we all share pre-theoretical judgments about the sorts of wrongs you discuss, this doesn’t suggest anything to me, post-theoretically, as it were.  You assume, I think, that wrongs indicate the presence of rights that have been infringed (or some such), but since its unclear what a right is, this assumption needs defense.  Its true, I think, that most of those involved in this debate agree that there are rights, but I don’t think this is not enough to warrant the sort of assumption needed here.  (Myself, I tend to think wrongs are, pre-theoretically–and perhaps post-theoretically, conceptually prior to rights.) 

    Lots more of interest to consider here.  I particularly like your suggestion that what is needed is a well-crafted set of provisos.  I think that is exactly the right approach.  I’d say it somewhat differently, though.  I’d say that what we need is a fully defended set of normative principles of toleration.


  • fredfoldvary

    John Locke wrote that human beings are “all equal and independent.”   There is no logical reason why the first person to use a site has permanent rights to the yield of that land.  Moral equality implies that all have an equal right to the benefits of natural resources, otherwise those who have more are superior and not equal.  

    The Lockean proviso is about claims to the yield of land, beyond possession.  It states that one may only claim the benefit of land if there is free land of equal quality available to others.  The implication is that if such land is not available for free, one may not obtain that benefit all for oneself. 

    Suppose someone landed in an unclaimed island and took 90 percent of the value, and the second person could only have 10 percent.  There is no logical reason why the first claimant should have the 90 percent.  Given moral equality, the default is that the two each have half the benefit from the land.

    • Fred, the best response I can think of comes from Alan Ryan’s “Property and Political Theory,” wherein he states on page 44:

      ” . . . the point of having private is to reward effort, and the apparent implication that everyone ought to begin life with an equal chance to acquire property. It may be worth repeating that it is very likely that Locke’s own concerns were at odds with this. The Second Treatise may well have been meant to do no more than answer the awkward genetic question of how property could have arisen without universal consent to individual acquisition. None the less, what is left by Locke is an argument with awkward implications. If the title to property is labor, naive common sense will be sure to wonder why the natural title of the worker is so much weaker than the legal title of the owner at any given time. Even naive common sense may be willing to agree that what labor entitles one to is the fruits of that labor, rather than to the physical thing on which effort has been expended—to value added, so to speak. But that is no comfort  to the landowner, who does not lose his title to the laborers, perhaps, but certainly loses title to the land. Nobody created the land, so nobody can get a natural title to more than the improvements that their efforts make to it. The so-called original agents of production may pass into the temporary custody of some men, but they cannot be OWNED. . . . it is not unlikely that Locke would have agreed that the natural title to things naturally useful was, so to speak, conditional on making good use of them, but that the exigencies of society demanded something more fixed by way of legal titles.”

      This point by Ryan causes me to see the land value tax as providing a necessary disincentive to idle holding of land, speculation, or absentee land-lording. In other words, as soon as natural persons are not actively “making good use of” (a reasonably manageable portion of) land, they will be motivated to avoid the tax by selling the land to some who can make better use of it.

      So, responding to your comments above, in my view, Locke does not stand for a “first person [acquiring] permanent rights to the yield of that land,” nor would someone landing on your hypothetical island be allowed to acquire title to more land that s/he could make use of with her labor. And if s/he tried, under current U.S. income tax law, once a person on your island hires someone, s/he is subject to an income tax on the land’s productive capacity. (But the beneficial purpose of this kind of income tax is presently obscured by a currency-regulating income tax.)

      • Also, regarding Fred’s hypothetical island, where the first inhabitant claimed 90% ownership of the island, it’s probably politically incorrect to discuss, but Locke provided much of the justification for the Colonists’ taking of land that supposedly belonged to Native Americans. Such a justification was simply based on the theory that no one can claim ownership (really, use rights) of large tracts of land without some deliberate, systematic, purposeful laboring upon it.

        In Chapter 5 of “The Lockean Theory of Rights” A. John Simmons writes:

        “But while labor must thus be intentional and purposive, labor cannot consist simply in ::having:: the intention to use a thing or a purpose for it. Intending to take X, thinking of X, declaring X one’s own, wanting X, pointing at X, and seeing X first are all ways of ::not:: laboring on X. Labor must show enough seriousness of purpose to ‘overbalance’ the community of things. In situations of competitive liberties (e.g., where anyone may take property in a thing by labor), the Lockean rule is ‘first come, first served.’ But to count as ‘first comer,’ an appropriate act must be performed; and for things of use the appropriate act for claiming them is to use them (i.e., labor on them to produce a result of use). One’s labor need not be completed to ‘begin a property,’ but it must (to abuse legal language) constitute a real ‘attempt’ and not mere ‘preparation.'”

        • Damien S.

           Of course, the Native Americans were doing exactly that — just not in ways the Europeans recognized.

          Though even without their agriculture and forestry management, would we really want to endorse the right of farmers to evict hunter-gatherers based?

          • MARK_D_FRIEDMAN

            Gee, I kind of like using the internet to communicate with smart people like you, rather than using all my energy chasing buffalo off cliffs for food.


      It is not true that Nozick (at least) holds that “the first person to use a site has permanent rights to the yield of that land” or to permanent ownership of it. Much more is required. Please see my comment to Professor Mack below. 

  • Would your views change if the term “nature” was substituted for the term “land?” Our species cannot survive on this planet without access to what nature freely provides. When any individual or group of individuals claims any part of nature as their own property this is by definition a claim to privilege that is enforceable only by the exercise of coercive force. Locke understood that in a newly- and thinly-settled territory such claims to privilege are difficult to exercise because the individual must labor in order to produce from nature what is necessary for survival. New arrivals, unless subjected to some form of indentured servitude or slavery will not labor for the landed at a wage lower than what they can produce by settling land directly and working the land for themselves. A fundamental moral question is whether we embrace what is best described as a “labor and capital goods theory of property,” under which taxation of what we produce or the income generated by commerce in these goods or services equates to theft of legitimate private property; or, do we embrace as just a principle of property that makes no distinction between what we produce and what nature freely provides.

  • j_m_h

    An interesting view. I share the view that equal share and joint ownership are both flawed starting positions. In addition to the problems identified above one thing that I find problematic is that we impose a view of private ownership that evolved over millennia upon some initial starting point, and then proceed to hold it constant.

    I also like the shift of meaning for Locke’s Proviso. The Proviso was a check on individual subjugation within society — men had an exit option. This clearly wasn’t an option for isolation since even in Locke’s time a man on his own without any support from the benefits of the existing civilization would have a worse life than most surfs. But land is not the basis for most of our modern life and even accounting for the land rents other factors count more for generating surplus.
    So I wonder what might be a modern version of the Proviso?

    • foldvary

      Land rent has been analyzed as generating 20 to 30 percent of national income.  Half of real estate value is land value, and real estate distortions generated the Crash of 2008.  So how is land not an important basis for modern life?  The modern implementation of the Proviso is to collect the natural rent of land for either equal direct distribution (as Alaska does) or to pay for the provision of public goods.  Land rent is a surplus that can be tapped for public revenue without economic damage, but governments today instead impose economy-crushing taxes on labor and capital goods.  What economists call a “producer surplus” is in actuality mostly land rent.

      • Fred, your comments here confirm my belief that no effective land value tax, or tax on income derived from property sources, is possible while we’re being controlled and regulated under the Commerce Clause as “chartalists:”

        You’re assuming we’re presently living under a monetary system that is similar to the post-Civil War monetary system Henry George lived under.

        • No, I make no assumption about the monetary system; I don’t see it as relevant. I don’t know what you mean in saying that no effective tax is possible.

  • Cal

    This is a clear-headed and enlightening essay. Grasce.

  • Like Andrew, I have a hard time knowing what to make of burden-of-proof claims. If the left-libertarian claim is that individuals all individuals have an equal right to the earth, then it does indeed sound like the burden of proof is on them to demonstrate this. And it does seem reasonable, contra Cohen, to assume in the meantime that the Earth is unowned.

    But it’s not clear to me that left-libertarian arguments (at least the historical ones, which I am more familiar with) really rely on this premise. Spencer, for instance, makes his argument on the basis of his law of equal freedom.

    Given a race of beings having like claims to
    pursue the objects of their desires—given a world adapted to the
    gratification of those desires—a world into which such beings are
    similarly born, and it unavoidably follows that they have equal rights
    to the use of this world. For if each of them “has freedom to do all
    that he wills provided he infringes not the equal freedom of any other,”
    then each of them is free to use the earth for the satisfaction of his
    wants, provided he allows all others the same liberty. And conversely,
    it is manifest that no one, or part of them, may use the earth in such a
    way as to prevent the rest from similarly using it; seeing that to do
    this is to assume greater freedom than the rest, and consequently to
    break the law.

    And when I think about the problem the way that Spencer has set it up, my intuitions about the burden of proof change. Someone who wants to claim a permanent exclusive property right seems to bear the burden of proof, and until that burden is met it seems reasonable to assume that all persons have an equal right to the use of the earth.

    • Cal

      Have you read Anthony de Jasay on the presumption of liberty regarding property? He addresses just this question with quite some clarity and eloquence. E.g.  and

      • No, but thank you for these references! I will take a look. 

    • Shawn P. Wilbur

      The Anthony de Jasay material might be useful for questioning whether there is an originary “right” of all to the use of the earth. He is very good at distinguishing between robust, reciprocal rights and a range of possibilities, unprohibited acts, etc. But I’m not convinced that the rest of his approach regarding property is obviously more sound than Spencer’s. It seems to me that the application of the principle of equal does not in any way depend on positing some original right to use. Instead, it is a principle on the basis of which we might propose a system of rights to acts which were previously simply unprohibited.

      Mack’s ultimate argument, about the superiority of individual appropriation of raw materials as a means of fulfilling the spirit of Locke’s primary proviso, is indeed a “different sort of point.” And with regard to that point, the burden of proof issues will probably look very different depending on our understanding of how the degree to which this “natural stuff” we might be appropriating is in reality part of natural systems, and thus the extent to which all of our appropriations and transformations of “raw material” into “resources” involve changes in the general environment of all individuals and all property. 

      • Cal

        The Jasay material is concerned precisely with ‘application of the principle of equal [re: natural stuff]’. Jasay argues the same point Mack does regarding the beneficence of property, but makes it secondary to the epistemological ‘burden of proof’ point which is based on emergent convention and general rules along the line of Hume and Hayek… and, interestingly enough, Nietzsche:


        Whether Property can be squared with Justice.—When the injustice of property is strongly felt (and the hand of the great clock is once more at this place), we formulate two methods of relieving this injustice: either an equal distribution, or an abolition of private possession… The former method was frequently tried in antiquity, always indeed on a small scale, and yet with poor success. From this failure we too may learn. “Equal plots of land” is easily enough said, but how much bitterness is aroused by the necessary division and separation, by the loss of time-honoured possessions, how much piety is wounded and sacrificed! We uproot the foundation of morality when we uproot boundary-stones. 

        Again, how much fresh bitterness among the new owners, how much envy and looking askance! For there have never been two really equal plots of land, and if there were, man’s envy of his neighbour would prevent him from believing in their equality. And how long would this equality, unhealthy and poisoned at the very roots, endure? In a few generations, by inheritance, here one plot would come to five owners, there five plots to one. Even supposing that men acquiesced in such abuses through the enactment of stern laws of inheritance, the same equal plots would indeed exist, but there would also be needy malcontents, owning nothing but dislike of their kinsmen and neighbours, and longing for a general upheaval.

        If, however, by the second method we try to restore ownership to the community and make the individual but a temporary tenant, we interfere with agriculture. For man is opposed to all that is only a transitory possession, unblessed with his own care and sacrifice. With such property he behaves in freebooter fashion, as robber or as worthless spendthrift. When Plato declares that self-seeking would be removed with the abolition of property, we may answer him that, if self-seeking be taken away, man will no longer possess the four cardinal virtues either…

        –Friedrich Nietzsche, The Wanderer and His Shadow (1880)


        Possession and Justice. When socialists prove that the distribution of wealth in present-day society is the consequence of countless injustices and atrocities, rejecting in summa the obligation towards anything so unjustly established, they are seeing one particular thing only. The whole past of the old culture is built on violence, slavery, deception, error; but we, the heirs of all these conditions, indeed the convergence of that whole past, cannot decree ourselves away, and cannot want to remove one particular part. The unjust frame of mind lies in the souls of the “have-nots,” too; they are no better than the “haves,” and have no special moral privilege, for at some point their forefathers were “haves,” too. We do not need forcible new distributions of property, but rather gradual transformations of attitude; justice must become greater in everyone, and the violent instinct weaker.

        –Friedrich Nietzsche, Human, All Too Human (1878)

        • Shawn P. Wilbur

          The missing word was, of course, to “equal [freedom],” in response to Matt.

          • Cal

            Aha, but this regarding Anthony de Jasay:

            I’m not convinced that the rest of his approach regarding property is obviously more sound than Spencer’s. It seems to me that the application of the principle of equal liberty does not in any way depend on positing some original right to use. Instead, it is a principle on the basis of which we might propose a system of rights to acts which were previously simply unprohibited.

            was addressed in the linked Jasay articles and I’d be interested in the shortcomings you perceive in them, if any. Here, for example, is part of a relevant excerpt on ‘acts which were previously simply unprohibited’:

            “The passage of an unowned resource into someone’s ownership opens up two putative sources of loss to others: loss of use, and loss of opportunity. Loss of use occurs when others who, for example, used to hunt or graze their herd on the unowned land, now find themselves excluded from it. One view about this is that since they had done nothing to appropriate the land for themselves while they could, they have no claim against the new owner who has done so. The other view is that compensation for loss of use is due. It is an open question whether compensation is at all possible; did the periodic issue of free beef to reservation Indians compensate them for the lost buffalo hunts? Clearly, it is not the quantities of meat involved in the loss that decide the adequacy of the compensation. The issue has no obvious resolution and it is just as well that its importance diminishes as history trudges on.

            Loss of opportunity, on the other hand, would remain a major problem if it were a genuine one. We shall have to see whether it is. The argument runs along these lines (Cohen 1995):

            The world divides into two parts, the known and the unknown. All resources in the known part are now owned, and enough and as good has not been left for the propertyless. The owners have in fact pre-empted the opportunities that would otherwise have been available to the propertyless. Perhaps it was inevitable that some people go short, but why these particular ones? [Cohen notes with indignation that accepting this would mean accepting that first come, first served. One wonders why first come, first served should be an object of indignation]; However, there is still the unknown part of the world to consider. If it is not too unlike the known part, it is likely to contain resources, hence opportunities to discover them. Maybe the fatal proviso, violated in the known world, can yet be satisfied in the unknown one?’

            However, it seems plausible to suppose that over large numbers, each discovery diminishes the average probability of an at least equivalent one left waiting, if only because the easiest discoveries are likely to be made first. A better way of expressing this idea of search yielding diminishing returns is to say that the finding cost of resources as a proportion of their value increases in the long run. There was a time when the individual prospector or wildcatter had a good chance of getting rich, with finding costs per ounce of gold or barrel of oil not exceeding a few cents. More importantly, inventions of very great commercial value were often made by lone inventors at the cost of a few man-years or less. Today, finding costs for sub-surface resources may run to a quarter or more of their value, and the lone inventor has almost disappeared in the shadow of great research laboratories manned by battalions of scientists. Freak strokes of genius and lucky strikes are no doubt always possible, but their share in resource discovery is surely declining while average finding cost keeps rising. Edison having discovered the light bulb, everybody else has lost the opportunity to discover it. …”

            –Anthony de Jasay, ‘Property and Its Enemies’, Philosophy, Vol. 79, No. 307 (Jan., 2004), pp. 57-66

          • Shawn P. Wilbur

            JSTOR links aren’t always accessible to all of us, so I was making do with several other of de Jasay’s articles and my previous reading. But having now read both essays you linked, it strikes me they are not nearly as clear and direct with regard to the burden of proof questions as the work I was reading. I was particularly thinking of a passage in “Property of ‘Property Rights’?” where he says:

            “Ownership is a fact of life whose origins are veiled by the mists of
            pre-history. By the elementary rules of debate, the burden of proof lies
            with those who claim that a right is needed to justify it.”

            Now, as seductive as de Jasay’s arguments are, I think there are perfectly good reasons to believe that “the elementary rules of debate” just might not be all that is required to solve the problem of the disposition of natural resources. Among the strongest is the “natural stuff” which we might appropriate is always a part of natural systems of considerable extent, which don’t respect our property lines, no matter what standards we have for appropriation. If we don’t simply deny the systematic connectedness of nature, then, whatever ambiguities there might be about titles on other accounts, we know that nominally private appropriation will have some “downstream effects,” some or all of which can be expected to influence the property of other owners. In an advanced technological society, where “individual” appropriation can have the force of numerous individuals behind it, we can expect more and more significant effects on others. The same sorts of concerns raise questions about the validity of arguments that present non-proviso appropriation will lead to better fulfillment of the “enough and as good” proviso. In some cases, that will doubtless be true. In others, the environmental costs will far outweigh other benefits. In some, it should be possible to compensate for losses by compensatory labor — but not, of course, if we simply treat nature as “stuff.”

          • Cal

            Indeed that excellent Econlib column is succinct and direct on the ‘burden of proof’ point, though somewhat less developed than the journal articles.

            Your objection appears to center on negative externalities of property acquisition. We are all affected, at least to a degree >0, negatively (and positively) by most everything others have done (or chosen not to do) before us. I don’t see what this has to do with property acquisition in particular or why it would be assumed that net ‘downstream effects’ are negative–net ‘losses’ that must be compensated for (by whom, to whom?). If such net negative externalities are demonstrable and significant enough to whatever municipality or what have you, they can be addressed as such.

            Jasay, Mack, etc. argue that it’s more likely the reverse: net positive externalities from property. In any case, Jasay’s epistemological point regarding the burden of proof is logically antecedent to this issue.

          • Shawn P. Wilbur

            Well, the argument for net positive externalities appears to be based on a rather flawed understanding of the nature of the resources in question. Ecology is the reason why we might be concerned in particular about resource appropriation. Downstream effects might indeed create individual gains, but without attention to ecology the chances of the net effects of piecemeal acquisition being positive are statistically rather small, I think. Issues like loss of wetlands, loss of biodiversity, disruption of river systems, etc.  have real and far-reaching property costs, even if one denies the “deeper” ecological arguments about environmental degradation.

          • Cal

            There may simply be disagreements of comparative value on the margin of things like ‘biodiversity’ as such… but it is usually argued in these parts (Coase, Demsetz, Simon, TL Anderson and co., Ostrom despite her idiosynratic terminology, etc.) that delineating property in legible form reduces deleteriously excessive ecological damage caused by open-access or ill-definition. So those responsible for the formation of legible property in e.g. land would seem to be a prime example of a positive externality in this regard, not negative. 

            I’m not sure what you mean by ‘deeper’ ecological argumens. If you mean that you are a life-ist, that is you believe in rights for all living matter or something like that, then you have a strong disagreement of value with me and most everyone else. And that’s that.

    • Ffoldvary

      As I analyze it, moral equality implies an equal right to the benefit of the earth, rather than the literal use of the earth.  Thus possession may be unequal, some possessing greater and other less or not land value, but the pooling and equal distribution of the rent would satisfy equality.

      • “moral equality implies an equal right to the benefit of the earth”

        Why? The implication, if it is real, is certainly not obvious. It looks to me like an arbitrary stipulation.

        But even if it were ‘originally’ true, the fact that people trade the rights they possess means it would become almost immediately false.

        I don’t see the point.

        • fredfoldvary

          Consider the alternative, where some have much land value and others have none.  Nobody produced the land, so how is this unequal ownership justified?  Homesteading arbitrarily favors the status quo.  If unequal shares are not justified, then the default is the application of equality.  Regarding trading, moral rights are inalienable.  A permanent slave contract is morally null and void.  The moral right to be free from coercive harm is an inherent aspect of human nature, and cannot be separated from one’s being.  If one receives a share of rent in money, one may trade that money, but one retains one’s  ownership of future rent.

          • What we have is a number of options for moral/legal theory. How do we decide between them? We can appeal to a priori intuitions. But our intuitions are the products of the theories we accept. That does not get us far, especially given that our favoured theories, and thus our intuitions, conflict. I suggest we look at the consequences of implementing these rival moral theories. Yes, there will be difficulties in pursuing that road. But it is better than the dead end of an appeal to a priori principles.

            Who says moral rights are inalienable? You do. I don’t.  A steadfast adherence to intuition gets us nowhere. Rights are more valuable to a person if he can trade them. If we look to consequences, we will favour free trade – in everything.

            Who says a permanent slave contract is morally null and void? You do. Aristotle denied it. Like you, Aristotle appealed to human nature (in his case, our reasoning capacity for moral reasoning). Impasse again.  Walter Block favours allowing permanent slave contracts. Why? Because it can make people better off.

            Sorry to be so brief, but I am tied up most of today (I’ll come back this evening – UK time).

          • foldvary

            A tradable moral right may be more valuable at the time of the transaction, but one may later regret the decision.  The right to spend a dollar does not derive from the greater value at the time of the transaction.  Later, one may wish one had been prevented from doing it.  Morality cannot derive from subjective values; rather, subjective values are a premise from which a universal ethic derives.

            Morality emanates from the nature of persons, just as gravity emanates from mass, and just as nothing can prevent mass from being endowed with a gravitational force, nothing can void the morality inherent in personhood.  I don’t regard this as intuition, but rather a proposition stemming from the origin of morality.  It is always evil to coercively harm other persons.  One cannot alienate this moral fact, and so the right based on this moral prescription cannot be alienated.      

          • Hi Fred,

            In my haste, I misrepresented Aristotle somewhat in my last message. Let me offer an equally hasty correction.

            Aristotle did not (so far as I know) defend permanent slave contracts. He defended slavery – enforced slavery. Further, he defended it in a quasi-consequentialist way: he maintained that it was good for the slave as well as the slave-owner. This was only quasi-consequentialist because he inferred the consequences from his intuitive assumptions (that all non-Greeks were incompetent in moral reasoning and that therefore they would be better off enslaved).

        • foldvary

          Can you trade away your right to be free from coercive harm?  Human beings are endowed with morality, as an inherent element of personhood.  You cannot trade away your morally equal status as a person.  Thus you cannot trade away the morality that is derived from moral equality.

          • Hi Fred ,

            As you probably expect, I disagree with most of what you say in these last two posts, but not all. Let me explain briefly.

            Of course we can sometimes regret making a trade. We may sometimes regret actions of every action type.  This is simply because our knowledge, and particularly our foreknowledge, is incomplete. But the fact that we might regret an action of a specific type (kissing a girl, getting married, taking a walk even) is not an argument for prohibiting all actions of that type – many of them are worth doing.

            Your sentence

            “Morality cannot derive from subjective values; rather, subjective values are a premise from which a universal ethic derives”

            appears to be self-contradictory. The first half says morality cannot derive from subjective values; the second half claims that it does.

            I agree with the first half, that morality cannot be derived from subjective values; but I don’t see what that has to do with our exchange. I think the subjective theory of value, at least in its positivistic interpretation, is false even in economic theory. So my talk of trade is not a way of bringing in subjective values.

            I think most people agree that morality is essentially connected with the nature of persons; but they still disagree about the content of morality. That is why your appeal to human nature is arbitrary: people with opposing moral views usually appeal to human nature too, either explicitly or implicitly.

            Your statement

            “It is always evil to coercively harm other persons”

            seems to me to be plain false. Recall the famous trolley problem: if I do nothing five people die; I can save the five, but only by killing one other. Isn’t it right for me to kill the one? You don’t think so? What if it was five hundred rather than five? Or five million?

            Suppose someone sells his “right to be free from coercive harm.” Suppose the person to whom he sells the right begins to beat him. Is the first person now suffering coercive harm? Surely not. He has consented to it, so the harm is not coercive. It follows that you cannot sell the right to be free from coercive harm. But only because you have made it so by definition – by putting ‘coercive’ into the specification of the right. In fact, that involves a circularity since coercion, I maintain, should be defined in terms of rights violation. So a right not to be coerced gets things back to front.

            But there is nothing in principle preventing someone from selling (or giving away) his right not to be physically beaten. In fact it happens often: just take a look at the way consensual sado-masochists carry on; or boxers, for that matter.

            I agree that all normal human beings are morally responsible. That is a metaphysical quality of a normal human and it is not the sort of thing that can be traded. But that does not prevent people from having different moral statuses. Medieval Kings and Queens held their subjects to be morally responsible agents, and punished them for getting out of line. You cannot infer equality of moral status from the fact that we all have moral responsibility – at least, not validly.

          • What I meant was that subjective values themselves cannot be a universal ethic. If values are not subjective, where do they come from?

            Regarding the trolly problem, if one kills one person to save five, the killing is evil; but not killing him would kill the five, which is also evil. So killing the one does less harm than killing the five; it is the lesser evil, but still evil.

          • If one sells one’s right to be free from coercive harm, then while he is consenting to the beating, it is voluntary, but if he then wants it to stop, it becomes coercive. A morally valid contract has to have an exit option, at some reasonable price, otherwise it becomes a slave contract. A boxer who decides to suddenly quit has a moral right to do so. Coercion can be defined as without consent, thus the concept is apart from rights.

          • No, Fred, that definition of coercion is no good. If people start selling their shares in a company in which I have shares, they reduce the value of my holdings without my consent; but they do not coerce me. Perhaps I intended to sell those shares to pay for an operation which, thanks to those people’s actions, I can no longer afford. Their behaviour makes me physically worse off and might even lead to my early death. But they have still not coerced me. Why? Because they harmed me without violating my rights.

          • Fred Foldvary

            Yes, those who sell shares do coerce you, but they do not harm you.  I define harm as an invasion, in contrast to mere offense that depends only on the subjects values.   What is morally evil by the universal ethic is coercive harm, not just coercion.  The sellers of the shares injure you but have not committed harm; it is an incidental injury.

          • fredfoldvary

            There is wide agreement that morality generally deems “harm to others” as evil.  We therefore need to distinguish “harm,” as violating rights, from other types of injuries.  Thus “harm” involves an invasion into another’s domain. Other acts that leave another less well off are injuries, including offenses and incidental injuries.  In this sense, harm to others is inherently a violation of rights.  Those who sell shares of stock do not harm you, because you knew when buying stocks that they can drop in value.  You voluntarily agree to take that chance.  You are financially injured, but not harmed.  

  • Bryan Mills

    One paragraph of this article in particular caught my attention:

    [I]f society were a single owner of all land, the cost of leases granted by society would at least tend to rise to the point at which leaseholders would barely gain at all from acquiring those leases. Through its monopoly pricing of land the collective would capture almost all of the gains due to leaseholders’ skill, effort, and alertness.  Almost all the fruits of individual labor would accrue to the collectivity. 

    It’s not at all clear to me why this should hold unless we’re assuming that the carrying-capacity of the Earth is not sufficient for its current population.  Unless I’m mistaken, the rent from a resource should reach equilibrium at that resource’s contribution to productivity over the marginal substitute, which is only the full value produced if the there is no acceptable alternative.  But in that case, wouldn’t a Lockean proviso disqualify claims of private ownership on the grounds that any private claim would deny others access to the only suitable resources?

    On the other hand, a claim of equal ownership on those grounds seems self-contradictory when paired with our usual intuition on reproductive rights.  If people are allowed liberty over their own reproduction (i.e. the liberty to have as many children as they want), and each child also has a claim to equal ownership in land, then isn’t the act of creating more individuals effectively also a coercive redistribution of property rights?  (Specifically, an involuntary transfer of 1/N+1 of the property rights in the Earth’s resources from each of the N living individuals to the newly-born N+1st?)

    I guess where I’m going with this is: it seems to me that both positions – that of equal right of use of natural resources, and that of equal right to claim exclusive ownership (e.g. by labor) – carry substantial burdens of proof, and it’s not all clear to me that a denial of the one on grounds of skepticism in any way provides support for the other.


    Proefessor Mack,
    Thank you for this excellent post and for your many insightful books and essays over the years that have defended libertarian rights. I have read and profited from many of them. I suspect that you feel less lonely in this task then you did 30 years ago.

    On the specifics of this post, with respect to your #1 (Burden of Proof), I wholeleartedly agree with your intuition. It seems to me that the strongest support for this view is that “birthright” entitlement to some ownership or beneficial interest in natural resources, i.e. one that arises without lifting a finger is just weird.  In his 2005 piece “There is No Such Thing as an Unjust Intial Acquisition,” Edward Feser points out that this “logic” shouild apply as well to distant planets and galaxies, which we must also collectively own in some fashion or have rental rights to. This clearly seems absurd, but no less absurd than that we come to own heretofore undiscovered resources on the seabed in the middle of the Pacific just by being born. Thus, Feser concludes that “the claim that we all own everything is more in need of justification than the claim that no one initially owns anything.” I wonder if you are familiar with and relying at all on this argument.

    Second, in your Point #2 you refer to “Locke and Nozick’s endorsement of ‘enough and as good’ proviso…” But with respect to Nozick, I think this is only part of the proviso. In defending Lockean appropriation in ASU he says (at 175), “Perhaps the idea, instead, is that laboring on something improves it and makes it more valuable; and anyone is entitled to own a thing whose value he has created.” So, the claimant must not only leave others no worse off, but must improve the resource in some substantial way. It is true that on this same page he states that, “The crucial point is whether appropriation of an unowned object worsens the situation of others.”But these two conditions are perfectly compatible because it is the enhanced productivity of privately owned resources that ensures that non-appropriators are in fact not disadvantaged by the reduction to individual ownership. Indeed, Nozick quite clearly relies on this assumption in justifiying his proviso: “Is the situation of persons who are unable to appropriate…worsened by a system allowing appropriation and permanent property? Here enter the various familiar social considerations favoring private property: it increases the social product by putting means of production in the hands of those who can use them most efficiently…” (ASU, 177).  Do you agree?

  • G.A. Cohen, who both came up with the labels “right-libertarianism” and “left-libertarianism”

    The broadly agorist tradition has been using the term “left-libertarian” (with a quite different meaning) for longer than that.

  • CFV

    Dear Professor Mack,

    Very interesting essay. I’d have many things to say, but I will narrow myself to a brief comment concerning the ‘burden of proof’. Of course, we all know, thanks to Descartes’ Discourse on the Method, that the wise starting point about anything should be disbelief. However, it seems to me simply not true that “our per-theorethical judgments on behalf self-ownership are much more powerful and inescapable than any pre-theoretical judgments that can be mustered on behalf of an original and equal right over raw extra-personal stuff.”

    Consider ‘manna from heaven’. Even right-libertarians – like Nozick – have the pre-theoretical intuition that, if there is some manna from heaven, it should be distributed equally. See ASU, p. 198. So, a left-libertarian counter-argument would be something like this:

    1. If there is some manna from heaven, we should have equal entitlements to it.

    2. Natural raw resources are morally on a par with manna from heaven.

    3. Therefore, we should have equal entitlements to natural raw resources.

    Carlos F. Véliz

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