Consequentialism, Rights Theory

Who Owns the Land?

A topical issue in the global justice literature is territory. Mainstream writers have taken the position that collective entities, including states, are the ultimate title holders of land and resources (see here and here.) On this view, states may enforce a system of private property rights if they judge it the best way to create wealth, but the ultimate title to land and resources is in the state or other collective entity on behalf of the people, and not on individual owners.  Global justice, it is thought, is agnostic among various property regimes. A state may permissibly be capitalist, socialist, or a mix of both. And, on this view, a legitimate state always has the sovereign prerogative of expropriating land and resources. (Writers attach various conditions, such as the need to respect basic rights, the democratic nature of the appropriation, and so on.)

As against this collectivist view of territory, Lockean liberals claim that the state’s territorial sovereignty can only be justified as a cluster of powers that individuals have delegated to the state (see here and here). All justified power is delegated power, and the power over territory is no exception.  In the words of Hillel Steiner, “a group’s legitimate territorial claims can extend no further than the legitimate territorial holdings of its members or their agents.”  There is no such thing as undelegated territorial sovereignty.

Following in these venerable steps, in a forthcoming article I define the territory of the state as the sum of (1) the privately-owned space over which owners have delegated executive functions to the state, and (2) the space, ceded by private owners, that the state needs to discharge its delegated functions, that is, public property in a broad sense (“The Mystery of Territorial Sovereignty,” Social Philosophy & Policy, forthcoming.) Internally, the territorial powers of the state vis-á-vis its citizens derive from the land rights persons have. Externally, the powers of the state vis-á-vis foreigners derive from whatever exclusionary land powers individuals have delegated to the state.

One consequence of my argument is that only persons can originally own material resources. There is no original collective title over resources. Another consequence is that principles of global justice cannot be agnostic among property regimes. Socialism and similar forms of collective management and allocation are unjust (this conclusion is supported by other arguments as well.)

But the most important consequence of the view I defend is that no actual state has legitimate title over territory, because no actual state exercises territorial powers delegated by individuals. States have come into existence through various forms of skullduggery –fraud and murder against outsiders and insiders.

In my judgment, by supporting the primacy of the state’s jurisdictional powers global justice scholars have gone awry in at least two respects. They have largely endorsed the statist status quo, and they have failed to recognize the value of private property rights for addressing precisely the problems they profess to care about.

  • Bill Green

    There is a difference between common ownership rights (individual equal rights) and collective rights (joint rights) and the test for acting & infringement is different for each.

    Under common ownership, any individual can act so long as in their action they do not impede anyone else to their individual equal opportunity right to the same…

    Under collective ownership, one can only act if the get unanimous consent from all the other owners (or their delegated authority) prior to acting.

    • Rachelle

      “Under common ownership, any individual can act so long as in their action they do not impede anyone else to their individual equal opportunity right to the same…”

      What is the nature of this? What does it mean for an individual equal opportunity right to the same? We are basically saying that individuals therefore do have a right to equally access something that is commonly owned, but why? Do people own it or do they not own it? If they own it, then aren’t they allowed to exclude? If they don’t own it, then they can’t make claims about rights to it. This seems to be a middle ground between the two … But on what basis? *too many questions*

      • Bill Green

        It is just taking the Lockean Proviso to it’s natural conclusion.

        Everything that has no human labor inputs starts out “owned in common” as an individual equal access opportunity right.

        Access and use (take action without asking any permission) whatever you like exclusively so long as you leave “enough and as good in common for others”

      • Les Kyle Nearhood

        An example would be a public road, or public park. It is held (not owned) in common with the caveat that your use cannot hinder others, or substantially change the asset.

        • Bill Green

          I think “public” is too loose a term.

          The right of way within the road itself is owned in common (as you said can not hinder someone’s use), but the road itself is owned jointly (collectivelt) as it was paid for with taxes and constructed with human labor.

          • Les Kyle Nearhood

            But not actually owned. Ownership means you have some sort of rights as to how to liquidate the asset. In this case public ownership means nobody owns it.

  • Chris

    Fernando, you really did not get to the point of the issue, here. I think it’s pretty much taken for granted that the territorial rights or whatever of the state is simply the sum of the rights delegated to it (i.e. there is no residual power, aka, there is no political authority). You could have at least fleshed out *why* the state isn’t entitled to everything to begin with. The reason, of course for libertarians, is that in order to come to own something (or be entitled to it), it must be through some process. The process in question is outlined by an entitlement theory (cf. Nozick). Let’s just take principles 1 and 2: acquisition and transfer, respectively. The state never acquired all of the territory/resources, since just acquisition consists in labor mixing. It can only be transferred these rights from people who have (through delegation), but these rights originated in the acquisition principles of the ET.

    In any case, you *should have*, to make your post more compelling and not obvious to libertarians, investigated acquisition principles. For example, G.A. Cohen argues that Nozick’s acquisition assumes that resources are initially unowned. But of course, for Cohen’s argument to work, he must assume that resources are initially owned in common. You could have asked “Okay, Cohen, by what process?” or “What are some reasons for accepting such an assumption?” or investigated problems with acquisition vis-a-vis the Lockean Proviso: “Why should we accept the institution of private property/appropriation if in fact it diminishes the opportunities of others? Are others entitled to these opportunities? Which opportunities, in particular, are diminished when there is private appropriation?”

    Those are useful questions. Your entire post, unfortunately, seems to already be common knowledge among libertarians. You are really just restating basic entitlement theory + illegitimacy of political authority.

    • Fernando Teson

      Thanks. You are right, of course. I would endorse Nozick’s account, but I cannot flesh out everything in a short post. And I agree that all this is obvious to libertarians. My purpose is to flag how far apart the mainstream literature on THIS topic is from Lockean views about territory. Hopefully, my article will have more meat.

  • Jerome Bigge

    Governments may claim “ownership”, but in reality the government at best is merely the collective opinion of the people. It does not actually “own” anything on its own.

  • Les Kyle Nearhood

    The state can legitimately have no rights save those granted by the people. Therefore the rights over property originate with the people.

  • M Lister

    I look forward to reading the paper, Fernando. As you can probably guess, I’m somewhat skeptical, but I’m sure it will be interesting. I might add that I have long thought that Onora O’neil pretty well smashed Steiner’s view here many years ago in her contribution to the Goodin/Barry _Free Movement_ volume, though of course Steiner doesn’t seem to agree! I’m also curious if you address Mathias Risse’s “common ownership of the earth” argument. I’m not really very sympathetic to that, but he’s very smart and very good, so probably worth addressing.

    • Fernando Teson

      Matt, thanks
      I haven’t seen O’Neill’s reply, I’ll check it out. As to “common ownership of the earth”, I’m as skeptical as you. Why not say that things were unowned? All of these arguments seem to me veiled (and not very subtle) ways to justify statism. If you say things are owned in common, then that’s the end of the argument, isn’t it? If we ever have private property rights, it’s by gracious concession of the rulers. For my money, I pick Nozick’s account.

      • Bill Green

        Saying everything that pre-exists human labor is “unowned” leads to many problems (see condition’s today).

        Saying everything that pre-exists human labor is “owned in common” (not collectively owned) like Locke believed leads to many elegant solutions!

        But you actually have to understand the difference between collective property & rights vs. common property & rights…

  • martinbrock

    You omit a third alternative. Ownership is a term of free association. The owner of a parcel of land is the person, say O, respected by other persons around the parcel as the governor of the parcel. For persons respecting O’s governance of the parcel, O is the owner of the parcel. For other persons, O is not the owner of the parcel, but if these other persons are not around the parcel, their opinion of O’s governance of the parcel is immaterial.

    “An association owns the land” is not a bad summary of this circumstance, but it could be misleading. If enough people around the parcel cease to respect O’s governance of the parcel, the terms of their association may change, and O no longer effectively owns the parcel. The association is merely an aggregation of its members. It has no will independent of the will of its members. Its terms only summarize the consensus opinion of its members, which may change from one moment to the next.

    A state does not change this formulation. If a state compels respect for O’s governance of a parcel, O still owns the parcel only insofar as people around the parcel respect his governance of the parcel. The state’s compulsion explains the respect of other persons, not O’s ownership of the parcel.

    • Ethan Pooley

      All interesting treatments of property do, at some point, deal in both the descriptive and the normative. Nor does dealing entirely in the normative, for a time, require that a person take any particular action. I could live among people who rejected my notion of property, thinking them thoroughly wrong, yet not adopt a violent response to their error. It is not totalitarian to deny that the truth is subject to a popular vote.

      Furthermore, since I DON’T believe that truth is subject to popular vote, democracy is already a preference and a concession. Totalitarianism is dangerous to all: fickle, prone both to corruption and revolution, inefficient, brittle…. I can hold that I am theoretically justified in blanketing the world with unilateral libertarian rule, yet still find a hundred excellent reasons not to do so.

    • Ethan Pooley

      Your point regarding association is, particularly on the descriptive side of the house, an excellent one.

  • Ethan Pooley

    Looking forward to it. I have personally found myself pushed to break apart the notion of territory into different aspects, just like we must do with property even to merely describe what we find happening amongst persons.

    A nation may reasonably claim a broader and more contiguous territory for the purpose of national defense, than for the purpose of legal jurisdiction, than again for the purpose of the physical exclusion of foreign persons. These neatly follow from the underlying rights of the individuals who empower the state.

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  • wmyl

    Not even an acknowledgement of the only libertarian philosophy that is both fully consistent and morally grounded on the land question: “geo-libertarianism”.

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