First, I would like to thank all those commentators who responded to what I wrote in “Natural Rights and Natural Stuff.”  Second, I would like to clarify or restate a few of the basic points that I sought to make in that contribution.

To begin with, I did not think that I was entering into deep or controversial waters when I started with the claim that the burden of proof rests on those who would assert that persons possess a natural and substantively equal right to the earth.  Contentious philosophical theses which lack impressive pre-theoretical support have to be defended.  The point of my brief comparison of the pre-theoretical support for a right of self-ownership and for an equal right to the earth was that even the former – which has much more pre-theoretical support – has to be argued for.  Absent potent argument, disbelief is the proper stance.  Some commentators seem to think that in making this first claim about the burden of proof I was also claiming that no argument is available to bear this burden.  But it is the second section of my contribution that is devoted to supporting this second claim.

Matt Zwolinski provides us a passage from Herbert Spencer that is supposed to be relevant to the burden of the proof issue.  Spencer says,

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 away 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.

But I think it is much more plausible to view this passage as an appropriate attempt by Spencer to take up the burden of proof.  Indeed, the argument in this passage is very close to the very first argument on behalf of a natural and equal right to the earth that I discuss and criticize in section 2a of my contribution.

I described that first argument as beginning with the highly general egalitarian premise that all raw stuff should be equally divided among persons – perhaps (I said) for the sake of there being an initial equality in persons’ capacity for action.  Just such a call for equality in capacity for action seems to be the linchpin of Spencer’s argument.  (Spencer’s linchpin principle does not merely call for non-interference with all individuals;  it is at best a principle of equal non-interference based in part on the idea that whenever I possess or use something you would like to possess or use I am interfering with you.)

Moreover, the criticisms I state briefly in section 2a of my original piece readily apply to Spencer’s principle.  First, it is a broader (and, hence, a bolder) principle than the conclusion that it seeks to deliver, viz., that there ought to be an original equal ownership of the earth.  Hence, anyone who doubts the conclusion is not going to be swept into it by being presented with the premise.  Second, the strong egalitarian premise does not seem to point to self-ownership because self-ownership involves a very unequal distribution of raw personal material.  (Given Spencer’s understanding of freedom as capacity for action in pursuit of one’s desires, if there are two people of unequal native capacities, the institution of self-ownership for each would be a violation of equal freedom.  Hence, here too, the strong egalitarian premise cuts against self-ownership.)

Two of the arguments for an original and substantively equal right to the earth that I state and dismiss in “Natural Rights and Natural Stuff” draw upon Lockean ideas – or at least Lockean phrases.  There is an argument that seeks to exploit Locke’s saying that God gave the earth to all mankind in common and an argument that seeks to exploit Locke’s (and Nozick’s) endorsement of an “enough, and as good” proviso.  Let me return briefly to each of these arguments.

With respect to the argument that turns on Locke’s saying that all mankind originally possessed the earth in common, it is simply a fact that Locke does not thereby assert anything like an original substantive equality of ownership.  (I tried to make this point cutely in my contribution by citing Hugo Grotius’ explication of the notion of the earth being held in common by all mankind.) Readers of Locke know that (1) he is primarily concerned with denying Robert Filmer’s claim that the earth was given by God to Adam (and his direct descendants); (2) Locke parses the line about the earth being originally in common as “…no body has originally a private dominion, exclusive of the rest of mankind…” [Second Treatise §26]; (3) Locke explicitly rejects the idea of an original joint-ownership of the earth; and (4) Locke never asserts that an individual may not take more than an equal share of the earth.  If there is, under certain circumstances, a reason not to take some portion of the earth, that reason is not that everyone has a right to an equal share.

With respect to the argument that acceptance of an “enough, and as good” proviso reflects or commits one to a natural and equal right to the earth, I tried to indicate very briefly why such a proviso is a very different sort of critter than a principle calling for equal shares of raw material.  The main point – which abstracts away from all sorts of issues concerning the proper grounding and formulation of such a proviso – is that advocacy of a proviso involves the recognition that certain otherwise innocent exercises of well-grounded property rights can (under certain circumstances) impermissibly “straiten” [Second Treatise §36] individuals and that individuals have claims in justice against being so hindered.

Recall how advocates of such a proviso always focus on special hard cases, e.g., the shipwrecked individual trying to come ashore on Crusoe’s island.  The proviso advocate holds that it is impermissible for Crusoe to block or threaten to block that individual from coming ashore.  The proviso advocate does not hold that it is impermissible for Crusoe to keep more than half of the island.  The proviso advocate holds that even if I own all the land around you, I may not preclude your leaving your holding.  He does not hold that I have to share the land equally with you.

I attempt to motivate and work out a plausible proviso along these lines in “The Self-Ownership Proviso: A New and Improved Lockean Proviso,” Social Philosophy and Policy, vol.12 no.1 (Winter 1995).  A later, but less systematic treatment, appears in various sections of my “Self-Ownership, Marxism, and Egalitarianism: Part I. Challenges to Historical Entitlement,” Politics, Philosophy, and Economics vol.1 no.1 (February 2002) and “Self-Ownership, Marxism, and Egalitarianism: Part II. Challenges to the Self-Ownership Thesis,” Politics, Philosophy, and Economics vol.1 no.2 (June 2002).