Published online by Cambridge University Press: 01 January 2020
Possession and control of an object enhance the freedom of its holder. Property protects this freedom; but it restricts the freedom of ail others. Drawing the boundaries of freedom with respect to external objects is a central and difficult challenge for libertarians. What justifies my ownership of, say, the cup I am drinking from? Several possible answers come to mind: answers based on need, on welfare, on desert or on equality. None of these is endorsed by the libertarian; none of these, arguably, can justify private property in the cup. From a proprietarian point of view the legitimacy of any holding derives from the moral power of its previous owner. An owner has the power of transfer, the power to make another person the owner. What justifies my ownership of the cup is the exercise of the power of the person who gave it to me; his ownership was justified by the exercise of the power of the person who sold it to him; the latter's ownership was justified by the exercise of the power of the person who bequeathed it to him; and so on and so forth. But series of transfers of this kind, long as they may be, must come to an end. There must have been a point where something not privately owned became the private property of an individual or group.
Libertarians must assert a principle of just appropriation. Such a principle specifies the ways in which a person can come to own a natural resource which was previously not (privately) owned.
1 Waldron, Jeremy The Right to Private Property (Oxford: Clarendon Press 1988), 263Google Scholar, and Thomson, J.J. The Realm of Rights (Cambridge, MA: Harvard University Press 1990), 324Google Scholar, present formulations that have reductionist connotations whereby P doing Ω. is P's appropriation of X. That leads them to assume that Ω. must be performed on or to X. In fact Ω., or any other physical act is not the appropriation; Ω. can be merely its public aspect or it can be its justification. The performance of Ω. need not involve X at all: it could be signing one's name in a register (publicisation) or winning a competition where X is the prize (justification). Cf. Kant, Immanuel The Metaphysics of Morals (1797), trans. Gregor, M. (Cambridge: Cambridge University Press 1991)CrossRefGoogle Scholar, 80f., and Hegel, G.W.F. Elements in the Philosophy of Right (1821), trans. Nisbet, H.B. (Cambridge: Cambridge University Press 1991), 88.Google Scholar
2 S.R., Munzer A Theory of Property, (Cambridge: Cambridge University Press 1990)Google Scholar, Ch. 4, makes a similar distinction.
5 Locke, John Two Treatises of Government, (Cambridge: Cambridge University Press 1960), 288Google Scholar
6 Locke says, ‘at least where there is enough and as good….’ This has led Waldron, Private Property, 210-1, to interpret Locke as not intending to impose a proviso at all but merely making explicit a factual assumption about the world when no one appropriates more than he can use without spoilage. Schmidtz, D. ‘When is Original Appropriation Required?’ The Monist 73 (1990) 504-18;CrossRefGoogle Scholar and Thomson, Realm of Rights, also include a proviso in their account of appropriation; Narveson, Jon The Libertarian Idea (Philadelphia: Temple University Press 1988), 69-71Google Scholar, does not do so explicitly but defends Nozick's proviso from some critics.
8 So it is not the kind of proviso suggested by Mack, Eric ‘The Self-Ownership Proviso: A New and Improved Lockean Proviso,’ Social Philosophy and Policy 12 (1995) 186-218CrossRefGoogle Scholar. Mack's self-ownership proviso prohibits certain uses and exercises of powers deriving from ownership. Thus Adam cannot refuse to allow shipwrecked Zelda to corne ashore his legitimately appropriated island. This, according to Mack, is a noninvasive nullification of Zelda's ‘world interactive powers’ which are a component of a full account of her self-ownership. The possibility of self-ownership- based restrictions on property is an extremely interesting issue, but it is not one I shall pursue to examine here.
12 John, Christman The Myth of Property (New York: Oxford University Press 1994), 60-1Google Scholar
13 This is analogous to Locke's argument that since consumption is necessary for subsistence, and property is necessary for consumption, then appropriation must be permissible (Two Treatises, 286).
15 I am here agreeing with Cohen's exclusive focus on the proviso in his reconstruction of Nozick's doctrine of appropriation (Self-Ownership, 74ff.).
16 Gibbard, Alan ‘Natural Property Rights,’ Nous 10 (1976)CrossRefGoogle Scholar, 78t.; Becker, L.C. Property Rights: Philosophie Foundations (London: Routledge and Kegan Paul 1977), 44Google Scholar; Waldron, Private Property; as well as Kant, Metaphysics of Morals, 77, 81-3Google Scholar. See also Nozick on the principle of fairness, Anarchy, 90-6.
21 A.J., Simmons ‘Original Acquisition Justifications of Private Property,’ in Paul, Miller, and Paul, eds. Property Rights (Cambridge: Cambridge University Press 1994), 82,83n.Google Scholar
22 Ibid., 83
24 Cf. Nozick, Anarchy, 182.
25 Ordinary Lockean examples do not undermine the unfamiliarity claim. For example, if I tended a garden, I may have acquired rights to the produce of that garden which others do not have. Cases such as these amount to what I called a positive principle of appropriation, whereby one makes a change in the physical (or otherwise empirical) world thereby bringing about a change in the moral world. There is indeed nothing strange or unfamiliar about this idea, and I have made no such claim. My argument was directed at a negative principle of appropriation whereby an agent acts directly on the moral world to unilaterally create rights. It is this idea that I (and others) find strange. What is unfamiliar is a moral power to create rights to myself against others, without the consent of those who will be burdened by duties correlative to this newly created right. And it is this kind of moral power that a negative principle of appropriation assumes.
27 As Nozick famously puts it: ‘Liberty upsets patterns.’ See Anarchy, 155-64.
29 The constraints of the libertarian proviso apply not only to appropriation but to the accumulation of assets through transfers too. First, because Nozick says so: ‘A theory which includes this proviso in its principle of justice in acquisition must also contain a more complex principle of justice in transfer…. If the proviso excludes someone's appropriating all drinkable water in the world, it also excludes his purchasing it all’ (Anarchy, 179). Second, perhaps more importantly, there can be no plausible reason to limit the source of harm to an act of appropriation even though an equivalent harm can ensue from transfer. If the harm (worsening) has to be considered initially, it must be considered subsequently. If the harm is morally relevant, what possible difference could it make if it is the outcome of original acquisition or of transfer?
31 Notice that Nozick is very careful not to call the improvement in other aspects of well-being compensation but always refers to is as counterbalancing benefit. Compensation is due only in cases of rights violations and is typically paid by the violator: neither of which is the case in the libertarian scheme of appropriation.
33 Of course account must be taken for complications due to population growth — an issue I shall be dealing with explicitly in the discussion of dimension 3 below.
34 This might imply, albeit on different grounds, a position similar to Hillel Steiner's that all persons have an original right to an equal share of the world's natural resources (Steiner, Essay on Rights, 235f.).
38 And that is the explicit object of the proviso: ‘A process normally giving rise to a permanent bequeathable property right will not do so if the position of others … is there by worsened’ (Nozick, Anarchy, 178 italics added).
39 The success of Nozick's diversion trick can be seen in the critical literature on this subject. Some writers have accepted a version of W(2). (See Thomson, Realm of Rights, 330ff.; Narveson, Libertarian Idea, 87-93.) Others have criticized Nozick for not considering the gains involved in alternative Systems of property (communal ownership, redistributive Systems etc.). (See J. Arthur, ‘Resource Acquisition and Harm,’ Canadian Journal of Philosophy 17 (1987) 337-48; Christman, Myth, 62.) But there is no call for such comparison. The point of the proviso is to guarantee counterbalancing gains to the loss of liberty, not to advance a consequentialist defense of private property. Nozick's scheme is to find benefiting effects in the System as a whole rather than in particular appropriations. The correct critical approach is to force him back to consider particular appropriations. Comparing alternative Systems of property is to concede too much in advance.
40 Wolf, C. ‘Contemporary Property Rights, Lockean Provisos, and the Interests of Future Generations,’ Ethics 105 (1995) 791-818CrossRefGoogle Scholar, suggests that the rationale of the proviso requires restricting use, consumption and damage of one's property to take account of the needs of future generations. Legitimate appropriation thus results in what he calls usufructuary rights. Whether or not such a claim can be sustained, this is not a condition on appropriation, but on use. Unless usufruct is considered non-ownership and then the interests of future generations prohibit any appropriation at all. Cf. Sanders, J.T. ‘Justice and the Initial Acquisition of Property,’ Harvard Journal of law and Public Policy 10 (1987), 377-8.Google Scholar
41 On ‘The Non-Identity Problem’ see Parfit, Derek Reasons and Persons (Oxford: Oxford University Press 1984), 351-80Google Scholar. Lomasky, L.E. Persons, Rights, and the Moral Community (New York: Oxford University Press 1987)Google Scholar, 145f., suggests that the paradox makes it unnecessary to rectify any but the very proximate past injustices.
42 This is analogous to Parfit's Narrow Person-Affecting Principle. See Reasons and Persons, 39ff.
43 Analogous to Parfit's Wide Person-Affecting Principle (ibid., 396ff.) that is motivated by the wish to avoid the repugnant conclusion (381-90).
44 Of the similar problem of including all possible persons in the original position Rawls says that it is ‘to Stretch fantasy too far’ (Rawls, John A Theory of Justice (Oxford: Oxford University Press 1972), 139)Google Scholar.
45 Nozick, Anarchy, 181Google Scholar. See Cohen, G.A. ‘Self-Ownership, World-Ownership, and Equality,’ in Lucash, Frank S. ed. Justice and Equality Here and Nom (Ithaca: Cornell University Press 1986), 123-5Google Scholar; cf. Cohen, Self-Ownership, 76-8Google Scholar, for such an interpretation and a criticism of the position and Narveson, Libertarian Idea, 69-71, for an attempted defense.
47 Ibid., 182
48 It might be argued that the purported harms that W(4) falls to take into account are irrelevant from a libertarian perspective. If P's appropriation makes R better off than non-appropriation then the only ‘harm’ is that R's situation could have improved even more had Q appropriated X instead. But since a libertarian morality recognizes only negative duties of non-harm and, in particular, within such a scheme P has no obligation to benefit R, it may be quite proper to ignore such ‘harms.’ I think this reasoning is wrong. First, there is no claim that by not appropriating (an act of omission) P might benefit R and therefore he should not appropriate. Rather it is that by appropriating (an act of commission) P blocks a possible benefit to R. It is P's action that harms R, not his inaction that benefits him. So the distinction between harms in comparison to non-appropriation and harms in comparison to counterfactual appropriations cannot be made in terms of a negative duty not to harm and a positive duty to benefit. Second, to make sense of the omission-commission distinction we might imagine what would happen if P didn't exist — would R's position be better or worse? The idea is that if R's position would be no better had P not existed then R's lower welfare cannot be attributed to P's actions, only to his inaction. Now, if on the assumption of P's non-existence, Q would have come along and benefited R more than under present conditions, then P's non-existence would be better for R. The conclusion is that a restriction on P's appropriation because Q's appropriation would be better for R does not amount to a positive duty to benefit R, but a negative duty not to harm him.
50 This example was suggested to me by an anonymous referee for CJP.
51 See Munzer, Theory of Property, 274ff.
54 The incident of absence of term — an indefinite duration of the title to the thing. There is no fixed point in time in which ownership ceases. Honoré, A.M. ‘Ownership’ in Making Law Bind (Oxford: Clarendon Press 1987), 168Google Scholar
55 I would like to thank Jerry Cohen, Avner de-Shalit, Jim Griffin, David Heyd, Christopher Lake, David Miller, Saul Smilansky, Hillel Steiner, Peter Vallentyne, Jo Wolff, and an editor and two anonymous referees for CJP, for their helpful comments on earlier drafts of this paper. Research for this paper has benefited from the financial assistance of the Recanati Foundation.
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