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  • Eric Mack (a1)

The two main theses of “The Natural Right of Property” are: (i) that persons possess an original, non-acquired right not to be precluded from making extra-personal material their own (or from exercising discretionary control over what they have made their own); and (ii) that this right can and does take the form of a right that others abide by the rules of a (justifiable) practice of property which facilitates persons making extra-personal material their own (and exercising discretionary control over what they have made their own). I articulate some of the good reasons we have to affirm persons' possession of an original, non-acquired right of self-ownership and argue that the same good reasons support the ascription to persons of a natural right of property. I contrast an “inherent feature” conception of the actions through which (initial) rights over extra-personal objects arise with a “practice” conception of (initial) entitlement-generating actions. I argue that the fact that the natural right to property can and does take the form of persons' rights that others abide by the rules of a (justifiable) practice of property explains how there are many instances of (initial) entitlement generation which are not plausibly explained by those wed to the inherent feature conception of entitlement-generating actions and why there is a strong conventional dimension in the procedures through which persons acquire (initial) property rights.

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1 In saying that natural rights are nonacquired rights, I mean that these rights are not acquired by any specific performance on the part of the right-holder and also are not acquired as the correlatives of obligations acquired by other parties through their specific performances. This is consistent with recognizing that we are, as Locke puts it, “born to” these rights, even though we are not “born in” them. As Locke sees it, we come into these rights as we come into rational agency. See Locke John, Second Treatise of Government, in Two Treatises of Government, ed. Laslett Peter (Cambridge: Cambridge University Press, 1960), section 55.

2 In speaking of rights, I will at least for the most part be speaking of compounds of moral liberties and claim-rights. Bekah's self-ownership right is composed of (a) her moral liberty to do as she sees fit with that which makes up her person (her bodily parts, her energy, her skills), and (b) a claim-right against others' interfering with the exercise of that liberty. Correlative to that claim-right is an obligation on the part of others not to interfere with Bekah's exercise of that liberty. Similarly, Bekah's right to the acorn she has just picked up from the (unowned) forest floor is composed of (a) her moral liberty to do as she sees fit with that acorn, i.e., her having no obligations to others to dispose of the acorn in any particular way, and (b) a claim-right against others' interfering with her exercise of that moral liberty.

3 Jerry Gaus has provided me with the interesting suggestion that the natural right of property is, even more strictly speaking, a Hohfeldian natural normative power to make things one's own.

4 I shall be focusing throughout on initial acquired property rights, not rights that one acquires through the transfer of objects that, until the transfer, are the property of others. As we move along, I shall not bother to repeat the “initial.” My case against an inherent-feature account of property rights and for a practice account would be strengthened if we were to look at which sort of account better deals with rights-conveying transfers of already rightfully held extrapersonal objects. I should add that, in speaking of individuals' acquired property rights, I do not at all intend to rule out various associations of individuals—e.g., communes, unions, firms, or churches—as possible possessors of such rights. I am simply taking ordinary workaday individuals as the paradigm possessors.

5 Locke, Second Treatise, section 25.

6 For attempts at a similar move from promissory or contractual rights to natural rights, see Hart H. L. A., “Are There Any Natural Rights?” reprinted in Waldron Jeremy, ed., Theories of Rights (Oxford: Oxford University Press, 1984), 7790; and Mack Eric, “Natural and Contractual Rights,” Ethics 87, no. 2 (January 1977): 153–59.

7 Berlin Isaiah, Four Essays on Liberty (Oxford: Oxford University Press, 1969), 137.

8 The only barrier to thinking of such rules as legal rules is the mistaken tendency to think that legal rules have to arise via legislation, that law requires a (legislating) lawmaker. For the classic rejection of this view and defense of the view that systems of law emerge unintended from custom, convention, and judicial rulings, see Hayek F. A., Law, Legislation, and Liberty, Volume 1, Rules and Order (Chicago: University of Chicago Press, 1973).

9 A practice will realize the features that make it justifiable to a reasonably acceptable extent only if there is not another practice that could be instituted (given the world as it actually is) that would realize those features to a significantly greater extent.

10 In this discussion, I pass by many complications in the explication of Locke—including his assertion that we are all the property of God and, ultimately, exist for God's purposes. For a discussion of some of these complications, see chapters 2 and 3 of my John Locke (London: Continuum Publishing, 2009).

11 Locke John, An Essay Concerning Human Understanding, ed. Fraser A. C. (New York: Dover, 1959), book II, p. 341.

12 Locke, Second Treatise, section 6.

16 Elsewhere in the Second Treatise (section 57), Locke offers an important argument against the (Hobbesian) view that our moral freedom consists just in our moral liberties. Locke argues to the contrary that any moral freedom worth its salt requires that others be morally excluded from suppressing one's exercise of one's moral liberties. (“For who would be free, when every other Man's Humour might domineer over him?”) When Locke formulates the conclusion of this argument, we get the very broad claim that each man's natural liberty is “a Liberty to dispose, and order as he list, his Person, Actions, Possessions, and his whole Property, within the Allowance of those Laws under which he is, and therein not to be subject to the arbitrary Will of another, but freely to follow his own” (emphasis added).

17 Locke, Second Treatise, section 14.

18 See Filmer Sir Robert, Patriarcha and Other Writings (1680), ed. Sommerville Johann (Cambridge: Cambridge University Press, 1991). Locke's sustained critique of Filmer is, of course, to be found in the surviving portion of Locke's First Treatise in his Two Treatises of Government.

19 Locke, Second Treatise, section 25, and First Treatise, section 40.

20 Filmer, Patriarcha, 234.

21 Locke also has to go on to give an account of the appearance of property rights which does not depend on consent. See Locke, Second Treatise, section 25.

22 Ibid., section 26.

23 Ibid., section 28.

24 Of course, even remaining on the spot one finds oneself on would be a violation of others' joint-ownership rights.

25 Locke, First Treatise, section 86.

27 Ibid.; emphasis added on the phrase “therefore had a right to make use of those Creatures,” and in the last sentence of the quotation.

28 Locke, Second Treatise, section 26.

29 Ibid., section 33.

30 A trickier Trickster might allow individuals to acquire extrapersonal objects and then spray them with a coating that makes their disposition uncontrollable.

31 Locke, Second Treatise, section 33.

32 I shall not pause here to investigate where precisely such a proviso might fit into a rights-oriented classical liberal doctrine. I examine this issue in Mack Eric, “The Self-Ownership Proviso: A New and Improved Lockean Proviso,” Social Philosophy and Policy 12, no. 1 (1995): 186218; and in section 5 of Mack, “Self-Ownership, Marxism, and Equality: Part I,” Politics, Philosophy, and Economics 1, no. 1 (February 2002): 75108, and section 3 of Mack, “Self-Ownership, Marxism, and Equality: Part II,” Politics, Philosophy, and Economics 1, no. 2 (June 2002): 237–76.

33 Locke, Second Treatise, section 37.

34 Notice that this conclusion is independent of any specific view about what sorts of actions on the part of the aspiring agriculturalists would generate for them particular rights over specific extrapersonal objects.

35 Ibid., section 6.

36 Ibid., section 27; emphasis in the original.

37 Ibid.; emphasis in the original.

38 Nozick Robert, Anarchy, State, and Utopia (New York: Basic Books, 1974), esp. 149–83.

39 In his section on “How Liberty Upsets Patterns,” Nozick also argues that, unlike the historical entitlement theory, all end-state and pattern theories must condemn as unjust outcomes that arise innocuously from distributions that they institute in the name of justice. See ibid., 160–64.

40 This is a slightly modified version of an example supplied by MacCormick Neil in “Voluntary Obligations and Normative Powers I,” Proceedings of the Aristotelian Society, Supplement 46 (1972): 5978.

This essay is a sequel to an earlier and quite different essay in which I also attempt to articulate and defend a natural right of property. See Eric Mack, “Self-Ownership and the Right of Property,” The Monist 73, no. 4 (October 1990): 519–43. I thank Ellen Paul and the other contributors to this volume for their helpful comments on an earlier draft of this essay.

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