Lockean Proviso/Acquisition . . . . #
Property Rights: Original Acquisition
and Lockean Provisos
[note: this paper is published in Public Affairs Quarterly, vol. 13 #3, July 1999, pp. 205-227, and in my Respecting Persons in Theory and Practice, ch. 8, pp. 111-130)
Introduction
Many writers in the liberal tradition have agreed that at least some sort of “first appropriation” reasonably supports ownership by an individual, but have insisted that it does so only if that individual’s appropriation leaves, in the words of Locke, “enough and as good for others,” a condition that has come to be known as the “Lockean Proviso”. Interest in that proviso among philosophers was greatly stimulated by Robert Nozick’s discussion1, followed by many others. But my interest in this investigation is neither to catalog their views2, nor to arrive at the definitive interpretation of Locke. My thesis is twofold. First, I point out that “the” Proviso is subject to a number of conspicuously different interpretations - five, in my analysis, with two importantly different variants of one. Second, one of these is also the right one - not as an interpretation of Locke, but as a view about just property holding. The view I shall advocate is simpler and clearer than any of the others, avoids the conundrums to which they give rise, and provides a credible view that also has the merit of reflecting actual practice among individuals, if that is regarded as a merit. Indeed, I argue, it is the only view that really makes sense. But it conspicuously fails to do what most interpreters seem to think the right doctrine should do: justify the imposition by the State of more or less severe restrictions on the extent of legitimate ownership of natural things in the world by particular individuals or groups.
Liberalism
Throughout, I shall be considering only theories that, at least provisionally, accept certain very general claims distinctive of the political and moral outlook of liberalism. For present purposes, there are four such claims:
1. The sole legitimate purpose of the State is to promote the good, in the sense just stated, of people other than the rulers themselves, rulers being included only insofar as they are citizens, not rulers.
2. The assessment of that good is to be made from the point of view of the individuals concerned: value, for political and social purposes, is what satisfies their preferences - not what realizes somebody else’s view of what they ought to prefer.
3. Paretianism: If S1 is a social situation alternative to S2, and in S1 at least one (innocent) person is better off and no one worse off than in S2, then liberalism calls for preferring S1 to S2 - provided that S2 is not itself defective in respect of justice, in some way that can be specifically rectified.
4. The general thesis of self-ownership, which prohibits all utilization of people without their own uncoerced consent, which implies everyone’s negative right to “life, health, or liberty ...,” as Locke’s “Law of Nature” has it.3 Locke famously adds ‘property’ to that list, but we muste omitt it here, since the point of our inquiry is to determine whether there is such a right and if so, why. In effect, our question is whether a good case can be made for including property in Locke’s list on the basis of the others, especially liberty.
Obviously I cannot undertake a full-scale defense of liberalism here. But many would, I think, accept these four components even if they wouldn’t identify them as ‘liberalism’; and those who disagree may still find the present argument of interest, for it claims that liberalism as so characterized supports property rights without incoherence; if successful, it removes one source of support for nonliberal theories.
The subect of our discussion is whether and why full property rights may be acquired by individuals or groups of voluntarily acting individuals. We can shelve the question of the extent of individually owned property. In some primitive tribes, there is very little of it; and in any society much is owned by a number of persons rather than a single individual. Yet the tribes that forbid privatization to individual members declare areas of forest or land the collective domain of the group, to the exclusion of all others - privatization enough for our purposes. Moreover, their presence in the area before others came by is taken by them to justify their continued presence and exclusion of outsiders. Whether prohibitions by the tribe on privatization by individuals within it might be valid we leave open here. Our primary focus is on activities familiar in largely agrarian and industrial societies such as our own. Within such societies, property is typically acquired by exchange. Those activities are part and parcel of property rights, but they require that at some point property was acquired in some other fashion. If there is no initial acquisition, there is no acquisition.
The Proviso: The General Thesis
The passage containing the famous phrase goes as follows:
For this Labour being the unquestionable Property of the Labourer, no Man but he can have a right to what that is once joyned to, at least where there is enough, and as good left in common for others.”4
Some profess to deny the whole idea of a right to property. But even they often trace their misgivings to the “proviso”. At the least, there is a general sense that without it, liberalism is incoherent. Robert Nozick generalizes this concern, suggesting that “any adequate theory of justice” will have to contain a proviso to this general effect:
A process normally giving rise to a permanent bequeathable property right in a previously unowned thing will not do so if the position of others no longer at liberty to use the thing is thereby worsened.5
Let’s call this the “General Version” of the Proviso on Acquisition. It is general in that ‘worsened’ is unspecified. Made worse how? In what respect? And what measures worsening? Theories differ. Liberalism, however, provides the general premises for an answer. If we can show that individual A’s appropriation of previously unowned item x does not, by liberal standards, worsen the situation of any other individual, then the liberal must agree that A has the right to x in the circumstances in question. That won’t resolve every difficulty about particular cases, but it will show what is at issue in such disputes.
Five Interpretations
There is considerable divergence about the meaning to be attributed to the proviso as Locke states it. Here are quick descriptions of what I take to be the five options about what the relevant sort of worsening might consist in:
1. Unrestricted worsening.
2. Worsening in respect of B’s use of x itself.
3. Type-Worsening: worsening in respect of B’s ability to command similar resources (such as other pieces of land).
4. Utility-Worsening: reducing B’s level of utility.
5. Worsening in respect of B’s previously-acquired possessions.
In the following discussion, I examine the first four interpretations in enough detail to show why we cannot rationally accept them, given Liberalism. I remind the reader that these are not mainly offered as interpretation of Locke, but rather of the idea I take Locke to be trying to explain. I conclude that the fifth is the correct option, not just because it is the only one left, but on the basis of further direct arguments as well.
1. Excluding Nonliberal Desires
On the first view, A’s initial appropriation must not worsen B’s situation in any way at all. Even if what B finds wrong with A’s proposed appropriation is that B simply dislikes A’s having x, A’s appropriation of x is forbidden. This view is essentially a straw man, but one whose errors are important to be clear about. If A’s right to do something is subject to reversal at the hands of its negative impact on just any desires that anyone else may have, then every version of liberalism is impossible - along with every possible theory of whatever kind. For whatever anyone wants to do, somebody, somewhere, won’t like it - antiliberal theorists, for example. Liberalism requires that desires by B that F be true of A, simply as such, cannot be counted in support of publicly-imposed restrictions on A’s actions.
Restricting us to “nontuistic” desires, allowing only desires directed at states of the agent herself that can be characterized nonrelationally, would no doubt fulfill this requirement. But it would be extremely restrictive, and certainly far more so than we need. It is enough that no authoritative imposition of restrictions on A, by government or society at large, may be made merely on the basis of B’s preferences regarding A as such. Preferences of such kinds, if they are to have any weight, must be supported by B’s independently specified interests. For example, the fact that B doesn’t like A’s taste in paintings is irrelevant, but the fact that A’s painting is being hung in B’s living room is not. Or again, if the fact that x would benefit C - A’s child, say - is taken by A to be a strong point in favor of x, then we will account x as a benefit to A as well, and certainly not as a point against doing x.
2. Exclusive Use
The next three versions cover the mainstream options. All assume that the deprivation of B’s capability of freely using x in future constitutes at least a prima facie worsening, relevant for assessing proviso restrictions, but they differ considerably in how they do it. On the second version, B is worsened in respect of his ability to use that very thing, x itself, where ‘x’ ranges over particular things. That B, owing to A’s appropriation, can no longer use x is sufficient, as it stands, to make A’s appropriation of x at least prima facie wrongful. Should we accept this? No. To do so would restrict legitimate appropriations to no cases at all. To begin with, many uses will destroy x, say by consuming it: if A eats the whole apple, then B doesn’t. In those cases, (2) is obviously impossible
It may be suggested that they should share. But this rather natural idea, entertained by so many of communist persuasion, misfires in two ways. First, n people sharing an apple, or any material object, given large enough n, will satisfy no one. We can always find a group, G, large enough that trying to share x among all members of G will reduce the share of any given member below the level at which that person would find it worthwhile to bother with x at all. In the case of eating an apple, n is perhaps a dozen. In the case of an acre of land, x will vary greatly, depending on what they want to do with it. But then, that is part of the point: people will want to do different things, and for each envisaged use, there will be a value of n meeting the above condition. It will very often be just two: person A will want to do something with it that cannot be done by more than one person.
As a major type of case in point, consider the use of x as a means of production. This inherently excludes persons other than the producers. If Jones hammers now, with this hammer, then Smith does not. Going to cooperative uses may widen the scope a little, but will never expand the user-group to include everyone. Cooperative hammering at time t by all members of group G is either impossible or so ineffective that no member of G would have found it sensible to join G for that purpose. A group of women cooperatively washing linen in the creek excludes others when there would be too many for the creek, or not enough linen for the newcomers. Nonsharability beyond some threshold number n is the normal situation, not the exception. Moreover, n is usually very low - often just one. To require shareing, across the board, is self-defeating. True commons illustrate rather than deny this point. In a true commons, the number who participate is small, and nonmembers are decidedly unwelcome.6
We may add that social ownership and management usually decreases access, rather than increasing it. A man who simply owns a hammer can lend it to someone without further ado; but if it is controlled by the Central Committee, the process of securing permission to use it is likely to be so daunting as to render the hammer effectively inaccessible to virtually all, apart from those with political connections, or the temerity and dexterity necessary to proceed without benefit of official approval.
Second, and more basically, prohibition of exclusive use violates liberalism. For liberalism must be neutral as between different innocent7 preferences: so long as A’s proposed use of x can be accomplished without damage to others, liberalism requires acceptance of that as a legitimate use. Of course, damage to others, as we have seen in discussing version (1), must be assessed in non-question-beggingly specified respects. Whatever x may be, any use of x is going to frustrate the desires of those who didn’t want the user to use it, and will frustrate those who wanted to do something that required non-use of x in that way at that time.
3. Qualitative Equivalence
The third version is the most obvious reading. Here x is understood to be appropriated by A only as an instance of a type, F, such as land, which ranges fairly narrowly over things suitably like x. If B cannot have x, then she must instead be allowed to have some other instance of F, call it y, which is to be “just as good” - an equally fertile area of land, for example. Proposal (3) tries to assure person B, excluded from x by A’s acquisition of it, that she was in effect not really excluded after all. B’s exclusion from x is no problem, for B can have another instance of the same kind of thing as A.
This natural reading of Locke’s words, at first glance, seems a marked improvement. But only at first glance. There is, for one thing, the obvious point that the world may not meet the condition anyway: there may not be “enough” left of that kind of thing. Should we disallow private appropriation of the few instances of F that there happen to be, then? Why? Is it better that all starve than that only some do? Paretianism says it is not.
Further, there is the horrendous problem of specifying the relevant kind to the satisfaction of all possible comers. Is the land down the road “as good”? Even if its soil is identical, perhaps the sun doesn’t shine as well on it, or the shade trees along its borders are less numerous, or it’s farther from town. In the end, this version of the proviso has the same implications as before, for large populations, and still more so if we include potential users in the future.8
Restricting relevant users may help: only wheat-farmers need apply, say. But how can we do that and remain faithful to liberalism? All sorts of things can typically be done with any given bit of real estate or minerals, or any natural stuff. Why should those who wish to do one thing with it be preferred to those who wish to do something else? And what about ‘enough’? Does it mean ‘enough to get them what they want’? Or should we talk instead of getting them only what they “need”? But that again abandons liberalism, overruling some preferences in favor of others. Nor will it work anyway: just as there is no limit to wants, so there is no limit to needs, especially self-assessed needs. So view (3) is really just as hopeless as version (2).
As a general comment on both (2) and (3), I note that if the set of natural resources available for possible use is insufficient relative to a particular type of demand, then that use for those people involves them in a zero-sum game: if some get all they want to use in that way, others necessarily do not. There cannot be a universal principle giving it to everybody; thus it is pointless to say that all are “entitled” to it. Nor is there any use in trying to divide x up equally, giving no one enough instead of enough to some few. This most popular and natural understanding of Locke’s proviso, then, comes a complete cropper - a lesson that has not been sufficiently learned by theorists.
4. Equal-Value Theories
So we move to another natural thought: perhaps what must be left for others should be “as good as” A’s x, without imposing the impossible requirement that it be of the same kind as x. Obviously the next question is how we are to reckon equivalents for this purpose. One answer springs to mind: in a liberal theory, to be good for person A is to satisfy A, that is, to have utility for A. ‘Enough and as good’ will be enough, not necessarily of more F, but of some H having as much utility for A as x. This compensates B for loss of opportunity to use x. The first question for such a view is how we are to measure utility for this purpose. There are two available views: either we resort to interpersonally comparable cardinal measures, or we don’t.
4a: Cardinal Interpersonally Comparable Utility (ICU)
This concept gets us into murky waters, since there is, to put it mildly, no agreement on the commensurability of utility, let alone just how we are to do it. But that is only one problem. The more basic one is that there is no inherent reason in liberalism why person A should regard person B’s utility as equal in any way to her own, or even as having any value at all. Classical Utilitarianism, the standard-bearer of ICU, has a fatal problem: few actually want the maximal sum of cardinal utility for all which it proclaims as the supreme end of action.
4b: Preferences and Bargaining Baselines
The other variant rejects that requirement. Abandoning interpersonal comparisons, it simply says that what we offer person B in return for A’s exclusive possession of x should be some y such that B will be indifferent between x and y. This prima facie offers a workable criterion. But we must now confront the question of motivation. Version (4b) enables us to get to the nub of the matter: why should A be required to do any such thing? There is one classic answer: that the world, prior to society, is a Commons. If so, all are entitled to it, and so B has as a baseline for bargaining her natural share of the world - a stockholder’s vote in the World Corporation.
The “Commons”
Locke supposed that the world had been “given to men in common” by God. ‘Belongs to mankind in common’ isn’t exactly pellucid, to be sure, but on the face of it, it says that the world is literally a commons. And many seem to have taken that claim as axiomatic - as though a “state of nature” must, as such, be a commons. It is nothing of the sort.
To see this, we must distinguish two senses of ‘commons.’ One sense designates a stretch of territory over which no rights are defined. Obviously natural things prior to ownership are common in that sense. But it supplies no support for the Lockean idea. The other idea, however, is indeed relevant. In this sense, a commons is a specialized case of joint ownership, each owner having specific rights to the use of the commons property, with many correlated exclusions. No member of the commons-using group may privatize any of it. All members get to graze, or whatever, at will - within the limits prescribed by the Commons owners collectively. If all of nature is such a system, all persons being members of the commons corporation, then, as Locke saw,9 we would have to ask everybody for permission to use anything.
Real commons systems are incapable of being universal in that way. Participants in real commons systems deny others access to their “means of production.” The claim that the world is such a commons is not just dubious but utterly arbitrary, and the inference intended, that all have an equal claim to access, is incoherent. Commonses, like other forms of ownership and use, provide certain benefits for members and exclude others. Everyone’s having a share is simply impossible.
Locke himself invokes a theological story that many appear to find congenial. They shouldn’t. In the first place, no one can have any reason for thinking that the creator, if there is one, would necessarily “give” nature to mankind in general, rather than some favored group - the “Chosen people,” say - or even to no one. In any case, we must reject theology for these purposes. Theology is not publicly provable from common sense and science; to use it at all discriminates against those with different religious views. or none. To base laws for all on the religion of some, or even on the denial of religion, flouts the Law of Nature.
Once we understand that the world was not made by anybody, for anyone or any purpose in particular, then we must confront the fact that the world is just stuff, devoid of moral qualities and not owned by anyone, let alone by everyone. It is therefore wrong to suppose that the “state of nature” situation is one in which individual B has as his bargaining chip the status of “Commons”, so that he is in a position to say to A: “Here, you get to keep x provided that the rest of us are reckoned to be the exclusive members of the Commons Corporation, and we’ve decided that you have to pay such-and-such a rent.” That isn’t the situation facing people. What we do face is, simply, each other, with our various interests and powers.
This moves us to a more fundamental level of moral theory. The State of Nature is not naturally equipped with any rules whatever, about anything. The question is whether we can improve on that state of affairs by accepting some set of rules, and if so, which ones. That is what moral and political philosophy is about. Now, that situation is necessarily one in which each person asks what his best bargain is, given the situations of himself and others. The Hobbesian thesis about this is that the cause of the problems in this state is our possession and retention of the liberty to use all means whatever, including force, to achieve our ends. The Hobbesian solution is for all of us to give up the right to use force, as asserted in his First Law of Nature: “That every man, ought to endeavor Peace, as farre as he has hope of obtaining it; and when he cannot obtain it, that he may seek, and use, all helps, and advantages of Warre.”10
We do not follow Hobbes in his further proposal that we require a political Sovereign. Hobbes held that the sovereign would have complete say in these matters: “Seventhly, is annexed to the Sovereign, the whole power of prescribing the Rules, whereby every man may know, what Goods he may enjoy and what Actions he may do, without being molested by any of his fellow Subjects: And this is it men call Property.”11 This “solution” has it that whatever the government says is right is right. How could anyone believe that? But in any case, it obviously can’t tell us which rules the Sovereign ought to propose. Invoking Sovereignty here is useless.
To that question, Which rules are good rules?, there is only one credible answer: those which provide each person’s best option, given rational compliance by all. That is the classic question of the Social Contract. Hobbes’ Laws of Nature suggest the answer that what each receives in return for surrendering his liberty to use force is, simply, the like surrender of all others, yielding a social world in which each may do and get whatever he can by peaceable means, that is, without molesting others. Hobbes’ Second Law of Nature has it “That a man be willing, when others are so too, as far-forth, as for Peace, and defense of himself he shall think it necessary, to lay down this right to all things; and be contented with so much liberty against other men, as he would allow other men against himself.”12 Hobbes is right: that is the best bargain we can make at so general a level. But accepting a right to use force against nonharmful persons for certain purposes - even that of having enough to eat - is not a good bargain.
Why not? This is a large issue, but, briefly, the trouble is that it is much too good for the unproductive who are its beneficiaries, and much too bad for the productive, on whom it imposes the duty to support the rest. For without the efforts of productive people, the very food that the unproductive are begging for wouldn’t exist. It is not rational, then, for all to grant them a claim in justice to it. Real indigents, assuming them otherwise innocent, must either offer their services in return for sustenance, or appeal to the sentiments of the productive. Doing so, fortunately, will provide them with outcomes greatly superior to those proffered by well-meaning proponents of commons rights.
Finders (First Users), Keepers
What can we say about property, then, if peace and liberty is to be our guide? The answer is that we should accept the right of first users - “finders, keepers” - a principle recognized by the classic writers on these matters, such as Pufendorf, Hobbes, and Kant, as well as Locke. More precisely, the principle is that of first use. She who gets there first and commences to use it, in ways that require ongoing access to it, may use it so long as she wants. No one else may use it without her say-so, until such point as she either sells or gives it to somebody, dies without leaving a will, or ceases to care. A more abstract contemporary formulation is David Gauthier’s “Lockean Proviso” which “prohibits bettering one’s situation through interaction that worsens the situation of another.”13 What constitutes “one’s situation,” to be sure, is what is largely at issue. The essence of the proposal is that one’s situation consists of oneself and those elements of the environment over which one has exerted and continues intentionally to exert control. It does not include the indefinite array of opportunities that one has as yet done nothing to realize.
Of course it will not always be easy to decide just what a given user is using and how his use extends into the future. But it is obviously wrong to appeal simply to the first user’s desires or intentions, by themselves; his intended further activities regarding x must be quite realistically focused on x and not, for example, on the entirety of North America. Use is use - not pie-in-the-sky. Others coming on the scene must be able to have publicly ascertainable evidence of the first-user’s presence and activities. But that is typically available. Further clarification will often be needed, requiring discussion and negotiation. Nevertheless, those negotiations proceed from a baseline that is not arbitrary. Human activities of using this or that are identifiable, to a large extent, prior to determinations by judges or onlookers. Our proposal makes these prior initial activities the baseline from which such discussions must proceed.
Why this rule and not some other? For example, why not “second come, first serve,” or “all comers, no matter when, get equal control”? The answer is that second-comers intervene in first-comer’s uses, and thus violate the general liberty principle. They prevent continuation of a commenced activity, one which harmed no one when initiated, and in which the initiator invests effort, on the results of which he forms expectations and plans. If you lock me in my room, thus preventing me from bicycling to the next town if I should want to do so, you interfere with my liberty. Your actually muscling me off my bicycle, bundling me into the room and locking it interferes still more. In general, stopping people from doing what they are doing is our paradigm of interference. Telling them (authoritatively, with one’s authority backed by force) that they can’t do what they are realistically planning to do comes next. But telling them that they can’t do what they would never have dreamed of doing anyway, and have done nothing to initiate, counts for nothing. I do not deprive you of the moon by pointing out that nothing you do is likely to get it for you, nor of the land down the road that you might like to have, yet never knew of.
Any other rule than the rule of first use conflicts with the liberty principle. If it gives the use to some designated other persons, it is no longer general, for it makes some people subordinate to others, arbitrarily preferring those others. If we give that use, as such, to B whom we claim to be “more productive,” then we arbitrarily suppress A’s activity, by deciding what counts as productive and how much is enough. The injunction not to take things because you must instead share them with others is, as we saw, absurd. The rule of first use uniquely respects the liberty principle.
Rights for first-users ensure optimal use from the social point of view. If Jones must wait to use x until the Central Committee decides it’s O.K., the resource lies unused meanwhile. And when the Committee does decide, it will arbitrarily block some in favor of others, contrary to Liberalism. But if Jones need only clear it with those on whom his labor impinges, he’s in a position to get a lot more done. In the rare case where he’s in unoccupied land, this implies that he need seek no one’s approval - in diametric contrast to the Commons view, which in principle, as Locke saw, requires that he clear it with everyone. The difference in administrative cost is astronomical.
5. The Status Quo
This clears the way for our remaining interpretation. According to it, the only legitimate restriction on our activities is that we not interfere with what others already have. The fact that in doing so appropriators deprive the others of the opportunity to do with x any of the things that are incompatible with initial users’ uses of x is irrelevant. There are innumerable mutually incompatible uses of anything. Someone’s realizing one of them rather than any of the indefinitely many others that consequently go unrealized cannot, just as such, count as an interference with anyone’s liberty. That would be like saying that I interfere with you by virtue of your not being me.
In the abstract, the relation among us in regard to our sheer desires for particular objects and activities looks to be zero-sum. If it were, that would put paid to social philosophy, for it is logically impossible to have a social rule, valid for all and willed by all, declaring that in zero-sum games, party A should win. However, once time enters the picture, the appearance of zero-sum ceases. Given time, someone can get there first. His use competes with no others at that time. Yet from then on, until he yields it up, anyone else’s attempting to use it requires a disruption of the first-comer’s actions.
The first-use rule leaves “enough and as good” for others only in the sense that one leaves them in uncoerced possession of what they have and whatever they go on to acquire without trampling on the previous possessions of others. If, in their view, they do not have “enough” in the way of specific useful possessions, then they, like everyone else, have their work cut out for them: find or make some more, being subject, in the process, only to the restriction that they not damage what others have - may not, that is, interfere with what those others are already doing. If all their efforts fail, they are thrown upon the mercy of others. Another popular Lockean idea says that one’s neighbor should have a “sufficiency”, which the better-off should if necessary help them to achieve. But the unproductive are not owed anything as compensation for the sheer fact that they didn’t get to x first. That fact would be strictly uncompensable anyway, were there any reason to think it a ground for compensation. But there isn’t. For in taking something from the “state of nature”, we are not taking anything from anyone, since it belongs to no one. There are no valid claims to compensation.
We should realize, though, that what is really enough and as good is liberty - non-invasion. We are adequately compensated for loss of the liberty to use force - which is a real loss, not a fanciful one - by others’ surrender of the same liberty, thus yielding a social world in which peaceful exchanges and transfers are possible. That is the sole and sufficient basis of private property in things outside our own bodies. Such property can, of course, be jointly owned by many (voluntary) participants, as in genuine commons arrangements,14 but anything else will interfere with activities legitimately undertaken.
Now, consider what those who allege that we also need compensation for something we have supposedly lost by someone’s appropriation of some natural object are asserting. What they lose is opportunities. And it is indeed possible for people in some cases to have a claim to compensation for loss of opportunity. If A deprives B of some important resource, such as pianist B’s fingers, then A certainly owes B a great deal in the way of compensation. But this is not because he has appropriated something affording opportunities that the other person has thereby lost in the absence of any specific antecedent claim to those opportunities. It is because the other person already has a special claim on those items. B’s claim to those particular fingers is that they are parts of the very body that constitutes B. He had use of them in the status quo ante and now has not; A, then, has deprived B of something he previously had. But that is never true in regard to things one has done nothing to commence use of, however much one would like to have them. Morals, and the state, cannot be in the business of giving people what they want just because they want it. For that can only be done at the expense of others who produce or discover the things in question. And they may have no reason to devote them to such purposes.
In special cases, there are equal claims to something, as when A and B arrive at x simultaneously. In such cases, they must resolve their claims by negotiation. They might try a partnership, or one buy out the other. The price is a function of opportunity costs, indeed; but it is the equality of claims grounded in antecedent activities that matters. In state-of-nature appropriation, of course, this will be rare: Jones and Smith might work from opposite ends of the same mineral vein, meeting, to their surprise, in the middle. But to talk as though such cases are the norm, as though we are all ”there first,” is unintelligible. There is no way to make the appropriate measurements to restore the satisfaction that persons not in on particular appropriations thereby lose. To repeat: you cannot restore what someone never had in the first place.
Circularity?
It is common to think that the legitimizing of private ownership through first-use is somehow question-begging. Grunebaum, for instance, objects to Nozick’s theory of original appropriation in respect of ‘previously unowned’ items, complaining that if ‘previously unowned’ means that nobody has previously become the owner within a system of private ownership, then “the argument already presupposes private ownership as the form of ownership in which the appropriation takes place and thus is obviously question begging.”15 As it would indeed, if the argument did presuppose that. But it doesn’t.
In the first place, the explication of the theory doesn’t presuppose anything. It specifies certain acts - people grasping things, walking on surfaces, and so on - that are describable without reference to any system of ownership. A can grasp x whether or not A owns x or ever heard of ownership. The theory then proposes - not presupposes - that those who perform those acts, in the conditions the theory specifies as sufficient, are to be taken as thereby entitled to use the thing in question in future. Of course the theorist owes us an explanation why we should accept that theory rather than some other.16 But it is not one of the reasons why we shouldn’t accept it that it somehow “presupposes” itself.
Nozick got us worrying about the Proviso by distinguishing two interpretations of Locke: “First, by losing the opportunity to improve his situation by a particular appropriation or any one; and second, by no longer being able to use freely (without appropriation) what he previously could.”17 The first is wrong because any given opportunity may be taken by only one or some few persons, and whoever gets it thereby excludes others; no principle can protect a general right to opportunity. What about the second and, as he claimed, weaker option?
Nozick says, “With the weaker requirement, ... though person Z [the first person for whom there is not “enough and as good” left to appropriate] can no longer appropriate, there may remain some for him to use as before.”18 Does this help? No. For ownership simply is the right to use. If B has not appropriated x, or been given x by some previous owner, then x isn’t B’s to use as he will19, and that status isn’t available to B as a bargaining chip against A who wants to appropriate x to B’s exclusion. What B already has, he of course has the right to continue to use; but what he doesn’t have, and has been taken by others, he has no claim on, nor did he ever. To repeat: given liberalism, we do not primordially own the world - only ourselves. And even that isn’t primordial. We must argue even for that. But Hobbes, I believe, has provided such an argument. In the absence of the general right not to be molested by others for their own purposes, life for ourselves is bound to be worse. But we get that general right only from others, by mutual recognition.
Circularity of the Commons Hypothesis
Reflection shows that all views of the types I have found wanting, apparently including both of those distinguished by Nozick, make a mistake of the same fundamental kind. For in claiming that the appropriation of pieces of the world for the exclusive use of the appropriator restricts the liberty of others, they subtly assume that we have a prior positive right to use all those things. Such a right requires others to see to it that the rightholder gets it, if he is not able to do so on his own. Before ever coming near the place - indeed, before even being born, so these theories say - we all had some kind of claim or hold on the world, such that others proposing to go forth and use bits of it must make sure that we get some too, if we happen to want some; and therefore those others are required to justify their appropriations by arranging, in advance as it were, that we are adequately “compensated” for being no longer able to acquire them ourselves. But compensated for what? Not for what we have done, since we haven’t done anything, by hypothesis; nor for damage to our products, since there are no such products. We are, it seems, to be “compensated” merely for existing - and at others’ expense. But there is no such thing as a claim on the world, as such: worlds know naught of claims. Claims are against some (or all) other person(s). The only intelligible meaning to be assigned to notions of claims on things is that they are claims against other people about those things. To have a claim on, say, an “equal share” of Nature is to have a claim against other people regarding how it is to be used, or who uses it. But what would be its basis?
Our examination has shown us the options. If it’s the claim that we must be allowed to use whatever we can that is still waiting to be used, then that is equivalent to claim (5), which I defend here. But it gives us no positive antecedent claim on bits of nature. Rather, the general right of liberty, which we negotiate in the pre-ownership “state of nature,” says that we are free to use hitherto unused things, provided we not molest anyone else’s efforts to use other things.
The contrary view needs to explain why it should be thought that we somehow already own the place, and thus get to charge for anybody else’s use of it, despite having done nothing to come by it. No support has been provided for that claim, and as a supposed complaint against the liberty principle, it is beside the point. Critics of private property often point with special derision to those who got wealth by inheritance, the criticism being that they didn’t do anything to deserve it.20 Yet that is precisely the complaint against a priori claims to social ownership. The difference is that in the cases these critics have in mind, such as inheritance from wealthy parents, those parents did do something to acquire that wealth, or got it from others who did; and having done so, what they wanted to do with it next, as it turns out, was to give it to the inheritors. What is ours is what we may do as we wish with, and giving it to someone else is one of those things; thus general liberty gives us the right to do it. But no such intelligible explanation is forthcoming in common-ownership theories. Having jettisoned theological stories, for the reasons given, the question how we all came to be part-owners of the place, and thus to have a general obligation to “distribute” the material world to other claimants, becomes unanswerable. The “commons” theory is not really rival theory to ours: it has, rather, no theory, unless we count sheer assertion as theory.
The Prospects of Others
It is one of the important paradoxes of moral theory that sometimes restrictions on our behavior, even quite harsh ones, nevertheless conduce to our good. The point certainly applies resoundingly to the present subject. The right to acquire without fear of expropriation by others, even needy others, enables a society to increase its wealth to the point where there will be few if any needy, and make what few needy there are quite easy to cater to. Writers from Aristotle through Locke, Adam Smith to Hayek, David Schmidtz and others have made the case. The “secret” of wealth is no secret at all: it lies in intelligent hard work plus respect for other people’s productive activities. That respect consists in a general and reliable disposition to refrain from forcibly depriving others of the results of their work. The more general and reliable such respect is, the greater the wealth of the society in question.
Reflecting on the spirit of Locke’s proviso, the rightness of the interpretation supported in this essay is due, at bottom, to a fact that is inadequately appreciated by social thinkers: wealth comes from human effort, not nature’s.21 Locke noted that a small area of well-cared-for land in the England of his day had a thousand times the value of a similar area in the “wilds of America.” He was thinking mainly of its capacity to yield food for humans, with then-current agricultural technology. Today we look to the conditions for the production of high-definition TV’s, fast-preparable Thai dinners, air-conditioned off-road vehicles, lyrca running suits, performances of the Ring of the Nibelungs, aspirin, and thousands of other useful products and services, none of which existed in a state of nature. The land on which stand the factories, retail stores, and opera houses for producing and distributing these things has several million times the value of similar-sized areas of sheer wilderness. Virtually all of this fabulous collection of goods was unheard of by people of earlier times, and none comes from unaltered nature, except the wilderness preserves whose aesthetic and recreational value rests on their unavailability for the production of other goods.
These points lead to a fundamental reflection. The value of anything lies in what we can do with it, and that is a function of our and other people’s cognitive efforts relating to it. How would one ensure that there is “enough and as good left for others” when one formulates a new scientific theory or a plan for an improved microchip? The very question seems absurd. Ideas use no material resources, thus ensuring no reduction of such resources “left for others.” The creative work of Newton, Beethoven, or Steve Jobs does not subtract from a pre-existing mass of something provided by nature. If we broaden our sights from symphonies to better mouse trips and superior grades of winter wheat, then what people do along such lines is essential to all wealth, not just intellectual and spiritual wealth. We have what we have, material or otherwise, because a great number of people have applied their ingenuity to specific problems relevant to the satisfaction of human interests, ranging from hunger to sheer curiosity. The idea that wealth consists in the accumulation of a large mass of natural stuff is utterly wrong. It is astonishing that that model should still be dominating discussions of this subject.
What makes particular bits of wealth available to other people is trade. Above all, there is the exchange of labor for goods or for other services between those who can provide the one and make use of the other, to the benefit of both. Only the Lockean Proviso in our last form can maximize benefits from such interactions. Exchanges of capital are really reconfigurations of productive capability, whose profitability is a function of their catering to voluntarily acting consumers at the end of the line. Consumers, in turn, can afford to buy because they are also producers, able to exchange their work with others who see potential benefit from it.
The result of all this is the general and, given peace and decent health, continual improvement in the well-being of all participants. Improvement is not necessarily for non-participants; providing for them is a matter of sympathy, love, or general human concern, rather than justice. The condition on which anything can be done for the unproductive is the previous activity of the productive - usually the same persons earlier in life. Locke’s Proviso has nothing to do with the unproductive: his concern that there be enough and as good in the way of usable natural resources for others, applies only to those who can produce. And rightly so. In society production comes first.
There has been quite a ferment of concern among recent writers, including philosophers, that the supposedly high consumption patterns of people in modern industrial countries will exhaust the earth’s resources: “sustainable development” is asserted to be a serious problem for us now and in future. Previously, this was a concern that human population would “outstrip its food supply,” a claim completely falsified by now. Per capita consumption of food has increased along with human population around the world - not decreased, as the Malthusian view had it.22 But the source of the Malthusian error has been resolutely ignored, it would seem, by most contemporary writers. The error is the same: failure to see that wealth consists in what we make of nature, not in nature itself. The desire to do better impels ingenious people to find better and better ways to use what is on hand. We recycle, reuse, and devise ways to make use of materials that exist in inexhaustible supply instead of ones that become scarce, or require trivial amounts of natural resources in the first place. Cumulative human knowledge solves problem after problem; less and less yields more and more; and issues of natural resource exhaustion fade into irrelevance.23
Thus the original intent of Locke’s proviso is met, in spades, by the on-going process of human production stimulated by individuals’ interests, protected by property rights. What is “left” for others is, overwhelmingly, the opportunity to avail themselves of the production of their fellows. As society becomes more complex in its differentiation of products and skills, we are increasingly dependent on propensities to exchange on the part of their fellows, who meanwhile become reliable producers and exchangers. Thus what’s left for others is not merely “as good,” but much better from the start, and as time goes on incomparably better, to the point where the opportunity to appropriate bits of land suitable for agriculture or mining, say, equipped with primitive know-how, is looked on with contempt by all. Much better to leave the farming to others equipped with state-of-the-art agricultural technology. In the United States today, far more people are employed serving food in restaurants than on the farms that produce the food in the first place; waiters and waitresses, cooks and cashiers - all are better off than they could ever have been on any primitive farm.24
The most important kind of property we can have is, broadly speaking, intellectual rather than material, including knowledge of processes, formulas, and the like, as well as academic and literary writings. Here our thesis amounts to the view that one is entitled to something like copyright on one’s ideas, so long as they are original. It is absurd to think of intellectual workers as drawing upon a quantifiable set of pre-existing resources, with a possibility of not leaving “enough and as good for others.” Ideas are as good as the thinker makes them, and the only interpretation of Locke’s proviso that makes sense in their case is that proposed in this essay. Prohibition on plagiarism, entitling creators to the free use of their own ideas, suffices. There is ample room for controversy here: who thought of it first, and what exactly “it” is, are analogous to problems of identifying the limits of acquired material resources, entailing the same need for means of negotiating disputes on these matters. It is also obvious that virtually all intellectual work is heavily dependent on the work of predecessors - this paper being an example. Rewards for such productions should be, and usually are, bestowed on individuals with a lively sense of obligation to their predecessors. Still, the point is that there isn’t any sense to the idea that there is a great stock of preformed ideas lying about, such that one could unfairly help oneself to too many of them, leaving insufficient for others. Beethoven is a hard act to follow, but plenty of composers have managed, and in any case, there is no way to declare the field unfairly exhausted by Beethoven, who thus cheated the rest by walking away with the best ideas for himself.
Really, the models provided by the composer and the novelist, along with those of the technologist, the scientist, and the tinkerer, are more appropriate for understanding human wealth than those provided by hunting deer and coconuts. The entrepreneur has ideas about how to do things better, enabling more people to derive more benefit from the same fundamental range of natural resources. There is no limit to the supply of good ideas, hence no purchase for the distribution-limiting interpretations of the Lockean Proviso regarding them. And since they are the real souce of wealth, there is also no rational application of distribution-limiting interpretations, even in their original area of application - natural resources.
Conclusions and Restrictions
Once we reject the adventitious theological components of Locke’s theorizing about natural resources, we are left with no reason to think that later-comers are owed compensation for first-comers’ acquisition of natural resources. But there is strong support, only sketchily asserted here, for the liberty principle as a premise for our inquiry. The most natural understanding of that principle implies a general right of acquisition of previously unowned resources of the general sort Locke asserted: the right to use bits of nature for our purposes, as we will, “without asking the consent of anyone,” provided only that we respect the like liberty of others.
Readers will rightly want to hear about problems thought to be rampant in the contemporary world, and alleged to stem from the institution of private property. The view advocated here does nothing to support the idea of an enforceable obligation to maintain a “safety net” of involuntarily supported social services. And there would be much else to discuss in regard to resources and their supposed scarcity, especially in respect of pollution and the like. All of these questions can, I think, be satisfactorily responded to, but not in a discussion of this size.25 My argument has been concerned wholly with what has been regarded throughout the three or so centuries since Locke’s work as a major problem for liberal theory. That problem is easily solved when we see that the Lockean Proviso as Locke framed it is a mistake. As a restriction on initial acquisition of the type it is all but universally regarded as being, it is baseless and must be jettisoned. But in the only form in which it is sustainable, our 5th option, it has no redistributive implications. requiring only that people not acquire by force or fraud.
Does the the property/liberty formula apply everywhere and always? In every society, there will be property: valued ornaments and differentiated useful implements have been private in every society. And all such tribes are anxious to claim hunting grounds or planted areas as tribal domains excluding all external competitors. But wherever the outputs of differing individuals is highly variable as a function of skill and knowledge, their products readily exchanged, and distinctive consumer profiles exist, individually private property comes to the fore. That efforts to countermand the institution in developed societies lead to poverty at best is the lesson of the 20th Century large-scale experiments in communism, all of them dismal failures.
That property rights exclude, as it turns out, is their prime virtue. The exclusion involved is ultimately beneficial for the excluded, but in the first instance the basis for it is straightforward: first use underwrites ownership, with no restrictions other than the obligation to respect the similar right of others, because that protects the free exercise of human effort. The right to do that is really just the right to be us.26
Waterloo, Ontario, December 1998
1 Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), pp. 174-182.
2 I am particularly unhappy to have to omit the extensive discussion deserved by Eric Mack’s “The Self-Ownership Proviso: A new and Improved Lockean Proviso,” Social Philosophy and Policy vol. 12 #1, Winter 1995, 186-218.In Mack’s view, “the recognition that each person owes others as self-owners includes abstention from the disablement of their world-interactive faculties, talents, and energies.” We can disable these by making that world virtually unavailable to them as an object of interaction. My main excuse for not discussing Mack’s important paper is lack of space; my secondary excuse is that I do not believe his thesis has a real-world divergence from my own, however much it would affect things in worlds very different from our own. But his paper richly deserves a careful reading by those pursing this topic. He and I are also have benefited from papers by John T. sanders, such as “Justice and the Initial Aquisition of Private Property”, Harvard Journal of Law and Public Policy, vol. 10 (1987), pp. 367-400.
3 Locke, Second Treatise on Civil Government, Ch. I, sect. 6.
4 Locke, Section 27. (In the Everyman edition (New York: Dutton, 1966), it’s on p. 130).
5 Nozick, Op. Cit., p. 178.
6 See, for example, Matt Ridley, The Origins of Virtue (New York: Viking Penguin, 1997), pp. 230-233.
7 To argue that specific preferences are noninnocent precisely because not all could fulfill them is question-begging. It is also absurd, as the rest of the paper will show.
8 See Allan Gibbard, "Natural Property Rights", Nous, 1976, pp. 77-86; reprinted in Robert M. Stewart, Readings in Social and Political Philosophy (New York: Oxford University Press, 1985)
9 Locke, Section 28: “If such a consent as that was necessary, man had starved, notwithstanding the plenty God had given him.” In the Everyman edition (New York: Dutton, 1966), it’s on p. 130).
10 Leviathan, Ch. XIV. (New York: E. P. Dutton, Everyman Library, 1950), p. 107.
11 Leviathan, Ch. XVIII (New York: E. P. Dutton, Everyman Library, 1950), p. 149.
12 Leviathan, Ch. XIV. (New York: E. P. Dutton, Everyman Library, 1950), pp. 107-8.
13 David Gauthier, Morals by Agreement (New York: Oxford University Press, 1986), p. 205. See also Mack, Op. Cit. note 2.
14 For this reason, Randy Barnett has coined the term ‘several property’ to designate the notion. See his The Structure of Liberty (New York: Oxford University Press, 1998), pp. 64-5.
15 James Grunebaum, Private Ownership (London: Routledge & Kegan Paul, 1987) p. 81.
16 See Grunebaum, Op. Cit., pp. 57-63.
17 Nozick, 1974, p. 176
18 Ibid
19 In this system, “Only those who are laboring upon or using the land may claim title to it for the period of their use.” Nobody would be allowed to actually own anything -- that’s how you or I would describe it, upon learning that this supposed ownership system didn’t actually give anybody the right to buy or sell anything!
20 See Jan Narveson, “Deserving Profits,” in Robin Cowan and Mario Rizzo, eds, Morality and Profits (Chicago: University of Chicago Press, 1995)
21 The point is delightfully as well as cogently made in P. J. O’Rourke’s book, Eat the Rich (Atlantic Monthly Press, 1998).
22 For the figures and original sources, see Ronald Bailey, editor, The True State of the Planet (New York: Free Press, 1995), specifically the articles by Nicholas Eberstadt (pp. 7-48) and Dennis Avery (pp. 49-82).
23 The modern apostle in these matters is the late Julian Simon, to whom we are all in much debt. His last major work is The Ultimate Resource II (Princeton University press, 1996), where the thesis is lavishly supported with facts and figures.
24 For an extremely instructive and admirably clear explication of the role of property rights for meeting any reasonable requirements intended by the Lockean proviso, see David Schmidtz, “The Lockean Proviso,” and the two subsequent sections in his The Limits of Government (Boulder, Col: Westview Press, 1991), pp. 17-26.
25 See other relevant essays in Bailey, Op. Cit., previous note, for a quite comprehensive picture.
26 Early drafts of this paper go back to 1991. I have benefited by exposure to many audiences in the meantime, notably at the Canadian Philosophical Association meetings in Calgary, Alberta, 1994. My thanks also to David Schmidtz, Jack Sanders, and many others, including the Editor of this journal, for helpful discussions.