Property Rights

The central concern of this book is with

the philosophical foundations of prop”
erty rights. Professor Becker examines
comprehensively and in detail the
general justifications which can be
offered for systems of private property
rights, and discusses with great clarity
the major arguments as to the rights and
responsibilities of property ownership.
In particular he considers the pro¬
property arguments which hold that
there are natural rights to property
derived from first occupancy, labour,
utility, liberty and virtue, and the
standard anti-property arguments based
on disutility, self-defeatingness, virtue
and inequality, and the belief that
justice in distribution must take pre¬
cedence over private ownership.
Professor Becker goes on to contend
that there are four sound lines of
argument for private property which,
together with what is sound in the
anti-property arguments, must be
co-ordinated to form the foundations
for a new theory - one which is free from
the rigidity of both seventeenth-century
natural rights theory and revolutionary
socialist theories of property. He there¬
fore sets out a clear, sophisticated
theory of property that is relevant to the
twentieth century, and in conclusion
indicates some of the consequences of
such a new theory.
Property Rights
 Digitized by the Internet Archive
in 2018 with funding from
Kahle/Austin Foundation

https://archive.org/details/propertyrightsphOOOObeck
Property Rights
Philosophic Foundations

Lawrence C. Becker
Hollins College, Virginia

LluFvniv i - v, <

ST. VINCENT DE
BOYNTON BEACH
Routledge & Kegan Paul
London, Henley and Boston
First published in 1977
by Routledge & Kegan Paul Ltd
39 Store Street,
London WC1E 7DD,
Broadway House,
Newtown Road,
Henley-on-Thames,
Oxon RG9 1ENand
9 Park Street,
Boston, Mass. 02108, USA
Set in 10 on 12pt IBM Press Roman by
Express Litho Service (Oxford)
and printed in Great Britain by
Redwood Burn Ltd,
Trowbridge and Esher.
Copyright Lawrence C. Becker 1977
No part of this book may by reproduced in
any form without permission from the
publisher, except for the quotation of brief
passages in criticism.

British Library Cataloguing in Publication Data

Becker, Lawrence Carlyle
Property rights.
1. Right of property
I. Title
323.4y6’01 HB701 77-30089
ISBN 0-7100-8679-2
To Charlotte,
to my father, Albert Carlyle Becker,
to my sister Sharyn and brother Michael,
and to the memory of my mother,
Harriette Toren Becker
 ■

•)
, ,V^.
Contents

Acknowledgments ix

1 Introduction 1
The need for a new theory 2
Foundations for a new theory 4
Private property and property rights per se 6
Scarcity 6

2 Property Rights 7
Rights 7
Property rights 18
Justification 22

3 The Argument from First Occupancy 24

A priori restrictions on first occupancy claims 24
Arguments for first occupancy 28
Conclusion 30

4 The Labor Theory of Property Acquisition 32

The root idea 32
Locke’s theory 33
Criticism of Locke’s theory 36
Entitlement reconsidered 43
Deserving to own: reformulating the labor theory 48

5 Arguments from Utility 57

The traditional arguments 57
Analysis of the traditional arguments 59
The economic arguments 67

••
Vll
Contents

6 The Argument from Political Liberty 75

The argument 75
The soundness of the argument 75

7 Considerations of Moral Character 81

People who will use property to good effect 81
People who will manage property well 83
The virtuous 83
Property as necessary for the development of moral character 86

8 Anti-Property Arguments 88
Social disutility 88
Self-defeatingness 94
Virtue 96
The perpetuation of inequality 96

9 The Justification of Property Rights 99

The plurality of general justifications 100
The coordination problem 103
The compatibility requirement 107
The requirement of permitting maximal acquisition 112
The compensation requirement 112
Two additional considerations 114
Probable directions for specific justification 116

Notes 119

Index 131

vm
Acknowledgments

I am indebted to many people, and to three institutions, for help with

this book. It was written during the academic year 1975-6 when, due
to the generous support of the American Council of Learned Societies
and the Trustees of Hollins College, I was able to spend the year as a
Visiting Fellow in Philosophy at Harvard University. To the associates,
tutors, staff and students of Adams House at Harvard — and particularly
to the Master of the House, Robert Kiely — I owe special thanks for
providing such a pleasant and stimulating environment for work.
Charlotte Becker, Thomas Bergin, Frank Michelman, Robert Nozick,
Judith Thomson, and Anthony Woozley read the whole of early drafts
and helped me enormously with their comments. Professor Bergin,
in particular, stimulated me to make major improvements in the
chapter on utility; Professors Nozick and Thomson, along with Professor
Ruth Barcan Marcus (who read several of the central chapters), provided
the insistent challenges I needed to improve the chapter on the labor
theory.
Parts of the manuscript were read at Massachusetts Institute of
Technology, North Carolina State University, Yale Law School, and the
Eastern Division of the American Philosophical Association at various
times during 1975-6.1 am indebted to the discussants at those meetings
for the help they gave. A short version of chapter 5 was published as
‘The Labor Theory of Property Acquisition’ in The Journal of Philos¬
ophy, 73 (1976) pp. 653-4.
■
No one can doubt, that the convention for the distinction of property,
and for the stability of possession, is of all circumstances the most
necessary to the establishment of human society, and that after the
agreement for the fixing and observing of this rule, there remains little
or nothing to be done towards settling a perfect harmony and concord.
David Hume, Treatise of Human Nature, book III, part II, § II

The first man who, having enclosed a piece of ground, bethought himself
of saying ‘This is mine,’ and found people simple enough to believe
him, was the real founder of civil society. From how many crimes,
wars, and murders, from how many horrors and misfortunes might not
anyone have saved mankind, by pulling up the stakes, or filling up the
ditch, and crying to his fellows: ‘Beware of listening to this imposter,
you are undone if you once forget that the fruits of the earth belong to
us all, and the earth itself to nobody.’
Jean-Jacques Rousseau, Discourse on Inequality, part II
1 Introduction

People want their social institutions to be procedurally efficient and

fair, to enable the realization of worthy collective and personal goals, to
produce results which are just, and to leave them free to pursue what¬
ever activities they themselves choose. Most political philosophy is
(among other things) an attempt to work out how deeply inconsistent
these wants are, and to decide what can be done about it. This book is
no exception.
People who want property want to be left alone to acquire and
enjoy it. They want to be able to do what they please with it — to
consume it, transform it, exchange it, give it away, put it to good use,
or just hold it. How much property people want, what sorts they want,
and how much they are willing to let these desires be frustrated in order
to achieve other goals varies widely. But a social order must coordinate
varying desires if it is to be stable, and the price of stability must be
morally justifiable if the social order itself is to be justifiable. The more
crowded the planet grows, and the scarcer its resources become, the
more difficult this is.
Thoroughgoing libertarians are willing to tolerate nearly any resultant
distribution of goods in order to preserve the liberties of a social order
based on private ownership. Socialists are willing to restrict or eliminate
almost any form of private ownership in order to achieve justice in
distribution. But it has become increasingly evident over the last
century that advocates of a compromise between libertarian and
socialist extremes lack a principled consensus about what they will or
will not tolerate. My object here is to make a contribution toward such
a principled consensus.
In particular, I shall argue against anti-property theorists that private
property rights, while not natural rights in any meaningful sense, are

1
Property Rights

none the less justifiable by several independent Hnes of argument.

Indeed, I shall urge that within certain significant constraints, people
ought to be free to acquire and keep whatever and as much as they
want. Against libertarians, however, I shall argue that there are signifi¬
cant constraints on legitimate acquisition and ownership rights, that
these constraints become increasingly stringent as scarcity increases,
and that we now need redefinitions of the sorts of private ownership
rights we allow. Finally, against the zeal of some reformers and some
legal theorists who discuss the law of ‘takings,’ I shall argue that any
overriding of an existing property right must either be with the right¬
holder’s consent or else be accompanied by just compensation. In con¬
sequence, where just compensation is impossible, and consent cannot
be obtained, no overriding of the right is justifiable.
Taken separately, these conclusions are not novel (however distressing
they may be to some), and they are not very specific about details. I
hope to make up for such shortcomings by the soundness and compre¬
hensiveness of the arguments I present. But my concern is, after all,
with the philosophic foundations, not the legal superstructure. The
effort is to place discussion of the details firmly into a comprehensive
and clear statement of justificatory premises: into a comprehensive
statement because philosophers have too often pushed their points as
partisans for a particular brand of moral theory, ignoring sound argu¬
ments from other sources; into a clear statement because property
theorists have too often operated with nothing more than an attractive
metaphor as a starting point — a metaphor whose use, on inspection, is
neither capable of coherent explication nor amenable to rational justifi¬
cation. The arguments here will be, in short, philosophic.

The need for a new theory

Philosophizing about property used to be risky. The history of property
acquisition is a sordid one — examples of honest effort notwithstanding
— and inequity in the distribution of goods has always been visible. An
institution which has had to manage the results of so much injustice,
and which has so often been used to perpetuate inequity, has an under¬
standable aversion to moral analysis. Or perhaps more accurately,
people who want their possessions protected as property are often
hostile to attempts to find out whether what they want is morally
justifiable. In uncivilized times, such hostility can be expressed in
uncivilized ways.
This has not been lost on philosophers. Those who have defended
private property have written soberly — casting whatever reservations
they may have had into thickets which the propertied reader could

2
 Introduction

avoid. Those who have attacked private property have usually shown
the signs of intense frustration — rage, hyperbole, and despair at
achieving any reform by rational persuasion. Reasoned argument, when
it comes in conflict with the desire to get and keep something, is grossly
overmatched.
The riskiness of writing about property has largely disappeared. The
problem now is whether there is any longer any point in doing so. The
main lines of argument for the general justification of property have
long since been laid down; the vulnerable areas in those justifications
have been identified; alternatives to private ownership have been
proposed; weaknesses in those proposals have been explored. It seems
unlikely that any new discussion could make a significant contribution
to theory. And it seems even less likely that it could have significant
practical consequences. The changes in property rights which have
occurred in the last six or seven decades — and those which will doubt¬
less occur in the next six or seven — are startling, to say the least. But
they have not — nor are they likely to begin to — come about as the
result of a clear and comprehensive new theory of property. The
modern industrial state is so complex, its basic institutions so en¬
trenched and interdependent, that basic changes come about more by
the accidental confluence of particular interests than by design. The
action guidance moral philosophy might provide thus seems a bit beside
the point.
Yet property rights badly need philosophical discussion. Traditional
philosophical arguments for and against various forms of property are
seriously flawed. They are based on naive or hasty analyses of the
concept of rights per se and property rights in particular. They rarely
prove what they say they prove (a fact noticed by all their critics), but
they often do prove some other interesting things (things their critics
overlook). They usually address themselves to the question farthest
removed from practical concerns — namely why there should ever be
any property rights at all; what I call the problem of general justification.
They consequently slight the most important question — namely what
sorts of people should own what sorts of things and under what
conditions; the problem of specific justification. Most damaging of all,
they are each typically embedded in a general moral theory which
makes it difficult to use one argument to support, augment, or restrict
another. Utilitarians scorn claims founded on justice in original
acquisition; advocates of the labor theory are reluctant to limit the
claims of justice by weighing in the consequences for the promotion of
good (as opposed to the demotion of evil); and the defenders of
‘ownership by the property worthy’ largely ignore both utility and the

3
Property Rights

labor theory. Thus divided against themselves, the arguments for

property rights are easy prey. At a minimum, the traditional arguments
need to be re-examined and their results coordinated into a coherent
theory.
Further, from a practical point of view, the existence of a sound,
clear, and thorough philosophic analysis of the general theory of
property rights would be useful. Changes in ownership rights are usually
made piecemeal: zoning ordinances are passed; acquisition and use of
water is controlled; new forms of wealth emerge; and as quickly as one
form of taxation is instituted, ways of avoiding it are invented.
Existing overviews of what sorts of property rights people ought to have
are either simplistic visions of an ideal world (e.g. Edward Bellamy;
Ayn Rand), political polemics (Proudhon; some of Marx), or tunnel-
visioned defenses of the status quo or an idee fixe (Locke; the rest of
Marx; Mill). Sober, practical people who are trying to make the system
work have to operate either with these existing materials, unfortunately
hardened into political ideologies, or with a confusing and largely
incoherent set of intuitions amounting to little more than this: that
people are entitled to the produce of their labor; that they ought to
have the liberty to acquire things by their labor; that there is something
(it is unclear just what) true about the claim that ‘first in time is first
in right’; that things ought to be owned by the people who can and will
use them properly; and that somehow, all of this has to be controlled
by the principles of utility. In the face of this, it is not surprising that
changes in ownership rights are made somewhat haphazardly.
Philosophers should be able to provide a better foundation for practice
than now exists.

Foundations for a new theory

And they can. The foundations for a new theory of property rights — a
theory which is independent of the rigidity and ultimate mystery of
seventeenth-century natural rights theory, as well as of the ruthlessly
forward-looking concerns of utilitarian and revolutionary socialist
theories — can be laid by a careful analysis of the relevant distinctions
with regard to rights per se, property rights in particular, and the
concept of the justification of a property right, together with an
equally careful assessment of the traditional arguments for and against
private property. By doing these things, this book aims to clear the way
for a sustained, detailed, and coherent theory of the specific sorts of
property rights people ought to have. Its object is thus to lay the
foundations for a new theory of property.
The foundations I propose are not easily labelled. They are not

4
 Introduction

extracted from a central, illuminating metaphor (like the Lockean

mixing of one’s labor with things); nor are they easily categorizable as
an ‘ism’. Rather, they consist in the results of my arguments on the
whole range of illuminating metaphors and ‘isms’ which have tradi¬
tionally been used to found theories of property rights. Specifically, I
shall argue in what follows:
(1) for specific conceptions of the central notions of rights in general,
property rights in particular, and what it is to justify a property right;
(2) for specific interpretations of traditional arguments for and against
property rights — i.e. the arguments from first occupancy, labor, utility,
liberty, and virtue or property worthiness;
(3) that out of all this there are only four sound lines of justification
for the institution of private property rights — one from utility; one
from liberty; and two from the labor theory;
(4) that any attempt to justify a particular sort of property right
(e.g. unrestricted ownership of land) must be compatible with these
general lines of justification - that is, be bound by any limitations they
impose on all ownership;
(5) that these lines of justification, together with what is sound in
the standard anti-property arguments, impose severe restrictions upon
the sorts of property rights which can today be justified — particularly
with respect to ownership of scarce resources and the right to bequeath
one’s property; and
(6) in particular, I shall argue (a) that private ownership of land,
water, fossil fuels, and mineral deposits — as generally defined in the
Western democracies — must now be redefined; (b) that accumulations
of wealth which tend to undermine democratic political processes must
be controlled; and (c) that within the limits imposed by general justify¬
ing conditions, systems of property rights must allow as much acquisition
as individuals want.
I do not pretend to say all that should be said on these topics. I do,
however, hope to say enough to give a sound foundation to a much-
needed new theory. My conclusions on these six topics constitute that
foundation. They are a foundation in the sense that they establish the
points in the moral landscape upon which an institution of property
rights can rest, and an outline for the definition of such an institution.
But they are only a foundation: they define the limits of size and shape;
they do not specify the details. Those details, the real substance of any
theory of property rights, are in many instances very complex. Water
rights, land rights, the rights of bequest and the other substantive
elements of a specific theory, require separate treatment.

5
Property Rights

Private property and property rights per se

While some of what follows will be applicable to a discussion of
property rights per se — that is, to systems of state or communal owner¬
ship as well as to systems of private ownership — it should be kept in
mind that the primary aim here is the analysis of arguments for private
property. Of course the discussion of the very concept of a property
right applies across the board, and some arguments (notably those from
utility) will justify a system of state or communal ownership in cases
where they fail to justify private property. But again, the purpose here
is to discuss the justifiability of private property. Having given this
notice, I shall often drop the modifier ‘private’ in what follows. The
context should always make clear what is meant.

Scarcity
As a final introductory note, it should be mentioned that the scarcity
of goods is regarded by most writers as the central, controlling fact of
the contexts in which problems about property rights arise. Indeed,
many writers on property feel obliged to begin with remarks to the
effect that, were it not for scarcity, there would be no need for the
institution of ownership. There is, of course, a good deal of truth in
this. Even if a good is not now actually scarce, its ownership can be
problematic to the extent that the good can become scarce — e.g. by
being used up or by being controlled by a few people. And if a good
were to be inexhaustible and unlimitedly available to all, it is difficult
to imagine that much of importance could hang on who owned what
parts of it.
But like many seemingly obvious general pronouncements, it is not
so clear, upon inspection, that this one is as uncontestable as it seems.
If it is the case, as some defenders of property have supposed, that
appropriating things is an essential part of the full development of a
human personality, then it is not necessarily true that the elimination
of scarcity eliminates the problems which call for a theory of property
rights. For it may be, then, that the preservation (through a system of
property rights) of one’s possessions has some importance just because
those things are one’s own appropriations — regardless of whether or
not they are scarce or likely to become scarce. I have therefore chosen
not to make the usual deep bow to the notion of scarcity.

6
2 Property Rights

This chapter presents an analytical apparatus which is important for the

sake of clarity and economy in the arguments to follow, but which is
uncontroversial for present purposes. Those who are already familiar
with its fundamentals will therefore not need to read the chapter
closely. Mastery of the Hohfeldian definitions of ‘rights,’ ‘privileges,’
‘powers,’ and ‘immunities’ (here claim rights, liberties, powers, and
immunities) is important, however, as is familiarity with A. M. Honore’s
analysis of the full or liberal concept of ownership. These things are
summarized on pages 11-15 and 18-20, respectively. Readers who
skip the review of Hohfeld should at least consult the discussion of
‘recipient rights’ on pages 14-15. All readers should note the remarks
on the justification of property rights on pages 22-3.

Rights
‘Right’ has multiple meanings, and they are so deeply entrenched in
both ordinary and technical usages that the best one can hope for is to
keep the various meanings distinct and see to it that the distinctions are
attended to. Discussions of property rights are often damaged by careless
use of terms like ‘natural’ or ‘human’ rights, vagueness in distinguishing
moral from legal rights, and an imprecise understanding of the root idea
of a right. What I want to do here, as a prelude to discussing the
complexity of the concept of a property right, is to state with some
care what I take to be the root idea of a right, and then explicate the
elements of that root idea. I shall argue that all the sorts of rights
philosophers find it necessary to distinguish can be given adequately
precise definitions by reference to those elements.

THE ROOT IDEA OF A RIGHT

When moral philosophers contrast rights with ideals, rights with personal

7
Property Rights

or social goods, or rights with virtues, what they mean by ‘right’ seems
to be something like this:

The existence of a right is the existence of a state of affairs in

which one person (the right-holder) has a claim on an act or
forbearance from another person (the duty-bearer) in the sense
that, should the claim be exercised or in force, and the act or
forbearance not be done, it would be justifiable, other things being
equal, to use coercive measures to extract either the performance
required or compensation in lieu of that performance.

(Occasionally, both performance and compensation are extracted, or

alternatively, both compensatory and punitive damages. This translates,
in ‘friendly’ situations, into performance or compensation plus apology.)
The leading characteristics of a right defined in this way are its
correlation with the notion of duty, its involvement with coercion, the
fact that it may be concerned with either acts or omissions, and the fact
that violations require restitution. But it is just these characteristics
(plus a few others) which quickly bring the definition under criticism.
Must all right-holders be persons? (What about corporations? Animals?
Trees?) Must all rights entail correlative duties? Are some rights always
‘in force’? What sort of coercion is permissible and who may exercise
it? When is compensation an adequate remedy?
Questions like these generate the bewildering variety of attempts to
classify rights — to define various types. And I think the most perspi¬
cuous overview of the concept of a right comes from a consideration of
the various ways these questions can be answered. The following
elements of the root idea of a right raise the relevant questions.

ELEMENTS IN THE ANALYSIS OF A RIGHT

(1) Specification of the right-holders. Generally speaking, who may be
a right-holder is decided by the filling in of items (3), (4), and (5) below
— and that includes questions about whether animals, trees, and
future generations have rights. Element (3), the general nature of the
right-relationship between the holder and others, will clearly be partly
determinative. If the right-holder is said to possess the power inten¬
tionally to alter, at will, some of the rights-relationships of others, then
that clearly restricts the class of right-holders to individuals who have
the capacity to act ‘at will.’ Element (4), the ‘content’ of the right, is
further determinative. If the right-holder is entitled to abortion on
demand, one assumes that the class of right-holders is limited to those
individuals who have the capacities to be pregnant and to demand
abortions. And element (5), the specification of the conditions under

8
 Property Rights

which a right-claim may be said to be valid, also helps to specify

right-holders. If a line of argument used to establish the legitimacy of a
certain sort of right-claim only applies to humans, or to children, or to
wild animals, then the class af right-holders is similarly circumscribed.
(One parenthetical remark. I suppose it is true that, as ordinarily under¬
stood, a right-holder may be either an individual [human or not] or an
institution. A mere aggregate of individuals should probably not be
regarded as a holder of rights. At least, it is hard to think of a case in
which one would have to consider the question of the rights of an
aggregate distinct from the question of the rights of its members, con¬
sidered as individuals. But institutions may be somewhat different.
Landowning corporations have certain rights with regard to their land
which may be exercised by individuals acting for the corporation, but
which cannot really be said to be held, except in a derivative sense, by
any individual.)
(2) Specification of the right-regarders. Those who must ‘observe’ or
‘respect’ or ‘honor’ the right may similarly be individuals or institutions
(i.e. individuals acting through or on behalf of institutions, carrying out
the activities of members or officers of institutions). I suspect there is
general agreement that in moral contexts right-regarders must be
‘persons’ (human or not), but that again is determined by the filling in
of items (3), (4), and (5) below.
(3) The specification of general nature of the relation between
right-holders and right-regarders. Hohfeld distinguished four general
sorts of relation between holders and regarders: right/duty relations;
privilege/no-right relations; power/liability relations; and immunity/dis¬
ability relations.1 I shall suggest later that there are others, but that
will require some argument. (If there is some perplexity about what
distinguishes the ‘general’ nature of the rights-relationship from other
elements of its nature, it will suffice for present purposes simply to
think of this category as a left-over. The general nature is whatever of
importance is not specified by the other nine elements in this list.)
(4) The specification of the act, forbearance, status, or benefit ‘owed’
to or possessed by the right-holder. This element, which concerns what
might be called the ‘content’ of the right, may be filled in with
something very abstract (free speech) or very concrete (the delivery, by
26 April 1979, of $40,000 in cash). It becomes a particularly vexing
problem when the thing specified is not determinate — e.g. health care.
Is a right to health care to mean that one has a right to treatment by
the best medical professionals with the best equipment? A right to as
much as one wants? Needs?
(5) The specification of the conditions under which a right-claim may

9
Property Rights

be said to be sound. This involves the specification of general justifying

conditions (the things which justify any right-claims at all, ever),
specific justifying conditions (the things which, given the general
justifying conditions, justify the sort of right-claim at issue), and par¬
ticular justifying conditions (the things which, given the general and
specific justifying conditions, justify the particular right-claim at issue).
(6) Specification of the conditions under which a right may be said to
have been violated. Here are two distinct issues. First, when has a right-
regarder failed to fulfill the right-claim? Some rights He fallow, as it
were, until specifically ‘exercised’ by the right-holder, and if they are
not exercised, they cannot be violated. Other rights are perpetually ‘in
force.’ Further, some rights are specific as to when their claims must be
met; others are not. In the latter case, when does one say that a right-
regarder has failed to meet the claim (as opposed to saying that he or
she has simply not yet met it)?
Second, one must specify, for each right, the conditions under which
it may be justifiably overriden. Overriding a right is to be distinguished
from violating it. The distinction will be drawn, naturally enough, by
derivation from the three filled-in sets of justifying conditions listed
under (5) above as they relate to the justifications for conflicting moral
values, duties, or virtues.
(7) Specification of the conditions under which the violation of a
right is excusable, This involves the determination of (a) the general
criteria for judging an agent responsible for her or his acts; and (b) any
circumstances special to the particular case which make the imposition
of sanction either pointless or as great or greater an injustice than the
original violation of right.
(8) Specification of the appropriate remedies. These will vary, for one
thing, with respect to whether a right has been (justifiably) overriden,
inexcusably or excusably violated. For the first and third categories
punitive damages are ruled out by definition (justification and excuse
entail non-culpability and hence the injustice of any specifically
punitive sanction). But compensation is not ruled out in such cases;
indeed, it may be required.
The appropriateness of a remedy in all three categories is determined
by the relevant requirements of compensatory and retaliatory justice. It
should be noted, however, that it may be that once some rights (e.g. the
right to life) have been violated, neither restitution nor compensation
in lieu of it is logically possible. And in other cases (the right-holder’s
loss of a limb), compensation is a paltry substitute for restitution.
(9) Specification of the methods to be used in extracting the remedies.
These also may be said to derive%from the requirements of compensa¬
tory and retaliatory justice, as controlled by rights which remain in the
10
 Property Rights

wrongdoer, as well as by considerations of utility. An important

consideration in any society with a legal system is whether the right is
to be legally enforced.
(10) Specification of the agent(s) who may extract the remedies. Here
there may be rules barring third parties, or barring the victim, or
requiring some ‘official’ be the one who extracts the remedies.

These, then, are the elements in terms of which the root idea of a right
may be analyzed. I want to show now that one can organize various
typologies of rights simply by paying attention to the ways these
elements are filled in. Specifically, I want to show how much of an
overview of the whole concept of rights can be gotten by first consider¬
ing element (3), the general nature of the relationship between a right¬
holder and others, then element (5), the conditions which justify
right-claims. I will propose schematic definitions for most of the major
sorts of rights commonly distinguished. The definitions themselves
(though I think they are good ones) may be arguable. What I hope is
not arguable is the usefulness of this method of defining rights.

TYPES OF RIGHTS-RELATIONS HIPS

Perhaps the most crucial set of distinctions to be made involves element
(3), the general nature of the relations between right-holders and
others. As already noted, Hohfeld distinguished four important kinds of
rights with regard to this element,2 and while I think his list is not
complete, at least for moral purposes, I shall begin by reviewing it.3
Claim-right (or right in the strict sense).4 Here the existence of a
right may be characterized almost exactly as was the root idea of a
right. It is the existence of a state of affairs such that one individual or
institution (the right-holder) has a claim on another (the duty-bearer)
for an act or forbearance in the sense that, should the claim be in force
or exercised, and the act or forbearance not done, it would be moral
(or legal, in the case of a legal right), other things being equal, to use
coercive measures to extract either the specific performance (i.e. the act
or forbearance claimed), or compensation in lieu of it.
The existence of a claim right in one person entails the existence of a
duty in another. ‘Having a duty,’ as used here, may be defined as being
required to perform an act or forbearance in the sense that, should the
requirement be in force, and the act or forbearance not done, it would
be moral (or legal) for others to use coercive measures to extract either
the specific performance required or compensation in lieu of it.
There are, of course, many sorts of claim rights which can be
distinguished. One may wish to separate duties to act (which correlate
with ‘positive’ claim rights), from duties to forbear (which correlate
11
Property Rights

with ‘negative’ claim rights). One may wish to separate the claim rights
held against individuals from those held against institutions. And one
may wish to separate those for whose violation performance alone is an
adequate remedy from those for whose violation either performance or
compensation will suffice. When references to other elements of the
schema are added (e.g. who may hold the rights, who may enforce
them), it is easy to distinguish a great variety of types. Most of the
possibilities are straightforward enough not to need comment.
There is, however, one special sort of claim right which has been the
source of enough confusion to warrant special treatment.5 The sort I
have in mind may be called a capacity-claim, and may be described as
follows: One may wish, in asserting one’s rights, to call particular
attention to one’s status as a potential holder of rights. That is, one
may wish merely to assert, with a statement such as ‘I have a right to
get married,’ that one is of age and mentally competent — that one has
the legal capacity to get married.
This sort of claim right easily causes confusion, because the relevant
‘capacity’ or ‘standing’ is presupposed by the existence of other sorts of
rights. Having a right to score a goal in a soccer game is part liberty (no
one has a right that you not score) and part power (if you do put the
ball in the net in the prescribed manner, your goal must be recognized),
but both parts of the right presuppose that you are a player — that is,
that you have the requisite capacity or standing to exercise the liberty/
power right to score. Thus, when one asserts the right to score (meaning
the liberty/power right) one also necessarily presupposes that one has
the requisite capacity. But when the existence of that capacity is itself
at issue, one may want to ‘back up’ as it were and assert it alone. Right-
claim locutions come naturally here, they amount to the assertion that
others ‘owe’ one the recognition that one has the capacity — the relevant
qualifications or standing as defined by the right-making institutions or
considerations — to possess one or more sorts of rights.
The existence of the (legal or moral) capacity to possess rights, then,
in the sense that its recognition is owed the person having it, is the
existence of a capacity-claim right. I regard this as a claim right because
correlative duty-bearers can be specified, and the remedy for violations
(failure to recognize* capacity-claims) is the extraction of the perfor¬
mance (the recognition) from the duty-bearer.
Liberty.6 Not all rights, however, entail the existence of duties in
others. For example, we may say that one person (the right-holder) is at
liberty with respect to some others to do or not to do a given thing.
The others have no claim right against the right-holder, either to the
effect that the thing not be done, or that it be done. And the right-

12
 Property Rights

holder has no duty either to do it or not to do it. Competitive situa¬

tions provide good examples. Competitors have claim rights and duties
with respect to fair play, the rules of the game, and so forth. But each
is at liberty to win (‘has a right to win’). No one has a duty to win, or
to let another win.
The existence of a liberty right in one entails only the absence of
claim rights in others. It does not entail the existence of duties. What
confuses the situation is that liberties are often secured by claim rights
— especially for forbearance from others. Thus my liberty to speak
freely may be given legal emphasis by the enforcement of certain duties
in others not to interfere with my exercise of that liberty. But claim
rights and liberty rights are none the less distinct in principle.
As with claim rights, there are important distinctions which can be
made among liberties. For example, there are what might be called
natural as opposed to derived (or institutional) liberties. The former are
the sort which can exist independently of any social institutions.
Human beings in the proverbial state of nature have complete natural
liberty — i.e. no one has any claim rights against them for the perfor¬
mance or nonperformance of any act. Once political or social
institutions arise, natural liberties are limited (though many may
remain), but political and social libertiesofvarious sorts become possible.
That is, one can then speak of liberties whose existence is logically
dependent on the existence of political or social institutions — derived
or institutional liberties. Examples are one’s liberty to win a game.
Until games exist, the liberty to win can not logically exist. (The
attempt to prove the moral necessity of some system of political liberty
from the characteristics of complete natural liberty — together with
certain other features of the human condition — has been one of the
great projects of social-contract theory.)
Power. A third type of relationship between right-holders and others
is what Hohfeld labelled a power. My right to make a will is the legal
(and perhaps moral) ability to alter my relations to others (with respect
to rights). That is, the existence of a power right is the existence of a
state of affairs such that one person (the right-holder) may morally (or
legally) alter at will some of the rights, duties, liberties, powers, or
immunities of another person (the liability-bearer). The existence of a
power right entails only liability in others — that is, the fact that certain
of their rights-relationships are subject to alteration by the power-
holder. Power rights, like liberty rights, are often given effectiveness by
strategically placed duties and claim rights.
It is important to notice, here, that powers may be either perfect or
imperfect. That is, they may be such that the power-holder can alone

13
Property Rights

alter the rights-relationships of others, or they may be such that the

power-holder can only do so with the participation of others. Hohfeld
recognized this distinction,7 but did not dwell on it, and I think it is
important enough to warrant some separate attention. In fact a cursory
survey of power rights will reveal that what I shall call participant-
powers are the rule rather than the exception.
Example: a priest has the right to marry people, but this does not
mean that he can do so at will — that is, that unmarried people have a
corresponding liability to have their marital status altered at the priest’s
discretion. The right to enter into bilateral contracts is similar. One is
not just at liberty to do such things, nor does one simply have the
power to do them. It is, rather, impossible (perhaps for logical, or legal,
or moral reasons) to do these things by oneself — one can only partici¬
pate in them as joint enterprises. Hence something is missed by merely
saying that a person is at liberty to make bilateral contracts in the sense
that no one has a right against that person that he or she not make
them. And the situation is even more seriously misdescribed by simply
saying that the person has the power, simpliciter, to contract or
perform a wedding. It is rather the case that people have the right to
participate in these events in the sense that certain of their efforts,
when joined with those of other people, can alter legal or moral rights-
relationships.
I shall say that the existence of such a state of affairs is the existence
of a participant-power. And it is clear that this is an important subclass
of rights-relationships, both for the law and for morality. It is
intimately involved with the definition of offices and roles.
Immunity. Hohfeld’s fourth type of right-relationship refers to a
state of affairs in which one person (the right-holder) is not under a
liability with respect to the power of another — that is, is not subject to
the other’s altering, at will, his or her rights-relationships. The existence
of an immunity in one entails a disability in another. Like liberties and
powers, immunities are often reinforced with claim rights.
Recipient rights. In addition to Hohfeld’s four kinds of rights-
relationships, even as augmented with the subclasses I have listed,
philosophers have occasionally found it important to speak of another
kind — one which has some of the stringency of a claim right (the right¬
holder is ‘owed’ or ‘entitled’ to something) but for which no corres¬
ponding duty-bearers can be specified. For example, suppose it is
claimed that every adult pregnant woman has a right to have an abor¬
tion if she wants one, and that that right is more than a mere liberty.
(It is not self-induced abortion we are talking about, but properly
performed, medical abortion. To say that a woman has a right to an

14
 Property Rights

abortion if she wants one, then, is to say that she is owed the necessary
services.) We may be prepared to impose the correlative duties on
medical professionals. If so, the right to an abortion is a straightforward
claim right. But suppose we are not? Suppose we want to assert that
every woman has a right to (is somehow owed) an abortion if she wants
one, but we are not prepared to impose a duty on all or any particular
medical professionals to provide the service. (This is very nearly an
accurate description of the current situation in the United States.) Such
rights stand midway, as it were, between claim rights and liberties; they
may be considered to be ‘imperfect’ claim rights, or ‘augmented’
liberties. In any case their status is problematic, particularly for the law,
because, though they assert that something is owed the right-holder,
their failure to specify who should ‘pay’ renders them unenforceable.
They are, rather, simply assertions that (a) some person (the right¬
holder, is owed or entitled to something in the sense that (b) if it is
obtained, the recipient need not accept it with the gratitude appropriate
to the receipt of a gift, but may (properly) accept it as one would
accept the honoring of a claim right; and (c) if it is not obtained, the
right-holder may appropriately respond as if an (unspecifiable) duty-
bearer had violated a claim right.
I shall call the existence of this state of affairs the existence of a
recipient right.8 It is an important and interesting sort of moral claim,9
but one which often leads to confusion. People who have in effect
persuaded themselves that such a right (say to health care) exists, often
assume that it has — or must quickly be upgraded to — the status of a
claim right. Others, recognizing only the conventional Hohfeldian
categories of rights-relationships, assume that because a correlative duty-
bearer cannot be specified, no ‘real’ right exists. Discussion then quickly
degenerates.
Claim rights (including capacity-claims), liberties, powers (including
participant powers), immunities, and recipient rights are all typed, then,
by reference to the general sort of relationship that exists between the
right-holder and others — that is, they are distinguished from one
another primarily by how element (3) in the schema is filled in.

TYPES OF RIGHTS BY SOURCE OF JUSTIFICATION

I want to conclude this overview of the concept of a right with a final
set of examples which center on the filling in of element (5), the
specification of the conditions under which a right-claim may be said to
be justified. This element, as supplemented with some others, figures
heavily in the definition of many of the types of rights moral philo¬
sophers distinguish.

15
Property Rights

For example, a natural right is one which arises from conditions (as
in element (5)) which may, in some plausible sense, be said to ‘occur
naturally.’ The notion of a natural right is primarily designed to mark
the distinction between rights which arise from human institutions
particularly from practices intentionally designed to be right-making —
and rights which ‘just exist.’ Rights which arise because people make
agreements with each other or because they accept the rule of law, or
the rules of a particular institution, are not examples of natural rights;
they are ordinarily called conventional or special rights. Rights which
are justified in terms of the minimum requirements for social stability,
or human dignity, are natural rights — even if the list of minimum
requirements is heavily influenced by the particular set of institutions
humans have created. The distinction is not a perfectly sharp one, but it
is clear that it is to be made in terms of the fifth element of the
analysis.
A human right is (oversimply) either a natural or a conventional
right held by all and only human beings. (A right to the same thing,
held by Martians, is then a Martian right.) The qualifier ‘human’ here
only restricts the scope of right-holders (element (1)). The conditions
under which the holder’s claim may be said to be sound are the same as
those for other rights (except that they specify the whole class of
human beings as the only right-holders).
Legal rights are those which ‘are’ matters of law in a given system. I
put ‘are’ in scare quotes to indicate a problem; one’s theory of law will
determine, in each case, what rights are matters of law. Oversimply, for
a legal realist, legal rights are those which the courts will in fact enforce.
For a modem positivist, they are those ‘recognized,’ implicitly or
explicitly, by the legal system. For the natural-law theorist, they are the
ones the system ought to recognize. Here again the primary distinguish¬
ing mark is the filling in of element (5) — the conditions under which a
right claim may be said to be justified. But of course the definition is
also concerned with elements (8), (9), and (10) — the specification of
appropriate remedies, coercive measures, and agents who may carry
them out. A given legal system may (but need not in principle) limit
the sorts of right-relationships (under element (3)) which it recognizes.
Private (legal) rights are legal rights distinguished by reference to
element (1) — who may be a right-holder. In this case, that means
individuals in their ‘non-official’ and ‘non-affiliated’ capacities (though
citizenship can be a prerequisite). With the suitable modifications, one
can have categories of private rights which are natural, special, human,
or moral.
Civil rights are private, legal rights. But in addition to that, civil

16
 Property Rights

rights are distinguished by reference to the entities against whom the

rights are held. Although civil rights are rights against individuals (any
individuals specified by law), they are also rights against the state. It
is this feature, and not their content under item (4), which primarily
distinguishes them from other private legal rights. (A list of civil rights
now recognized in the United States might well show some unifying
elements of content. It seems to me that any such unity is purely a
contingent matter, however.)
Primary and secondary rights are sometimes distinguished. A secon¬
dary right is one which is entailed by the existence of another right, and
is extinguished when the primary right is extinguished. Thus the
distinction is clearly to be drawn in terms of element (5).
Moral rights are, I think, best distinguished from other sorts of
rights by the filling in of elements (5) and (10) primarily — that is, the
conditions which establish or justify claims for their existence, and the
specification of who may enforce them. It has been argued by Hart10
that what I list as items (7), (8), and (9) — that is, the specification of
excusing conditions, appropriate remedies, and methods used to extract
the remedies — are also relevant to distinguishing moral from legal
obligations (and, ipso facto, moral from legal rights), but he recognizes
exceptions in each of these cases (e.g. moral obligations are typically —
but not always — less ‘physically’ enforced than legal ones). So I suggest
that the distinction is best drawn by reference to the sort of conditions
which can generate the right, and the sort of agents who are to enforce
the rights. After that has been done, it may be appropriate to comment
on tendencies to differ on items (7), (8), and (9).
It is important to notice, however, that one’s concept of morality
will be as crucial here as one’s concept of law is in determining what
counts as a legal right. If references to prudence, utility, and the
interests and desires of the moral agent are excluded from moral
argument — that is, not regarded as moral reasons, reasons which could
justify a course of conduct as a moral one — then the notion of a moral
right will be similarly restricted. But if moral argument is regarded as
the most general category of practical discourse — an ‘all things con¬
sidered’ form of argument — the notion of a moral right will look very
different. In any case, it is clear that moral rights can also be private or
not, legal or not, natural, human, or special, primary or secondary.
They can also involve any one or any combination of the rights-
relationships described as claims, liberties, powers, immunities, and
recipient rights.

One could go on along these lines for a very long time. One could argue

17
Property Rights

about variant definitions of the types of rights already mentioned; and

one could go on to define the many other sorts of rights which are
distinguished for special purposes (e.g. perfect and imperfect, positive
and negative, in rem and in personam, proprietary and personal, vested
and contingent rights). But I think it is clear that these too can be
defined (perhaps in more than one way) by reference to the ten
elements of the root idea of a right.
Since my purpose here was only to give an overview of the concept
of a right — a perspicuous schema for defining and understanding the
interrelations of various types of rights — I shall not go on to define
more types or to argue for the schematic definitions already given.
Enough has been said, I think, to make my point: that the sorely
needed overview of the concept of a right can be obtained by focusing
first on the elements of the root idea of a right, and then defining
various types of rights by the ways in which those elements are defined.
I want now to turn to the concept of a property right, a concept whose
complexity has too often been ignored — to the detriment of philo¬
sophical discussions of property.

Property rights
Property rights, as I shall use the term, are the rights of ownership.11
But ‘the rights of ownership’ is not an unequivocal term. It is clear
enough that ownership typically has something to do with the right to
use, the right to transfer, and the right to exclude others from the thing
owned. And most philosophical discussions of property content them¬
selves with this broad characterization, noting in passing that certain
restrictions (e.g. prohibition of harmful use) and extensions (e.g. the
right to bequeath) are usually associated with it.12 But the right of use
is itself a bundle of rights which mature legal systems separate, and
when the other elements of legal ownership are examined, it quickly
becomes obvious that a person may own things (legally) in a variety of
overlapping but quite distinct senses. Philosophical discussion will
profit from a consideration of legal analyses of the concept.

FULL OWNERSHIP
A. M. Honore has given a particularly lucid account of the ‘full’ or
‘liberal’ concept of ownership — a concept he says is common to all
‘mature’ legal systems.13 A summary of his list of the elements (‘legal
incidents’) which make up the concept is a convenient place to begin.
Honore maintains that the full or liberal notion of ownership
(though it is, of course, subject to other analyses) is most adequately
explicated by reference to the following list of elements.

18
 Property Rights

(1) The right to possess - that is, to exclusive physical control of the
thing owned. Where the thing cannot be possessed physically, due, for
example, to its ‘non-corporeaf nature, ‘possession’ may be understood
metaphorically or simply as the right to exclude others from the use or
other benefits of the thing.
(2) The right to use - that is, to personal enjoyment and use of the
thing as distinct from (3) and (4) below.
(3) The right to manage - that is, to decide how and by whom a
thing shall be used.
(4) The right to the income - that is, to the benefits derived from
foregoing personal use of a thing and allowing others to use it.
(5) The right to the capital — that is, the power to alienate the thing
and to consume, waste, modify, or destroy it.
(6) The right to security - that is, immunity from expropriation.
(7) The power of transmissibility - that is, the power to devise or
bequeath the thing.
(8) The absence of term - that is, the indeterminate length of one’s
ownership rights.
(9) The prohibition of harmful use - that is, one’s duty to forbear
from using the thing in certain ways harmful to others.
(10) Liability to execution - that is, liability to having the thing
taken away for repayment of a debt.
(11) Residuary character - that is, the existence of rules governing
the reversion of lapsed ownership rights.
Honore is quick to point out that although all of the eleven incidents
are necessary for full or liberal ownership as defined by existing mature
legal systems, none of them is a necessary constitutent of ownership per
se, for people may be said to own things in various restricted senses
which omit any one or more of the incidents. One might, for example,
have the right to the income of one’s trust, but not the right to its
capital or management. Or one might have the right to management and
income of one’s house, but (due to leasing agreements) only restricted
rights to use, possession, and capital.
Further, each of the incidents is susceptible of varying definitions
not. perhaps, enough to alter its general idea, but enough to alter
emphasis and practical consequences. Transmissibility, for example, is
usually defined so as to exclude perpetuities. Harmful use may shade
into a requirement for productive use. The right to income may be
defined to permit taxation. The right to security may be defined to
permit state expropriation under certain circumstances. And so forth.
Finally, the incidents are susceptible of differing scopes. There may
be restrictions on what one can own in various senses: e.g. in the case

19
Property Rights

of land as opposed to chattels, a legal system could restrict ownership

to the rights of life-tenancy, use, management, and income, excluding
the right to the capital or the power of transmissibility.

VARIETIES OF OWNERSHIP
Just as there is no single definition of ownership in a given legal system,
so there is no single definition of full or liberal ownership among legal
systems. The list of elements may be standard (Honore says it is), but
the definition and scope given to each is subject to significant variations.
Nevertheless, for the purposes of the discussion to follow, it will be
useful to specify the subsets of Honore’s list which it seems reasonable
to regard as varieties of ownership, leaving aside, for now, issues of the
precise definition and scope of each subset.
I suggest (on the basis of nothing stronger than a feel for the se¬
mantic proprieties) that the following subsets of the eleven elements
each constitute a variety of what may reasonably be called ownership.
The right to the capital is the only one of the elements which
seems able to define a variety of ownership standing alone. It is the
most fundamental of the elements, if only because it includes the right
to destroy, consume, and alienate. (Alienation is understood to include
exchanges, gifts, and just ‘letting go.’) This makes absence of term
rather academic, and the other incidents can be seen as protections,
extensions, restrictions, or elaborations of this right. One who has all
the rights in the list save that of capital may own the thing in a derivative
sense, but the one who has the right to the capital is ‘fundamentally’ the
owner.
It follows that, if the right to capital is enough, by itself, to claim
ownership, any subset of elements which includes it will also be suf¬
ficient for the claim. Of course, a suitably strong prohibition of harmful
use, or a whimsically short term, or a sweeping allowance of expro¬
priation may effectively destroy the right to capital, but then the
element is in effect absent from the subset.
The right to security in possession, security in use, security in man¬
agement,14 and security in income may each be regarded as varieties of
ownership. The rights to use, income, or possession standing alone, are
perhaps disputable cases, but seem to me to be too slender to support
the claim of ownership. When each is buttressed with some version of
absence of term or the right to security, the claim of ownership is
plausible. I think it is safe to say that any subset which could
reasonably be called a variety of ownership would have to include at
least one of the first five elements (possession, use, management,
income, capital).

20
 Property Rights

These, then, are the likely candidates for varieties of ownership. The
right to capital alone; and thus capital plus any other element or set of
elements. The right to security in possession, or in use, or in income, or
in management; thus each of these pairs plus any other element or set
of elements. The number of combinations (about 1500 out of a total
of 2047 possible for the eleven elements) is daunting. When varying
definitions and scopes are added for each element, the number is greatly
increased.
Needless to say, the analysis to follow will not be able to concern
itself explicitly with very many of these combinations. (And one
suspects that most of the variants of the main types listed above are
not significantly different, for philosophical purposes, from those
which will be considered.) But a lively appreciation of the range
possible for property rights will be central to the discussion.

PROPERTY RIGHTS AND THE GENERAL NATURE OF THE RIGHTS-

RELATIONSHIP
A further point which must be kept in mind — and which Honore’s
analysis shows nicely — is that property rights are typically aggregates
of different sorts of rights and rights-correlatives. The right to possess
is to be sharply distinguished from mere protection of possession once
achieved — that is, it is a claim right to have possession, not merely a
power to acquire or a liberty to keep. If I have the right to possess a
thing, others do not merely have ‘no right’ that I not possess it; they
have a duty not to interfere with my possession — perhaps even to see
to it that the thing is restored to me if lost.
The right to use is primarily a liberty reinforced with claim rights
excluding others from interference. But note that it is interference with
use, not possession, which is excluded. The two may sometimes come
to the same thing, but particularly in the case of land, they often do
not.
The right to manage is part liberty, part power, again reinforced
with exclusionary claim rights. The right to income is part liberty and
part power, and the right to the capital is the same. Both are typically
buttressed with claim rights.
Security, defined with the term ‘immunity,’is just that, as is absence
of term. They are rights which correlate with disabilities in others.
Transmissibility is a power. It might be thought that the right to
alienate (i.e. transfer by exchange or gift, or simply give up to no one
in particular) includes this, but since bequests are only gifts post mortem
as it were, they are best considered separately from the right to alienate.
The prohibition of harmful use is a duty. Liability to execution for

21
Property Rights

debt is a Hohfeldian liability. And residuary character is a compound

of liabilities, no rights, duties, and their correlatives.

SUMMARY OF CAUTIONARY REMARKS ON PROPERTY RIGHTS

First, though the term ‘property rights’ is not unequivocal either in
legal or moral contexts, it seems best to understand it as referring to
one’s proprietary rights (as opposed to personal rights) in general —
that is, to all proprietary rights, whether in rem, in personam, over
either corporeal, or incorporeal things. Second, such proprietary
rights are the rights of ownership, and those rights are complex.
None of the characteristics which define the full or liberal notion of
ownership in modem legal systems is necessary to all varieties of
ownership. And each characteristic is subject to variations in definition
and scope. The result is that there are a wide variety of sets of rights
which, when they are held by someone, can justify the claim that that
person owns something. A philosophical discussion will have to pay
close attention to the nature of any particular aggregate of ownership
rights which may be at issue. Third, one will need to pay attention to
the fact that the rights at stake may be of different (Hohfeldian) sorts;
to the fact that restrictions on the scope of various rights (or changes
in their definitions) may be crucial with respect to whether they can be
justified; and to the fact that different aggregates of ownership rights
for different things may be justified by the same line of argument
(e.g. utility may not justify capital rights in land but have no trouble
with capital rights in other things). All this seems obvious, but even a
cursory look at the history of the discussion of property rights will
show how frequently such distinctions have been ignored or misused.

Justification
The justification of a property right will mean, in what follows, its
assertion as a conclusion from a sound, ‘all things considered,’ reasoned
argument. People can, of course, have unjustified and/or unjustifiable
legal and moral rights, de facto, by virtue of a prevailing legal or moral
code. Whether such de facto rights are ‘real’ or not I leave to one side as
a question without significant philosophical interest. To the other side
I leave questions as to whether there are any rights people ought to
have which, while they cannot be justified, are none the less known to
be just by intuition, revelation, or the ‘moral sense.’ Intuition and reve¬
lation are good places to begin a philosophical discussion, but they are
bad places to end it. When I speak of a right people have, then, I shall
rely on the context to make clear whether I mean a de facto right or
one which can be justified as a conclusion from a sound, all things

22
 Property Rights

considered, reasoned argument.

By an ‘all things considered’ argument, I mean one which does not
restrict itself to a special subset of reasons — reasons of legality, utility,
prudence, etiquette, or reasons drawn from a special conception of
morality which excludes all reference to utility and prudence. An ‘all
things considered’ argument is one which includes any consideration
relevant to a given conclusion, and in fact, unless some reason is given
to the contrary, gives considerations of each sort equal weight. I have
argued elsewhere that this sort of inclusive justification is properly
called moral justification;15 but regardless of the soundness of that
argument, it is certainly the sort of justification the moral philosopher
must eventually make. Everything else is preliminary.
A final word about justification: I shall distinguish, throughout what
follows, three levels of justification. A general justification of property
rights gives an answer to the question of why there ought to be any
property rights — of any sort — at all. A specific justification gives an
answer to the question of why there ought to be a specific sort of
property right (e.g. full, liberal ownership of land). A particular justifi¬
cation gives an answer to the question of why a particular person ought
to have a particular property right in a particular thing.

With these preliminaries out of the way, then, I shall turn to the main
task — the analysis of traditional arguments for and against private
property. (Again I shall often drop the modifier ‘private’ and speak
only of property rights or the rights of ownership. The context will
make it quite clear whether the modifier ‘private’ is implicit or not.)

23
3 The Argument from
First Occupancy

When the question arises as to why some people, rather than others,
should own things, one of the issues which comes to mind is the
question, ‘Who had it first?’ The notion that being there first somehow
justifies ownership rights is a venerable and persistent one. A close
analysis will show that it does not provide a sound basis for claims to
ownership, and thus contributes nothing to a theory of the general
justification of property rights. But it is important to consider none
the less. The reasons for its failure are illuminating.

A priori restrictions on first occupancy claims

There are times when ‘I was here first’ seems to make some sense as a
rationale for the claim ‘It’s mine,’ but those times are special in
character, and the limitations on the property claims which can plausibly
be made are severe. First occupancy obviously cannot justify title to
property unless (1) the object occupied is unowned; and (2) occupation
is in some relevant sense actual as opposed to intentional or declaratory;
and (3) the concept of actual occupation defines with reasonable clarity
how much one can occupy; and (4) the occupier claims no more than
a share as defined by (3). The first requirement comes simply from the
fact that if the thing is already owned by someone, mere occupation
will not change that fact, and presumably first occupation is by
definition impossible. The second requirement (as will be shown) is
necessary to avoid making the concept of occupation altogether
absurd and self-defeating. The third and fourth requirements arise, not
because one needs, in justice, to put a limit on what a person can right¬
fully appropriate in this way (though that may also be true), but because
one has to be able to specify how much an occupier occupies in order
to make sense of the notion of occupation to begin with, and once such

24
 The Argument from First Occupancy

limits are specified, they define the maximum an occupier could ever
rightfully claim merely on the basis of occupation. Whether an occupier
can rightfully claim this maximum — or indeed any amount at all — is
a separate issue. I shall discuss each of the four requirements first, and
then turn to the question of the soundness of the argument.

THE THING OCCUPIED MUST BELONG TO NO ONE „

First occupancy is put forward as a mode of ‘original’ acquisition. As
such it cannot operate where the thing occupied is already owned. But
what about things which are not owned by anyone? Property theorists
have typically said that such things are common property, or belong to
everyone in common, and as such can (or cannot) be appropriated by
individuals. Cicero invites readers to think of unappropriated things
as seats in a public theater where one can take whatever seat is vacant
(but no more than one).1 Others have not been convinced by the
metaphor.
A distinction of some importance for this issue was urged by Pufen-
dorf, and is incorporated in the first requirement stated here. Pufendorf
sharply distinguished cases in which things were held in common
‘positively’ — that is, were jointly owned, everyone having a well-
defined share — and cases in which things were held in common only
‘negatively’ — that is, were owned by no one but were equally available
to everyone.2 The importance of the distinction for the theory of first
occupancy may be made clear in the following way.
Where a thing is jointly owned and one’s share is therefore well
defined, there is no room for first occupancy claims. It is clear that first
occupancy can never create a justifiable title independent of the
consent of the joint owners. When a thing is jointly owned in the full
liberal sense, for example, any disposition of the thing by one person
without the consent of the others is a violation of their rights of owner¬
ship — even if one has taken no more than one’s share. Joint ownership
means joint management, and more fundamentally, joint right to the
capital. And though there may be cases in which adherence to the first
occupier rule (among the joint owners) is the only rational method for
allocating specific shares among the owners, still the decision to allocate
specific shares at all must be a joint decision. Indeed, there is a decision
of considerable import to be made in defining what ownership rights
will be allocated, even if an allocation has been decided on. Will the
group give up joint ownership altogether? Or merely possessory and use
rights? If use rights, then rights to income as well? And so forth.
Where a thing is owned by no one, however, no objections to appro¬
priation can come from a previous title, and the defender of first

25
Property Rights

occupancy merely has to show how taking possession of something

creates any of the rights of property. This has turned out to be difficult,
as I shall show below.

OCCUPATION MUST BE, IN SOME RELEVANT SENSE, ACTUAL AS

OPPOSED TO MERELY INTENTIONAL OR DECLARATORY
This second requirement, as I noted earlier, is necessary to avoid
making the concept of occupation altogether absurd and self-defeating.
After all, if a mere foothold on a continent is enough to establish first
occupancy of all the uninhabited regions of the continent, then a foot¬
hold in the universe is enough to claim first occupancy of the unin¬
habited regions of the whole cosmos. As Rousseau remarks, after
satirizing the ‘appropriations’ of European explorers, ‘On such a
showing. . . the Catholic King need only take possession, from his apart¬
ment, of the whole universe, merely making a subsequent reservation
about what was already in the possession of [others] .’3 So occupation
must be ‘actual,’ but what does that mean?
It means, first of all, that mere intentions or declarations do not
count. First occupancy is supposed to be a mode of original acquisition,
independent of conventions. While, under the strictures of well-defined
conventions, it might be reasonable to allow certain people to ‘occupy’
by declaration (as in telephoning an airline reservation), or by token
(as in buying a ticket for a concert), in the absence of such conventions
these acts cannot count as occupancy without reducing the whole pro¬
cedure to the self-defeating absurdity noted above. So occupation must
involve the actual physical presence of the occupier (or perhaps a proxy).
But how much territory does one’s presence ‘occupy’? Only the area
equal to one’s physical size? In most cases such a rule would be as
absurd as allowing occupation by declaration. But if the area said to be
occupied is not limited to one’s physical size, then how is it to be
limited? That it must be limited is clear (we all have footholds in the
universe . . . ). So a rationale for a principle of limitation must be found
if the notion of appropriation by occupation is to make sense of all.
A reasonable position — and, I think, partly what lies behind the
classic requirement that one occupy no more than one can use — is that
the amount one can be said to appropriate with one’s presence be
determined by one’s purpose in occupying the thing and one’s carrying
out of that purpose at the time of occupation. The rationale for such a
requirement is as follows.
Occupation, while it must be a physical presence in or on the thing,
cannot be only that if it is to count as an appropriation. It must also
be for the purpose of appropriation; otherwise, there would be no

26
 The Argument from First Occupancy

difference between the state of merely being somewhere and the act
of appropriating that place. One may appropriate things for various
purposes: to have a place to live, to hunt, to cultivate, to mine, or
perhaps just to keep to oneself. If a person takes a piece of land to
cultivate, but does not carry out his purpose, his appropriation of
anything more than the area on which he stands is purely intentional.
The cultivated land, however, is reasonably regarded as occupied by the
cultivator (even though he may be physically present on only part of it),
and the cultivation effectively defines the limits of the land so appro¬
priated. Similarly for other purposes of appropriation: if one’s purpose
is simply to exclude others, then until one effectively does so (i.e. has
the will and the ability to do so) one’s appropriation is purely inten¬
tional. The declarations of European explorers in the fifteenth century
were mostly of this purely intentional sort, as would be that of a
United States astronaut were he to try to appropriate the moon. No
effective means of excluding others from a whole continent existed in
the case of Cortez or Coronado, and none exists now in the case of the
moon. Should it ever be otherwise, however — as for example it would
be if the science fiction idea of impenetrable planetary defenses were
realized — then we could make sense of the notion that a nation or a
person could appropriate a planet by occupation, merely for the purpose
of excluding others. (This would not, by itself, justify property rights in
the whole planet, of course. But the concept of occupation of the
whole planet, in a sense requisite for appropriation, would clearly be
satisfied.) A rancher with a herd of three cattle, then, cannot occupy,
in the sense requisite for appropriation of pasture land, a 5,000 acre
tract. He could, however, appropriate acreage for future use (i.e. to
exclude others until his herd grows) to the extent that he could actually
keep others off the land.
It might be thought that the wide variety of purposes possible for
appropriations makes the foregoing account as liable to absurdity as
one which admits simple declarations. Suppose I appropriate merely
for self-aggrandizement, and having an exalted view of myself, decide
that only a continent would be sufficient to make me grander than I
am? Or suppose I appropriate a mountain range for aesthetic purposes?
Or 5,000 acres for privacy? Doesn’t the existence of such purposes
entail, in effect, appropriation by mere intent? I think not. Such
‘interior’ purposes either require the exclusion of others for their imple¬
mentation, and thus are limited in the same way that appropriations
purely for the exclusion of others are limited, or else they do not
require occupation at all (as when I make a song ‘my own’). In that case
they can be accomplished by intent or declaration alone, and have only

27
Property Rights

that status. All of the potentially embarrassing cases I can think of fall
into one or the other of these categories. The quantitative limits of ap¬
propriation by occupation, then, in the senses relevant to a discussion
of property rights, are reasonably regarded as the limits of the purposes
of such appropriations as implemented.

OCCUPATION MUST BE ACTUAL AND NO MORE THAN ONE’S SHARE

The concept of actual occupation, as explicated above, now defines
with reasonable clarity how much one can occupy, so the third require¬
ment is met. And since it requires physical presence at least of a sort
necessary to implement the purpose for which appropriation by occu¬
pation is undertaken, one is limited, by definition, to the share so
defined. Thus the requirement that the occupier may claim (to have
occupied) no more than a share as so defined is satisfied. The question
now is simply whether first occupancy, even under these stringent
conditions, can ever legitimate a claim of propery rights.

Arguments for first occupancy

To begin, it should be pointed out again that possession — even pos¬
session protected by social agreement or law — is to be sharply dis¬
tinguished from the claim right to possess. If one has a claim right to
possess a certain seat in a theatre, then others have a duty either to turn
it over on demand or to forbear altogether from possessing it them¬
selves. But your possession of an unreserved seat may be protected (as
the legitimate exercise of a liberty), as long as you occupy it, without
any recognition of a claim right to possession, or any of the other rights
of ownership. It is proof of the existence of a claim right to possess,
derived from the fact of first occupancy, with which one must be
concerned. And that is a very difficult task.
There are, as far as I can tell, only five lines of argument which
have ever purported to do it. Two are flatly defective; a third is reducible
to the labor theory of acquisition; the fourth is a version of the
argument from utility; and the fifth, while more promising, is so general
in form that the reference to first occupation is eliminable.

KANT’S REMARKS
The first of the two defective lines is an argument attributed to Kant.4
He argued that an act of will in appropriating a thing creates a property
right in that thing if the act satisfies the moral law and if anyone
else’s subsequent use or possession of it would injure the appropriator.
On the assumption that at least some acts of first occupancy can satisfy
the moral law (i.e. are capable of being derived from a self-consistent

28
 The Argument from First Occupancy

universal law), Kant claims (1) that to deny anyone the exercise of
freedom involved in such an appropriation would be wrong, and (2)
that once appropriated, to deny anyone the continued use of the pos¬
session would be wrong. These things would be wrong in so far as they
would be unjustifiable restrictions of the exercise of a person’s freedom.
Let us see what follows from this and what is assumed by it.
If (as Kant evidently thinks) I have a natural right to, or it would in
some other sense be wrong to deny me, the greatest extent of liberty
compatible with the moral law, then it would follow that the denial of
the exercise of my freedom to appropriate (in accord with the moral
law) would be wrong. But it does not follow at all from the fact that
appropriation conforms to the moral law that permanent possession,
use, management, right to income, capital, and power of transmission
also conform to the moral law. No doubt expropriation would ‘injure’
me in the sense that it would frustrate the exercise of my freedom. But
if expropriation is ever consistent with the moral law, and indeed with
the greatest extent of liberty compatible with the moral law, then the
‘injury’ to me would not be a wrong. There is no reason to think,
a priori, that this could not sometimes be the case. In short, the argu¬
ment establishes a liberty right to appropriate but not a claim right to
keep. And that is not a property right at all. (An extension of the argu¬
ment from natural liberty can support the justification of property
rights — in a way which connects indirectly with first occupation — but
that is best left to later discussion. See below, pp. 75-80.)

HEGEL’S REMARKS
The second defective line is attributable to Hegel. At least it is sug¬
gested by passages from his Philosophy of Right.5 There, mixed together
with some interesting remarks about the genesis of property as an
expression of personality, Hegel asserts that (1) ‘a person must translate
his freedom into an external sphere to exist as Idea’; (2) what is external
is what is not personal, not free, without rights; and (3) ‘a person has as
his substantive end the right of putting his will into any and every [ex¬
ternal] thing’; (4) this putting of the will into a thing makes it one’s
own ‘because it has no such end in itself and derives its destiny and soul
from his will’; (5) this is, he concludes, ‘the absolute right of appropri¬
ation which man has over all things.’
The criticism of the argument may be brief. I do not grant that the
need asserted in (1) must include the acquisition of property rights.
Nor do I grant, as a general principle, that a need creates a property
right; therefore I am suspicious of the move from (1) to (3). But clearly
the argument, even granting (1), (2), and (3), has the same flaw as

29
Property Rights

Kant’s. It proves at most a right to appropriate but not to keep. It cannot

follow simply from the fact that I have a right to put my will into
something (i.e. appropriate it) that I have the right to indefinite pos¬
session and capital, for example. So again, an argument for first occu¬
pation has not proved a property right.

LABOR, UTILITY, AND ‘WHY NOT?’ ARGUMENTS6

The other lines of argument may be dealt with just as summarily. The
third is that by virtue of the labor which I invest in a thing by occupying
it, given certain other conditions, I come to own it. This is clearly a
version of the labor theory as much as it is a version of first occupancy,
and is better dealt with below. The fourth is an argument from utility:
it is a fact of nature, this one goes, that a socially unstable situation
will result if people are not allowed to keep (in some sense of owner¬
ship) what they first occupy. But this surely contains a very dubious
premise about human psychology, and must depend, as well, on a very
contestable view of how ruthlessly a government can act while still
preserving order. We have ample evidence that gross acts of expropriation
can be ‘smoothed over’ by ruthless suppression of dissent. In any case,
utility arguments will be considered in more detail below.
Finally, there is what might be called the ‘why not?’ argument. In
the absence of prior rights, the argument goes, and since the fellow has
gone to the trouble to take it (and would doubtless welcome property
rights if not actively resent the withholding of them), and if there are
no good reasons to the contrary, why not grant the rights? That is, it
would not be unjustifiable to grant them. I will have more to say about
this argument later, but suffice it now to note that the reference to
occupation is either eliminable (after all, if there are no good reasons
against it, and anyone whoever — occupier or not — wants property
rights, then why not?) or else it is really a reference to the labor
involved in occupation, and the argument becomes a version of the
labor theory.

Conclusion
The argument from first occupation, then, does not succeed in giving a
general justification of property rights. That is, it provides no answer
to the question of why there ought to be any property rights (based
on first occupancy) at all. Liberty to occupy (under certain conditions),
yes. But not any of the complexes of claim rights, liberties, powers, or
immunities comprising something which could reasonably be described
as ownership.
However, if another general justification can be found, and if (for

30
 The Argument from First Occupancy

some reason — reasons of utility, perhaps) it is settled that first

occupancy ought to be recognized as a way for particular individuals to
obtain property rights, then the notion would have some interesting
results for the specific justification of these rights.7 For example,
occupation by cultivation limits what is occupied to what is cultivated.
If it is right (for other reasons) to confer ownership rights on the culti¬
vator, those rights would presumably be limited to those required for
cultivation. The farmer would thus have no right to exclude picnickers
from a fallow field, or bathers from a pond, as long as they did not
interfere with the cultivation. This principle of innocent use is quite a
general one: owners have only those rights required for the purposes of
their occupation.
As for particular justification — that is, the determination of who
owns what — occupation provides a clear criterion once the correctness
of using the first occupancy principle has been established. The most
convincing discussions of first occupancy are precisely of this sort — at¬
tempts to show that since we grant that things should be owned by
someone, a good place for the law (or morality) to begin to sort out
titles is with the first (ascertainable) appropriation of a given thing. One
then examines (legal or moral) objections to the original appropriation
and to subsequent transfers. But this is not a part of any general justifi¬
cation of property. It assumes the general justifiability of the institution
and deals rather with questions of particular justification.

31
4 The LaborTheory of
Property Acquisition

The root idea

The root idea of the labor theory is that people are entitled to hold, as
property, whatever they produce by their own initiative, intelligence,
and industry. It is an idea which, once enunciated in the context of
natural rights theories of the seventeenth century, has seemed nearly
inescapable and self-evident. Yet it is worth remembering that it only
emerges ‘naturally’ from a very particular theoretical context —
specifically, the attempt to build up an account of the just society from
an (imaginary) state of nature in which there were no rules, no
obligations, no political relations of superior to inferior, and in which
all things were held in common. Outside the confines of state-of-nature
theory (as, for example, in ancient Greek political theory), the right to
the product of one’s labor is hardly mentioned at all, and never made a
cornerstone of the theory of property. Indeed, it is barely mentioned
even in state-of-nature theorists as late as Grotius and Pufendorf.1 But
once the idea had clearly emerged, it became virtually unchallengeable.
One might ignore it (as Hume did), but would not deny it, even if one
were attacking the whole notion of ‘primitive acquisition.’2
Oddly, proponents of the labor theory rarely discuss the warrant for
its root idea. That is, they rarely argue for it as a general justification of
property rights. (It is, of course, used as a general justification, but that
is quite another matter.) There are intricate arguments about the specific
sorts of property rights labor can produce (whether it can give title to
land, or only to produce from land, and whether it can yield the right
of transmission, for example). But there is scant evidence, outside of
Locke, of any serious thinking about how it is that labor can entitle
anyone to anything. Time and again writers profess their inability to
think of any alternative to it (short of a social compact) which could

32
 The Labor Theory of Property Acquisition

produce property rights. But the absence of a valid alternative proves

nothing about the validity of the case at hand, and previous ‘alterna¬
tives’ (such as one of the strands which runs through Christian property
theory to the effect that the land belongs to the righteous, or what
presumably would have been Aristotle’s view, that property ought to
be held by people who can use it properly) are not considered. Locke,
however, made the effort, and so I shall organize my account (loosely)
around his arguments.

Locke’s theory
There are several distinct arguments in Locke3 for a labor theory of
primitive acquisition, and they involve two distinct conceptions of the
root idea that labor entitles one to property. The standardly quoted
line is this:
(la) Everyone ‘has a property in his own person; this nobody has a
right to but himself.’ (27)
(lb) ‘[T] he labour of his body and the work of his hands we may
say are properly his.’ (27)
(lc) Whenever someone, by his labor, changes a thing from its
natural state (to make it more useful or beneficial to him [26, 28, 34]),
he has ‘mixed’ his labor with it — that is, ‘joined to it something that
is his own.’ (27)
(ld) He ‘thereby makes it his property,’ for ‘it hath, by this labour,
something annexed to it that excludes the common right of other
men. For this labour being the unquestionable property of the labourer,
no man but he can have a right to what that is once joined to. ... ’ (27)
(le) This is so ‘at least where there is enough and as good left in
common for others’ (27), and where what one takes is no more than
one can use. (31)
The root idea is here understood in terms of a derivation from prior
property rights. Since one’s body is one’s property, and its produce
(labor) is also one’s property, it follows (?) that the labor’s product is
also one’s property. Critics have generally focused on the final inference
rather than the prernises behind it, and they have had good sport with
the metaphors of ‘mixing,’ ‘annexing,’ or ‘joining’ one’s labor to a thing.
But these metaphors really pose no more difficult a problem than is
posed by the need to define the extent of one’s ‘occupation’ of a piece
of land; both problems can be solved in much the same way. Labor is
first distinguished from mere intent, declaration, or occupation. It is
next distinguished from play and accidental improvement (e.g. play¬
fully pushing a boulder into a boulder field and accidentaly starting an
avalanche which clears the field and makes it suitable pasture for

33
Property Rights

sheep).4 One then simply calls attention to the fact that labor is pur¬
posive. Some efforts are for the purpose of enclosing a piece of land;
some are for growing a crop; others are for creating an artifact to be
possessed and used. The extent of the land (or whatever) with which
one’s labor ‘mixes’ is thus quite naturally defined by the purposes for
which one labors. Erecting a fence counts as a mixing of labor with the
enclosed area, and cultivation counts as laboring on the soil. There are
puzzling cases, embarrassing cases (what about the airspace over the
land?). But on the whole, the metaphors are manageable ones.
The crucial problem with premises (c) and (d) is, as Nozick puts it,
why anyone should think that mixing one’s labor with a thing is a way
of making the thing one’s own rather than a way of losing one’s labor.5
It is evident that Locke was not content with these premises either. He
keeps adding remarks which produce variants of the original argument.
For example, consider this variant:
(2a) People have property in their bodies (as in argument 1).
(2b) Likewise, their labor is their property (as in argument 1).
(2c) ‘That labour put[s] a distinction between [the thing worked
on] and [what is held in] common.’ (28)
(2d) The distinction is that labor ‘added something to [the thing]
more than nature . . . had done. . . . ’ (28)
(2e) The thing labor adds — the difference it makes — is value.
Things that are unappropriated are ‘of no use’ (28) and labor is respon¬
sible for nine-tenths or perhaps ninety-nine hundredths of the value of
the products of the earth. (40)
(2f) Therefore one’s labor entitles one to property in the thing
labored on.
Strictly, of course, the argument could at most only yield the con¬
clusion that one is entitled to the value one’s labor adds to the thing,
and not to the thing itself. Locke’s reply would apparently have been
that the difference is minuscule (some 1 per cent) and that in some
cases the labor value and the thing so improved are inseparable. Nine¬
teenth-century critics — anarchists, socialists, and reform capitalists
alike — insist quite correctly, however, that the argument does not
support property in land.6 In the products of labor, yes. But in the case
of land those are the fruits of cultivation, or herding, or building, and
not the land itself. The difference here is not a small one and the two
are not inseparable.
But is the argument sound? It apparently proceeds by assuming that
the property in one’s body ‘extends’ first to (the body’s product) labor,
and then again to the product of labor by the alteration in one’s
relation to the thing which is the consequence of the labor. But how is

34
 The Labor Theory of Property Acquisition

this so? Granted that when one labors on a thing, one’s relation to it
has been changed — i.e. before the laboring, the thing could not truly
be described as something one had labored on; after the laboring, it
can be so described. But how does that change justify the claim that
one has property rights in the thing?
I shall comment on this argument in detail in a moment, but first
let me lay out the final variant of the labor theory which can be found
in Locke. This one, though it is less often quoted, is the heart of the
issue as I see it. It begins by repeating premises (2a) through (2e):
(3a) People have property in their bodies (as in arguments 1,2).
(3b) Likewise, their labor is their property (as in arguments 1,2).
(3c) ‘That labour put[s] a distinction between [the thing worked on]
and [what is held in] common.’ (28)
(3d) The distinction is that labor ‘added something to [the thing]
more than nature . . . had done.’ (28)
(3e) The thing labor adds — the difference it makes — is value.
Things that are unappropriated are ‘of no use’ (28) and labor is respon¬
sible for nine-tenths or perhaps ninety-nine hundredths of the value of
the products of the earth. (40)
Then the new argument adds the following:
(3f) Since things are of no use until appropriated (28), and appro¬
priation in most cases involves labor which would not be undertaken
except for the expected benefits, to let others have the ‘benefits of
another’s pains’ (34) would clearly be unjust.
(3g) This is so ‘at least where there is enough and as good left in
common for others’ (27) and where one takes no more than one can
use (31). ‘For he that leaves as much as another can make use of, does as
good as take nothing at all.’
(3h) Therefore, from (a) through (e) one is entitled to the whole of
the value one’s labor adds to things, and from (f) and (g) — together
with elements from (a) through (e) — one is entitled to the other
expected benefits as well.
Here, in (3f) and (3g), is a variant of the root idea quite distinct
from that expressed in (a) through (e). The proposal is that labor is
something unpleasant enough so that people only do it in the expec¬
tation of benefits (and since unlabored-on things are of little or no value
anyway), it would be unjust not to let people have the benefits they
take pains to get. This is so at least where one’s appropriation has no
significant effect on others.
Here (3g) — premise (le) in the original argument — functions as
much to disarm objections as to state a positive requirement of justice.
Premises (f) and (g), then, taken together, constitute an argument for

35
Property Rights

the benefits people expect, but cannot get title to from premises (a)
through (e). If these benefits are ones people deserve by virtue of the
(labor) pains they have taken, then that constitutes a good reason for
granting the benefits. And if there are no countervailingly strong
reasons to the contrary, granting them is justified. This explication of
the root idea has seldom been attacked.
Locke gives, then, two distinct reasons for thinking that one’s
labor entitles one to property in the thing labored on: (1) that such
rights derive from prior property rights in one’s body and its labors;
and (2) that such rights are required, in justice, as a return for the
laborer’s pains. Both reasons, taken together, are intended to establish
security in the right to capital and the other rights normally associated
with capital — namely, possessory, use, management, and income rights.
Absence of term is also supposed to follow, and the prohibition of
harmful use (probably) follows from the restrictions in (3g). Liability
to execution for debt may perhaps be ground out of an analysis of the
powers of alienation (promises governing exchanges). At least it is
consistent with a rational system of exchanges. Transmissibility,
however, does not follow directly from Locke’s arguments, as has been
noted by some.7

Criticism of Locke’s theory

Critics of these arguments have not carefully distinguished them, and
have often contented themselves with attacks on the ‘mixing’ metaphors
in the first argument and the self-defeating character of the labor
theory as applied to ownership of land (the fact that, once all the land
is owned by a proper subset of the population, the landless, while they
must work on the land, are denied the whole fruits of their labors by
the results of the very arguments which were supposed to guarantee
them).
Proudhon goes farther than this in two directions: by calling attention
to what he takes to be an ambiguity in premises (3a) and (3b), and by
scoffing at the ‘taking pains’ part of (3f). Clearly, these are crucial lines
of attack, for they go to the heart of each of the two interpretations of
the labor theory’s root idea. Neither line of attack has gotten the
development it needs. I intend to remedy that in what follows, beginning
in each case from Proudhon’s sketchy remarks.

PROPERTY RIGHTS IN ONE’S BODY8

Some people have thought that premise (a) involves Locke’s argument
in an equivocal use of the term ‘property.’ Proudhon says: ‘The word
property has two meanings: 1. It designates the quality which makes a

36
 The Labor Theory of Property Acquisition

thing what it is... 2. It expresses the right of absolute control over a

thing. ... To tell a poor man that he HAS property because he HAS
arms and legs ... is to play upon words, and to add insult to injury.’9 As
Black’s law dictionary points out, older writers sometimes used the
word in the sense of ‘that which is proper to someone,’ and Salmond10
cites Locke as among those who use it to refer to ‘all that is [one’s] in
law.’
It is conceivable that Locke equivocated in his use of ‘property.’ But
it is unlikely that Locke equivocated in this passage; and it is certain
that the argument in no way depends on equivocation. (Nor does it
depend on the concept of a mysterious soul-substance which ‘owns’ its
body.) Property rights in one’s body can be perfectly well understood
merely as the correlatives of other people’s duties to forbear from
acting so as to possess, use, and manage one’s body. Property rights
here, as in the standard cases of ownership, are fundamentally rights to
exclude others. As such, assertions that my body is my property are not
logically troublesome.
Locke says nothing about where these property rights come from,
but I suspect it is wisest to regard them as simply summations of the
relevant aspects of one’s rights to life and liberty. Even so, a close look
at the relations between these rights and the rights to the produce of
one’s labor produces some surprising results.
The fact is that without some modification of one or both propo¬
sitions, ‘Everyone has property in his own body’ and ‘Everyone is
entitled to the fruit of his labors’ are strictly incompatible. They are
incompatible because, supposing both are true of everyone, then either
(1) parents are entitled to property rights in their children (as the fruit
of their labor), in which case not all people have property rights in
their own bodies (namely, those with living parents who have not
relinquished their rights in their children, or those whose parents have
assigned the rights to others who are living and have not relinquished
them); or (2) parents are not entitled to property rights in their
children, in which case they are not (always) entitled to property rights
in the fruits of their labor.
Whichever one of these alternatives is considered sound, Locke’s
argument must be revised to avoid the contradiction. If children do not
have property rights in their bodies, the necessary revisions produce a
picture of human relationships repugnant to modern readers. (Though
it is notable that this is, in part, purely a modern phenomenon. Writers
as late as Grotius, for example, record without objection the recognition
of parental property rights in children by some societies.11) Specifically,
people would start life quite literally as their parents’ chattels, and so

37
Property Rights

continue until freed by manumission, default, or emancipation. It is

clear that Locke would have accepted no such revision of the premises,
if for no other reason than that it would eliminate property as a natural
right except for the small class of people whose parents die intestate.
Further, of course, there is no way to make the consequences of such
revisions compatible with natural rights accounts of liberty and
equality.
Repugnance to modern sensibilities is not, by itself, an argument
against this revision of Locke’s premises, of course. And there is
certainly enough dispute about the validity of natural rights theory to
mean that the revision cannot simply be dismissed by pointing out its
incompatibility with the requirements of that theory. But the wholesale
nature of the changes which would result from the adoption of the
revised premises — changes which would conflict with fundamental
principles held even on utilitarian grounds — suggest that there would
have to be better reasons than merely the preservation of one of
Locke’s arguments for property rights to justify adoption of the revised
premises.
But suppose instead of insisting that not everyone has rights to their
bodies, one takes the other alternative and insists that people do not
always have a right to the products of their labors? Specifically, that
they do not have such rights when their labor produces other people.
Very well. But how is such a restriction to be justified as anything other
than an ad hoc device to square Locke’s argument with conventional
moral principles? There seem again to be two possibilities: (1) that
there is something in the nature of labor which justifies a property
claim for some products but not for others; or (2) that the labor claim
is valid in all cases, just overridden in some by conflicting claims.
I know of no way to take the first possibility. It is true that writers
have often spoken of some things as not acquirable by occupation or
labor (the sea, the air). But these arguments are usually unsound (as
when Grotius speaks of the sea as unbounded and therefore unoc-
cupiable12). The air and the sea can be appropriated by labor — bottled
and compressed in the one case, drained off in the other. In any event,
if anything is clearly a product of (one’s body’s) labor, a child is. It
seems unlikely that anything will be found in the nature of the labor
involved in conception, gestation, birth, and nurturing which will
distinguish it sufficiently from the labor involved in cultivating a garden
to justify using the latter in a Lockean argument but forbidding the use
of the former.
The second possibility — the conflicting claims alternative — is surely
the obvious line. One asserts first that persons have rights other than

38
 The Labor Theory of Property Acquisition

those to the fruits of their labor. This means others have duties corres¬
ponding to those rights. Such duties — e.g. my parents’ duty to respect
my liberty — may conflict with their property rights in me. Where a
duty conflicts with a right it may (a) be overridden by the right; (b) be
equal to and therefore effectively ‘cancel’ the right; or (c) override the
right. The question now to be answered is why the duty of parents to
respect the liberty of their children either cancels or overrides their
property rights in those children.
The long answer would have to go through the whole account of
rights to life and liberty, showing their dominance over property
rights. But fortunately there is a shorter argument available in this case.
Locke makes the right to property in the fruits of one’s labor derivative
from one’s rights to one’s body (at least he does so in the standardly
quoted line of argument). If the property rights in one’s body are
merely summations of — or another way of stating — the rights to
liberty all humans are entitled to, then it is clear that we have grounds
for restricting the consequences of a principle derived from those rights
(namely, the principle that people are entitled to property in the
fruits of their labor) to results which are compatible with the ‘origin¬
ating’ rights (namely, the liberty rights). That is, we can rule out as
self-contradictory any consequence of a principle which contradicts the
premises which generate that principle. If we begin from the premise
that all people have property rights in their bodies, and from that
generate the principle that they are entitled to the produce of their
labors, we cannot accept an interpretation of that principle which
permits a property right in the produce of labor to outweigh or cancel
a person’s property right in his or her body. For the latter sort of right
is primary; it is from that that property rights to labor’s produce
derive.
This also solves nicely the problem of accounting for the existence
of property rights in one’s body. After all, in Locke’s account, labor is
supposed to be the only mode of original or primitive acquisition, and
if anyone acquires property in people’s bodies that way it is parents, not
the people themselves. So where do these ‘prior’ property rights come
from? Thinking of them as restatements of rights to life and liberty
gives a good answer. Of course it also means that property rights — in
this one argument at least — derive from rights to life and liberty, and
therefore one’s success in establishing property rights by that argument
depends on success in establishing those other rights. But this is a conse¬
quence natural rights theorists would accept gladly, I think.
The failure of the ‘property rights in one’s body’ line of argument.
What they might not accept as gladly is the way the account just given

39
Property Rights

makes painfully clear the need to further restrict the property rights so
derived. If their source in people’s liberty means that persons cannot be
owned, does it not also mean that ownership of land must be restricted?
‘Place one hundred men on an island from which there is no escape, and
whether you make one of these men the absolute owner of the other
ninety-nine or the absolute owner of the soil of the island, will make no
difference either to him or to them.’13 Where ownership of anything
(land, water, etc.) has the effect of abridging the liberty (property in
one’s body) from which the Lockean argument derives the rights of
ownership over things other than one’s body, the argument cannot
permit such ownership.
Worse still, the basic question remains unsettled: How is it that the
property rights to one’s body ‘transfer’ or extend to property in the
products of one’s labor? In so far as one’s labor is inseparable (by way
of ownership rights) from one’s body, it is understandable how the
first ‘extension’ — from ownership of the body to ownership of the
labor — is warranted. But the same can hardly be said for the second
extension — from ownership of the labor to ownership of labor’s
products. The products of one’s labors are clearly separable from one’s
body. And Nozick’s question remains: Why is it that investing one’s
labor in something causes one to come to own that thing? Why does it
not instead just mean that one has lost the investment?
Here defenders of the labor theory tend to make a burden-of-proof
argument. Why not? they say. Surely my working on something changes
things. I now stand in a relation to the thing labored on which differen¬
tiates me from all other persons. I produced its human value (or nine-
tenths or ninety-nine hundredths of it). Surely that makes it mine.
Unfortunately, this will not work. The phrase ‘It is mine’ is am¬
biguous here. As a reference to the fact that it (the produce of one’s
labor) is just that — and not the produce of anyone else’s, or a product
of chance — the claim ‘It is mine’ is of course true, but merely a repe¬
tition of the assertion of the unique relation which now holds between
you and the thing. The crucial question remains unanswered: What
reason is there to conclude that this altered relationship constitutes, or
warrants, or gives any support at all to the claim that you have owner¬
ship rights in the thing? Why does it not just mean that you are entitled
to public admiration? Or the gratitude of your fellows? Or perhaps
nothing more than the appropriate change in the great book which
describes the world? It is labor theorists who are making the assertion
here — that the changes produced by their labors entitle them to
property rights. The burden of proof is on them to show how it is so,
and they have not done so. I see no reason to think that they can. I

40
 The Labor Theory of Property Acquisition

suspect that what they can show is the reasonability (in some cases)
of saying that labor grounds a recipient claim right to the thing. That is,
that the fact of one’s labor can sometimes establish that one is owed
possession or use or management in the sense that, should one not get
it, one could appropriately react as though an unspecifiable duty-
bearer had violated one’s claim rights. But that is not a property right,
and so whether or not the labor theory establishes it is irrelevant here.

ENTITLEMENT TO THE PRODUCTS OF ONE’S LABOR

But isn’t one entitled to those products none the less? Most people since
Locke have said, assumed, or implied an affirmative answer, and shifted
to the other major argument from labor to do it. Locke puts it in the
form of an entitlement for one’s ‘pains’ in creating something valuable
out of raw and largely useless material. I took the trouble to make it; I
deserve some reward for my efforts; I earned it by my efforts. The
sentiment is a familiar and powerful one. But to see just how little it
proves — at least in the way Locke uses it — consider this exchange
between Proudhon and Mill.
Proudhon scoffs at the whole idea, quoting someone else: ‘The rich
have the arrogance to say. “I built this wall, I earned this land with my
labor.” Who set you the tasks? we may reply, and by what right do you
demand payment from us for labor which we did not impose on you?’
Proudhon says, ‘All sophistry falls to the ground in the presence of this
argument.’14 Mill salvages the ‘sophistry,’ in a passage specifically not
referring to property in land, in the following way: ‘It is no hardship to
anyone, to be-excluded from what others have produced: [the pro¬
ducers] were not bound to produce it for his use, and he loses nothing
by not sharing in what otherwise would not have existed at all.’15
Mill has gotten, I think, as close as one can get to an account of how
Locke’s ‘taking pains’ argument justifies a property claim: when the
labor is (1) beyond what is required, morally, that one do for others;
(2) produces something which would not have existed except for it; and
(3) its product is something which others lose nothing by being excluded
from; then (4) it is not wrong for producers to exclude others from the
possession, use, etc. of the fruits of their labors. It is not so much that
the producers deserve the produce of their labors. It is rather that no
one else does, and it is not wrong for the laborer to have them. Then, in
so far as instituting a system of property rights which guarantees to
laborers the fruits of their labor is a justifiable way of excluding others
(as under the three conditions above), such property rights are
justifiable.
The prior demands of morality. Notice, however, the severe restric-

41
Property Rights

tions on what this argument can justify. First, the labor has to be
above and beyond what morality requires a person to do for others.
And that can be a very large condition indeed under some circum¬
stances. For morality not only requires the fulfillment of obligations,
but the exemplification of at least some moral character traits and
occasional concessions to the principle of maximizing goods. Morality
encourages and permits much else, but it requires that much — at least
in the sense that not to do it makes one liable for reprobation.16 And
though others may not ‘deserve’ the benefits morality requires one to
confer on them, it is none the less wrong to withhold them. When
excluding others from the fruits of one’s labor amounts to withholding
such benefits from others, then such withholding cannot be justified
— at least not by the labor argument alone.
The supplemental value requirement. Second, the labor must produce
something which would not have existed except for it. This restriction
is simply designed to call attention to the difference between the land
one labors on and what is produced. Under some circumstances (such
as the draining of a swamp, the filling of an estuary, etc.), one may
fairly claim that one’s labor has produced usable land itself. But under
most circumstances, it is not the land itself that labor produces, but
something from the land. Similarly for the water in a well, stream,
or lake. The entitlement to labor’s products cannot extend (except by
convention) to the means of production — at least to the extent that
the means of production are not themselves the products of labor.
The no-loss requirement. Third, the property rights to which one
acceeds by virtue of labor must not constitute a loss to others. Many
disputes about the legitimacy of property rights can be understood as
veiled disagreements about the interpretation of this requirement. If
it is taken to mean that no one must be put at a relative disadvantage
by another’s accession to property rights, then it is doubtful whether
one could legitimately claim ownership of any significant product
of one’s labors. Even a toothbrush, in so far as it is an advantage, puts
its possessor in a position of relative superiority over those who do not
possess one.
But surely this stretches the concept of a ‘loss’ too far. The point of
this restriction is to exclude a laborer’s taking away others’ existing
goods. Equality of bad teeth is not an existing good, except in competi¬
tive situations where good teeth are a competitive advantage. So I have
not ‘taken away’ a good from others by my possession of a toothbrush.
Land and the means of production, however, are a different matter.
No doubt unused land represents a benefit to people only in so far as it
is an opportunity of one sort or another. None the less, the elimination

42
 The Labor Theory of Property Acquisition

of those opportunities by the acquisition of land which does not leave

‘enough and as good’ for others is a loss to those others. The point of
Locke’s restriction, as applied to land and finite non-renewable resources
generally, is clear on this issue. (Its application to cases, of course, will
depend largely on the explication of what it means to leave ‘enough’
for others. And this will be a difficult problem indeed for any society
which is [in any sense] overpopulated, or in which an equal sharing of
some available resource would mean that the most industrious would
get significantly less than they could use.)
There is still a large conflict, however, between the way various
anti-property theorists might regard the notion of a ‘loss’ and the expli¬
cation just given. In a competitive situation, it will be urged, to be put
at a competitive disadvantage is a loss in precisely the way the inability
to acquire land is a lost opportunity. And acquisition of property
rights which puts others at a competitive disadvantage is therefore a
‘taking away of an existing good’ — namely, competitive parity.
It seems to me that this is correct, and that it does not, like the
concept of relative disadvantage, stretch the notion of a ‘loss’ beyond
recognition. There may be nothing ‘good’ about having teeth as rotten
as your neighbor’s. Thus when he improves his relative to yours, the
equality lost is not necessarily the loss of a good. But in a competitive
situation the loss of competitive equality, or any deterioration of one’s
competitive position, is necessarily the loss of a good.
The extent to which the principle of entitlement to the fruits of one’s
labor can justify property rights is thus greatly limited in competitive
situations — so much so, I suspect, as to defeat most of the point of
Locke’s arguments. In competitive situations, the restrictions on
ownership must be extended to at least the major means of production.
Locke’s argument then becomes a foundation for socialism rather than
‘possessive individualism.’ Land, other natural resources, and the major
means of production (sources of energy, transportation, communication,
heavy industry, and important tools or knowledge too difficult for the
individual to manufacture from available resources), cannot be privately
owned. If they are acquired privately, they either deprive others of op¬
portunity, or put them at a competitive disadvantage. In either case the
requirement that no one suffer loss by the producer’s acquisition of
property is violated.

Entitlement reconsidered
It will surely be urged in reply, however, that there is something very
wrong with this explication of the root idea of the labor theory. Proud¬
hon’s attack boils down to ‘I didn’t ask you to work, so I should not

43
Property Rights

have to pay you in the form of property rights for the work you did.’
Mill’s reply is, ‘As long as it is no loss to you — no “payment” — why
should you care?’ All this is very well as rhetoric, it will be said, but
when the consequences of Mill’s reply themselves undermine the
theory, something is wrong. For after all, why shouldn't the industrious
gain competitive advantages over the non-industrious? Locke himself
remarks that ‘[God] gave [the earth] to the use of the industrious and
rational. . .’17 He clearly had it in mind that there could be no justice
in a system which did not distinguish, in the distribution of goods,
between the producers of those goods and the non-producers. But why
is this so? It cannot be for the reason that Mill gives (that the inequality
constitutes no loss to the unindustrious), for whenever they are thereby
put at a competitive disadvantage, they do suffer a loss. And to say that
the producers deserve the property because they earned it with their
labor is just to repeat, with emphasis, the original premise — the root
idea of the labor theory one is trying to explicate.
Further, when the reply here is taken out of the language of the
work ethic and one substitutes for ‘industrious’ the terms (equally
accurate as things actually happen) ‘aggressive,’ ‘intelligent,’ and
‘strong,’ and substitutes for ‘unindustrious’ the terms ‘passive,’ unintel¬
ligent,’ and ‘weak,’ the reply loses some appeal. Why should the aggres¬
sive inherit the earth, after all? They have, but has it been a good thing?
Why should the people with the natural advantage of intelligence
(whether acquired by inheritance or by environment) inherit the earth?
Have they earned the means which permit their acquisition? And so on.
(It should be noted that the social Darwinist rationale for the right
of the strong to the advantages conferred by property reduces to an
absurdity. As Rashdall points out, property rights — especially when
they protect possession and inheritance — quite clearly protect the
weak against the strong.18)
The final blow to the argument is this: it may be that in some situ¬
ations a laborer’s accession to liberty rights is no loss to others, but the
accession to a claim right, or a power, or an immunity, is usually a
different matter. The creation of the corresponding duties, liabilities,
and disabilities in others usually constitutes a loss of liberty for them.
Rights justified by this argument cannot, then, include claim rights,
powers, or immunities if and in so far as the existence of those sorts of
rights actually constitutes a loss to others. And all of the varieties of
ownership distinguished at the outset involve not only liberties but
claim rights or powers or immunities as well.
Yet even when all this is said, it must be admitted that a person’s
commitment to the root idea of the labor theory may not have been

44
 The Labor Theory of Property Acquisition

disturbed very much by the argument so far. Head shaking, protestations

that the analysis has ‘gone too fast’ or must have overlooked some
alternatives, and general carping about the poverty of philosophy are
more typical reactions. This is not an unusual result when an analysis
has been unable to find rational support for a widely held moral con¬
viction. But the persistence of the conviction after all this is enough to
give one cause to consider another possibility: that the whole effort to
find arguments to justify the labor theory may have been wrongheaded.
Laborer’s entitlement as a fundamental principle. Suppose it is urged
that one should not try to go behind the root idea of the labor theory at
all — that this root idea is just a fundamental or primitive moral principle
which neither needs nor is capable of justification. Once this suggestion
is made, the argument shifts to the issue of what it means to say that a
moral idea is primitive or fundamental, and the justification for
thinking that the labor theory contains such an idea.
Now there are several senses in which an idea may be said to be so
fundamental as to defy moral justification. First, an idea may so per¬
meate the whole ‘moral conceptualization’ of the world that to discard
it would be to discard altogether the enterprise of making moral judg¬
ments. The notion that agents are responsible for their acts has been
thought to be this sort of fundamental idea, as has the generalizability
of moral judgments. ‘Going behind’ either of these ideas to talk about
their moral justifiability might thus be held to be circular; they are
simply constitutive of the concept of morality per se.
Second, an idea may be necessary to the conceptualization of an
important range of cases within moral life — necessary in the sense that
without it one loses one’s grip on the particular moral problem the
cases present. The concept of desert might be thought fundamental in
this way to the problem of penalties and punishment (as opposed to
reformation or deterrence). Without it, one hardly knows how to
proceed. Thus it might be urged that in a discussion of restorative or
retributive justice the justifiability of the notion that people can
deserve certain things is assumed. One treats that notion as fundamental
and does not go behind it; it is just constitutive of the concept under
discussion.
Third, an idea may be regarded as fundamental in the sense that it is
the best choice of the alternatives available for a justificatory ‘starting
point.’ Justifications cannot prove everything; they have to start
somewhere — with something which is itself unproved. The best starting
point, of course, is one which is indisputable. But for anything beyond
purely formal systems, it is hard to find indisputable axioms. Instead,
one must usually settle for something which is not actually in serious

45
Property Rights

dispute and which can otherwise perform the role of an axiom (for
example, axioms must be self-consistent, be stated clearly and un¬
ambiguously, and be suitably powerful or ‘at the bottom’ of many
justificatory issues).
I think it is clear that the root idea of the labor theory cannot
qualify as fundamental in either of the first two senses: there is no
logical circularity involved in asking for a moral justification of it, and
it is certainly not presupposed by the conceptualization of the problems
raised by the justification of property rights (witness ancient discussions
of property acquisition). So we are left with the possibility that it may
be fundamental in the third sense — that is, that it is the best (or a
member of the best set of) justificatory ‘starting point(s).’
This contention has some initial plausibility. The general, unquestion¬
ing approval of the idea is a modern (Western?) phenomenon, but one
which is very firmly established. So the condition that the starting point
not actually be in dispute seems satisfied. Further, the idea that
laborers are entitled to the products of their labor seems (initially)
to satisfy some of the other requirements of an axiom: generality; self-
consistency; the ability to generate determinate conclusions when
applied to cases. But in each case this initial plausibility crumbles upon
inspection.
For example, if there is general agreement that laborers should get
property rights in the fruits of their labor, there is also general agreement
that this should not be at the expense of others. Proudhon’s challenge,
‘I did not ask you to work so why should I have to pay you for what
you did?’ is as generally agreed to as the root idea of the labor theory.
That is surely part of the reason Locke and Mill were so careful to
include the ‘no loss’ requirement in their arguments. So any attempt to
treat the root idea as a plausible first principle on the basis of people's
actual commitment to it would, if it were to be consistent, have to
include a qualification equivalent to the ‘no loss’ requirement. Thus
nothing would have been gained by treating the root idea as a first
principle (since with the no loss requirement, its justification goes
through anyway).
Further, there is an insuperable problem with the generality of the
idea. Laborers are supposed to be entitled to property in the very things
they produce (and where these are inseparable from the raw materials
worked on, property in the things worked on). But it has already been
shown that this supposition must be revised in the case of the children
parents produce. And it is equally clear that it will not do for the
whole class of employees and the equally large class of people who
perform services for others. It is perhaps true that most employees

46
 The Labor Theory of Property Acquisition

work on things already owned by others, and since labor is only

claimed to be a mode of original acquisition, for that reason they
cannot come to own the very things they produce or work on. But why
is it not generally agreed that scholars have property rights in the ideas
they produce (as opposed to the books the ideas are published in)?
Surely it is not because the ideas are owned by someone else. Nor is it
because scholars do not claim those ideas as ‘their own,’ for they do so
claim them. Nor is it because scholars have all waived possible property
rights prior to beginning to work (as might be the case for certain
government or corporate employees engaged in research), for some of
them have not done so. Why, in short, is it sometimes generally agreed
that people should have property rights in their ideas (in the form
of copyrights and patents), but not always? And why is it generally
accepted that patents and copyrights lapse automatically after a period
of time, while ownership of land acquired by labor would not be
expected to?19 Once it is acknowledged that some labor is expected to
yield property rights in the very things labored on, while other labor is
not, the root idea of the labor theory must be seen as a poor choice for
a fundamental principle. In the form in which it can claim general
acceptance, it simply does not ‘cover’ all the cases. The obvious
covering principle is that laborers deserve something for their labor.
Perhaps in some cases what they deserve is property in the thing
labored on; in other cases property in some sort of fee for the labor; and
in still other cases, not property at all but simply the recognition, ad¬
miration, or gratitude of other people. If the principle of desert can
settle when people deserve property rights in the products of their labor,
then we will have a plausible reformulation of the labor theory (see
below, pp. 48ff). But we should be clear that it will be a reformulation,
not the traditional version.
The upshot of this is, then, that the Locke—Mill labor theory cannot
serve as a fundamental, unjustified moral principle. If any principle
related to labor has that status it is the notion that labor should be
rewarded. This principle may in some cases justify recognizing a
property right in the thing labored on. In other cases, it may not. In
any case, to repeat, it is not the root idea of the labor theory of
property acquisition — at least as traditionally formulated — which is at
the bottom of such justifications.
Fair taking: a final note. It is one thing to tell people they ought to
give away things they have produced; it is quite another to tell them
the things are not theirs to give. It is one thing to tell people that they
ought not to take unfair advantage of others; it is another thing to tell
them that they are not entitled to advantages taken fairly. And there is

47
Property Rights

still something so far unsaid about the ‘fair taking’ idea.

Proudhon’s objections, and Mill’s reply, concern situations in which
people go about producing things wholly on their own — without being
asked, and without initial reference to the desires, needs, or abilities of
others. Then it is asked: how does their labor justify rights to what they
produce? The answer, naturally enough, is in terms of objections people
might raise against the producers. ‘You have destroyed my opportunities
for acquisition.’ Or, ‘You have put me at a disadvantage.’
But suppose we imagine a situation in which there are enough
resources (initially) for each person to make full use of his or her
abilities, people are equal in ability, and aware of the consequences for
their own eventual opportunities and competitive positions if they
allow others to ‘get ahead.’ This, I think, is the sort of picture last-ditch
defenders of the labor theory conjure up. What, they ask, is wrong with
securing for the industrious the fruits of their labor in that sort of situ¬
ation? It is true that they will soon have a competitive advantage over
the idlers, but so what? Surely they deserve it. And if their initial
acquisitions make it possible for them to use more of the land,
minerals, and other resources than they could initially, and the non¬
producers see this, but still do not care to appropriate (by their labor)
their original ‘shares,’ then what is unfair about letting the industrious
take that too?
It must be granted that in the situation just described, the slothful
do not deserve the produce of others. Nor do they deserve to be
protected from the consequences of their own sloth (conditions justi¬
fying paternalism having been ruled out). And so it would not be wrong
to give property rights — including claim rights — to the industrious.
But this is hardly a comfort to the defenders of the labor theory. In
the first place it is still too weak: at best, one can only derive a recipient
right from it, and that is not a property right. Second, as described, the
situation in which one can take advantage ‘fairly’ is so rare as to be of
very little practical importance beyond certain special colonizing
enterprises.20 Third, the ‘fairness’ of the situation is wrecked with the
arrival of the second generation. Even if inheritance is not permitted,
the members of the first generation and those of the second who come
to maturity first clearly leave the remainder, no matter how industrious,
with reduced opportunities. So the ‘industrious colonist’ metaphor does
not advance the range of allowable property rights very far.

Deserving to own: reformulating the labor theory

One is left, again, with little more than the persistence of the root idea
— and the vehemence of its advocates. One explanation for this may be

48
 The Labor Theory of Property Acquisition

found in a psychological fact: that labor is (in some circumstances)

psychological appropriation — appropriation in the sense of a ‘felt
incorporation’ of the thing labored on ‘into’ one’s person. If it is true
that I ‘am’ (psychologically) what I want to become as well as what I
have become, then one can say with similar validity that I am what I
have made. I am what I was, what I do, what I want to do, and what I
produce. These are all greatly abbreviated locutions for complex facts
about personality, but the ones which refer to the consequences of
labor are no less sound than the others. The trouble is that while such
facts may be able to support a claim for a recipient right, I see no way
for them to go beyond that. It is not a happy situation.
I want, therefore, to explore one final possibility — the idea that
there might be some principle of desert, related specifically to labor,
which will satisfy the insistent demand that despite all the difficulties,
something like the labor theory must be sound.21 The idea is obviously
very closely tied to Locke’s notion of justice for those who ‘take pains’
or who add value to things by their own efforts, on their own initiative.
But as far as I can tell, the argument to follow is not one that either
Locke or Mill actually intended to make.

DESERT AS A FUNDAMENTAL PRINCIPLE

To begin, suppose we acknowledge that the notion of desert is a con¬
stituent of the notion of morality per se. This may not be immediately
obvious, but consider: Morality is concerned with (among other things)
questions of what people ought to do and be. And among the things
which people ought to do and be it is certainly held that there are some
moral requirements — that is, things for which sanctions of various sorts
will be invoked if people fail to do what they ought, or fail to be what
they ought. (There may be other things which are morally good or bad
but which are not either required or forbidden.) Now it is understood
that, by definition, moral sanctions — reprobation, blame, punishment,
and their opposites — are not just instrumental acts, to be invoked
whenever they will yield a desirable result. They are to be applied only
to those who ‘deserve’ or are ‘worthy’ of the sanction. One must be
morally blameworthy, or praiseworthy for it to be appropriate for a
moral sanction to be imposed. Thus just as surely as the notion of
moral requirements and prohibitions (and the concomitant sanctions)
necessarily involves the notion of agents who can be said to be respon¬
sible for their acts, so too it necessarily involves the notion of desert.
To ask whether desert is an intelligible concept is to call into question
the whole enterprise of passing moral judgment on people for their
conduct. If agents can be morally responsible for their acts, they can by

49
Property Rights

definition deserve reward or punishment for them. That is part of what

it means to say someone is a responsible agent. And if they cannot
deserve moral sanctions, they cannot be morally responsible for their
conduct. The whole enterprise of making moral judgments is
indefensible. Unless we are wholesale moral sceptics, then, we have to
acknowledge the intelligibility — indeed the necessity — of the concept
of moral desert.
But what does deserving something mean? That is, what ‘principles
of moral desert’ can be articulated simply by analyzing the concept
itself? Here Joel Feinberg’s careful analysis is useful.22 First, it is clear
that claims that people deserve this or that must have a ‘basis.’ That is,
‘[i]f a person is deserving of some sort of treatment, he must, neces¬
sarily, be so in virtue of some possessed characteristic or prior activity . . .
Of course, [one] may not know the basis of [another’s] desert, but if
[one] denies that there is any basis, then he has forfeited the right to
use the terminology of desert.’23
The basis for a desert-claim, however, is to be distinguished from the
basis for a claim that a person is eligible, or qualified, or entitled to
something (where entitled means having a claim right to a thing).24 And
the basis for a desert-claim must, in general, be some fact about the
person who is said to be deserving. One can imagine a case in which one
ought (morally) to reward X simply because it would make X’s parents
very happy; but that is not a basis for saying that X deserves a reward.25
What is a basis for a desert-claim? Happily, we need not be able to
give a comprehensive answer to that question to see that, by definition
again, personal deeds and character may be bases. We sometimes give
reasons for not using them. (‘I suppose it was “good” tof him to return
the money, but after all he owed it to me. People don’t deserve anything
special for doing their duty.’) But we do not normally give reasons for
using personal deeds and character as desert bases because what else,
after all, could be a basis for personal desert? So it must be the case
that a person’s ‘adding value’ to the world — in the sense of discovering,
inventing, or improving something which helps others — can be a
basis for a desert-claim. And once we add the stipulations that the
deed be both morally permissible and beyond what is morally required
of the person, I cannot imagine any objection to the assertion that such
‘adding of value’ must be a basis for a desert-claim. Then, finally, since
the very notion of personal desert is that ‘good things’ (prizes, rewards,
benefits) are what befit good deeds or good character (when they are
desert bases), the following principle must be sound simply by definition:

A person who, in some morally permissble way, and without

50
 The Labor Theory of Property Acquisition

being morally required to do so, ‘adds value’ to others’ lives

deserves some benefit for it.26

I have gone over these definitional matters with no doubt tedious

care because philosophers have been justifiably leary of the notion of
desert. I do not want to leave the impression that anything has been
hidden. For I now want to claim to have shown that the desert
principle just ennunciated meets the requirements for a fundamental
principle of the first sort (above, p. 45). It certainly also meets the
requirements for the other two sorts (pp. 45-6). It does this, in short,
because the concept of desert is constitutive of the concept of morality
per se, and because the principle of desert given above is entailed by
that very concept of desert.

SOME FEATURES OF THIS PRINCIPLE OF DESERT

Once this much is granted, there are several things which can be said
immediately about this principle of desert. In the first place, it must
be a double-edged principle: if a benefit is due for adding value,
presumably a penalty is due for subtracting value. Such symmetry is a
conceptual requirement for this principle of desert (though not for all),
because the context in which the concept of desert here operates calls
for a ‘polar’ notion of desert.27 ‘Adding value’ is taken to be a good
deed; good deeds have their opposites. (Here that would mean ‘sub¬
tracting value.’) If benefits are what befit good deeds, penalties are
what befit bad ones. The principle of desert stated here cannot consis¬
tently affirm the former without also affirming the latter. On the
assumption that there are some morally permissible acts which both
add and subtract values — by improving the lot of some at the expense
of others — then it follows that sometimes both a benefit and a penalty
are due. This results in an argument for a tax on entrepreneurs whose
activities deplete the community’s stock of unowned resources or limit
the opportunity of others without their consent; and it results in an
argument for compensation to any persons who suffer a demonstrable
net personal loss. The size of such penalties may in effect cancel the
benefit entirely, of course.
Second, we must hold the principle of desert to be totally inap¬
plicable to cases in which gains are gotten by violating moral prohibi¬
tions — e.g. by unjustifiably overriding the rights of others. And this is
so no matter how much more good than bad is eventually produced. It
is, after all, a principle of personal desert being considered, and if the
balance of good over bad does not justify overriding the right, then it is
hardly consistent to think that the wrongdoer deserves a benefit for
whatever good is done. Consider immoral medical experiments on
unwilling human subjects. (The case is different for rights which are
51
Property Rights

justifiably overridden. Compensation is still due, but the notion of

desert is applicable.)
Third, the desert principle must include a proportionality require¬
ment: Benefit or penalty to be proportional to the value added or
subtracted by the labor. I say for the value produced rather than for the
(value of the) labor expended, for conceptual reasons. By the terms of
the desert principle as stated, value accrued or lost without labor does
not count. Labor is a necessary condition for desert. But it is not suf¬
ficient. Labor alone — labor which neither adds to nor diminishes value
— does not deserve anything. So the benefit must be proportional to
the value produced by the labor (and if that is not separable from the
total value of the product, then proportional to the total value of the
product). Similarly, penalties are to be proportional to the loss produced
by the labor.28
Fourth, and finally, the principle of desert must have a way of fitting
the type of benefit to the type of labor or to the laborer. After all, a
candy bar is not (usually) a fitting reward for someone who does not
like sweets.
I suggest that each of these four elements must be regarded as a con¬
stitutive feature of the principle of desert under discussion. That is, the
meaning of the principle of desert used here cannot be fully and self-
consistently explicated without including them.

PROPERTY RIGHTS AS FITTING BENEFITS

It is the fourth element which raises the possibility for a new argument.
Are there some types of labor for which property rights are the only
fitting benefit? Or less strongly, are there some sorts of labor for which
property rights are the most fitting benefits? (Care must be taken here
not to let the standard for fittingness turn the argument into a version
of the appeal to utility. For example, to argue that certain benefits are
fitting because without them people would not do the things we want
them to do is to give a utility argument, not a labor-desert argument.
The standard of fittingness must come instead from the nature of the
labor, the laborer, or the products of labor. And it is not immediately
obvious how this will work.)
Suppose we begin by recalling once again that labor (as opposed to
random expenditure of effort and play) is goal-directed activity. It is
undertaken for some purpose — for the satisfaction of some desire.
Now, it is clear that the satisfaction of some such desires might in prin¬
ciple require property rights, while the satisfaction of others does not.
If the whole purpose (or an indispensable part of the purpose) of the
laborer’s efforts is to get and keep as property what the labor produces,

52
 The Labor Theory of Property Acquisition

then if the laborer deserves a benefit for his or her efforts, and if
property rights in the thing produced do not exceed the proportionality
requirement, then they are obviously the only (or part of the only)
fitting benefit.
Note that this does not mean that people can come to deserve
property rights by simply having them as part of their goals when they
undertake to do something. What they do must deserve a benefit, and a
benefit of a size comparable to the value of the property rights they
want (whether full, liberal ownership or some more restricted variety).
Once this is understood, the labor-desert argument looks quite sound.
Further, the use of the goal of labor as the mark against which to
measure the fittingness of benefits allows for an account of why and
when money rewards can be susbstituted for rights to the very thing
produced. For example, if my object in gardening is to have the satis¬
faction of eating things I have grown, then substitutes (like money to buy
other produce) won’t do. On the other hand, if all I want is vegetables
of a certain quality, at certain times, at a certain convenience, then it
may well be a matter of indifference whether my entitlement is to
property in the very things I have produced or to money to buy equiva¬
lent products.
Similarly for the issue of when, and why, the recognition, admira¬
tion, and gratitude of one’s peers are more fitting than either money
or property in the thing produced. Some things, after all, are not done
for fortune. They may be done for fame, for example. One may want
to be admired — known for something. In that case, reward of money
and anonymity is a poor substitute for what is sought. (Think of
James Watson’s desire to be the first to understand DNA.29)

THE LABOR-DESERT ARGUMENT FOR PROPERTY

What does this mean for private property rights? Well, it means that
when people deserve a benefit for their labor, and when (in terms of the
purposes of their efforts) nothing but property in the things produced
will do, and when the value of such rights meets the test of proportion¬
ality, then they deserve property in those things. When, on the other
hand, substitutes will do every bit as well, they then deserve either the
things produced or an equally satisfactory substitute. And finally,
where property in the things produced is not what is sought at all, and
cannot be an adequate substitute for what is sought, the laborers deserve
something else (perhaps recognition, gratitude).
Put more formally, this version of the labor argument is as follows:
(1) When it is beyond what morality requires them to do for others,
people deserve some benefit for the value their (morally permissible)

53
Property Rights

labor produces, and conversely, they deserve some penalty for the de¬
value their labor produces.
(2) The benefits and penalties deserved are those proportional to
the values and disvalues produced, and those fitting for the type of
labor done.
(3) When, in terms of the purposes of the labor, nothing but property
rights in the things produced can be considered a fitting benefit for the
labor, and when the benefit provided by such rights is proportional to
the value produced by the labor, the property rights are deserved;
when, in terms of the purposes of the labor, either property rights
in the things produced or something else can be considered a fitting and
proportional benefit, then either the property rights or one of the
acceptable alternatives is deserved;
when, in terms of the purposes of the labor, property rights in
the things produced cannot be considered a fitting reward, or when the
benefits of such rights is in excess of the values produced by the labor,
the rights are not deserved.
(4) Any diminution of value produced by labor must be assessed
against the laborer as a penalty deserved for the loss thus produced.
(Penalties must, of course, be proportional to the loss produced, and a
fitting remedy for that loss — fitting not in terms of the purposes of the
labor which produced it, but in terms of the purposes with regard to
which it can be considered a loss.)
It should be noted that (1) meets the standards for a fundamental
principle of the sorts explicated above (pp. 45ff), and the remaining
steps are deduced from the concepts of desert, fittingness, benefit, and
loss. I think this line of argument is sound, and is in fact what the labor
theory reduces to. I think, further, that it satisfies the stubborn desire
we have to make the labor theory work. But several things should be
noted about what it does and does not prove.
In the first place, this labor argument — by itself — gives no unequi¬
vocal grounds for the private ownership of the things produced unless
there is no substitute for it acceptable in terms of the goals of the labor.
This means that where the production of things is a means to an end
— security, power, status, the ability to guarantee the same for one’s
children, etc. — and where the state can provide those things as laborers’
deserts without granting ownership rights over the very things produced,
this version of the labor theory does not provide a justification for
private ownership of the things produced. It is thus in principle com¬
patible with socialist economic arrangements.
Second, the no-loss requirement — here understood as the double-
edged aspect of the desert principle — places a heavy tax and/or com-

54
 The Labor Theory of Property Acquisition

pensation requirement on entrepreneurs whose activities reduce total

welfare, or opportunities, or which otherwise disadvantage their fellows.
But here it can be seen that the type of thing produced has a great deal
to do with such restrictions. For one thing, the problems with ‘intel¬
lectual property’ become clearer. In the case of technological problems
for- which there is a unique solution (or a very small, well-defined class
of solutions), an invention by one person — if it is then fully owned by
that person — significantly diminishes the opportunities of others. We
therefore have grounds for sharply limiting or taxing patent and copy¬
right arrangements, just as we have grounds for limiting or taxing the
acquisition of land and exhaustible natural resources generally. On the
other hand, we have no grounds for penalizing someone just because he
or she has invented or created something unique. Inventions per se do
not diminish the net number of opportunities to invent other things,
any more than the writing of Moby Dick diminished the opportunities
of subsequent novelists. The classes of possibilities are not finite. And
in the case of art, each work, by its very existence, creates new possibili¬
ties — for further work which ‘refers to’ or ‘uses’ it, for example.
Third, it should be noticed that the labor—desert argument does
nothing to establish entitlement in cases where the laborer’s efforts
have not benefitted anyone else. Deserving a benefit for producing
something which only you profit from is a strange notion. So the
applicability of the argument is confined to cases in which the product
of one’s labor itself (independently of whether one owns it) adds value
to others’ lives. Cases in which others are neither benefitted nor harmed
by the labor (e.g. by one’s use of some nonscarce sand to make an hour¬
glass purely for personal amusement) must be dealt with in terms of the
Locke-Mill version of the labor theory. See above, pp. 4Iff.
Fourth, and finally, there is a strange result of this line of argument
which demands notice. If the fittingness of a reward is tied only to the
satisfaction of the laborer’s purposes, then what is to be done by way
of rewarding people whose purpose is just to work, just to produce
useful or beautiful things, or to discover the truth about things? Whether
or not anyone ever works solely for such motives, surely many people
often work partly for them. Is such labor to be its own reward entirely,
just because the laborers do not happen to want more? Or is there some
additional way of justifying the fittingness of (an additional) reward?
It is here, of course, that honors, recognition, gratitude, and status
rewards are often used. And the fittingness of these rewards (as well as
other benefits) is no more difficult to understand than the appropriate¬
ness of returning love with love and kindness with kindness. Other re¬
sponses are simply not compatible with our ideals of moral character.

55
Property Rights

However one argues for the justifiability of an ideal (whether solely on

utilitarian grounds or not), it would not be easy, I think, to defend a
notion of the good person which entailed a disposition to treat hatred
or indifference as an appropriate response to another’s love, or vindic¬
tiveness, disgust or apathy as an appropriate response to another’s
kindness.30 In short, we need not fear that this principle of desert —
this version of the labor theory — will shortchange the selfless.

To summarize, then, this tortuous analysis of the labor theory: the

version proposed by Mill — with the no-loss requirement as explicated
here — is sound, but of very limited applicability in its traditional form.
It works most satisfactorily in the case of the sorts of personal posses¬
sions (e.g. a small rock collection) whose ownership harms no one.
When reformulated with the desert principle, however, the labor theory
possesses most of the power of the original intuition. This does not
mean that the no-loss requirement has been relaxed. Indeed, the
penalty clause of the desert principle provides a strong ground for tax
and compensation requirements on entrepreneurs. But the re¬
interpretation provided by the desert principle at last allows a clear
account of why and when laborers — solely by virtue of their labor, and
not just because there are no objections to it — deserve to own what
they produce.

56
5 Arguments from Utility

There are two major variants of utility arguments for property rights.
Both assert that property rights are necessary as a means to an end —
the end being human happiness. But in one variant — what I shall call
traditional utility arguments — happiness is defined very broadly, so
as to include the whole range of human satisfactions. The other variant
— what I shall call economic utility arguments — defines happiness
more narrowly; it concerns only those satisfactions which can be
sought by economic transactions and measured by ‘dollar votes.’ The
two variants are fully compatible; in fact, the economic arguments are
special cases of traditional appeals to utility. I shall give the two variants
separate exposition here, however, because there has been a tendency
in legal and economic writing to overlook or dismiss traditional
arguments, and to give economic arguments a logical primacy they do
not deserve.

The traditional arguments

(la) Human beings need some rule-governed social institutions in
order to achieve (the means to) a reasonable degree of happiness.
(lb) Some specific institutions are necessary for the achievement
of happiness; others are merely useful, or not useful; still others inhibit
or prevent the achievement of happiness.
(lc) Which institutions are necessary is to be determined by an
examination of the social conditions which are required for happiness
but which cannot exist without rule-governed institutions. (Similarly,
mutatis mutandis, for institutions which are useful, useless, or detri¬
mental for achieving happiness.)
(ld) How those necessary institutions are to be defined is to be
determined by how well the rules (and principles, policies, and practices)
constitutive of their various possible definitions, when applied to cases,
57
Property Rights

meet the needs which make the institution necessary. (Similarly, mutatis
mutandis, for the definition of useful, useless, and detrimental institu¬
tions.)
(le) People need individually to acquire, possess, use, and consume
some things in order to achieve (the means to) a reasonable degree of
happiness.
(1 f) Security in possession and use is impossible (given human society
as we know it) unless enforced and unless modes of acquisition are
controlled. Such control and enforcement amounts to the administration
of a system pf property rights.
(lg) Insecurity in possession and use, and uncontrolled acquisition,
of the goods people need and want makes an individual’s achievement
of (the means to) a reasonable degree of happiness impossible (or very
unlikely).
(lh) Therefore, a system of property rights is necessary (or very
nearly so) if individuals are to achieve (the means to) even a reasonable
degree of happiness.
That, in outline, is the general justification for property rights from
‘utility.’ There are also utility arguments at the levels of specific and
particular justification. The specific form is this: Assuming the general
form of the argument, one takes premises (a) through (d) and adds:
(2e) Concerning the needed system of property rights, people
need, or persistently want, the following sorts of property rights. . . .
(2f) Denying people what they need or what they persistently want,
without a showing that the denial is necessary for some countervailing
good, is unjustifiable (and usually productive of social disorder and
further governmental repression as well).
(2g) Therefore, when there is no countervailing good to consider,
people should be permitted the sorts of property rights they need and
persistently want.
The particular form is more direct. It simply asserts that:
(3a) It would be best on balance for society as a whole, if X had
property right of sort A in thing T.
(3b) If there are no countervailing reasons to the contrary, one
should do what is best, on balance, for society as a whole.
(3c) Therefore, if there are no countervailing reasons to the con¬
trary, X should have a property right of sort A in thing T.
These arguments from utility are among the oldest, and certainly
most frequently given, justifications of private ownership. They have
the advantages of directness and (apparent) simplicity: in schematic
form, they are deductively valid; and they seem more ‘realistic’ than
talk about natural acquisition in some fictional state of nature.

58
 Arguments from Utility

Yet most of their proponents agree that such utility arguments no

more reflect the actual origins of property than do theories of first
occupancy and labor;1 explications of the arguments are usually them¬
selves embedded in state-of-nature theory; and when one begins to
examine their premises in detail, their apparent simplicity largely dis¬
appears.
Still, these arguments from utility are' central to the justification of
property rights. If this general form of the argument cannot provide
at least a partial rationale for the institution, it is doubtful if anything
can. It is not that there are no other lines of argument; there are. But
a negative result here would conflict with the attempt to justify property
on other grounds — and might overwhelm those other grounds. A care¬
ful analysis of the arguments is thus required.

Analysis of the traditional arguments

It is useful to begin by noting that these three utility arguments are not
designed to justify the mere protection of possession, use, management,
and so forth, but the corresponding rights. That is, taken together, the
arguments are addressed to the justification of a set of rules, policies,
principles, and practices constitutive of a social institution which
defines rights of ownership, as well as specifies the conditions under
which one may obtain those rights, and the things which may be owned.
They are thus a schema for a comprehensive account, not only of the
fundamentals of the institution of property, but of its details as well.

THE NEED FOR INSTITUTIONS

The first three premises of the general argument address, respectively,
the need for institutions, the necessity of some, and the method of
determining which are necessary. They are not always sharply separated
in presentations of the argument, but they present importantly distinct
issues.
The first premise presupposes agreement that the achievement, by
humans, of a reasonable degree of happiness is a fundamental good —
fundamental enough so that if anything is necessary to its achievement,
a very powerful counterargument would be needed to prove that that
thing ought not to be permitted. (Obviously, utilitarians typically make
much stronger claims for human happiness as a good, but this is all the
current argument requires. And since to use a stronger claim would
involve needless controversy, the weakest version possible will be used.)
I shall assume that this weak presupposition about the good of human
happiness needs no defense — short of an answer to thoroughgoing
moral scepticism.2

59
Property Rights

The first premise, then, asserts that we need some rule-governed

social institutions to achieve a reasonable degree of happiness — or at
least to achieve the means to such happiness. There are various argu¬
ments used to establish such a need. Hume remarks that humans,
among all animals, seem to be singularly unfortunate, due to the
‘numberless wants and necessities’ they have and the ‘slender means’
nature provides to relieve them. Only by forming societies are we able
to supply our needs at all adequately.

Society provides a remedy for these three inconveniences. By

the conjunction of forces, our power is augmented: By the
partition of employments, our ability increases. And by
mutual succour we are less expos’d to fortune and accidents.
Tis by this additional force, ability, and security, that society
becomes advantageous.3

It is clear that the only effective way of organizing aggregates of people

into societies capable of ‘conjunction of forces,’ ‘partition of employ¬
ments,’ and ‘mutual succour’ is to enlist them in ongoing social insti¬
tutions. The need to control violence, to predict others’ conduct
enough so that one can plan and carry out purposes which involve their
cooperation, and the need to transmit knowledge all provide bases for
the assertion of a need for social institutions.

THE NECESSITY FOR SOME INSTITUTIONS

Beyond the fact that some institutions are merely convenient or par¬
ticularly efficient ways of meeting the needs noted above, the general
argument from utility must establish that some institutions are necessary
for the achievement of even a reasonable degree of happiness. The argu¬
ments for this premise are as familiar and uncontroversial as those for
the first.
Hume puts matters most succinctly. He begins by listing three species
of goods: ‘the internal satisfaction of our minds, the external advantages
of our body, and the enjoyment of such possessions as we have acquir’d
by our industry and good fortune.’4 All are necessary components in
or means to happiness, and ‘[a]s the improvement, therefore, of these
goods is the chief advantage of society, so the instability of their pos¬
session, along with their scarcity, is the chief impediment.’5 This ‘im¬
pediment’ comes partly from some factors in our ‘natural temper’
(namely, selfishness, and limited generosity), and partly from some in
our ‘outward circumstances’ (namely the ‘easy change’ and scarcity of
external goods).
A long line of political and psychological theorists have presented a

60
 Arguments from Utility

much bleaker picture of human nature, and have found the need for
some social institutions — notably those directed toward the control
of violence — even more compelling than Hume did. This line of
theorists would have to include (though it surely did not begin with)
Augustine, and go through many Christian theologians, as well as Machia-
velli, Hobbes, and most modern psychologists and sociologists. Even
those who believe that perfection in society means the absence of social
institutions as defined here (e.g. perhaps Marx, probably classical
anarchists) do not claim that such an arrangement is possible given
conditions as they have ever actually been. This is enough to make the
point needed for the argument from utility. Given the nature of human
interactions as they actually occur, some social institutions are neces¬
sary for the achievement of a reasonable degree of happiness.

THE IDENTIFICATION OF THE NECESSARY INSTITUTIONS

Here the general argument from utility does not assert a premise which
needs defense, but merely draws the only possible inference on the
topic from the preceding two premises: that the necessary institutions
are to be identified by examining the social conditions which are re¬
quired for human happiness but which cannot exist without social
institutions.

THE DEFINITION OF THE NECESSARY INSTITUTIONS

Similarly, the fourth step in the argument is merely a principle derived
from the preceding three: that the particular character of a neces¬
sary institution must itself be submitted to the test of utility. If marriage
is a necessary institution, then it has to be decided whether it is best
defined to include polygamy or not. If property is found to be neces¬
sary, then questions will arise not only about the various ways of
defining and limiting the scope of the incidents of ‘full or liberal
ownership,’but about including each of the incidents at all.

THE NEED TO ACQUIRE, POSSESS, USE, AND CONSUME

The fifth step in the general argument is the first to address any of the
elements of property rights specifically. And there are several levels
on which argument for this premise can proceed. First, there is the
obvious fact, made a good deal of by Locke, for example,6 that ‘un¬
appropriated’ food does no one any good. Indeed, unconsumable
food is of no use. Similarly for the other rudiments of bare existence. If
they cannot be ‘consumed,’ then life itself, let alone happiness, is for¬
feited. To the extent that use and possession are necessary for con¬
sumption, they are as necessary to life and happiness as consumption.

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Property Rights

People will readily agree, however, that something beyond these

rudiments is required for human happiness — at least for the happiness
of any human who has leisure and energy to spare from the work of sur¬
vival. But what more? Specifically, what more in the way of acquisition,
possession, use, and consumption of things? Here there are at least
three lines of argument.
The first is simply that the application of minimal intelligence to the
task of carrying out one’s purposes shows the importance of the pos¬
session and use of things. Most purposeful activities require the use of
tools and raw materials. And purposes which are at all long range require
the continued availability of the necessary tools and materials. Pos¬
session of the means to carry out one’s purposes allows one to predict
with greater certainty the success of one’s efforts. The absence of the
necessary tools and materials, or their unavailability at crucial points in
one’s activities, frustrates the carrying out of one’s purposes. To the
extent that such frustration interferes with happiness, and to the extent
that the acquisition, possession, use, and consumption of things reduces
or eliminates such frustration, people need to acquire, possess, use, and
consume. This is, 1 think, straightforward enough not to need further
development here, and uncoritroversial enough not to require further
defense.
A second line of argument for the need to acquire, possess, and use
assumes the need for an harmonious and stimulating social environment
and argues that possession of things by individuals is superior to
individual use of common possessions. Aristotle remarks that individual
ownership creates a more thorough and stable community of interests,
and better promotes efficient, economical, and careful use of things
than does common ownership.7 What is everyone’s is felt to be no one’s,
and is so treated (i.e. with indifference).
In so far as this is simply a less rigorous version of an economic
argument (to be presented below), it is food for thought. But while
that economic argument is specifically limited to resource allocation,
and does not even pretend to have provided a ground for full, liberal
ownership, there may be a tendency to treat Aristotle’s remarks as a
sketch of a much more sweeping theory — one which justifies not only
what might be called laissez faire private ownership, and not only
ownership of productive resources, but ownership of (all or most)
goods produced. Such an extension of the modern economist’s argu¬
ment about allocative transactions is unsound. It tends to confuse the
absence of individual ownership rights with the absence of individual
duties of care, for one thing. As long as the latter exist and are enforced,
common property is well cared for. (The public libraries in most

62
 Arguments from Utility

Western democracies show this.) As for the community of interest issue,

it is notorious that the ‘community of interests’ that property-holders
develop is very often not in the interest of the community. So this can
hardly be used to support a utilitarian argument. Finally, the economic
disutilities which can result from untrammelled rights to transfer and to
bequeath are notorious. A free market system is theoretically efficient
only when competition is perfect (i.e. when it is without monopolistic
or oligopolistic distortions of pricing mechanisms) and when transaction
costs are zero (i.e. when it costs nothing to get the parties to a trans¬
action to do what will actually maximize their welfare). There is
general agreement among professional economists that one cannot
expect to approximate efficiency in every area of the real market with¬
out any significant governmental intervention. Some such interventions,
because they are designed to prevent market distortions caused by
monopolies or oligopolies, will limit the rights to transfer and transmit.
A sweeping justification for laissez faire private ownership from this
line of argument is therefore not possible. As noted above, the argument
does have force to the extent that private ownership is necessary or
even merely beneficial to the general welfare. But I see no way of
substantiating a claim for its universal necessity — or its unexcelled
contribution to the general welfare in all cases.
The third and final line of argument for the need to acquire, possess,
and use is more slippery. It centers on the claim that the acquisition,
possession, and use of things is a necessary expression of human
personality. Hegel made some remarks to this effect,8 and it was a
common theme among nineteenth-century idealists who addressed
themselves to the topic.9 There are two problems with this line: one is
to get a clear, testable statement of its central assertion; the other is to
test the truth of that assertion.
Suppose the central idea is put this way: Humans just are, neces¬
sarily, makers. For as far back as we have reasonably full records, it is
clear that the normal course of maturation for a human individual in
society has prominently involved the making or use of artifacts, and the
transformation of things found (e.g. milk into cheese, wool into cloth).
Such activities may or may not be biologically or psychologically
necessary — that is, species characteristics — in the sense the sexual
drive is. But they are certainly necessary in the sense that, for any
normally formed human who comes to maturity in a human society of
any kind which exists, is known to have existed, or could exist (given
human potential as we know it) such activities necessarily play a
dominant role in (a) the development of personality, self esteem, and
valued abilities and (b) the subsequent expression of personality, the

63
Property Rights

confirmation of self-esteem, and the use of valued abilities. These things

are necessary to the achievement of (the means to) even a reasonable
degree of happiness; the activities necessary to produce them are things
necessary for happiness; and the acquisition, possession, and use of
things is necessary to the activities which produce them. Thus humans
need to acquire, possess, use, and consume (some) things.
I think this is a sound line of argument, but unfortunately it does
little toward specifying the sorts of things people need to acquire,
possess, and use. I shall return to this issue later.

SECURITY IN POSSESSION AND USE IS IMPOSSIBLE UNLESS ENFORCED

AND UNLESS MODES OF ACQUISITION ARE CONTROLLED
On this premise there is sharp dissent from those who do not believe
that coercive social institutions are necessary to all realizable social
orders. Specifically, utopian Marxism proposes the ‘withering away’ of
such institutions in a truly classless society. And various small-scale
communal experiments (though by no means all) have tried to
eliminate coercive institutions.
It is probably impossible, at present, to get more than a speculative
argument on the issue. But some speculative arguments are reliable,
and the following considerations seem to me decisive in favor of this
premise in the argument from utility.
Where people have a genuine community of interests which at the
same time is compatible with the interests of the community, where the
habits of rational discussion and action on the basis of consensus are
deeply ingrained in everyone, and where the community is small
enough (or simple enough?) to permit life on such bases, the elimination
of coercive institutions is no doubt possible. But where there is even
one significantly deviant individual, or where individual conflicts of
interest are not rationally resolvable by the parties concerned, or where
the community is too large to submit all its major decisions to
communal discussion, then it is difficult to see how coercive insti¬
tutions could be eliminated altogether. And of course the notion of a
modern industrial state, as we know it, without some such institutions,
is preposterous.
Yet the question remains as to whether a coercive institution with
respect to acquisition, possession, use, and consumption of things is
necessary. Proponents of the utility argument say — as Hume does in
the quotation which prefaces this book — that there is hardly any
coercive institution which is more necessary in society. And certainly,
given reasonable judgments about the selfishness of human beings, their
limited generosity, and the relative scarcity of desirable goods available

64
 Arguments from Utility

for acquisition, the utilitarians are correct. Whether in some imaginary

utopia things might be different seems an academic question.

INSECURITY IN POSSESSION OR USE, AND UNCONTROLLED

ACQUISITION, MAKE HAPPINESS IMPOSSIBLE
To the extent that a stable situation with regard to acquisition, pos¬
session, and use is required for the carrying out of purposes necessary
to happiness, it follows that such a stable situation is itself necessary for
happiness. If security of possession or use, and control of acquisition
requires a system of property rights (as contended above) then property
rights are needed which guarantee stability for as long as one’s (neces¬
sary) purposes require. Security in possession required by long-term
purposes will have to be long-term security, and so forth. Further, the
sort of security required for the purposes will vaiy the property rights
justified. The security required for the cultivation of land does not in¬
clude the need to exclude people from walking across a fallow field.
(Recall Grotius’ discussion of ‘innocent use.’10) But it is clear that some
security, for some purposes, is necessary, given the soundness of the
previous steps of the argument.
And there is an additional reason for requiring security of possession
and control of acquisition. This is the fact, noted in the discussion of
the labor theory, that people who work to acquire things, or who
labor to make them more useful or pleasing, come to feel they have
‘made them their own’ in the psychological sense — that is, of having
‘incorporated’ or ‘appropriated’ them into themselves. The mark of this
fact is the resentment felt and the responses made to the ‘trespasses’ of
others. These reponses are virtually the same in kind, if not in intensity,
as those people make to unwelcome ‘touchings’ of their bodies. This
creates a need for stability in the possession of the products of one’s
labor above and beyond that required for the carrying out of one’s
(necessary for happiness) purposes. For the extent that freedom from
the sense of resentment due to the ‘violation’ of one’s person is neces¬
sary for happiness, then security in the possession and use of things one
has ‘appropriated’ is a necessity.

THEREFORE, A SYSTEM OF PROPERTY RIGHTS IS NECESSARY

Given the soundness of the previous steps, the conclusion of the general
form of the (traditional) argument from utility is deductively valid and
itself sound.
As a general justification, however, the argument only produces the
conclusion that some property rights in some things are necessary. What
sorts of rights, over what sorts of things, has yet to be decided, and that

65
Property Rights

requires the filling in of the specific form of the argument.

THE SPECIFIC FORM OF THE ARGUMENT

There are at least three important tasks involved in showing, by appeal
to the traditional concept of utility, what sorts of property rights
people should have.
First, one has to determine what sorts of things people need to
acquire, possess, use, and consume in order to achieve (the means to) a
reasonable degree of happiness. The list here will have to include the
necessities for physical survival, personality development, and (certain)
products of one’s labor. But that is still not very specific, and how
much beyond items in that list one can go is not clear.
Second, one needs to determine what sort of property rights are
necessary (and best suited) to meet human needs. Must they always be
the rights of ‘full, liberal ownership’? Or will some subset of those
rights do? And how must the various rights be defined to minimize
conflicts and maximize security?
These two tasks constitute the filling in of premise (2e) of the specific
argument. The third task is assuring the soundness of (2f). It asserts
that denying people what they need or persistently want, in the absence
of a showing that the denial is necessary for some countervailing good,
is unjustifiable. This premise may seem stronger than it is. Actually, it
presupposes only that giving people what they need or want is a good —
in the sense that the satisfaction of any human need or want is a good.
Once that is accepted, then it is tautological that unless there is some
countervailing reason for denying people this good, its denial must be
unjustifiable. The question which remains is whether giving people what
they need (in this case) is a good. Their having it is by definition a good
but that by itself does not entail that ‘giving’ it to them — in the form
of creating social institutions which provide it — is a good. Here the
general form of the argument enters: if such institutions are necessary
for the satisfaction of the needs, then barring a countervailing concern
(say, against the bad consequences of paternalism), the creation of the
institution is justifiable.

THE PARTICULAR FORM OF THE ARGUMENT

As noted above, the soundness of the particular form of the traditional
appeal to utility is somewhat independent of the soundness of the
general and specific forms. A negative answer to the question of whether
there should ever be any property rights at all is, of course, decisive
with regard to particular justifications. If utility can never justify
property rights, then attempts at particular justification are pointless.

66
 Arguments from Utility

But beyond that, particular justifications can cut through general and
specific ones when it can be shown that, even though people generally
ought not to have a certain sort of right, in a given case, people would
be better off (or no worse off) if a particular person had such a right.
Conversely, it can in principle happen that even though people in
general ought to have a certain sort of right, in a given case people
would be better off (worse off) if a particular person did not (did) have
such a right.
Here the familiar problems of the relation of utility to justice arise.
And they cannot be resolved by the (formal) device of smuggling the
exceptions for particular cases into the general or specific principles.
That move merely forces a restatement of the question: granted that
these exceptions have utility, is it justifiable, all things considered, to
make them? If, for example, making an exception improves the total
(or the average) human welfare at the expense of enslaving a few, can
one recommend such a course, all things considered? Are there not
arguments for equal liberty which conflict with such a recommendation?
If so, how is the conflict to be resolved?
The temptation to reach for the tools of welfare economics is strong
here, but as I shall argue below, those tools are of less use than might
have been hoped. The simplest — and I think best — start toward a
solution is this: when faced with conflicting arguments, treat each as if
it were of equal weight unless there is good reason to do otherwise.
Then total the arguments. Two arguments (of equal weight) for human
liberty outweigh one argument against it — and vice versa. Where there
is a deadlock it means that none of the options is rationally preferred.
Two serious problems confront the use of this justificatory scheme:
one is the question of assessing the reasons for weighting one argument
more heavily than another (and of deciding how much heavier it is);
the other is the question of the individuation of arguments (what
counts as one argument?). I have addressed such questions elsewhere.11

The economic arguments

Dissatisfaction with traditional utility arguments — particularly with
respect to the. difficulty of measuring human happiness and the dif¬
ficulty of interpersonal comparisons (what one person’s happiness is
worth compared to another’s) — has led to attempts to make utility
arguments more rigorous. Economists in particular have tried to do this,
and have offered utility arguments for property rights at all three levels
of justification.
The concept of value adopted by economists is simply the truism
that whatever other values may be said to exist, a thing has value

67
Property Rights

(utility) for a person when that person values it. (Whether things have
‘intrinsic’ worth, and whether some ‘valuings’ are better than others are
questions which are left unaddressed.) How much value a thing has for
a given person is said to be ‘measured’ by the maximum that person
would be willing to pay to get it (in terms of some standard medium of
exchange like dollars), or alternatively, the minimum the person would
be willing to take to give it up.12 Though this limits the range of
values (utilities, satisfactions) considered to those which can in principle
be exchanged and have a price, the assumption is that this will not be a
serious difficulty for a discussion of property rights.

GENERAL JUSTIFICATION
Given this concept of value or utility, economists then offer two
straightforward arguments for the general justifiability of a system of
property rights. The first begins by noting the wide variety of costs or
disutilities (in time, frustration of purpose, lost opportunities, etc.)
which can befall one who depends on non-ownership use or enjoyment
of a scarce good. Others can preempt one’s uses, interfere with one’s
enjoyment, cause one to over-accumulate to offset anticipated losses,
and so on. When the total cost of these ‘external disutilities’ — that is,
the sum of the costs of the disutilities created for each by the actions
of others — becomes greater than the costs involved in creating and
maintaining a system of ownership rights which minimizes such exter¬
nalities, then that system of property rights is justified by considerations
of (economic) utility.13 This argument is clearly sound, so long as the
dominant guiding principle is one of minimizing costs.
The second general argument concerns allocative transactions — that
is, the ways in which people deal with the resources used for the pro¬
duction of goods. Clearly, in a situation without enforced ownership
rights, one would expect such transactions to be an uneasy amalgam of
conduct in accordance with custom and social pressure, liberally laced
with deceit, threats, and open force or violence. There is certainly no
reason to believe that such transactions would maximize the total of
individual satisfactions — either with respect to allocations or with
respect to the eventual distribution of goods produced. And so, given
the assumption that it is justifiable to maximize the total of satisfactions
by tinkering with allocations, one step in that direction will be to
stabilize allocative transactions with ownership rights. Richard Posner is
thus able to argue briefly and persuasively for a system of property
rights for all significantly scarce productive resources — a system which
at least gives owners the right to exclude others as well as to transfer
their rights.14

68
 Arguments from Utility

These arguments rest on some assumptions, to be sure — the principle

of minimizing disvalues, and the justifiability of increasing benefits by
stabilizing allocative transactions, respectively. But these assumptions
are innocuous, since they do not claim to be the only relevant action-
guiding principles but only ones which should be included in rational
assessments of what to do. It is hard to see how they could be denied
short of wholesale moral scepticism. So these two economic arguments
buttress the general justification of property rights.
But in addition to these rather cautious arguments, a few economists
have made a more sweeping claim: that private ownership and free
markets are necessary for rational economic organization per se —
whether that is understood simply in terms of maximizing the total of
goods produced and consumed, or more complexly in terms of the
maximization of what might be called Net Economic Welfare.15
Members of the so-called Austrian School (Ludwig von Mises and F. A.
Hayek, for example) have pressed such arguments. But socialists have
plausible models too,16 and I think it is fair to say that at the level of
general justification, the debate is inconclusive. That is, I do not think
that the Austrians can show, purely in terms of testable economic
theory, that the socialization of a significant sector of the economy is,
in every possible social order, impossible to justify; and likewise I do
not think socialists can show that a sweeping system of private property
is never justifiable. I take the fact that the overwhelming majority of
modern economists argue for a mixed economy as evidence of this
inconclusiveness. This is not to say that one or the other of these
extreme positions cannot be made conclusive by the addition of further
arguments — about what it is plausible to believe about human moti¬
vation, incentive, and competitiveness, for example, or about the
amount of individual liberty or equality required by morality. But these
matters take the arguments away from economic theory as such and
into psychology, and normative moral and political philosophy. The
sound economic utility arguments for the general justification of
property rights remain the two rather cautious ones outlined above.

SPECIFIC JUSTIFICATION
Economic arguments for property rights take a somewhat different tack
at the levels of specific and particular justification. Here they turn on
technical concepts of efficiency, optimality, superiority, allocation, and
distribution.
Economists distinguish the allocation of resources used for the pro¬
duction of goods (land, labor, etc.) from the distribution of goods
produced. This distinction relates as much to a difference in human

69
Property Rights

purposes as to a difference in the goods themselves, for the same things

can often be used either as productive resources or ‘consumables.’ A
good allocation is typically called efficient; a good distribution is
typically called just or fair.
Efficient allocations and just distributions are defined by reference
to special concepts of optimality and superiority — called Pareto-
optimality and Pareto-superiority after the nineteenth-century Italian-
born economist Vilfredo Pareto. A situation is said to be Pareto-optimal
if and only if it is impossible to change it (in allocation or distribution)
without making at least one person believe he is worse off than before
the change. Derivatively, a change may be judged Pareto-superior to
another when at least one person believes he is better off by it while
no one believes that he is worse off. Note that the definitions of opti¬
mality and superiority do not depend on objective assessments of good,
but only on subjective ones. This is an application of the economist’s
concept of value described earlier.
Whether people believe that they will be better off, worse off, or
the same under any proposed change (and how much better or worse
off they think they will be) is measured by their willingness to pay for
the change (and how much), or to agree to it only if they are paid for it
(and how much). One thus gets definitions of efficiency in resource
allocation, for example, which go like this: a reallocation is efficient if,
‘after negotiated compensations have been promised by those who stand
to gain from the proposal to those who stand to lose by it, the proposal
can win unanimous approval.’17 A reallocation is also efficient, of
course, if no one is either willing to pay for it or demands payment for
it. Conversely, reallocations are inefficient to the extent that gainers
from the change believe that they have to pay more than the gain is
worth to them, or to the extent that losers believe that they cannot get
adequate compensation for their loss. Justice or fairness in the redistri¬
bution of goods may be similarly defined: a redistribution is just when
the price gainers are willing to pay equals the price losers are willing to
accept (and the losers are paid that price).
Several things need to be said about the use of these definitions. In
the first place they are embedded in an ‘ideal market model’ of
economic transactions in which all participants are rational maximizers
of their own values (utility, good, satisfactions), all participants are
‘perfect competitors’ (that is, none is able, by unilateral action, or by
intentional multi-lateral action, to influence the price of goods), and
in which transaction costs are zero (that is, in which it costs nothing
to persuade others to behave rationally and come to know and act upon
their own rational self-interests).

70
 Arguments from Utility

Second, when these materials have been used at the level of specific
justification, they have been applied to a wide range of problems raised
by property rights: liability rules governing the use of property,18
zoning regulations,19 and the issue of just compensation20 are examples.
As even a casual look at some of the legal materials will show,21 there
can be no hope here of dealing with these matters in adequate detail.
But the fact that the same patterns of analysis are used in all these
cases makes it possible to make some useful general observations about
economic arguments for specific justification.
And third, for all their hard-headed appearance, it can easily be
shown that when these materials are used to construct social policies
with regard to property rights, most of the justificatory weight must be
borne by non-economic or ‘meta’-economic principles of a frankly
normative sort — principles of justice, for example. This is not to deni¬
grate the importance of economic analysis of these questions; it is
merely to say that its results alone cannot settle the questions of specific
justification.
To see this, consider what the fundamental form would be of an
argument constructed from these economic materials alone:
(1) Property rights should be defined so as best to approximate, in
operation, the idealized free market model of efficiency in allocation
and justice in distribution.
(2) A perfectly free real market — i.e. one in which government
only enforces whatever voluntary agreements people make — would
clearly not have the character of the ideal free market. (Participants are
not always perfect competitors and rational self-maximizers, and there
are often significant transaction costs.)
(3) But it is an empirical question, in each case of a proposed
intervention in the (real) free market, whether or not that intervention
will move things closer to economic efficiency or justice as defined in
the ideal free market model.
(4) So each proposal to limit property rights with liability rules,
restrictions on use, transferability, transmissibility, possession, income
or the rest of the elements of full ownership must be evaluated for its
ability to move things toward efficient allocation and just distribution.
(5) When a proposed limitation of property rights would be no
improvement on the real market (in terms of approximating the results
of the ideal market), it cannot be justified; when a proposed change
would be worse than the real market (in terms of approximating the
results of the ideal market) it is ‘wrong’ — i.e. disjustified.
(6) Property rights of sort X best approximate the efficiency and
justice of the ideal market in the real world and are therefore justified.

71
Property Rights

It is clear where problems with this form of argument arise. For one
thing, efficiency and justice as here defined — while interesting and
seemingly operationalizable concepts — are certainly contestable when
put forward as social goals. However odd this may seem to some (what
can be wrong with a situation in which each makes only those volun¬
tary agreements about allocation and distribution that he is willing to
make?), it is none the less true. As a consideration of the examples used
in the economic literature shows, what is envisaged is a situation in
which each is free to act bounded only by existing, specific, contractual
agreements and the ability to buy what he wants. There is no reference
to principles of altruism, communitarian concerns, ‘neighborliness,’ or
the like. It is not that such things are disapproved of, of course; it is
just that, except as prudent steps toward maximizing an individual’s
own satisfactions, they do not enter into the designs for the ideal
property rights structure. What this means is that this purely economic
argument views with equanimity any obnoxious use an owner might
make of a piece of property as long as it does not violate a contract and
as long as those harmed by it are (rationally) unwilling to pay the
offender enough to make it worth his or her while to desist.22 While
such robust individualism is appealing to some, it is by no means
appealing to all. Most people, I suspect, think that motives count, and
that in so far as possible the system of property rights should be designed
to discourage malicious or casual disregard of other people’s welfare
even when it is in one’s economic interest to do so. Similarly for com¬
munitarian concerns: without some legal insulation from whatever
external disutilities others can create, individuals who do not keep
enough ‘dollar votes’ to buy off those others will be at a disadvantage.
They will thus be forced to be only rational self-maximizers. Generosity
to others, at least in so far as it in any way costs one dollar votes, will
have negative survival value. To reply by saying that if people really
believe these virtues of generosity and kind motives are important,
then they will in effect have cash value and work to one’s advantage,
is to miss the point. Unless one can count on reciprocity for one’s
good neighborliness — not just from ‘most people’ but from all the
ones whose choices can actually create disutilities for one — then self-
protective dollar votes will have to be kept. And generosity will be
expensive indeed.
In addition to this difficulty, there is a serious problem with the
notion of measuring efficiency and justice by dollar votes. How are
such votes to be distributed in the ideal model? Even if one envisages an
absolutely equal initial distribution, it is clear that the idealized free
market model is not designed to preserve equality. It would be utterly

72
 Arguments from Utility

trivial if it did, for it would define economic stasis, not a dynamic

system. In any plausible dynamic model, the pull to move away from
equality will be continuous. Beyond subsistence needs, people have
very different wants; accidents and inventions produce new wealth for
some; transactions from which some are net gainers and others net
losers (for example, in terms of holdings of productive resources) are
inevitable. But once inequality enters, a serious problem is created for
the model. Those with more votes will obviously be able to force or
prevent changes to the disadvantage of others. For example, given the
declining marginal utility of each dollar beyond a certain point (i.e.
dollar X being ‘worth more’ to a person than dollar X+l than dollar X+2,
etc.), when the relatively poor create disutilities for their relatively rich
neighbors, it will cost the rich less to ‘buy off the disutility than it
would cost the poor to do the same. This is so because the dollar votes
required to compensate the poor person who is paid to refrain from
causing the disutility ‘mean less’ to the rich than the poor. Thus the
rich can avoid externalities that the poor cannot, and if the avoidance
of these externalities has positive consequences for the production of
goods, the initial advantage to the rich snowballs. Even more obviously,
in competition for the same good, the rich will outbid the poor; and
when selling the same good, will underbid the poor. This tendency will,
if it goes far enough, be destructive of the fundamental notions of the
model. That is, it will move things away from perfect competition and
voluntary exchanges. So in any attempt to realize the model in the
world, devices designed to limit this tendency will have to be installed.
Further, of course, people in the real market are not always able to
assess what is in their rational self-interest and then to act on it. Even
not counting children, the mentally handicapped and so forth, abilities
to calculate advantages differ. And transaction costs can be substantial.
So devices to correct for these things will also have to be developed. It
is not at all obvious that the necessity for these devices will contribute
to the justification of certain sorts of property rights. It seems much
more likely that it will justify severe limitations on specific property
rights.
A final difficulty with this form of economic argument is premise
(5), which asserts that any change in allocation or distribution which
does not move things toward the economic ideal is unjustified. This is
a direct challenge to pluralists — those who will argue that there are
important social goals which must be balanced against whatever legiti¬
macy these economic ones have.23 This premise is, after all, remarkably
non-historical in character. It and the conclusion, (6), disregard entirely
the issue of a person’s pre-existing title to have things remain unchanged.

73
Property Rights
i

The argument apparently authorizes any change (forced by government?

one’s neighbors?) which approximates what would happen under ‘ideal’
economic circumstances. But if property rights are to mean anything,
surely they must mean that one can refuse to use the property to
approximate the ideal of everyone’s rational self-maximization. The
upshot is that this form of economic utility argument, while osten¬
sibly designed to secure a sweeping variety of full ownership property
rights, seems to justify breathtaking cancellations of those rights
whenever it would serve to move things in the direction of the ideal
model.

PARTICULAR JUSTIFICATION
This is perhaps even more obvious when one imagines the application
of economic efficiency arguments to the adjudication of particular con¬
flicts over who should have what rights. Here our concern for bringing
in existing rights to block changes which are unwanted by those who
lose from them is very strong — even when adequate compensation is
offered. Further, there are good grounds for the suspicion that com¬
pensation will in fact be offered selectively — on behalf of a quite dif¬
ferent notion of economic efficiency: that of maximizing the grand
total of marketable satisfactions per se.24 Economic utility arguments
at this level are not used to establish rights; they are used to override
them.

74
6 The Argument from
Political Liberty

The argument
One may argue in the following way for property rights as a consequence
of liberty.
(1) It is a fact that human beings will try to acquire things, control
them, exclude others from their use, modify them, and use them as
wealth.
(2) The effective prohibition of such activities — i.e. the elimination
of private property altogether — would require a comprehensive and
continuous abridgment of people’s liberty which (even if it were
possible to carry out) is at best unjustifiable and at worst flatly prohi¬
bited by the existence of political liberties to which people are entitled,
morally.
(3) The regulation of acquisitive activities, by what amounts to a
system of property rights, is likewise required to preserve liberties to
which people are entitled.
(4) Therefore, property rights are justifiable.
This is, of course, only a general justification, for it does not specify
what sorts of things people are entitled to own, and what sorts of
property rights they are entitled to have in those things. And it makes
property a derivative, rather than a fundamental, right; it assumes the
prior justification of an extensive system of political liberty.

The soundness of the argument

Premise (2) is clearly the crucial one. The first premise merely asserts
that people will try to do what the utility argument says they need to

* Throughout this chapter, the term ‘political’ is used as a modifier for ‘liberty’
in the same way it is used in the phrase ‘political science.’ I do not, for example,
mean to distinguish political from religious liberties or political from civil liberties.
All liberties guaranteed by the state are, in this usage, political liberties.

75
Property Rights

do. The connection is a contingent one, however, so the soundness of

the argument is restricted to societies in which people do, persistently,
try to satisfy these needs. But this is not a restriction which has much
practical signficance.
Premise (3) is equally uncontroversial. The liberty to acquire things
is surely not the only liberty to which people are entitled. (Or less
forcefully, if it can be shown that they are entitled to the liberty to
acquire, surely it can be shown that they are also entitled to the liberty
to live free from malicious harms inflicted by others.) Since it is clear
that unregulated liberties to acquire would result in the unjustifiable
abridgment of some people’s liberties to live or maintain their health,
and since the liberty to live or maintain one’s health is surely a liberty
equal to or greater in importance than the liberty to acquire, some
regulation of the liberty to acquire is called for.
So premise (2) is the crux of the matter. One must show that people
are entitled to a system of political liberty strong enough to include
the liberty to acquire property rights and then show that the complete
prohibition of such a liberty to acquire property would be an unjusti¬
fiable abridgment of political liberties whose existence is uncontested.
I cannot provide a thoroughgoing defense of political liberty here, but
I shall do enough to show that this argument for property rights is
sound, assuming an amount of political liberty which is plausible in
terms of a standard justificatory strategy. First, some preliminaries.

MATERIAL AND FORMAL LIBERTY

An important distinction in any discussion of liberty is the difference
between what might be called material or actual liberty and formal
liberty. I am formally at liberty to fly to New Haven by flapping my
arms. That is, no one has any claim rights against me which prohibit it.
But the liberty is purely formal — consisting only of the fact that the
proposition T am at liberty to fly to New Haven by flapping my arms’
is true. I cannot actually do so. Material or actual liberties are things I
can actually do if I choose to. Some things I am at liberty materially to
do, I do not have the formal (moral) liberty to do — i.e. the proposition
that I am morally at liberty to do them is not true (cannot be justified).
Formal liberties are thus of different sorts: I have the logical formal
liberty to do whatever is non-contradictory, the legal formal liberty to
do whatever the law allows, and the moral formal liberty to do what¬
ever morality allows.

NATURAL AND INSTITUTIONAL LIBERTY

Liberties whose existence is not dependent on the existence of conven-

76
 The Argument from Political Liberty

tions or social institutions may be called natural liberties. In a Hobbesian

state of nature each person has complete (logical, moral, and legal)
natural liberty — in the sense of formal liberty. That is, no one has
claim rights against anyone else for anything. Once various social
institutions emerge, institutional liberties can also emerge. (See the
discussion of liberty rights above, pp 12-13.)

FEATURES OF THE SYSTEM OF POLITICAL LIBERTY

Any system of political liberty strong enough to provide a general
justification of property will have to have the following features:
First, it will have to distinguish political liberty from material liberty.
That is, having the liberty to do something must be more than having
the sheer physical or political ability to work one’s will on others or
things. There is, after all, nothing prima facie wrong with an act just
because it restricts someone’s power to do something. And the argu¬
ment assumes that the restriction of a liberty is at least a prima facie
wrong. (Else why be concerned to prohibit its restriction in this case?)
So political liberties must be rights — at least Hohfeldian liberty rights,
which entail the absence of claim rights in others that one not do or
have the thing in question.
Second, to the extent that an account of political liberty seeks to
provide a general justification of property, it will have to be talking
about material, as well as purely formal, liberty. Political liberty is more
than mere power, but it is not less than that. A liberty which is purely
formal (e.g. my right to build a spaceship capable of speeds exceeding
the speed of light) is a trivial matter, morally. Its restriction or elimina¬
tion would have no practical consequences. Only in so far as my actual
ability to do something (now or in the future) is hampered has my
political liberty been infringed.
Third, since the existence of any material liberty at all (except the
liberty to die) requires one’s continued existence (for long enough to
exercise the liberty), any system of political liberties strong enough to
justify property rights must at least include the right to survive that
long by one’s own efforts. This means, in effect, that others must not
have claim rights which destroy or restrict one’s material liberty to
survive by one’s own efforts.
These three (minimal) features of any system of political liberty
adequate to provide a general justification for property produce signifi¬
cant restrictions on what can legitimately be owned — and in what ways
it can be owned. Wherever a resource necessary for survival is scarce, or
non-renewable, or exhaustible by appropriation or misuse, unrestricted
ownership will not be compatible with the general justification of

77
Property Rights

property (from liberty). Further, wherever a thing can be used to inter¬

fere with another’s liberty to survive, ownership rights will have to be
restricted — specifically, use rights and management rights. More
extensive systems of liberty — for example, ones which guarantee all or
some the right to some degree of personal fulfillment or self-realization
— will place even further restrictions on ownership.

THE JUSTIFICATION OF A SYSTEM OF POEITICAE LIBERTY

Political liberty is typically justified by appeal to the (rebuttable)
presumption that it is wrong for one person to interfere with what
another is doing. How that presumption is justified and how one gets
from it to the existence of claim rights to political liberty is illumina¬
ting.
The justification usually begins by noting that in the absence of any
semblance of a moral or political order, people are at liberty to do
whatever they can do. No one has (claim) rights against another, and
the absence of such rights in others is the existence of unrestricted
liberty in each. The extent of one’s liberty is the extent of what one
can do (not what one wants to do or needs to do), and in this respect,
people differ widely, depending on their physical and intellectual
prowess, determination, courage, squeamishness, and so on. There is no
‘material’ equality of liberty, then, in a state of nature. But there is
‘formal’ equality, in the sense that the proposition ‘People are at liberty
to do what they can do’ is equally true for each person. (And as Hobbes
points out, the fact that the weak can kill the strong by stealth, take
from them by deceit, and otherwise stay out of their way, produces a
surprising approximation of material equality as well.)
The moral question, of course, is this: Among the things people are
at liberty to do to each other, which ones ought they to do, and which
ones ought they not to do? Answers come from a variety of lines of
argument (e.g. various versions of utilitarianism), but the prospect of
generating some moral rules out of the purely formal aspects of the
situation has been a persistent fascination. (By ‘purely formal aspects’ I
mean those which are independent of the [contingent] desires, needs,
or abilities of people in a state of nature. The formal equality of liberty
is one such aspect. Any desires or needs or abilities which are
necessarily present in each person in a state of nature would be other
formal aspects.) The requirements of rationality are presupposed — that
is, the canons of deductive validity and inductive ‘soundness’ — not
because people in a state of nature are necessarily rational, but because
the moral question (as addressed to philosophers) asks for answers
which can be rationally justified.

78
 The A rgument from Political Liberty

The problem is thus to see what ordering, if any, of the material

liberties people have in the state of nature is required by reason. Here
the formal equality of liberty and the canon of self-consistency have
been thought to combine to produce important results.
Consider: the point of the state-of-nature thought-experiment is to
define the (imaginary) situation prior to any human interactions and to
see what picture of rationally justifiable interactions can be built up
from it. The situation prior to any human interactions includes formal
equality of the liberty of each — that is, the liberty of each to do what
he or she can in fact do. Any changes in that situation due to sub¬
sequent human interactions require justification — that is, they are
precisely the sort of things the philosopher is asked to provide a
reasoned justification for. So unless a change can be justified, the
formal equality of liberty must be preserved.
Now it is clear that in human interactions, the only way the truth of
the proposition ‘Each is at liberty to do what he or she can do’ can be
preserved is if the actions of each do not infringe the material liberty of
others. To the extent that my acts limit you in the exercise of your
abilities to act, you are not at liberty to do what you can do. Thus, to
preserve the formal equality of liberty, others must not act so as to
limit my material liberty, and I must not act so as to limit theirs. Put
more formally:
(1) Each person, in a state of nature, is at liberty to do what he or
she can do — i.e. has formal equality of liberty and material liberty to
the extent defined by his or her abilities.
(2) Any change, due to human interactions, in the range of persons
for which (1) is true, requires justification.
(3) Anyone who exercises his or her liberty in a way which limits
another’s exercise of liberty changes (1) — so far without justification.
(4) To refrain from exercising (some part of) one’s material liberty
does not represent a change in (1).
(5) For (1) to remain unchanged (i.e. to remain true for all) in the
context of human interactions, each must refrain from acting in ways
which limit the exercise of other’s (material) liberty.
(6) Therefore, unless a change in the system of material liberties is
specifically justifiable, each person must refrain from interfering with
the material liberty of others. (The ‘must’ here is a moral one, meaning
that to do otherwise is to act unjustifiably.)
This much is sound. The next step is to get from (6) to the assertion
that people have claim rights to liberty. Here a number of approaches
are available, from straight utility arguments to various contractarian
arguments, the most potent of which is undoubtedly Rawls’s.1 It seems

79
Property Rights

clear that where a presumption against interference with material

liberty exists, one can justify shoring up that presumption with the
relevant claim rights and duties. One would merely have to establish the
following premises:
(7) If people do not act so as to preserve (1), or they are not likely
to so act, it is reasonable — in the absence of countervailing reasons to
the contrary — to require them to so act, in the sense that, should they
not, it would be justifiable to use coercive measures to extract either
the act or compensation in lieu of it.
(8) To be so required to act is to have a duty to so act.
(9) If each has a duty not to limit the liberty of others, then each
has a right to material liberty only if it is compatible with the material
liberty of others.
And (7) is the crux of the matter, for (8) and (9) are true by definition.
The reasonability of requiring people — in the sense specified in
premise (7) — not to interfere unjustifiably with others’ material liberty
cannot seriously be questioned, I think. Both utilitarian and hypothe¬
tical-contractarian theories have successfully argued for equivalent
principles.2 And the connecting link between moral liberties and a
system of political liberty is simply an argument to the effect that
certain requirements (of morality) are properly incorporated into a
legal system and enforced as legal rights. Which requirements these are
is a somewhat controversial matter, but there is agreement from all but
the anarchists that some rights should be legally enforced,3 and agree¬
ment that these rights are at least those necessary to guarantee survival
by one’s own efforts. Thus the argument from the notion of material
liberty forms the basis for the argument (for property) from political
liberty.
The crucial remaining question is: What conditions are sufficient to
defeat the non-interference presumption (and thus invalidate the
corresponding claim rightsp. Here the battle lines between utilitarians
and libertarians are drawn. And it is clear that in current practice, the
utilitarians win more skirmishes than they lose.4 The justification of
specific property rights will need clear guidance on this issue. But it
is enough for present purposes to have established the soundness of the
presumption against interference with material liberty, the consequent
soundness of the corresponding claim rights, and the way in which
these claim rights form the basis for a general justification of property
rights.

80
7 Considerations of
Moral Character

It has occasionally been held that property should belong to the

property-worthy. ‘Property-worthy’ has meant, variously, ‘one who will
use property to good effect,’ ‘one who will manage property well,’ or
just ‘one who is virtuous.’ In each case the asserted ground for title to
property rights is different, but in each case it is related to considera¬
tions of the moral character of the property-holder. Further, these
arguments all assume that a general justification of property rights has
been given, that it includes the sort of considerations brought forward
in the general form of the utility argument, and that the specific sorts
of property rights at stake have been determined. The arguments here
address themselves solely to questions of who ought to have the speci¬
fied rights.

People who will use property to good effect

This argument is that ownership of some kinds of things is ‘lost’ on
some people — meaning that the values they derive from it, as opposed
to the values others could derive from it, are shamefully small. The
objection is often made by saying that a thing is ‘too good’ for its
owner. It arises frequently in the case of art, when people are unhappy
about the fact that others with money but no sensitivity or concern for
works can buy them merely as investments. No matter how much the
ownership of such property is due to labor, no matter how useful it is
(for the artist, for the art world, for the society at large), the force of
this objection is felt. The line of argument which produces it goes
something like this:
(1) The general justification for acquiring property rights in a thing
is at least in part to secure the carrying out of purposes for or with the
thing.

81
Property Rights

(2) It is wasteful for things not to be well used — that is, for them
not to be employed to the greatest advantage.
(3) Waste is morally objectionable in the case of scarce goods.
(4) Some people are better able to use certain goods to the greatest
advantage than others.
(5) Thus, if goods can justifiably be owned by individuals at all,
those goods (at least if they are scarce) ought to be owned by the
people who can and will use them to greatest advantage.
This argument may include need as one of several principles for
finding out who can use a thing to greatest advantage, but it is not
based on need in the way the utility argument is. Here need is linked to
the notion of property-worthiness by way of the ‘greatest use’ and
‘prohibition of waste’ principles. The argument is clearly elitist in some
applications, but sweeping and radical in nearly all its applications. It
secures the rights of the initiated to the esoteric — whether in art or in
agriculture — but also secures a distribution according to greatest
benefit among the initiated. Since some ‘initiations’ are nearly universal
(e.g. eating), the argument would appear to support a rather egalitarian
distribution of property in the goods necessary to life. (I say ‘rather’
egalitarian because it does not support property rights for those who
are so helpless as to be unable to use even the necessities to their
advantage.)
The weaknesses in the argument lie in the second and third premises.
If the prohibition of waste is taken to be a requirement of all ownership,
so that to show that something is not being used to greatest advantage
simply eliminates or overrides any other justifications to title, then a
very tenuous claim has been made. I know of no way to justify it. If,
however, the claim is merely that waste is an objection which can
sometimes invalidate other justifications to title, then the tenor of the
argument is significantly changed. The conclusion will hold only in so
far as no competing justifications for property rights produce a differ¬
ent conclusion. The argument is at most one of a larger set of considera¬
tions justifying property rights.
There is another difficulty with premise (2), however, which
weakens the argument still further. This is the ambiguity of the phrases
‘well used’ and ‘greatest advantage.’ Are these phrases to be taken to
refer to the greatest social (or general) advantage? Or merely the
greatest advantage to the individual who owns the thing? The former
requirement is certainly plausible where the thing owned is something
which others need to have well used, and which is unavailable to them
otherwise. But this interpretation turns the argument into a version of
the argument from utility, and one which leads in the direction of
82
 Considerations of Moral Character

prohibiting private ownership in the cases mentioned rather than

merely requiring private owners to use their property for the good of
all. At least, to retain private ownership, one would have to show that it
was more likely to yield the needed general good than public owner¬
ship.
To keep the argument distinct from the utility argument, then, it
seems necessary to assume that the phrases ‘well used’ and ‘greatest
advantage’ in premise (2) refer to the advantages obtained from owner¬
ship by the individual owner. The conclusion, which we have already
noted is only one of several competing lines of argument, is now quite
vulnerable to considerations of utility, when those conflict with indivi¬
dual advantage. Still, with all its qualifications, it is an interesting and
valid line of argument.

People who will manage property well

The argument here is schematically similar to the previous one — with
the same difficulties and eventual highly qualified conclusion. The
emphasis is somewhat different, focusing as the word ‘manage’ indicates,
on the owner’s ability to run things rather than wring personal
advantage from them. In outline, the argument goes like this:
(1) The general justification for acquiring property rights in a thing
is at least in part to secure the success of the carrying out of purposes
for or with the thing.
(2) It is wasteful for things not to be well used — that is, for them
not to be employed to the greatest advantage.
(3) Waste is morally objectionable in the case of scarce goods.
(4) Some people are better able to manage certain goods to the
greatest advantage than others, and where good management is necessary
to good use, it follows that:
(5) If goods can justifiably be owned by individuals at all, those
goods (at least if they are scarce) ought to be owned by the people who
can and will manage them to greatest advantage.
What this version of the argument shows is the (occasional) necessity
for distinguishing between use rights and management rights with
respect to ownership. Clearly, for a given thing X, and two individuals
A and B, if A can manage X but not use it to advantage, and B can use
X but not manage it, then the ownership rights to X ought to be
divided (assuming there is no countervailing argument to the contrary).

The virtuous
We sometimes think that good people deserve to get and keep good
things — merely from the fact that they (the people) are good. More

83
Property Rights

often, we object when the wicked have good things (no matter how
honestly acquired). There is even a strand (not a mjaor one, to be sure)
in Christian theology to the effect that property properly belongs to
the righteous.1 It seems initially unlikely that anything very significant
for the theory of property rights can be built on these foundations, but
they yield some surprises.
Consider: even if it is true that what is earned is deserved, it does not
follow that what is unearned is undeserved. Or rather, perhaps one
should say that good character ‘earns’ things as much as labor does.
Specifically, good fortune (unearned by labor) is none the less said to
be deserved when it falls to the virtuous, and undeserved when it falls
to the wicked. We all share Job’s sense of injustice when the wicked
prosper and the good are struck down by calamity after calamity. It is
not that the wicked do not deserve the fruits of their (honorable) labor.
And it is not that the virtuous deserve something for nothing. It is
rather the recognition that:
(1) Some goods are the product (partly or wholly) of events which
have nothing to do with one’s intelligence, labor, or moral character.
They come by chance, or from the caprice of other agents.
(2) Such goods (hereafter: good fortune) play a significant role in
determining people’s access to (the means to) well-being, happiness —
and in competitive situations, to competitive advantage. Similarly, bad
fortune plays a significant role in determining the opposite.
(3) Good fortune is in no way deserved by the wicked, but it is in
one way deserved by the virtuous (whatever one’s definition of virtue is).
The virtuous deserve good fortune in the same way they deserve respect,
admiration, and gratitude; it is appropriate; it is fitting; it is an event
logically and psychologically compatible with good conduct and
character.
(4) Thus, to the extent that good fortune can be controlled (e.g. by
distributive measures after the fact), it should go only to the virtuous.
There are two problems with this argument, I think. The first is the
interpretation of ‘deserve’ in premise (3); and the second is the assump¬
tion that goods should go only to those who deserve them. (The first
two premises seem to me to be clearly true.)
‘Deserve’ is apparently used in premise (3) to include only ‘what one
has earned with labor’ and ‘what is logically and psychologically
compatible with one’s conduct and character.’ Problems with the
former sense have been discussed in the chapter on the labor theory.
But granting this as a legitimate usage of ‘deserve,’what about the other
usage — the one on which the whole argument hinges? Does it really
clarify matters to say that one deserves something in the sense that

84
 Considerations of Moral Character

having it is logically and psychologically compatible with one’s conduct

and character? I think it does. The psychological compatibility spoken
of is, after all, only a reiteration of the facts about our responses to the
distribution of good fortune which began the whole argument. We just
do react adversely to goods falling by fortune to the wicked; and we
just do react with satisfaction (at least when problems of envy are
removed) to such goods falling to the virtuous. The ‘logical compati¬
bility’ spoken of is simply that to the extent that a good is a ‘reward’ or
‘desert,’ it must be a reward or desert for something, and for something
good. It would make nonsense of the concept of desert to speak (unless
ironically or figuratively) of a good as one’s desert for doing or being
evil.
But there is another problem of interpretation which is not as easily
resolved. Earlier in this chapter, two notions of property-worthiness
were discussed which are apparently ignored by this argument. A
person who will use or manage something to greatest advantage can
legitimately be said to deserve it. Yet this may have nothing to do with
our overall judgment of the person’s moral character. So it seems
possible, after all, for a wicked person to deserve the products of good
fortune — not in either of the senses of‘deserve’ used in the argument,
but in another, equally legitimate, sense. The argument must be
modified to acknowledge the possibility of other forms of desert.
Similarly, it must acknowledge, I think, that desert is not the only
principle by which the products of good fortune are (justly) distributed.
Sometimes utility is rightly a factor. The amended argument will thus
have to be something like this:
(1) Some goods are the product of (partly or wholly) events which
have nothing to do with one’s intelligence, labor, or moral character.
They come by chance, or from the caprice of other agents.
(2) Such good fortune plays a significant role in determining
people’s access to (the means to) well-being, happiness — and in
competitive situations, to competitive advantage. Similarly, bad fortune
plays a significant role in determining the opposite.
(3) 1 Good fortune may not be deserved by the wicked, but it is
always deserved by the virtuous in the sense of its being logically and
psychologically compatible with their conduct and character.
(4) 1 Thus, to the extent that the products of good fortune (a)
can be distributed; and (b) ought to be distributed only to those who
deserve them; and (c) are not deserved by the wicked (or the morally
‘neutral’), they ought to go only to the virtuous.
Translated into an argument for property rights, the conclusion
asserts that (in the absence of countervailing arguments from other

85
Property Rights

forms of desert or from utility) the portion of property acquired by

means of good fortune should go to the virtuous. (This assumes that the
property can justifiably be held by individuals and that the portion
ascribable to good fortune is ascertainable and distributable. It also, of
course, assumes that the virtuous can be identified.) Who among the
virtuous should get what portion of the property is not specified. One
assumes that, for divisible property, perhaps the presumption in favor
of equal distribution would obtain, rebuttable by further discriminations
with regard to desert, need, and utility. For non-divisible goods, the
presumption most true to the spirit of the argument would assign
priorities by degrees of desert (with some method for breaking ties),
the priority assignments then being challengeable by utility considera¬
tions and so on.

Property as necessary for the development of moral character

In addition to the arguments based on property-worthiness, there is
another issue raised by considerations of moral character. It is some¬
times suggested that being an owner of things is a necessary condition
for the development of some elements of virtuous character. Aristotle
remarks, for example, that property-holding is necessary for developing
self-control and liberality (generosity?).2 But turning remarks like this
into a sound argument for property rights is a difficult task. It is
difficult because the argument will depend on contestable premises
about what counts as an element of virtuous character, as well as
contestable premises about human behavior.
Leaving such problems aside, however, it is difficult to see how
owning things- is a necessary condition for the development of any
possible element of virtue. If skills of various sorts are elements of
virtue (skills of use or management, for example), they can be
developed without owning property. The use of the things one needs to
learn on (together with whatever instruction is available) is all that is
required. If creativity of various sorts is an element of virtue, and if it
requires the use of things or the consumption of raw materials for its
development, then again it is hard to see why protected possession and
the liberty to use and consume are not sufficient. The claim right to
possession, let alone the rights to income, capital, and transmission, are
irrelevant. The ‘dispositional virtues’ — e.g. temperance, self control,
perseverance, generosity — can all be developed without private
property. No doubt property can help, but one can teach a child
generosity with reference to personal services as well as with reference
to things owned. Likewise self control, temperance, and perseverance
develop as much from dealing with promises, expectations, delays in

86
 Considerations of Moral Character

gratification, and (property less) social interactions generally as they

do from dealing with things one owns. In short, the argument appears
to deserve its disuse.

87
8 Anti - Property
Arguments

Opponents of property rights use two sorts of argument: refutations of

arguments given in support of property; and ‘positive’ arguments
designed to show that property rights (at least of some specified sorts)
ought not to exist. The attempted refutations have been considered in
the course of evaluating the arguments from first occupancy, labor,
utility, and virtue. The ‘positive’ arguments against property rights, how¬
ever, deserve separate attention.
They may be divided into four general types: arguments to the effect
that property rights have an overall social disutility; arguments to the
effect that the institution of property rights is self-defeating; arguments
to the effect that private ownership produces vicious character traits
(i.e., that its abolition is necessary to the development of moral
character); and arguments to the effect that systems of property rights
produce and perpetuate unjustifiable socio-economic inequality. (This
argument from inequality is the most interesting, and probably the
most potent of the four. I have put it last only for convenience of
exposition.)

Social disutility
The utility argument for property rights asserts that people need to
acquire, possess, use, and consume things — and that their need to do so
can only be met through instituting a system of private ownership.
Anti-property theorists do not accept those contentions, as I have
already mentioned. But some of them also advance an argument, itself
based on utility, which is designed to show that the institution of
property rights has an overall social disutility — that is, that on balance
it produces a net loss of good — no matter whether people need such
rights or not. The outlines of this argument to disutility, as I shall call
it, are as follows.
88
 Anti-Property Arguments

THE ARGUMENT
(1) Any system of property rights which permits private ownership
(in the full, liberal sense) of land or the means of production which are
scarce, or are non-renewable, or are capable of monopolization,
inevitably produces inequality in wealth of a sort which increases over
generations, hardens the social order into a class structure, and (a) yields
an unjustifiable amount of poverty, and (b) yields an unjustifiable
amount of social instability.
(2) It is not necessary to permit private ownership of the things
mentioned above. That is, (a) private ownership of those things is not
necessary for survival, a reasonable degree of happiness, or the full
development of personality; and (b) prohibiting private ownership of
those things is an enforceable policy.
(3) Whatever needs are satisfied by private ownership (in the full,
liberal sense) of land or the means of production which are scarce, or
are non-renewable, or are capable of monopolization are minor
compared to the needs for social stability and the elimination of
poverty.
(4) Since the social stability people need is impossible given a system
which permits private ownership of those things (from (1) above), and
since the need for such stability outweighs any needs people have for
private ownership of those things (from (3) above), and granting that
the prohibition of such ownership is possible (from (2) above), it
follows that private ownership of those things ought not to be per¬
mitted.1

THE SOCIAL STABILITY PREMISE

The first premise of this argument is in part an assertion about matters
of fact — facts about the social conditions which would result from full,
liberal, private ownership of certain things. The assessment of its truth
as a general proposition about social and economic phenomena is
difficult because it is so general. It is certainly convincing as an asser¬
tion about how things often have turned out. One does not have to read
much history to find property distributions cited as causes for abject
poverty, wars, revolutions, and less massive sorts of instability.
But whether the institution of property rights (for the things
specified) always must produce poverty and social instability just seems
to me beyond anyone’s power to determine. One can, after all, imagine
circumstances in which it would not, and those circumstances are not
all utopian fantasies. If, for example, certain changes in popular
attitudes, values, and beliefs about competitiveness and justice in
distribution were to take place — changes comparable in scope to those

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which have occurred gradually in Western democracies in the last two

hundred years (e.g. on issues such as slavery, taxation, tort liability, the
nature of the family) — then the outcome would be different. It does
little good, in a discussion of how things ought to be, to argue that such
possibilities are unlikely, or simply will not occur. The argument as
stated requires proof of the inevitability of poverty and social instabi¬
lity. Any possibility that a system of private ownership (of the things at
issue) would not produce these conditions means that this whole argu¬
ment can be countered by property theorists.
Even so, the first premise can be recast to support an important and
powerful argument. One may say that whenever a system of private
ownership produces sufficient poverty or social instability (and suppos¬
ing premises (2) and (3) to be sound), then the conclusion (4) follows.
The revised premise preserves the rationale for the original disutility
argument against property rights, and in view of the frequency with
which systems of private ownership actually produce these situations,
the revised argument remains a potent objection to such systems.
That is, it remains so, assuming that the other premises are sound
and that some conceptual problems with all the premises can be
resolved. The first premise, for example, makes the phrases ‘unjustifi¬
able amount of poverty’ and ‘unjustifiable amount of social instability’
central to the whole argument. The meaning of those phrases needs to
be carefully spelled out. Premise (2) relies on a notion of necessity
which needs attention. And premise (3) presupposes that needs can be
rank ordered as to importance.

CONCEPTUAL PROBLEMS WITH THE ARGUMENT

Poverty * (the economic variety) is definable in various ways. It always
involves the notion of a significant shortfall of goods relative to some
standard, but the standard may plausibly be defined in a number of
ways: (1) as the amount necessary for physical survival, (2) the amount
necessary for the maintenance of physical health, (3) the amount
necessary for a reasonably comfortable and secure existence in good
health, (4) the amount necessary for the full development of persona¬
lity, (5) the amount necessary for ‘normal’ self-realization (however
defined), (6) the amount necessary for carrying out some specified set
of standard projects, or (7) some amount relative to what the wealthiest
members of society have. The last defines poverty as relative depriva¬
tion, and given the impact such deprivation can have on a social order,
might well be chosen for the disutility argument. The next to last - (6)
— does not really stand on its own, but is introduced to operationalize
one of the other standards. The first seems too severe; it is rather an

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 Anti-Property Arguments

understatement to describe the situation in which a person does not

have enough to sustain life as poverty. The maintenance of physical
health — (2) — and the maintenance of a reasonably comfortable and
secure existence — (3) — are better standards. But they miss some
important things which (4) and (5) try to capture. If there are enough
goods to permit a distribution which gives everyone the means for self-
realization (however defined), or just the full development of persona¬
lity,2 and if some people have in fact achieved such affluence, then
economic circumstances falling significantly short of those levels can
plausibly be described as poverty. (If no one has ever achieved such
affluence, however, there is little plausibility in describing the short¬
fall as poverty. My authority for this remark — and thus its sole signifi¬
cance — is simply an appreciation of common usage.)
In summary, then, conditions in which people are deprived of the
means to maintain physical health, or of the means to secure a reason¬
ably comfortable existence, are clearly describable as poverty. Beyond
that, the standards seem tied to some notion of relative deprivation.
The argument to disutility may go through (or not go through) with
any of several definitions of poverty.
But what is an ‘unjustifiable amount’ of poverty? Since this is a
utility argument, the definition will not be tied directly to personal
desert. (These considerations are reserved for the arguments from virtue
and from inequality, below.) Rather, an ‘unjustifiable amount’ of
poverty will be defined in terms of economic efficiency (see the
relevant discussion in chapter 5). Any amount of poverty (i.e. number
of people in a condition of poverty) greater than that permissible for
economic efficiency is unjustifiable.
Social instability. Likewise, the definition of ‘social instability’ and
the principle which determines its justifiable amounts has a great deal
to do with the soundness of the first premise. Social instability means
one thing to the timid, quite another to the reckless. It may occur in
forms as non-violent as the general disregard of a corrupt legal system,
in forms as pervasive as the sort of political tensions which make
effective government impossible, and in forms as intense and bloody as
violent revolution. What forms of instability are to count for the
purposes of the disutilty argument, and how much of each is justifiable?
The answer to these questions is, in principle, rather straightforward.
All forms of social instability which (considered alone) produce a net
loss of good (however defined) count for the purposes of the disutility
argument, and any amount which, all things considered, represents a
net loss of good is an unjustifiable amount. To explain: suppose perfect
social stability is defined as the state of affairs in which everyone does

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exactly what he or she ought to do — in the broadest sense of ought, a

sense which includes not only obligation but the maximization of good
and the exemplification of virtuous character as well. (Such perfection
is mercifully only a definitional starting point.) Deviations from perfect
social stability do not all (considered separately) produce a net loss of
good. Some personal shortcomings may be harmless, for example. And
failure to meet an obligation — say to meet a friend at 4 p.m. at a
certain street — may turn out all right if the friend also fails to be there.
Other deviations which, considered alone, produce a net loss of good
may none the less prevent larger losses. If the gas line at that street
explodes at one minute past 4, it is a good thing neither party was there.
In situations of imperfect social stability, some sorts of conduct
which would be wrong in perfectly stable conditions are none the less
required as a way of improving the imperfect situation. For example,
in a case where the sacrifice of some particular good is required for the
health or safety of all, but crucial people will not do what they ought —
i.e. sacrifice those goods — coercion may be necessary. Such coercion,
in an imperfectly stable situation, may be what people ought to do,
even though it would be wrong in an ideal or perfect set of circum¬
stances.
Both the utility and disutility arguments use lines drawn from the sort
of general considerations just introduced. Assuming an imperfectly
stable social order, it is possible to argue plausibly both that a system of
property rights reduces the instability (though it may have elements
which are themselves incompatible with perfect social stability) and
that a system of property rights increases the instability (though
prohibiting private ownership may have elements which are incompa¬
tible with perfect social stability). Premise (3) of the disutility argu¬
ment addresses itself to precisely this issue, and though the battle over
its soundness is typically fought about forms of social instability such
as class warfare (as suggested by the wording of premise (1)), those
extremes are only special cases of the general line of argument.
Necessity and need. The remaining conceptual problems with the
disutility argument concern the notion of necessity introduced in
premise (2), and the presupposition in premise (3) that needs can be
rank ordered. About the latter, enough has been written by utilitarians
to show that there is no problem here if rank ordering is all that is
needed (and it is in this case). The problems come in trying to construct
scales which specify either equality of intervals or equality of ratios —
the so-called cardinality problem.3
The notion of necessity used in premise (2) may require a few words
of explanation, however. The premise asserts that permitting private

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 Anti-Property Arguments

ownership (of the specified things) is not necessary for the satisfaction
of the needs mentioned in the utility argument for property rights.
That is, that it is not necessary for physical survival, a reasonable degree
of happiness, or the full development of personality. So far the premise
is simply a denial of the corresponding one in the utility argument.
Premise (2) goes further, however, and asserts that the prohibition of
(full) private ownership in land or the means of production which are
scarce, are non-renewable or are capable of monopolization is an
enforceable policy. This is done to fend off the objection that, like the
Eighteenth Amendment, such prohibition would be unenforceable and
therefore — whether one likes it or not — permitting private ownership
in the things specified is necessary. This is a familiar enough notion not
to need further elucidation here.

WHAT THE DISUTILITY ARGUMENT PROVES

The final question is, then, whether the premises of the disutility
argument, as recast (in the case of (1)) and explicated, are sound or not.
There is clearly no problem with the recast version of (1). It is no
longer even a complete assertion. It merely begins the argument by
saying that whenever a system of property rights yields unjustifiable
amounts of poverty and social instability. . . (Some may think it too
weak, since it refers only to property in land and some of the means of
production. Why not extend it to private ownership per se — especially
if it is already gutted of its assertions about the inevitability of the
results of ownership? I have no objection to such an extension, but I
think it is an empty gesture. That is, I cannot imagine a case in which
the argument would go through for things which fall outside the
categories now listed. Neither, I think, can the anti-property theorists
who advance the argument, which is why they focus on the things
specified in premise (1). It may be advisable to keep the possibility of
such an extension in mind, however.)
Since (1) as revised really makes no assertion at all, the burden of
the argument falls on (2) and (3). If they are sound, the conclusion (4)
follows. And I can see no significant problem with (2), granted the
efficient causes and time for making the changes in deep-seated attitudes
the enforcement of such prohibitions might require. The real difficulties
come with premise (3). Here one is required to weigh the net loss or
gain from the prohibition of private ownership, and to do so one has to
specify not only the social conditions which, together with private
ownership, yield poverty and instability, but also the sorts and amounts
of those things which outweigh any utility private ownership might
have. The soundness of premise (3) thus cannot be assessed in the

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Property Rights

abstract, for in abstraction from a particular situation, the premise is

only schematic. Once the necessary information is filled in, however
(from a particular historical or hypothetical situation), the assessment
should be no more difficult than routine utility ranking procedures
legislators go through daily.
In summary, the disutility argument is the schema of a powerful
objection to the existence of private ownership. As such it must be met
by anyone defending a proposal for particular property rights. But
because ft is only schematic at the levels of general and specific justifi¬
cation, it can only be used to criticize particular proposals — and not to
criticize the institution of property rights per se, or even certain species
of those rights.

Self-defeatingness
It has often been remarked (and not by anti-property theorists alone)
that any system of private ownership which attempts to guarantee to
laborers the produce of their labor can become self-defeating when
applied to land and means of production which are scarce, or are
capable of monopolization. The following passage from an essay by
Hastings Rashdall illustrates the point nicely.

The best way of criticizing Locke’s theory is to show that, when

thought out, it contradicts itself. Let us suppose that ten men
appropriate a desert island, divide it among themselves, and
cultivate their respective shares. Each of them has ten sons, and
having a taste for ‘founding a family’ leaves his share to the eldest.
In the next generation there will be ten landlords and ninety
landless men. These men have a sacred, natural right to the fruits of
their labour: but how are they to exercise it? They will say to the
elder brothers: ‘We have a right to labour: let us work on your
lands.’ ‘By all means,’ the elder brothers will say, ‘on condition of
paying over to us all that the land produces over and above
what will keep you and your families.’ In that way the principle
contradicts itself. The rights of property, supposed to be derived
from a man’s natural right to the fruits of his labour, involves the
negation of that right in the non-inheritors of property. This is
exactly what Karl Marx and the a priori socialists saw. They
accepted Locke’s own principle, and expressed it in the only
logical form — ‘the labourer has a right to the whole produce of
his labour.’ But this right is defeated by any appropriation of land
and capital; therefore all land and capital, all the ‘instruments of
production’ must be held in common. Thus the same principle

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 Anti-Property Arguments

which was intended by Locke as the basis of a system of extreme

Individualism, has become the cornerstone of a system of
extreme and thoroughgoing Socialism.4

This is overstated, of course. It is not any appropriation of land, capital,

and means of production which defeats the principle, but rather their
exhaustive appropriation by some proper subset of the population. The
argument applies only to private ownership of the specified goods; so it
cannot be used to support total communism. But it is more than an
attack on Locke’s labor theory of acquisition. Any system — whether
based on utility, first occupancy, labor, liberty, or virtue — which
guarantees to people the products of their labors is vulnerable to this
objection, given certain additional circumstances.
The additional circumstances required to make the self-defeatingness
argument applicable are that the land or means of production actually
be exhaustively appropriated by some subset of the population. To the
extent that private ownership of these things is limited so that each
unpropertied person retains the material liberty to appropriate (an equal
share of) them, the argument has no force. Such limitation of ownership
can occur, for example, when there is a frontier beyond which enough
accessible land exists to satisfy the current population and when the
society also has a population policy, as well as inheritance laws,
designed to keep it that way. In such circumstances, one would still
need to worry about ‘virtual’ or de facto monopolization — situations
in which the prior acquisition of goods by one or a few can effectively
block subsequent acquisition by others, even though there are unowned
goods which are otherwise accessible. A further problem, in a modern
industrial society, would be private ownership by corporations and
foundations, which are exempt from the limiting influence of inheri¬
tance laws. Both problems are in principle manageable, however, even
in a complex society where the quantity of unappropriated goods is
small.
In sum, the self -defeatingness argument, like the disutility argument,
stands as a source of objection to particular instances of the institution
of private ownership — and then only to ownership in the full, liberal
sense of the specified things.- Further, of course, it only applies to
systems which attempt to guarantee to persons the produce of their
labor. More ‘robust’ systems, which make guarantees only that people
are entitled to the produce of their labors if they can labor without
trespassing on property previously acquired by others, escape this
objection altogether.

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Property Rights

Virtue
Plato is perhaps the first philosopher to have argued that private owner¬
ship has vicious effects on character. At a minimum, he thought that
property interfered with the development of the traits necessary for the
soldiers and rulers of the ideal state.5 Some Christian theologians have
taken passages from the Gospels and the book of Acts to mean that
private ownership — or at least anything above that necessary for an
ascetic existence — tends to block the achievement of whatever
righteousness people can attain.6 (Others simply argue that communal
ownership is a New Testament command, whether private property has
bad consequences for character or not. I do not refer to such positions
here.)
This argument runs into exactly the sort of difficulty which defeats
the corresponding argument for private ownership, the argument that
property produces good moral character. The difficulty is that although
one can easily imagine (even identify among one’s acquaintances)
private ownership as the cause of a certain character trait, one can just
as easily imagine and find cases in which it is not. If acquisitions some¬
times intensify acquisitiveness to the point of greed, they also can lead
to generosity. If ownership can produce obsessive possessiveness, it can
also produce a release from the constant worry some feel when
property held in common is entrusted to them. I can see no possibility
for a general argument here to the effect that property always produces
more vicious than virtuous character traits. So the argument from virtue
seems, like the other anti-property arguments, to be a schema for the
critique of particular systems once they are spelled out, and not an
injunction to systems of private ownership per se.
There is one area in which we typically think the effects of owner¬
ship must always be watched, however. That is the area in which
governmental officials have an economic stake in the outcome of a
case under their jurisdiction. To the extent that such conflicts of
interest make impartial adjudication impossible, it may be necessary to
hedge any system of private ownership with conflict of interest legisla¬
tion. Similarly, to the extent that conflicts of interest destroy guarantees
to consumers necessary for public safety, they may have to be further
regulated. But these are merely probable outcomes for many sorts of
systems in many sorts of circumstances. There is no more necessity here
— and thus no more possibility of general anti-property argument —
than in the other cases.

The perpetuation of inequality7

A final anti-property argument — and perhaps the most potent one of

96
 Anti-Property Arguments

all — is one which has its source in a theme alluded to in both the social
disutility and self-defeatingness arguments: namely that systems of
private property rights can lock members of succeeding generations into
positions of undeserved advantage and disadvantage. Significant socio¬
economic inequality defines significant differences in material (as
opposed to formal) liberty — e.g. the liberty to travel, to get an educa¬
tion, to find rewarding employment. And it is correlated with
differences in things as basic as health and life-expectancy.8 Even if the
original acquisitions were just, and even if the subsequent transfers were
procedurally just, it cannot be just — so this argument goes — to permit
the perpetuation of significant socio-economic inequality. The fact that
some people did, and others did not, acquire property and pass it on to
their heirs, is surely not sufficient justification for locking those heirs
into positions of advantage or disadvantage.
Put more formally, the argument is this:
(1) Extensive systems of private property rights (even where rights
of transmissibility are severely limited) tend to produce and perpetuate
significant socio-economic inequality.
(2) Significant socio-economic inequality — quite apart from its
propensity to create social instability — means that some members of
society will be disadvantaged not only relative to others (e.g. with
respect to material liberty), but absolutely (e.g. with respect to life-
expectancy).
(3) No matter how just the original acquisitions were, and no matter
how just (procedurally) the subsequent transfers were, those who
(through no acts of their own) fall heir to the advantages or disadvan¬
tages mentioned in (2) cannot be said to deserve them.
(4) While undeserved advantages are unobjectionable if they do
no harm to either the recipients or others, undeserved J/sadvantages
ought to be prevented (or rectified) whenever possible.
(5) Some (significant) undeserved disadvantages are produced and
perpetuated by the institution of property rights itself — regardless of
limitations placed on transmissibility.
(6) Therefore, any institution of private property rights which is
more extensive than the minimum required for social order is unjustifi¬
able.
Matters of fact. I shall assume here that this argument has its facts
straight. That is, I shall take it to be true that significant socio-economic
inequality seriously disadvantages some people, and that an extensive
system of private property rights — even if it drastically limits inheri¬
tance — produces and perpetuates some such disadvantages (e.g. the
advantages of education accessible only to the children of high achievers

97
Property Rights

can be perpetuated in succeeding generations — to the relative dis¬

advantage of others — regardless of inheritance lav/s).
Desert. Further, I shall assume that the ways in which the argument
makes use of the concept of desert are uncontroversial. Personal desert
claims must have a basis in personal conduct or character (see the
discussion of desert in chapter 4). What the argument asserts is simply
that advantages or disadvantages accrued through no act (or character
trait) of the recipient cannot have a basis upon which a claim that they
are deserved could be founded.
Necessary Evils. Moreover, the argument concedes that some signifi¬
cant inequalities produced by property rights may be uneliminable. For
instance, if the nuclear family is a justifiable social institution, and
laborers are to be compensated in proportion to their labor (points
granted by most), then it is inevitable — no matter how minimal the
system of property rights — that the parents’ property will confer some
undeserved advantages or disadvantages on the children. While to some
this may provide grounds for abandoning the family as the basic social
unit, to most it only reveals that there are unavoidable bad consequences
associated with even the best social institutions.
But to acknowledge this is not to say that social institutions should
not be designed — in ways consistent with their justifiable functions —
to minimize bad consequences. And I take the relevant normative
premise in the argument to be uncontroversial: that undeserved dis¬
advantages produced and perpetuated by private property rights ought
to be prevented or rectified whenever possible. (I take the ‘whenever
possible’ rider to mean ‘whenever it is morally justifiable and humanly
possible to do so.’)
Justice. The crucial weakness in the argument is its claim about
justice. It disregards or overrides claims based on justice in acquisition
and justice in transfer in favor of claims based on justice in distribution.
It asserts that, because some bad distributions are the inevitable result
of otherwise just acquisitions and transfers, those acquisitions and
transfers ought to be eliminated.
This is not a defensible position. What we have here are competing
claims for justice: one set for justice in acquisition and transfer (based,
for example, on arguments from labor, utility and liberty), and the
other set for justice in distribution (based on undeserved inequality).
The proper course is to deal with both sorts of claims in terms of the
rules for deciding conflicts among a plurality of arguments (see below,
chapter 9). But this anti-property argument is none the less a potent
source of limitations on systems of property rights — especially with
respect to inheritance.

98
9 The Justification of
Property Rights

The positive results of the analysis so far may be summarized as follows:

there are four independent and sound lines of general justification for
private property — two from labor, one from utility (buttressed by two
economic variants), and one from liberty. Because the arguments are
independently sound, the general theory of property rights must make
a place for them all (as well as for anti-property arguments), and
because each can occasionally conflict with others in its application to
problems of specific or particular justification, the general theory must
coordinate them. Once coordinated into a coherent picture of general
justification, any limitations they (or anti-property arguments) place
on the justifiability of property rights must be observed at the levels of
specific and particular justification — that is, those efforts must be
compatible with the general justifications as coordinated. Some
principles for compensation and taxation are built into the general
justifications. In particular, the desert-labor argument entails penalties
for the net losses caused by labor, the economic versions of the utility
argument provide grounds for assessing both compensation and taxa¬
tion, and the very concept of a right itself is such that any overriding of
a right — whether justified or not — requires compensation. This last
requirement places a significant burden on efforts to redefine rights
after the fact (e.g. by passing laws which restrict or eliminate rights
already held). Finally, within the constraints imposed by the four general
justifications and the anti-property arguments, the labor and liberty
arguments combine to produce a presumption in favor of allowing
people to acquire as much property as they desire.
I want now to comment on each of these results in turn. The
purpose is to bring the various elements of the analysis together at last,
and to suggest some directions for the enterprises of specific and
particular justification.

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Property Rights

The plurality of general justifications

Traditional accounts — in some cases as reformulated here or by other
writers — supply four sound lines of argument for a general justification
of private property. Briefly, and somewhat formally put, they are as
follows:

MILL’S ARGUMENT FROM LABOR

(la) When the labor is beyond what is required, morally, that one
do for others; when it produces something which would not have existed
except for it; and when its product is something others lose nothing by
being excluded from; then it is not wrong for producers to exclude
others from the possession, use, management, and so forth of the fruits
of their labors.
(lb) Whenever giving producers ownership rights in the fruits of
their labors is a justifiable way of excluding others (under the conditions
of (la)), then such ownership rights are justifiable.
The limitations of this argument have been pointed out in detail
(above, pp. 36-48). In particular, for competitive situations, the ‘no
loss’ criterion is a very stringent one. And the fact that property rights
(in so far as they involve claim rights for the holder) entail duties for
others toward the owners, makes the no loss requirement, (la), even
harder to satisfy.

THE ARGUMENT FROM DESERT FOR LABOR

(2a) When it is beyond what morality requires them to do for
others, people deserve some benefit for the value their (morally permis¬
sible) labor produces; conversely, they deserve some penalty for the dis-
value their labor produces.
(2b) The benefits and penalties deserved are those proportional to
the values and disvalues produced and those fitting for the type of labor
done.
(2c) When, in terms of the purposes of the labor, nothing but
property rights in the things produced can be considered a fitting benefit
for the labor, and when the benefit provided by such rights is propor¬
tional to the value produced by the labor, the property rights are deserved.
When, in terms of the purposes of the labor, either property rights in
the things produced or something else can be considered a fitting and
proportional benefit, then either the property rights or one of the
acceptable alternatives is deserved.
When, in terms of the purposes of the labor, property rights in the
things produced cannot be considered a fitting benefit, or when the

100
 The Justification of Property Rights

benefit of such rights is in excess of the values produced by the labor,

the rights are not deserved.
(2d) Any diminution of value produced by the labor must be
assessed against the laborer as a penalty deserved for the loss produced.
(Penalties must be proportional to the loss produced, and a fitting
remedy for that loss — fitting with respect to the purposes in terms of
which it can be considered a loss.)
The soundness of (2a) is assumed - but not arbitrarily, for it meets
the criteria for a primitive moral principle. The remaining steps are
deduced from the concepts of desert, fittingness, benefit, and loss.

THE ARGUMENT FROM UTILITY

(3a) People need to acquire, possess, use, and consume some things
in order to achieve (the means to) a reasonable degree of individual
happiness and general welfare.
(3b) Insecurity in possession and use, and uncontrolled acquisition
of the things people need (and want) makes achievement of (the means
to) a reasonable degree of individual happiness and general welfare
impossible (or very unlikely).
(3c) Security in possession and use and control of acquisition is
thus necessary. But it is impossible unless enforced by an institution
which amounts to the administration of a system of property rights.
(3d) Therefore, a system of property rights is necessary (or very
nearly so) if people are to achieve (the means to) a reasonable degree of
individual happiness and general welfare.
The crucial premise is clearly the first one. It may be argued for in
the following way:
(i) People need to use and consume and possess some things merely
for survival (food, shelter, etc.).
(ii) People are purposive; the satisfaction of the propensity to
purposive activity (not necessarily any particular purpose) requires the
consumption, possession, and use of some raw materials, and the
expectation of continued use, etc.
(iii) Acquisition, possession, and use is necessary to the development
of personality, self-esteem, and valued abilities, and the subsequent
expression of personality, confirmation of self-esteem, and use of
valued abilities.
(iv) Acquisition, possession, and use of things by one person can be a
benefit to others as well as to the one who possesses, and occasionally
the general welfare requires such acquisition and use by individuals.
The second and third premises may be extrapolated from the first —
as in the traditional utility argument — or be argued for on independent

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Property Rights

grounds such as used by the general forms of economic utility

arguments: cost-effective management of externalities and efficiency in
resource allocation.
Utility thus provides a straightforward, clear, and convincing general
justification for a system of property-right-making social institutions.
Attempts to rebut its premises fail, in my judgment, and the disutility
argument put forward by anti-property theorists has force only at the
specific and particular levels of justification, not the general one.

THE ARGUMENT FROM POLITICAL LIBERTY

(4a) It is a fact that human beings will acquire things, try to control
them, exclude others from their use, modify them, and use them as
wealth.
(4b) The effective prohibition of such activities — i.e. the elimination
of private property — would require a comprehensive and continuous
abridgment of people’s liberty which is at best unjustifiable and at
worst prohibited by the existence of political liberties to which people
are entitled, morally.
(4c) The regulation of acquisitive activities, by what amounts to a
system of property rights, is likewise required to preserve political
liberties.
(4d) Therefore, property rights are justifiable.
The crucial premise here is (4b), and the justifiability of a (minimal)
system of political liberties is all that is required: a system in which
liberties are at least Hohfeldian liberty rights, and in which the liberty
to survive by one’s own efforts is guaranteed materially as well as
formally. This much can be accomplished with the familiar strategies of
hypothetical-social-contract theorists or with a strategy based on the
concept of natural liberty.

SPECIES CHARACTERISTICS: A PROGRAM FOR A FURTHER ARGUMENT

In addition to the traditional lines of argument, there is an additional
possibility for buttressing arguments for property. It comes from the
(possible) existence of certain characteristics of the human species. To
the extent that the maintenance of individual distance, the acquisition
of a territory, the establishment of dominance hierarchies, and the
‘incorporation phenomenon’ remarked on in the discussion of the labor
theory are genetically determined characteristics of all normally formed
human beings, they can function as presumptive support for traditional
arguments, and thus for a system of property rights generally — perhaps
even for a specific system. To explain:
The maintenance of personal or individual distance is a phenomenon

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often observed in animal behavior, and human behavior exhibits

similar phenomena. A person will ‘set boundaries’ in nonintimate
encounters, such that, when others inadvertently cross them, the person
will draw away, trying to restore the ‘proper’ distance. And it may be
that different distances are set for different purposes, so that people
distributing themselves for conversation will tend to keep distances of
x to y feet (variance due to differences in socialization), and people
distributing themselves for the building of houses will tend to keep
distances of (say) x to y feet. There is apparently some evidence
from animal studies to suggest that territoriality becomes important
when space is scarce enough so that the maintenance of individual
distance is a difficult matter, and when it is so difficult as to require
full-fledged social cooperation, dominance hierarchies tend to emerge as
well.1
Now, if there are genetically based tendencies in humans toward the
maintenance of individual distance, the acquisition of territory and the
establishment of dominance relations, and if the things people produce
with their labor or otherwise acquire tend to be psychologically
‘appropriated’ or ‘incorporated’ in the sense that one’s concerns for
one’s person now extend to these things as well, then I think it is easy
to see that the idea of ownership would have a (genetically based)
‘appeal.’ That is, one would expect normally formed humans to have an
‘approval affect’ toward ownership of the things they produce by their
labor, and of the things necessary for the maintenance of personal
distance. Unless some reason can be given for concluding that this
approval affect should not be followed out (i.e. by instituting a system
of property rights), then it is not unjustifiable to do so.2 One thus has an
‘ultimate’ justification for the root idea of the labor theory and
premises (3a) and (3b) above of the utility argument. Similar uses of
species characteristics seem possible for the liberty argument.
At this stage, it would be presumptuous to call these considerations
arguments. The empirical evidence is too scanty. But if what is now
speculation should ever get sufficient empirical confirmation and
elaboration, then moral arguments of the form I have described will be
very important. Until that time, however, one has to make do with less
thoroughgoing arguments.

The coordination problem

In principle it is possible for conflicts to arise if one general justification
(say, from liberty) requires a certain sort of property right which
another general justification (say, from utility) prohibits. (One assumes
that prohibitions and requirements dominate mere permissions, such

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that if one general justification permits a certain property right, but a

second general justification either prohibits or requires it, the second
one is determinative.) Similarly, conflicts may arise between arguments
for property rights (e.g. from liberty) and arguments against those
rights (e.g. from inequality). These conflicts also form part of the
coordination problem.
Now there are three ways conflicts between prohibitions and require¬
ments can be decided rationally. One is by aggregation: if liberty and
utility require x, but a labor argument prohibits it, then unless there is
some reason to weight the three elements of the conflict unequally, two
requirements outweigh one prohibition.
Some cases will not be decidable in this way, of course, e.g. cases in
which the conflict is between equal numbers of prohibitions and
restrictions. For them, one may be able to use a second method of
resolution — that of weighting the elements of the conflict. In the case
of one prohibition against one requirement, for example, only a rank
ordering is required to decide the conflict.
But there is no reason to think, a priori, that all conflicts will be
resolvable in either of these two ways — no reason to suppose that there
could not just be deadlocks between conflicting prohibitions and require¬
ments (of equal numbers or weight). In this third set of cases one must
simply acknowledge that the outcome is a matter of indifference to
reason and resolve the conflict arbitrarily — by the flip of a coin, for
example.
Frequent conflicts will occur between liberty and utility, the desert
form of the labor argument and utility, and all the pro-property argu¬
ments and the (anti-property) argument from inequality. I cannot
provide anything more than a schema for the resolution of such
conflicts here. And since the question of the priority of liberty over
utility is a much discussed issue at the moment, it may be useful to
frame the remainder of my remarks about the coordination problem in
those terms. Making a case for the general priority of liberty over utility,
or vice versa, would be a huge task. Even Rawls’s principles refer only to
‘basic’ liberties — the sort which are constitutive of fundamental social
institutions — and assert the priority of such liberties only for
developed, reasonably affluent, societies.3 But enough can be said here
to provide reasonably explicit guidance for the enterprise of specific
justification. And one can extrapolate principles from the remarks
made on this problem to help in the resolution of other aspects of the
coordination problem (e.g how to handle the competing claims of
‘historical’ and ‘end-state’ justice).

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 The Justification of Property Rights

THE SEPARATENESS OF THE LIBERTY AND UTILITY ARGUMENTS

The argument from material liberty to political liberty establishes the
independence of the argument (for property) from political liberty.
That is, it is clear that political liberty has a source independent of
considerations of utility — namely in the natural liberty of each person
and the (rebuttable) presumption that interference with such liberty is
wrong. There are also non-utilitarian arguments available for the step
which authorizes the creation of a system of political liberties to reflect
the presumption against interfering with the natural ones. Such political
liberties may thus function as what Nozick calls ‘side constraints’ on
moral goals rather than as a part of such goals.4 But one still has no
answer to the question of when, all things considered, such side con¬
straints may justifiably be violated.

THE SELF-DEFEATINGNESS OF SOME VIOLATIONS

Just as the violation of some personal liberties cannot consistently be
for that person’s good (because they render- a good life, or perhaps any
life at all, impossible), so too the violation of some political liberties in
the name of utility is self-defeating. It is clear that whenever the over¬
riding of political liberties has this self-defeating consequence for the
argument from utility, the liberty should be preserved. But this is no
more than to say that there is disutility in violating the liberty in such
cases. So it does not get one any closer to an account of when liberty
should take priority over demonstrable utilities.

THE PRESUMPTIVELY EQUAL WEIGHT OF THE TWO ARGUMENTS

In fact, the soundest general course seems to me to be to treat liberty and
utility presumptively as of equal weight, and to test that presumption
(i.e. to try to rebut it) in specific cases. I say this because neither
utilitarians nor liberty theorists have yet succeeded in producing a
persuasive argument which would entail the general, across the board,
dominance of one set of concerns over the other. That is, the theorists
have not persuaded me directly, and have not persuaded enough of the
knowledgeable readership to cause me to doubt my judgment. Discon¬
tent with a thoroughgoing utilitarian approach is widespread and
seemingly permanent. Reluctance to subordinate utility to liberty
across the board is just as widespread. So I see no rational alternative, at
present, to treating the arguments from liberty and utility as of
presumptively equal weight — at least in the case of the specific justifi¬
cation of property rights.
But how is the presumption to be tested in specific cases? What sorts
of arguments can be given to justify weighting liberty more heavily than

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Property Rights

utility in some cases and utility more heavily than liberty in others?
Here it helps to notice that there are three fundamental sets of moral
concerns — ones related to the notion of value, ones related to the
notion of duty or obligation, and ones related to the notion of moral
character. Utility arguments are of the first sort — axiological concerns.
Liberty arguments, when they are seen as constraints on social goods,
are the second sort — deontological concerns. And arguments for the
relative weight of liberty against utility can come from the third sort —
characterological concerns. Whether the question is that of the nature
of the virtuous person or that of the nature of the virtuous (i.e. ideal)
society, to the extent that rational answers can be given to those
questions such answers can help decide whether liberty or utility is to
dominate a particular case. Which is the preferable social order: one
which allows liberty X to remain intact despite its disutility? Or one
which overrides the liberty in the interests of utility? Put so generally,
such questions do not seem very promising as routes to the needed
answers. But in specific sorts of situations, they may be answerable in a
way which leaves no doubt about the relative weights to be given to
utility and liberty. (Consider the standard example of scapegoating the
innocent to secure social order. Here there are arguments to the effect
that — with the possible exception of extreme and rare cases — social
order which depends on such practices is not a worthy goal.)5
Conflicts between utility and the desert form of the argument from
labor may be similarly analyzed (as may conflicts between liberty and
labor arguments). The arguments are separate; the best course is to treat
them as of presumptively equal weight; and the resolution of ties may
be approached by bringing in additional considerations from moral
character in the case of utility versus labor conflicts, and from axiology
and moral character in the case of liberty versus labor conflicts. This
procedure does not produce a tidy, hierarchically organized set of
principles. But I see no reason to suppose, a priori, that moral principles
are organizable in that way. The persistence of deep disagreements
among reasonable, sophisticated theorists is evidence to the contrary.
If the picture of the general justificatory framework for property rights
is thus somewhat fuzzy, we may be at least partly consoled by a remark
adapted from Wittgenstein: that a clear picture of a fuzzy thing is a
fuzzy picture.

THE PRIORITIES OF THE LEGAL SYSTEM

It should be noted, however, that I have been speaking throughout of
the question of moral priority — normative priority per se — and not of
the more restricted issue of priority within some legal system. For a

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 The Justification of Property Rights

judge, the priority of liberty over utility may be decided by the fact
that one has been given constitutional or statutory protection while the
other has not. Or by some standard (legal) priority rule for ambiguous
cases. But the moral question cannot be settled on such narrow
grounds. The procedure above, messy as it is, seems the best way to
settle it.

The compatibility requirement

It should be clear from the preceding analysis that the issue which now
needs careful attention is specific justification — arguments to show what
sorts of property rights people ought and ought not to have. As I
remarked in chapter 1, this has always been the crux of the matter
anyway, even though philosophers have typically found issues of general
justification to be more diverting. If I have succeeded in my aim here,
there has now been enough said on general justification for a while —
enough to establish what the sound lines of general justification are;
enough to define some important restrictions on any specific sort of
property right which might be justified; and enough to give strong
indications as to what sorts of property rights will be found to be
justifiable. The first of these three results has just been summarized. I
turn attention now to the other two.
The first thing of interest is what I have called the compatibility
requirement. It is simply that specific sorts of property rights must be
compatible with the available general justifications of property and with
what is sound in the anti-property arguments. That is, they must not
step over the restrictions imposed on all ownership by general justifica¬
tions and anti-property arguments. Those restrictions, in summary, are
the following: the (Millean) labor theory will not justify X’s ownership
of a thing if it constitutes a loss to any Y. The desert version of the
labor theory will not justify property rights unless they are fitting and
proportional benefits for the values produced — and then only when
penalties for any disvalues produced are also assessed against the laborer.
Further, and this is a very significant stricture, neither form of the labor
theory is operative unless the labor at issue is other than what is
morally required of the laborer. The argument from liberty requires
that ownership not abridge the political liberties to which people are
entitled. The argument from utility balances the disutilities caused by
ownership against those caused by prohibiting ownership; it restricts
property rights to those which have an overall net utility. And the (anti¬
property) argument from inequality is a source of restrictions on the
right of transmissibility, as well as any other elements or varieties of
ownership which perpetuate (unnecessarily) significant socio-economic

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Property Rights

disadvantages. In addition, of course, the other anti-property arguments

(from social disutility, self-defeatingness and virtue) occasionally have
some force.
When the relevant arguments have been coordinated for a particular
range of cases — that is, when it has been decided whether they conflict
and if so which arguments have priority — the dominant ones impose
limits on specific justification. If the arguments do not conflict at all in
a certain range of cases, then they all are operative, of presumptively
equal weight, and the restrictions each imposes on specific justifications
must be complied with. If utility conflicts with the liberty and labor
arguments, and is subordinated to them for a certain range of cases, it
becomes ‘inoperative’ there, and only the constraints imposed by
liberty and labor arguments are relevant. (That is, they are the only
relevant constraints drawn from the general justifications for property
rights. There may be other constraints from other sources — con¬
straints, for example, having to do with the perpetuation of inequality or
the political realities of a given time and place.) Similarly, mutatis
mutandis, for cases in which liberty and labor arguments are subordi¬
nated to utility.
(It should be remembered again that this discussion is framed in
terms of moral argument. For legal argument, in cases where judicial
duties are clear, the applicability of certain constraints — as well as the
priority questions — may be settled by pre-existing sources of law.)
It will be useful to discuss in more detail some ranges of cases upon
which the general justifications alone impose significant limits.

DUTIES TO OTHERS
If it can be established that we have positive duties of care toward
others — that is, if beyond our negative duties not to do harm there
are positive duties to do good — then the labor theory arguments are
concomitantly restricted in their applicability. Each of the two sound
labor arguments is limited to cases in which the labor at issue is other
than what is morally required. So communitarians have an important
opening wedge here against the ‘as long as it does no harm’ argument. If
I have a prior moral duty to contribute positively to the welfare of my
fellows, then until that duty is fulfilled (or its fulfillment is guaranteed
in some way), I cannot work for myself, so to speak. That is, neither
version of the labor theory will in that case provide a sound basis for
claiming property rights.
But there are two interesting features of this limitation. First,
the moral duty to contribute (positively) to the welfare of others must
have priority over any moral requirements to work for one’s own good.

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 The Justification of Property Rights

That is, it is only ‘prior’ moral duties which are at issue here now. It is
reasonable to suppose that no positive duties to others could have
priority over a requirement (if there is one) to do the (morally permis¬
sible) work necessary for one’s own survival. And certainly many
people would hold that one’s positive duties to others cannot have
priority over even one’s liberty right to survive. That is, they would
hold that there is no moral duty of (literal) self-sacrifice. But this is
controversial, as is the further issue of whether ‘figurative’ self-sacrifice
— in the form of inconvenience, expenditure of effort, etc. — is ever a
moral duty in the absence of undertaking some special role (e.g. parent,
physician) or making some special agreement. What is interesting is just
that this important moral question is tied so directly to two important
lines of argument for property rights.
The second interesting feature of this limitation on labor arguments
is that some of my (positive) duties of care may be only toward a few
(my family, say). Thus it may be that while the labor I perform to
fulfill duties to my family does not justify the acquisition of property
rights against my family, it may justify the acquisition of property
rights for my family (me included) against everyone else. Thus one has
a basis for holding that a child’s entitlement to food, clothing, shelter,
and the like is not at all weakened by the fact that the parents
produced these things by their own labor.

EXHAUSTIBILITY
It is unlikely that any sort of property right could be justified whose
implementation entails (or makes highly probable) the exhaustion of a
significant resource by a subset of the total population. Such exhaus¬
tion would very likely constitute a loss to those left out, or be subject
to prohibitive penalties for the losses caused, or amount to an inter¬
ference with their liberty, or produce a net disutility, or perhaps all
four. Either of the last two of these circumstances would be sufficient
to prohibit it, in the absence of a conflicting requirement. And the
exhaustion of a significant resource certainly would not be required by
any of the lines of general justification (at least, I can think of no
candidate for such a requirement).
Exhaustibility therefore will be a very large consideration in specific
justifications. Goods such as space (in land, sea, or air) and matter can
be exhausted simply by appropriation — that is, given the requisite
system of property rights, a subset of the population can come to own
all that is available.6 Goods such as clean air and global water resources
are exhaustible primarily by misuse rather than simple appropriation,
but this is no less important for the theory of property rights. Uses

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Property Rights

which pollute the air or sea, for example, are likely to be prohibited by
the general justifications of property, thus defining specific limitations
on the use and management rights of owners. Goods such as fertile
land, fresh water, fossil fuels, and wilderness areas are exhaustible either
by appropriation or by misuse, and are also likely to be hedged with
restrictions to prevent both.7
Technology and population size are important issues here. Things
which were exhaustible only in principle several centuries ago are now
in imminent danger of being exhausted. Specific justifications must
change with such circumstances if nothing else (e.g. population policy)
does; the justifiability of full, liberal ownership of land under the
social conditions which existed in seventeenth-century North America
does not guarantee that such property rights can be justified now. If
they cannot, then the ownership rights in land must be redefined. And
the question of injustice to current owners who possess the sort of title
which is now unjustifiable, is not as serious as it might seem. In most
cases, one probably will only need to change the rights of bequest and
transfer so that only justifiable sorts of title may be passed on. This
would leave the current owner’s use, possessory, management, income,
and security rights unchanged. And in situations so desperate that these
rights must be redefined, compensation may be paid in lieu of honoring
the right.
(It may be worth noting in passing that there are some goods which
are not exhaustible by human agency — at least not with foreseeable
technology. Sunlight and related radiation, magnetic energy, and
electrical energy are all in this category. Materials used to convert these
things to human use are exhaustible, of course. And sunlight can be
blocked out. But the things themselves are not now vulnerable to
exhaustion by appropriation or misuse.)

ACCUMULATION
Limitations on the sorts of property rights which can be justified arise
when goods are exhaustible, then. But they can also come from the fact
that accumulations which are prior to or much larger than the acquisi¬
tions of others can constitute a loss of competitive advantage for those
others, or a restriction of their material liberty, or a serious enough, and
widespread enough, frustration of human purposes to cause significant
social instability.8 This is the stuff of popular revolutions, and it is safe
to say that none of the general justifications would license a system of
property rights which had all these effects.
Clearly, however, conflicts between the prohibitions and restrictions
of utility on the one hand and liberty on the other are likely. This is

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 The Justification of Property Rights

another juncture at which the weight of priority attached to liberty is a

leading problem. If liberty has priority, in Rawls’s sense, then no
‘balancing’ of utilities and liberties is possible; the demands of liberty
must be satisfied first. If utility is given priority, then the situation is
reversed. If liberties and utilities are weighted, however, balancing is
possible (e.g. if one’s liberty to smoke is much less important than
one’s liberty to participate in the political process, and the importance of
the latter is comparable to the importance of some disutility which
would be suffered by permitting the liberty to smoke, then the liberty
to smoke is outweighed by its disutility).
Goods for which problems of accumulation can arise include those
exhaustible by appropriation. But the problems are particularly severe,
in contemporary Western society, for liquid assets and the so-called
‘new forms of property’ (e.g. management rights to corporate shares,
pension funds, and trusts).9 Accumulations of such wealth give the
owners the power to influence political and social institutions to their
advantage, and such advantages tend to snowball. Manipulation of the
right of bequest is virtually useless as a way of dealing with the problem
since trusts (and in the case of businesses, corporate management
structures) are specifically designed to avoid the consequences of such
manipulation. Revision of the tax system and what might be called
‘personal anti-trust legislation’ are the primary devices which must now
be used when restrictions on the accumulation of property are called
for. The details of specific and particular justification will be very
complex, but at least the guidelines from the analysis of general justifi¬
cation are reasonably straightforward.

HARMFUL USE
The (Millean) labor theory will not justify any use of property which
represents a loss to someone other than the owner. Liberty requires
that the use owners make of their property not interfere with the
liberty to which people are entitled. And utility prohibits uses which
have a net disutility. The ‘no harmful use’ element of full, liberal
ownership is therefore going to be a stringent one for goods which are
dangerous. Use rights allowable for guns and pesticides, for example,
a;e likely to be sharply limited. And in the case of hand guns, if
significant disutility and loss of liberty to others is entailed by extensive
private possession, it may be necessary to limit possession in order to
satisfy the no harmful use requirement.10
Many restrictions on use imposed by the general justifications are
identical with those alluded to under the headings of exhaustibility and
accumulation. But use restrictions go beyond those others to provide,

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Property Rights

for example, a foundation for nuisance law and public safety law in
cases where no problems of exhaustion or accumulation exist. The ‘life
before property’ rule also finds a foundation here.11

The requirement of permitting maximal acquisition

Within the limits on ownership just discussed, the arguments from labor
and liberty combine to produce a presumption in favor of allowing
people to acquire full ownership (or whatever other variety they choose)
of as much property as they want. Disutility significant enough to out¬
weigh the labor and liberty arguments (assuming such balancing is
morally permissible) can defeat the presumption, as can other considera¬
tions to be discussed below. But once the disutilities of exhaustibility,
accumulation, and harmful use are taken care of, other disutilities
serious enough to outweigh the labor and liberty arguments are likely
to be rare — especially since most ownership which has an overall
disutility also has some significant utility as well. Within the limits
discussed, then, the general justifications support a presumption in
favor of a system of private property which allows as much ownership
as individuals choose to have.

The compensation requirement

Compensation becomes an issue in two contexts: in the acquisition of
property rights and in their subsequent redefinition (by law).

THE ACQUISITION OF RIGHTS

For the former case, two principles from the general justifications are
relevant. First, where an acquisition justifiably overrides a pre-existing
right, compensation must be paid. (I assume acquisitions by violations
of pre-existing rights — that is by ^justifiable overridings — are not
permissible.) Second, the desert form of the labor argument requires
payment of a penalty to those who suffer a net loss from acquisitions
by labor. I think enough has been said in previous chapters to suggest
how those principles will work.

THE REDEFINITION OF RIGHTS AND REDISTRIBUTIVE JUSTICE

The problem of redefining rights, however, whether by taxation, rest¬
rictions on use, possession, bequest, and so on, has not been adequately
discussed. I cannot give a detailed account here because the subject is
so vast. But I can lay out the principles (arising from the analysis of
general justification) which would guide a detailed account.
The problem is roughly this: the sorts of property rights which can

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 The Justification of Property Rights

be justified vary with social circumstances. Thus rights obtained justi¬

fiably in one time and place and perpetuated by justifiable transfers
(and which are thus just in terms of what Nozick calls ‘historical’
considerations),12 may turn out to be unjustifiable in terms of a good
distribution for the current social situation. The problem is therefore
what to do with rights whose acquisition was justifiable but whose
continued existence is not. Possessors of such rights may argue that
however the rights obtained from future acquisitions are defined, it is
not permissible to make post facto changes in existing rights without
the possessors’ consent — no matter how unjustifiable they may have
become. Justice may both require a certain distributive result and
prohibit the redistribution necessary to achieve it. This is the crux of
the problem raised by the (anti-property) argument from inequality.
There are at least two remedies for such conflicts. One is to obtain
consent from the holders of ‘anachronistic’ rights for the necessary
changes. The other is to make compensation to them in lieu of
honoring their rights.13 In many cases only partial changes in existing
rights will need to be made anyway — changes in use rights only, and in
alienability and transmissibility. More drastic changes can often wait for
the first transfer. No doubt changes in the right of bequest would be
unwelcome to the right-holders, yet it is important to note that the
people who may be most poignantly and vociferously disappointed
(i.e. prospective heirs) are not right-holders in any sense which can
require compensation. At best they have merely recipient rights, and
such rights cannot be ‘cashed’ here, because there are no persons
‘against’ whom the rights are held. Similarly, mutatis mutandis, for the
prospective beneficiaries of transfers.
Changes in use rights and the rights of alienability can be crushing,
and surely should be compensated.14 Of course, where one can reason¬
ably construe the right as having included from the outset the possibility
of the changes (e.g. where the implied or express terms of the right are
understood to be conditional on the existence of the social circum¬
stances necessary for their justification) then no compensation is
needed. But the temptation to read such a construction into all
property rights post facto must be resisted. Surely justice requires at
least that the test be one of what reasonable persons acquiring such
rights, at the time they were acquired, would have understood them to
be.
The relevant principles of redistributive justice are therefore these:
(a) Where rights are anachronistic (i.e. justly acquired but no longer a
justifiable part of the state of affairs), they must either be redefined
with the consent of the holders, or if consent cannot be obtained, over-

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Property Rights

ridden with fair compensation given to the holders, (b) Redefinitions or

overridings should be only those necessary to render the rights mini¬
mally justifiable for current holders, but maximally justifiable for
future holders. (Example: where restrictive use rights need only be
imposed on future owners, then they should not be imposed on current
owners. Restrictions on what rights the present owners may transfer or
transmit will be sufficient. But there is no reason to make the use rights
acquirable by future owners the minimally justifiable ones. They should
rather be the maximally justifiable ones. If it would be all right, all
things considered, for future owners to have the right to do X and Y,
but best, all things considered, if they only had the right to do X, then
assuming the decision can be made by a legitimate social or political
process, the rational decision must be for the best alternative. This
might mean, in the case of the argument against the perpetuation of
inequality, that a ‘progressive’ policy would be established — one in
which current owners would be minimally disturbed, but in which
sweeping changes in the system would be accomplished in stages by
preventing transmissions and new acquisitions of the objectionable sorts.)

Two additional considerations

Aside from the limits imposed by the general justifications themselves,
the justification of specific systems of property rights will of course
have to take into account other relevant moral concerns. I cannot list
all of them, but two are especially worthy of notice here.

THE PRESERVATION OF INDIVIDUAL AND PUBLIC VIRTUE

Ideals — for the sort of character traits which defines moral excellence
in the person and for the sort of social institutions, pace, and variety
of life which defines the ideal society — are important considerations in
the specific justification of property rights. How competitive should a
person be, ideally? How independent of others, economically? How
mobile should people be? The sorts of ownership a system allows or
encourages will have considerable influence on the nature of its social
life, social organization, and on the character traits its people develop.
Reform of property laws is quite rightly seen as a matter which could
affect the dispositions to achieve, to work, to compete, to cooperate,
and to give help to others; it could also influence the pace, mobility,
complexity, and (for lack of a better word) humaneness of social life.15
Utopian socialists exaggerate about the potential influence in one
direction; utopian capitalists exaggerate about it in another. But the
potential is there, and it must be given consideration in the course of
the specific justification of property rights.

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 The Justification of Property Rights

The source of ideals — the question of which ideals are morally

justifiable — is an issue for the general theory of moral justification.
Some philosophers argue that the virtues, or morally ideal character
traits, are important mainly as means to the end of ensuring patterns of
behavior which are on the whole valuable, or dutiful. Mill, for example,
may be read as making the same sort of argument for roles or character
traits as he did for rules or duties. And I have no doubt that Kant
would have agreed that moral education, in this imperfect world, does
as well to try to develop the inclination to respect the moral law as to
develop the faculty of pure practical reason. I have argued elsewhere
that virtues have a more fundamental place in moral argument than is
usually (now) assigned to them — a place coordinate with values and
obligations, in fact.16 But even if that argument is not persuasive, it can
be shown that inattention to ideals leads to oversights, misemphases,
and other problems for moral justification.17 The important point here
is that the specific justification of property rights must confront these
issues, however untidy and unmanageable they may seem.

THE PROBLEM OF CONSERVATION

The problem of saving for the distant future is a difficult one. (There
are, of course, straightforward utility arguments available for saving for
the near future.) Why should people living now sacrifice, or save, or
improve and conserve things for those to be born two centuries from
now? The answer is usually given in terms of the interests people have
in making sure that at least the next generation is well off: they want to
provide for their children, and they want to be well provided for when
they can no longer do it for themselves. The overlapping of generations
ensures a perpetual community of interests in saving for at least the
probable life-span of the youngest existing members of society (or
perhaps that of their probable children).
Further considerations extend the rationale for savings considerably.
Assuming the probable life-span either remains constant or increases,
and people continue to have children, the ‘savings boundary’ remains
perpetually constant or becomes more distant. Thus, rather than
constantly adjust the savings principle each year to accommodate the
fact that the ‘savings boundary’ has come no closer, it may be more
efficient to set up a rate of consumption, for renewable resources,
which keeps the available level constant, and a rate of consumption for
non-renewable resources vastly under what is required merely to
provide for those who exist at the time given.
The way this is related to property rights is that, given the principle
that one should save for the distant future, placing restrictions on

115
Property Rights

accumulation and the right to bequeath may destroy some of the

incentive for saving. This is, of course, an empirical question, but one
which specific justification must face (assuming the principle of saving
for the future is not abandoned altogether).

Probable directions for specific justification

The problems of specific justification are so complex that a single
treatise like this — especially one which has already devoted consider¬
able space to general justification — cannot possibly hope to do much
more than indicate the general directions which changes in specific sorts
of rights must take. Just to illustrate the complexities, consider mineral
rights. To what extent should one allow them to be severed from title
to (the surface of) the land? How should the boundaries of such rights
be defined? By the surface boundaries extended downward? Or — as it
is now by the so-called law of the apex — not only by the surface
boundaries but also by the course of veins of a mineral which have their
‘apex’ within the surface boundaries, extended downward?18 What use
rights should be granted? What forms of original acquisition should be
allowed? How should the relevant statutes be drawn?
The same level of complexity exists for water rights, land ownership,
inheritance taxation, and ‘non-corporeaf property (e.g. patents, copy¬
rights, trademarks, etc.). Each requires a treatise of its own. But there
are some general directions for all these areas which it may be useful to
point out.
(l)Full, liberal ownership of land, at least in densely populated
areas of industrialized societies, is a thing of the past. Use rights are
already restricted by zoning ordinances, building codes, and planning
boards. Whether this should be expanded or contracted, it certainly
ought at least to be governed by a coherent and general set of policies,
consistently applied.19 Alienability and transmissibility rights may also
have to be substantially revised to scale ownership down to life
tenancies.
It should be noted, however, that measures appropriate for
megalopolis are not necessarily appropriate for the remaining rural
areas. In those areas, though land must, if scarce, be subject to restric¬
tions on use, alienability, and transmissibility too, the purposes for
which this needs to be done might well justify forms of ownership
different from those justifiable for the cities.20 One may wish to revive
the doctrine of innocent use, for example, to provide public recrea¬
tional space on what is otherwise private property. And though building
codes may not need to be very restrictive in rural areas, the need for

116
 The Justification of Property Rights

soil conservation and efficient crop management may require other

stringent restrictions on use and capital rights.
(2) Ownership of vital depletable resources (fossil fuels, fresh water,
mineral deposits) may have to be restricted to the rights of income,
transfer, and limited transmissibility, with management, use, and actual
possession effectively under public control. Again, this is a requirement
(if it is a requirement) not of ‘justice in the abstract,’ but of the
conditions imposed by general justification in a densely populated,
industrial world in serious danger of exhausting its resources both by
consumption and abuse. If the necessary conservation measures cannot
be guaranteed (with any significant probability) under a system of full
liberal ownership by individuals, then something along the outlines
mentioned above seems the only rational course.
(3) Assuming that the preservation of a democratic political system
is a moral necessity, new measures will have to be devised to limit ac¬
cumulations. The present tax structure and the old rule against per¬
petuities21 are not capable of preventing the accumulation of vast wealth
in management, use, and transfer rights — wealth of the sort possessed by
corporate boards, trustees, and the like; wealth which confers political
power in quantities sufficient to undermine the democratic ideal.

These are some of the general directions it seems to me that a new

theory of specific justification for property rights would have to take.
Because the emphasis throughout this chapter has been rather heavy on
restrictions to be imposed on owners, however, it may be useful to
add two final, corrective reminders.
One is that the analysis of general justification has shown not only
that private ownership is justifiable (in general), but that property
rights may not be abridged, morally, without either the consent of the
right-holder or compensation in lieu of that consent. Thus when
anachronistic rights must be redefined, yet the holders’ consent cannot
be obtained and the society cannot make adequate compensation to
them in lieu of honoring their rights, a high-level moral dilemma must
be faced. It is a dilemma which revolutionary socialists tend to solve
by simply overriding the rights, and which hard-line rights theorists
tend to solve by ignoring the need for change. Neither solution is satis¬
factory. Consent must be obtained — and in an open society with a clear
emergency, that may be possible with persistent, good-faith efforts.
Or compensation must be paid — but if conventional payment cannot
be made, nothing prohibits devising unconventional forms of compen¬
sation which can be made.
The other thing brought out by general justification is that private

117
Property Rights

ownership is not only justifiable, but that the argument from liberty
requires that the greatest extent of private ownership desired by an
individual, and permitted by the general justifications, be allowed. If,
within the constraints imposed by a crowded planet whose population
is voraciously consuming its resources, this maximization principle
has a hollow sound, then perhaps we should make more than empty
gestures in the direction of changing population policies and wasteful
life-styles.

118
 Notes

Chapter 2 Property Rights

1 This typology — of rights, privileges, powers, and immunities — was
first expounded in a series of articles in the Yale Law Journal, col¬
lected in Wesley Newcomb Hohfeld, Fundamental Legal Con¬
ceptions (New Haven, Yale University Press, 1919). Hohfeld’s
attempt to standardize legal usage was controversial from the start,
and while it is now highly regarded, has not been entirely successful.
Minor matters of nomenclature are still disputed (e.g. the substi¬
tution of ‘liberty’ for ‘privilege’). But more importantly, in the
pressures of practice, the precision Hohfeld hoped for often slips
away.
2 Hohfeld, Fundamental Legal Conceptions, pp. 36-64.
3 The characterizations of each type are my own but owe a good deal
to the clarity of the exposition in Salmond on Jurisprudence, 12th
edition (London, Sweet & Maxwell, 1966), §42, pp. 224-33.
4 Hohfeld uses simply ‘right’ here.
5 See L. J. Cohen, ‘The Concept of Law,’Mind, LXXI: 395-412 (1962).
6 I follow Salmond’s usage here, rather than using Hohfeld’s term
‘privilege.’ Hohfeld himself admitted the appropriateness of ‘liberty,’
but decided against it for reasons which have no force here. See
Hohfeld, Fundamental Legal Conceptions, pp. 46-8.
7 Hohfeld, Fundamental Legal Conceptions, pp. 50-1.
8 Not to be confused with the ‘rights of recipience’ spoken of in
D. D. Raphael and B. Mayo, ‘Human Rights,’ Proceedings of the
Aristotelean Society, Supplementary Volume, XXXIX: 205-36
(1965).
9 Whether one can say that there are legal recipient rights is an
interesting question. The law is (rightly) reluctant to recognize
unenforceable rights-relationships, and in so far as duty-bearers
cannot be specified for them it is hard to see how recipient rights
could be enforced. But talk about such rights may lead to legislation
119
Property Rights

which upgrades them to claim rights by specifying duty-bearers.

They thus have a direct bearing on the law.
10 H. L. A. Hart, The Concept of Law (Oxford, Clarendon Press, 1961),
pp. 163-76.
11 It has been given both broader and narrower meanings, however.
Writers like Blackstone, Hobbes, and Locke occasionally used it to
refer to all a person’s legal rights — to whatever was one’s in law —
a usage which has been the source of some confusion. In law the
term also sometimes refers only to proprietary rights in rem as
opposed to proprietary rights in personam (that is, to those owner¬
ship rights one has ‘against the world’ as opposed to those one has
against specified persons). The former is the province of property
law; the latter, contract law. ‘Property’ has even been restricted so
far as to refer only to the rights of ownership in material objects. See,
for a review of these uses, Salmond on Jurisprudence, 12th edition,
pp. 411-12, and compare the relevant entries in Black’s Law
Dictionary, 4th edition (Minneapolis, West Publishing Co., 1968).
In systems uninfluenced by Roman law, the notion of property is
apparently understood mainly as physical possession rather than as
what we would call the rights of ownership. See the discussion and
references in J. C. Smith, ‘The Concept of Native Title,’ University
of Toronto Law Journal, 24: 1 at 6 (1974). These variants are
important to keep in mind when reading discussions of property,
but I shall, as I say, adhere to the more conventional identification
of property rights with the rights of ownership per se — that is,
proprietary rights in rem and in personam, over corporeal or non-
corporeal things. Where such distinctions become important, I shall
call attention to them.
12 This is true of both the classic sources and very recent accounts.
See, for example, Frank Snare, ‘The Concept of Property,’ American
Philosophical Quarterly, 9: 200-7 (1972).
13 A. M. Honore, ‘Ownership’ in Oxford Essays in Jurisprudence,
A. G. Guest (ed.) (Oxford, Clarendon Press, 1961), pp. 107-47.
14 This is perhaps a disputable case. But the person who has the right
to manage a union pension fund, or the vast assets of a mutual
fund, certainly has something which others treat as wealth or
property. And the accumulation of such management rights poses
something of a problem for property law reformers. See John W.
VanDoren, ‘Redistributing Wealth by Curtailing Inheritance,’
Florida State University Law Review, 3: 33-63 (1975).
15 ‘The Finality of Moral Judgements,’ Philosophical Review, LXXXII:
364-70 (1973).

Chapter 3 The Argument from First Occupancy

1 See Cicero, On Ends, book III, xx, 67; and Seneca, On Benefits,
book VII, xii, 3.
120
 Notes

2 Samuel Yufendorf ,De Jure Naturae et Gentium, translation of 1688

edition by C. H. and W. A. Oldfather (Oxford, Clarendon Press,
1934), book IV, iv, 2-6.
3 J.-J. Rousseau, The Social Contract (New York, E. P. Dutton, 1959),
book I, chapter ix, pp. 20-1. It should be remarked that the require¬
ment of actual or effective occupation has been generally followed
throughout the history of the appropriation of the earth’s land
resources — at least from ‘The Age of Discovery’ on. See, for an
interesting review of the relevant legal history, McDougall, Lasswell,
Vlasic, and Smith, ‘The Enjoyment and Acquisition of Resources
in Outer Space,’ University of Pennsylvania Law Review, 111:
521 at 611 ff. (1963).
4 Immanuel Kant, The Metaphysics of Morals, Part I: The Meta¬
physical Elements of Justice, translated by John Ladd (Indianapolis,
Bobbs-Merrill, 1965), pp. 44-56. In the Konigliche Preussische
Akademie der Wissenschaft edition of Kant’s works, the relevant
passages are found in volume VI at 237-46.
5 G. W. F. Hegel, Philosophy of Right, translated by T. M. Knox
(Oxford, Clarendon Press, 1942), pp. 37-41.
6 For a recent attempt to use the notion of first appropriation in
these ways, see Robert LeFevre, The Philosophy of Ownership
(Colorado, Pine Tree Publications, 1966), pp. 34-42.
7 Consider Rousseau’s remarks in The Social Contract, book I,
chapter ix, pp. 19-22.

Chapter 4 The Labor Theory of Property Acquisition

1 For a review of the relevant history, see Richard Schlatter, Private

Property: The History of an Idea (New Brunswick, N.J., Rutgers
University Press, 1951). I do not mean to say, of course, that the
idea was unknown outside state-of-nature theory. The Romans,
who gave it no legal force at all, did in practice sometimes recognize
it in the case of sons who could not formally own property at all;
what they produced on their own was occasionally treated by the
paterfamilias as their (the sons’) own. See Barry Nicholas, An
Introduction to Roman Law (Oxford, Clarendon Press, 1962),p. 68.
2 Marx, for example, never explicitly denies that laborers are entitled
injustice to the fruits of their labor. (Indeed, it is natural to think
that his condemnation of capitalist exploitation depends on a con¬
viction that laborers are entitled to the whole fruits of their labor.)
He is scornful of the theory of primitive acquisition. See Capital,
vol. I, part VIII, chapter xxvi as translated from the third and
revised from the fourth German editions (Chicago, Charles H. Ken,
1924). And the root idea of the labor theory seems inconsistent
with the communism which is to result from the classless society in
which labor has become unalienated. But I can find no place in
which he specifically attacks the idea.
121
Property Rights

3 In the Second of Two Treatises on Government. All references will

be to the standard numbered paragraphs of this work.
4 My attention was called to this problem by David Ozar’s paper,
‘Locke’s Labor Theory of Property,’ presented at the Western
Division Meetings of the American Philosophical Association, 1975.
5 Robert Nozick, Anarchy, State and Utopia (New York, Basic
Books, 1974), pp. 174-5.
6 See Henry George, Progress and Poverty (New York, Henry
Schalkenbach Foundation, 1955), reprint of the 1905 edition,
p. 337.
7 See J. S. Mill, Principles of Political Economy in The Collected
Works of John Stuart Mill, volume II (London, Routledge & Kegan
Paul, 1965), book II, 1, §3 (p. 208).
8 The legal status and extent of such rights is currently under some
strain — and therefore a topic of discussion — due to the rise of
organ transplantation. The law has long forbidden the pledging or
selling of body parts by their ‘owners’ (while in some places permit¬
ting the sale of blood and sperm). But for a recent argument for a
change in the law, see ‘The Sale of Human Body Parts,’ Michigan
Law Review, 72: 1182-264 (1974).
9 P. J. Proudhon, What is Property? [originally published in 1867]
(New York, Howard Fertig, 1966), p. 61.
10 Salmond on Jurisprudence, 12th edition (London, Sweet & Maxwell,
1966), chapter 13.
11 Hugo Grotius, De Jure Belli ac Pads, translation of 1646 edition by
F. W. Kelsey and others (Oxford, Clarendon Press, 1926), book II,
chapter III, §IV, no. 1. The reader may also find Socrates’
arguments about his status as a child of the Laws interesting in this
connection. (I refer to the arguments against civil disobedience in
Plato’s Crito.) Contrast this with Aristotle’s remark in Nicho-
machean Ethics (book V, chapter 6, at 1134b). And, of course,
while Greek law was apparently less than literal in its treatment of
children as chattels, early Roman law was very literal indeed about
it. See Nicholas, An Introduction to Roman Law, pp. 65 ff. Thepater-
familias could lawfully kill, as well as sell, a filius familias at his
discretion — apparently as late as the second century A.D. Nor
could a filius familias own property in law, though the custom was
to let him use the produce of his labor as if it were his property.
Only upon the death of one’s father (supposing one had not been
sold into slavery or emancipated) did a son become himself a
paterfamilias and property owner.
12 Ibid., book II, chapter II, §VI-X.
13 George, Progress and Poverty, p. 347.
14 Proudhon, What is Property?, p. 84.
15 Mill, Principles of Political Economy, book II, chapter 2, §6 (page
230). The passage continues, with respect to land, ‘But it is some
122
 Notes

hardship to be born into the world and to find all nature’s gifts
previously engrossed, and no place left for the newcomer.’ For a
recent discussion which closely parallels Mill — especially with
regard to the ‘no loss’ requirement — see George I. Mavrodes,
‘Property,’Personalist, 53: 245-62 (1972).
16 What is required by morality is, broadly, what one is justifiably
liable for reprobation for not doing (though one may not usually
demand approbation for doing it). What is not required, but merely
permitted or encouraged, is what one can not be liable for repro¬
bation for not doing, and for doing which one ought to get appro¬
bation. The requirements of morality are generally expressed as
duties or obligations. This is harmless enough as long as one does
not overlook the character traits whose absence makes a person
subject to reproof (as opposed merely to the absence of positive
endorsements), and the times when a failure to choose the best
available alternative (as opposed to one which is merely adequate)
also makes the agent subject to sanction.
17 Locke, Second Treatise, paragraph 34.
18 Hastings Rashdall, ‘The Philosophical Theory of Property,’ in
J. V. Bartlett (ed.), Property: Its Duties and Rights, 2nd edition
(London, Macmillan, 1915), pp. 54-6.
19 Nozick makes interesting remarks on these issues in Anarchy,
State and Utopia (New York, Basic Books, 1974), at pp. 141 and
182. See also Ayn Rand, ‘Patents and Copyrights,’ in her
Capitalism: The Unknown Ideal (New York, New American
Library, 1966), pp. 125-9. For a review of current legal theory on
intellectual property, see the Note by Joseph E. Kovacs, ‘Beyond
the Realm of Copyright: Is There Legal Sanctuary for the Merchant
of Ideas?’ Brooklyn Law Review, 41: 284 (1974).
20 A word needs to be said here about thought-experiments in ethics.
State-of-nature imagery is sometimes compared to notions in the
physical sciences such as uniform motion. Uniform motion is an
imaginary phenomenon, but useful for the foundation of an
explanatory and predictive account of motion as it actually occurs
in experience. Similarly, it is said, though no state of nature exists
(or probably ever did exist), the concept can help construct a
justification for states of affairs which actually do or could exist.
The parallel is plausible, but dangerous. Motion exists. Uniform
motion is a linear extrapolation to the vanishing point, as it were,
of certain properties of real motion. To the extent that the notion
of a state of nature is similarly an extrapolation, the parallel looks
sound. But when it turns out that only in the ‘unreal’ conditions
can a given type of social arrangement be justified (e.g. private
ownership of all available land), then the use of the imaginary situa¬
tion in moral theory becomes something of a menace to clear
thinking.

123
Property Rights

21 I am indebted to Robert Nozick and Ruth Barcan Marcus for

providing the stimulus to my reflections on this line of argument.
22 Joel Feinberg, ‘Justice and Personal Desert,’ in his book Doing
and Deserving (Princeton University Press, 1970), pp. 55-87.
23 Ibid., p. 58.
24 Ibid., pp. 58-9.
25 Ibid., pp. 58-9.
26 One must be very careful here not to slip into saying that one who
deserves X is entitled to it — where ‘entitled’ means ‘has a claim right.’
People may deserve things which they have no claim right to (i.e.
which others have no duty to provide); and they may have claim
rights to things which they do not deserve. Desert must also be
distinguished from eligibility. See Feinberg, ‘Justice and Personal
Desert., pp. 58-9.
27 Ibid., pp. 62 ff. Feinberg distinguishes contexts in which desert is a
‘polar’ concept (e.g. reward and punishment contexts) from those
in which it is not (e.g. deserving the trophy for winning the race).
He would, I think, agree that in the context under discussion here,
desert was necessarily polar. In an appendix to his article {ibid.,
pp. 88-94), Feinberg discusses economic benefits as deserved, and
concludes that they are best regarded (if deserts at all) as compen¬
sations. But he does not consider arguments of the form I shall
advance here.
28 Suppose we used a different principle of desert — one which said
people deserved something (benefit for effort? penalty for
ineptitude?) for unproductive labor as well as for productive labor.
Then would the proportionality requirement look like this?

benefit = value of labor + value of labor’s product;

penalty = value (disvalue?) of labor + disvalue of labor’s
product.

Compare Nozick’s suggestions for a retributive principle for punish¬

ment in Anarchy, State and Utopia, pp. 59-63.
29 James D. Watson, The Double Helix (New York, Mentor Books,
1968).
30 Of course, the other’s kindness may itself be inappropriate, but that
raises a separate issue.

Chapter 5 Arguments from Utility

1 Mill says ‘Private property, as an institution, did not owe its origin
to any of those considerations of utility which plead for the main¬
tenance of it when established.’ He clearly thinks that ‘originally,’
people simply took things and kept them. Civil society grew up as a
way of repressing violence. Property law was part of what was

124
 Notes

required to do that. Principles of Political Economy, II, 1, §2

(p. 201). Harold Demsetz, ‘Toward a Theory of Property Rights,’
American Economic Review), Proceedings and Papers, 57: 347-59
(1967) suggests the contrary, however, for the economic variety of
utility arguments.
2 I have addressed the problems of moral scepticism in previous
writings — specifically Becker, On Justifying Moral Judgments
(London, Routledge & Kegan Paul; New York, Humanities Press,
1973).
3 David Hume, Treatise of Human Nature (ed.) Selby-Bigge (Oxford,
Clarendon Press, 1960), book III, part II, §II (pp. 484-5).
4 Ibid., pp. 487-8.
5 Ibid.
6 John Locke, Second Treatise of Government, paragraph 28.
7 Aristotle,Politics, book II, chapter 5 [at 1263a] in Richard McKeon,
(ed.), The Basic Works of Aristotle (New York, Random House,
1941),p. 1151.
8 G. W. F. Hegel, Philosophy of Right, §41.
9 See, for example, T. H. Green, Principles of Political Obligation
(Ann Arbor, University of Michigan Press, 1967), chapter IV.
10 Hugo Grotius, De Jure Belli ac Pads, II, II, XI.
11 Becker, op. cit.
12 These two modes of measurement typically yield different con¬
clusions about the value of a thing to a person. See E. J. Mishan,
‘Welfare Criteria for External Effects f American Economic Review,
51: 541-613 at 602-3. Arguments which rely on one of these
measures to the exclusion of the other are likely to be significantly
biased. See the criticism of Posner’s Economic Analysis of Law in
C. Edwin Baker, ‘The Ideology of the Economic Analysis of Law,’
Philosophy and Public Affairs, 5: 3-48 (Autumn 1975).
13 For a presentation of this argument, see Harold Demsetz, ‘Toward
a Theory of Property Rights,’ American Economic Review, Pro¬
ceedings and Papers, 57: 347-59 (1967).
14 Richard A. Posner, Economic Analysis of Law (Boston, Little
Brown, 1972), chapter 2.
15 For an explanation of this concept, rather new in economics, see
Paul A. Samuelson, Economics, 9th edition (New York, McGraw
Hill, 1973), pp. 195 ff,
16 See Oskar Lange, ‘On the Economic Theory of Socialism,’ in the
book of the same title edited by B. E. Lippincott (Minneapolis,
University of Minnesota Press, 1966) reprinted in part in Bruce A.
Ackerman, Economic Foundations of Property Law (Boston,
Little Brown, 1975), pp. 69-76.
17 Frank I. Michelman, ‘Property, Utility and Fairness: Comments on
the Ethical Foundations of ‘Just Compensation Law,’ Harvard
Law Review, 80: 1165 at 1173 (1967).

125
Property Rights

18 One of the standard examples is R. H. Coase, ‘The Problem of

Social Cost,’ Journal of Law and Economics, 3: 1-44 (1960).
19 See Robert C. Ellickson, ‘Alternatives to Zoning: Covenants,
Nuisance Rules, and Fines as Land Use Controls,’ University of
Chicago Law Review, 40: 681 (1973) reprinted in part in
Ackerman, Economic Foundations of Property Law, pp. 265-307
20 See Guido Calabresi, ‘The Decision for Accidents: An approach to
Non-Fault Allocation of Costs,’ Harvard Law Review, 78: 713
(1965); ‘Fault, Accidents and the Wonderful World of Blum and
Kalven,’ Yale Law Journal, 75: 216 (1965).
21 E.g. Jacob H. Beuscher and Rober R. Wright (eds.) Land Use:
Cases and Materials, 5th edition (St Paul, West Publishing Co., 1969).
22 See the examples in R. H. Coase, ‘The Problem of Social Cost,’
Journal of Law and Economics, 3: 1-44(1960).
23 C. Edwin Baker, ‘Utility and Rights: Two Justifications for State
Action Increasing Equality,’ Yale Law Journal, 84: 39 (1974)
makes arguments of this sort. And for general comments on the
inadequacy of economic utility arguments, taken alone, at the level
of specific justification, see Guido Calabresi and A. Douglas
Melamed, ‘Property Rules, Liability Rules and Inalienability.’
Harvard Law Review, 85: 1089 (1972).
24 See Hadacheck v. Sebastian, 239 US 394 (1915).

Chapter 6 The Argument from Political Liberty

1 John Rawls, A Theory of Justice (Cambridge, Harvard University

Press, 1971). For impassioned argument fragments to the effect
that the right to life (a liberty right) entails claim rights to property,
see Ayn Rand, ‘Man’s Rights,’ in her Capitalism: The Unknown
Ideal (New York, New American Library, 1966), pp. 287-94.
2 For example, Mill in On Liberty and Rawls, in A Theory of Justice.
3 Robert Nozick’s arguments against anarchism in Anarchy, State
and Utopia (New York, Basic Books, 1974) seem to me to be as
conclusive as philosophical arguments can get on this issue.
4 Harry W. Jones, for example, summarizing the state of the law in
1962, says it is fair to say that US law generally holds that ‘an
enterpriser’s freedom from government compulsion must yield
whenever ... a reasonable legislator would be justified in concluding
that the restraint imposed is an appropriate one to improve the
economic opportunity of far larger numbers of people.’ Harry W.
Jones, ‘Freedom and Opportunity as Compelling Social Values,’
NOMOS, IV: pp. 227-42, at 235 (1962).

Chapter 7 Considerations of Moral Character

1 See the relevant history in R. B. Schlatter, Private Property: The

History of an Idea (New Brunswick, N.J., Rutgers University Press,

126
 Notes

1951) and Bartlett (ed.), Property: Its Duties and Rights, 2nd edition
(London, Macmillan, 1915).
2 Aristotle, Politics, book II, chapter 5, at 1263b.

Chapter 8 Anti-Property Arguments

1 Some people who make what amounts to the disutility argument:

Plato (for the guardians only); Rousseau in Discourse on the Origins
of Inequality; Proudhon in What is Property?', Henry George in
Progress and Poverty, and Marx in Capital
2 That is, not only the elements of personality which must be
present for one to survive physically or to maintain a reasonably
comfortable existence, but the ones — like the capacity for aesthetic
appreciation, the habits of reflective thought, and the delight in
play and sport — which require some leisure and security for their
development.
3 See, for a discussion and bibliography on the cardinality problem,
Nicholas Resher, Distributive Justice (Indianapolis, Bobbs-Merrill,
1966), chapter 2.
4 Rashdall, ‘The Philosophical Theory of Property,’ in Bartlett, Property
Its Duties and Rights, pp. 45-6.
5 Plato, Republic, book II.
6 See the review of Christian positions in Bartlett, op. cit.
7 I am indebted to Professor Ted Honderich and to Mr David Godwin
for pressing me to examine this argument.
8 Ted Honderich, ‘On Inequality and Violence, and the Differences
We Make between Them,’ in R. S. Peters (ed.), Nature and Conduct,
Royal Institute of Philosophy Lectures, volume 8, 1973-4 (London,
Macmillan, 1975), pp. 46-82.

Chapter 9 The Justification of Property Rights

1 See, for a summary of existing evidence on these matters, Edward O.

Wilson, Sociobiology (Cambridge, Harvard University Press,
1975). Material relating especially to space is presented informally
in Edward T. Hall, The Hidden Dimension (New York, Doubleday,
1966). Hall discusses distinctions between ‘flight distance,’ ‘critical
distance,’ personal and social distance, ‘sociofugal’ and ‘sociopetal’
spaces, among others. Some special properties of the envelopes of
space ‘appropriated’ by a person are discussed by Gordon Allport
in his book Becoming (New Haven, Yale University Press, 1955).
And of course the subject has not been ignored in literature — even
comic poetry:

Some thirty inches from my nose

The frontier of my Person goes,
And all the untilled air between
Is private pagus or desmesne.

127
Property Rights

Stranger, unless with bedroom eyes

I beckon you to fraternize,
Beware of rudely crossing it:
I have no gun, but I can spit.
W. H. Auden,
‘Prologue: The Birth of Architecture.’
2 I have advanced detailed arguments for a schema of moral justi¬
fication which relies on species characteristics as presumptive
criteria for grounding judgments of value, of obligation, and of
virtue in On Justifying Moral Judgments.
3 Rawls, A Theory of Justice, §39 and §82.
4 Nozick, Anarchy, State and Utopia, pp. 28-35.
5 For more detail on these matters, see my On Justifying Moral
Judgments, chapter XIX, and ‘The Neglect of Virtue,’ Ethics: 85
110-22 (1975).
6 For a recent legal writing on this topic, see Lynton K. Caldwell,
‘Rights of Ownership or Rights of Use? — The Need for a New
Conceptual Basis for Land Use Theory,’ William and Mary Law
Review, 15: 759 (1974); and Donald W. Large. ‘This Land is Whose
Land? Changing Concepts of Land as Property,’ Wisconsin Law
Review, 1039-83 (1973); and McDougall, Lasswell, Vlasic
and Smith, ‘The Enjoyment and Acquisition of Resources in Outer
Space,’ University of Pennsylvania Law Review, 111: 521 at
pp. 575 ff. (1963). The last is particularly helpful.
7 An interesting attempt to deal with this is Frank E. Maloney et al.,
A Model Water Code, With Commentary (Gainsville, University of
Florida Press, 1972). For a critique, see Frank J. Trelease, ‘The
Model Water Code, The Wise Administrator, and the Goddam
Bureaucrat,’ Natural Resources Journal, 14: 207-29 (1974).
8 For a discussion of some aspects of the current problem here, see
John W. VanDoren, ‘Redistributing Wealth by Curtailing Inheri¬
tance,’ Florida State University Law Review, 3: 33-63 (1975).
9 Ibid., p. 33, n. 2.
10 The case law on the no harmful use doctrine is fascinating. For a
start, the reader might compare Pennsylvania Coal Co.v. Sanderson
113 Pa. 126, 6A. 453 (1886) in which a coal mining company was
given the right virtually to destroy a stream; and Just v.Marinette
County 56 Wise. 2nd 7, 201 N.W.2d 761 (1972) in which an
individual landowner was fined for filling in a marshy area near a
lake without a permit.
11 I refer, here, to the rule in tort law that one may, without legal
liability in tort, damage another’s property to save a life, but not to
save one’s property. See William J. Prosser, Torts, 4th edition
(Minneapolis, West Publishing Co., 1971), pp. 124 ff.
12 Nozick, Anarchy, State and Utopia, chapter 7. A related but more
complicated problem arises when one social system which

128
 Notes

recognizes property rights becomes ‘servient’ to another — as when

a colonial power takes over inhabited lands. Then the dominant
system must deal with problems of ‘native title.’ See J. C. Smith,
‘The Concept of Native Title,’ University of Toronto Law Review,
24: 1 (1974).
13 Property rights are protected by the United States Constitution
against expropriation ‘without due process of law.’ See the Fifth
and Fourteenth Amendments. But the interesting legal issue is
deciding when the state’s exercise of its ‘police power’ in regulating
the use of property has become a ‘constructive taking’ — a de facto
expropriation for which compensation must be paid. For comments
and references, see Donald W. Large, ‘This Land is Whose Land?’
p. 1048. My view is that since security in use is a version of owner¬
ship, and thus use rights are property rights, all changes in them
should get constitutional protection. Consent should be gotten
from owners or compensation should be paid. This position would
be regarded by some legal theorists as unworkably stringent. See
Frank I. Michelman, ‘Property, Utility and Fairness,’ Harvard Law
Review, 80: 1165-258 (1968), and Joseph L. Sax, ‘Takings, Private
Property and Public Rights,’ Yale Law Journal, 81: 149-86 (1971).
14 See the astonishing (and mercifully unused) case of Hadacheck v.
Sebastian 239 US 394 (1915) in which a city was allowed to
change a zoning ordinance, wiping out a man’s fortune, without
paying compensation.
15 A recent article which outlines the arguments for a free market
system approach to the sale of human body parts (by their
‘owners’) ignores this sort of problem almost entirely. Yet I think
it is the most potent source of likely objection to such a proposal.
See ‘The Sale of Human Body Parts 'Michigan Law Review, 72:
1182-264 (1972).
16 On Justifying Moral Judgments, chapter II.
17 See my ‘The Neglect of Virtue.’
18 John L. Neff, ‘The Law of the Apex,’ Rocky Mountain Mineral
Law Institute, 18: 387-414.
19 There is some interesting literature on alternatives to zoning.
Houston, Texas (an unzoned city with special powers to enforce
privately drawn restrictive covenants) has been studied by Bernard
H. Siegan,‘Non-Zoning in Houston,’ Journal of Law and Economics,
13: 71 (1970). And Robert C. Ellickson, ‘Alternatives to Zoning:
Covenants, Nuisance Rules, and Fines as Land Use Controls,’
University of Chicago Law Review, 40: 681-781 (1973) is very
helpful here.
20 Going farther afield, some who have considered the problems for
the justification of property rights arising from space exploration
have suggested that ‘exclusive appropriation’ (i.e. the acquisition
of exclusive possessory, use, and capital rights) may be ruled out

129
Property Rights

(by joint agreement) except for certain stock resources. See

McDougall, Lasswell, Vlasic and Smith, ‘The Enjoyment and
Acquisition of Resources in Outer Space.’
21 For a brief and illuminating definition of the rule against per¬
petuities, its rationale, and how it differs from various other devices
for restricting alienability, see J. H. C. Morris and W. Barton Leach,
The Rule Against Perpetuities, 2nd edition (London, Stevens, 1962),
chapter 1. It is there pointed out that the rule is really not against
alienability per se (because trustees may sell and buy securities for
a trust), but rather a rule against too remote a vesting of interests.
The most plausible rationale for the rule seems to be that ‘It is a
natural human desire to provide for one’s family in the forseeable
future. The difficulty is that if one generation is allowed to create
unlimited future interests in property, succeeding generations will
receive the property in a restricted state and be unable to indulge
the same desire.’ Morris and Leach, The Rule Against Perpetuities,
p. 17. Without such a rule, property rights would be subject to the
self-defeatingness objection.

130
Index

Absence of term. 19,36 Children, as chattels, 37-9, 46,

Accumulation, 110-11, 116, 117 121 n.l, 122 n.l 1
Acquisition, requirements of Christian property theory, 33,
maximal, 112 84,96
Alienability, see Capital, right to Cicero, 25
Allocation, definition, 69-70 Civil rights, definition of, 16, 17
Allocative transactions, 68 Claim right, 41,44, 48, 77, 78,
Anarchists, 34, 61,80 79, 80, 86; capacity claim,
Anti-property arguments, 88-98, 12; definition of, 11-12
107,113 Common property, see Owner¬
Anti-property theorists, 43, ship, varieties of
88-98 Communal ownership, 6
Appropriation, by labour, 33-5, Compensation, 2,8, 10, 51,52,
38; by occupation, 24-31,38; 54-5,71,110, 112-14,117
exhaustive, 95; psychological, Competition, perfect, 63, 70, 71
49,65, 102-3 ;see also Conservation, 115-16
Exhaustibility; Personality; Conventional rights, definition
Self-realization of, 16
Aristotle, 33, 62, 86 Copyright, see Intellectual
Austrian School (of Economics), property
69
Axiology, 106 Deontology, 106
Desert, 41,44-5,47, 84, 85,98,
Bellamy, Edward, 4 124 n.26, n.27, n.28; as a
Bequest, see Transmissibility fundamental principle, 49-51;
bases for, 50; -claim 50;
Capitalists, 34, 114 deserving to own, 48-56,
Capital, right to, 19-21,25,29, 100-1; principle of, 50-2
30,36,86,113,114,116,117 Distribution, definition of,
Cardinality problem, 92 69-70; justice in, 2

131
Property Rights

Dominance hierarchies, 102-3 Hume, David, 32, 60, 64

Duties of care, 108-9
Duty, definition of, 11-12 Idealists, nineteenth-century, 63
Ideal morality, 106
Economic arguments for Ideas, property rights in, 47; see
property, see Utility; Welfare also Intellectual property
economics Immunity rights, 44; definition
Efficiency, economic, 63,70, of 14
71,72,91,102 Income, right to, 19-21,25, 29,
Entitlement, see Desert 36,71,86, 110, 117
Equality, 48, 67, 73, 78, 79, 82, Individual distance, 102-3,
86; competitive, 43; see also 127 n.l
Inequality Inequality, 89, 107-8; as an anti¬
Execution, liability to, 19, 22, property argument, 96-8, 113
36 Inheritance, see Transmissibility
Exhaustibility, 109-10, 111, Innocent use, 31,65,116
112,117 Intellectual property, 47, 55,
Expropriation, 19, 29, 30 116
Externalities, 68, 73, 102 Intuitions, about property
rights, 4
Feinberg, Joel, 50
First occupancy, see Occupancy Joint ownership, see Ownership,
Fitting benefits, 52-6, 100, 107 varieties of
Foundations, for a new theory Justice: compensatory, 10;
of property rights, 4, 5 economic, 70, 72; end-state,
Free market system, 63, 69, 71 104, 113; historical, 104,
Future generations, 115-16 113; in acquisition, 98; in
distribution, 98; in transfer,
General theory of property 98; principle of redistri¬
rights: foundations for, 5; butive, 113-14; restorative,
usefulness of, 4 45; retaliatory, 10; retribu¬
Generosity, 86, 96 tive, 45
Genetics, 102-3 Justification: all things con¬
Grotius, Hugo, 32, 37, 38, 65 sidered, 22-3; general, 3, 10,
23,32,58,65,67,68-9,75,
Happiness, 57-68, 89, 93, 101 77.81.94.99, 100-3, 107,
Harmful use, 19-22, 36, 111-12 108,109,110, 111, 112,
Hart, H. L. A., 17 117;moral,22-3,45-6, 115;
Hayek, F. A., 69 particular, 10, 23, 31,58, 66,
Health, see Rights 94, 99, 111; specific 3, 10,
Hegel, G. W, F., 29-30, 63 23,31,32,58,66,67,69-74,
Hobbes, Thomas, 61,78 94.99, 104, 107-18
Hohfeld, Wesley Newcomb, 7,9, Justification of property rights,
11, 13, 14,102 99-118; and the preservation
Honore, A. M., 7, 18-20 of virtue ,114-15; and the
Human right, definition of, 16 problem of conservation,

132
 Index

115-16; compatibility re¬ Liberty right, 44, 77, 102, 109;

quirement, 107-12; compens¬ definition of, 12-13
ation requirement, 112-14; Life, see Rights to; Liberty to
coordination problems, 103-7; Locke, John, 4, 5, 32, 33-48, 61,
plurality of arguments, 100-3; 94.95
requirement of maximal acqui¬
sition, 112 Machiavelli, N., 61
Management, right of, 19-21,25,
Kant, I., 28-9, 30, 115 29,36,37,83, 110, 111, 117
Marginal utility, 73
Labor theory, 3, 28, 30, 32-56, Marx, Karl, 4, 61,64, 94,
59,84, 100-1, 108, 112;asa 121 n.2
fundamental moral principle, Means of production, 42, 43, 62,
45-6; burden of proof 89.93.94.95
argument, 40-1; Locke-Mill Mill, J. S., 4, 41-8, 100, 107,
version, 41-8, 100, 107, 111; 111,115
Locke’s version of, 3343; Mineral rights, 116
mixing one’s labor, 334; no¬ Monopolization, 89, 93, 94, 95
loss requirement, 424, 46, Moral argument: co-ordination
54; reformulation in terms of problem, 103-7; definition of,
desert principle, 48-56, 17; principle of presumptive
100-1, 107, 112; root idea of, equal weight, 67, 104, 105-6,
32-3,35,36,434,46,47, 108; three fundamental types
48, 103; self-defeating of, 106
character of, 36 Moral character, arguments for
Land, ownership of, 5, 26, 27, property from, 81-7
31,32,33,34,36,40,41, Morality; concept of, 45, 49;
42,43,47,55,89,93,94, requirements of, 42, 80, 107,
95, 109-10, 116 108-9, 123 n.16
Legal right, definition of, 16, 76 Moral law, 28-9
Legal rules, as they enter into Moral principle, criteria of a
moral justification, 106-7, fundamental, 45-6
108 Moral theory, relation to prop¬
Libertarians, 1,2, 80 erty rights, 3-4
Liberty, 106, 111, 112;argu¬
ment from 75-80, 118; Natural law theory, 16
derived, 13; formal, 76, 77; Natural liberty, 13,29, 76-7,
institutional, 76-7; legal, 76; 102,105
logical, 76; material, 76, 77, Natural right, 29; definition of,
79,80,95,97, 105, 110; 16
moral, 76; natural, 13, 29, Net Economic Welfare, 69
76- 7, 102, 105; political, 75, Nozick, Robert, 34, 40, 105,
77- 80, 102, 105, 107, 112, 113
117; priority of, 104-7, 111; Nuisance law, 112
to life, 76; see also Rights to
liberty Occupancy, first, 5, 24-31,59; a

133
Property Rights

priori restrictions on, 24-5; Property rights: definition of,

arguments for, 28-31 18-22, 120 n.l 1; equivocal
Original acquisition, 24-6, 32, use of term, 36-7; general
33,47,116 theory of, 99; in one’s body,
Ownership: full or liberal, 18-20, 3341 justification of, 22-3,
53,62,66,71,89,95, 110, 99-118; parents’ rights to
111, 116; restrictions on, children, 37-9 ^ee also Justifi¬
77-8; rights of see Property cation of property rights
rights Property-worthiness, 81-7
Ownership, varieties of, 20-1; Proportionality, as a require¬
common, 25, 62; joint, 25; ment for desert, 524, 100-1,
laissez faire, 62, 63; public, 107
83; private, 6, 83 Proprietary rights: in rem, 6; in
personam, 22
Parents, rights to property in Proudhon, P. J., 4, 36, 41,43,
children, 37-9,46, 121 n.l, 46,48
122n.ll Pufendorf, Samuel, 25, 32
Pareto-optimality, 70 Punitive damages, 10
Pareto-superiority, 70
Pareto, Vilfredo, 70 Rand, Ayn, 4
Parity, competitive, 43 Rashdall, Hastings, 44, 94
Patents, see Intellectual property Rawls, John, 79, 104, 111
Pater familias, 121, n. 1, Recipient rights, 41,48,49,
122n.ll 113, 119 n.9; definition of,
Perpetuities, 19, 117, 130 n.21 14-15
Personality; full development of, Relative deprivation, 90, 91
89,90,91,93, 101, 127 n.2; Residuary rights, 19, 22
property as an expression of, Resources: exhaustible, 77; non¬
29,63-4 renewable, 43,77,89,93,
Political philosophy, character¬ 117; scarce, 77
ization of, 1 Restitution, 10
Positivism, legal, 16 Right: content of, 9; elements in
Posner, Richard, 68 the analysis of, 8-11; excus¬
Possession, right of, 19-21,25, able violation of, 10; over¬
29,30,36,37,65,71,86, riding of, 10; remedies for
110,117 breach of, 10; root idea of, 7,
Poverty, 89, 90-1,93; definition 8; violation of, 10
of, 90-1 Right-claim, justification of,
Power rights, 13,44; participant, 9-10, 15-18
13-14 Right-holders, 113; definition
Primary rights, definition of, 17 of, 8, 9
Primitive acquisition, see Right-regarders, definition of, 9
Original acquisition Rights: de facto, 22, 23;
Private ownership, 83 ;v. owner¬ schematic definitions for
ship per se, 6 major types, 15-18; to health,
Private rights, definition of, 16 76; to liberty, 37, 39; to life,

134
 Index

37, 39, 76, 78, see also State ownership, 6

Capital; Civil; Claim; Conven¬
tional ; Immunity; Income; Takings, 2, 129 n.13; fair, 47-8
Legal; Liberty; Management; Tax,51,54, 111, 112, 117
Moral; Natural; Ownership; Territoriality, 102-3
Possession; Power; Primary; Transaction costs, 63, 70, 73
Private; Property; Pro¬ Transfer, see Capital, right to
prietary; Recipient; Residu¬ Transmissibility, power of,
ary; Secondary; Security; 19-21,29,32,36,63,71,86,
Special; Use 107,110,111,113,114,
Rights-relationships: general 116,117
nature of, 9; types of, 11-15
Rousseau, J.-J., 26 Use, right to, 19-21,25, 29, 36,
37,65,71,83,86, 110, 111,
Salmond, 37 113, 116, 117; see also
Savings, 115-16 Innocent use
Scarcity, 6, 60, 77, 82, 83, 89, Utilitarianism, 78, 80
93 Utilitarians, 3, 59, 80, 92
Secondary rights, definition of, Utility, 28, 30, 38, 85, 86, 92,
17 94,105,106, 107, 111, 115;
Security, right to, 19-21,65, arguments for property rights
110 from, 57-74,88,101-2, 103;
Self-defeatingness, 105, 108; as economic, 67-74; traditional,
an anti-property argument, 51-61 \ see also Social dis¬
94 utility
Self-realization, 90, 91
Social contract theory, 13, 79, Virtue, 83-7, 106, 108, 114-15;
80,102 as an anti-property argument,
Social Darwinists, 44 96
Social disutility, 8, 97, 108; anti¬ von Mises, Ludwig, 69
property arguments from,
88-94 Waste, 82, 83
Social instability, 89-90, 91-2, Watson, James O., 53
110 Welfare economics, 67; defi¬
Socialism, 43, 54, 95 nition of value, 67-8 measure¬
Socialists, 1,2, 34, 69, 114, 117 ment of value, 68
Social stability, 92 ‘Why not’ argument for prop¬
Special rights, see Conventional erty, 30
rights Wittgenstein, Ludwig, 106
Species characteristics, 102-3
State-of-nature theory, 13, 32, Zoning, 4, 71, 116, 129 n.19
59,77,79, 123 n.20

135
St. Vincent de Paul Li

141203 K721.5 B42

Property rights

"I /
M
 The Author

Lawrence C. Becker is Associate Pro¬

fessor of Philosophy at Hollins College,
Virginia. He is the author of On Justify¬
ing Moral Judgments (Routledge &
Kegan Paul, 1973), and is a frequent
contributor to professional journals.

Be<3
PRC

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ISBN 0 7100 8679 2

Printed in Great Britain
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On Justifying Moraf Judgments

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morality and his strategy for shifting, the onus of proof will provide
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