My aim in this essay is to explore the nature and force of “original-acquisition” justifications of private property. By “original-acquisition” justifications, I mean those arguments which purport to establish or importantly contribute to the moral defense of private property by: (a) offering a moral/historical account of how legitimate private property rights for persons first arose (i.e., at a time prior to which no such rights existed); (b) offering a hypothetical or conjectural account of how justified private property could arise (or have arisen) from a propertyless condition; or (c) simply defending an account of how an individual can (or did) make private property in some previously unowned thing (where “things” might include not only land, natural resources, and artifacts, but also, e.g., ideas or other individuals). The “original acquisition” to which such justifications centrally refer, then, may be either the first instance(s) of legitimate private property in human history (typically assumed to have been many centuries ago on earth), or only the first legitimate acquisition of some particular thing (which might, for instance, have occurred yesterday or occur in the future on Mars). But in either case, the justification will involve or entail the defense of one or more moral principles specifying how unowned (or collectively owned) things can become privately owned — that is, the defense of the kind of principles Robert Nozick has called “principles of justice in acquisition.”
1 In other words, arguments of type (a) or (b) will entail some argument(s) of type (c).
2 Nozick, Robert, Anarchy, State, and Utopia (New York: Basic Books, 1974), pp. 150–53. Jeremy Waldron has recently argued for restricting the notion of principles of justice in acquisition (what he calls “PJAs”) to those which specify “that the transition to the private ownership of a resource can be effected by the unilateral action of the individual who is to be the owner” (Waldron, , The Right to Private Property [Oxford: Oxford University Press. 1988], p. 263; my emphasis. I use the notion more broadly here. I see no reason to deny that a principle concerns the process of “just acquisition” simply because it specifies that taking possession requires the permission or cooperation (e.g., in making contracts or establishing conventions) of other persons. I discuss below (in Section IV) Waldron's main argument against “unilateral PJAs.”
3 Original-acquisition condemnations of private property, or at least of certain kinds of private property systems, are, of course, also familiar. Take, as obvious examples, the arguments offered by many of the Levellers and by Jean-Jacques Rousseau in his Second Discourse.
4 Historical compact theories seem both to involve simple fiction (i.e., concerning the occurrence of a genuine and binding historical agreement) and to appeal to an event which could have no binding force for later persons (i.e., the descendants of the historical contractors). Hobbesian positivism seems too “thin” to count as justifying much of anything, deriving authority (and the “consent” of subjects) from mere asymmetry of physical power. Humean conventionalism faces obvious problems in the nonmaximizing character of its associated conception of moral virtue, and particularly in its “conventional rule utilitarian” account of the artificial virtues. Indeed, given the possibility that Hume may be trying to justify many stages in the evolution of property conventions (and, consequently, shifts in property systems and relations), it may be misleading to describe his account as an attempted OA justification at all. The Lockean account, by contrast, can at least be restated in a theoretically plausible fashion, or so I argue in my book The Lockean Theory of Rights (Princeton: Princeton University Press, 1992), ch. 5.
5 Nozick, , Anarchy, State, and Utopia, p. 153. Nozick contents himself with arguing that whatever principle of justice in acquisition is defended, it must incorporate a proper version of the Lockean Proviso (ibid., pp. 175–82) —that is, a proviso specifying that appropriators must leave “enough and as good” to be appropriated by others.
6 Thomson, Judith Jarvis claims that “the following thesis is accepted by most philosophers nowadays: The Ownership-Has-Origins Thesis: X owns a thing if and only if something happened that made X own it” (Thomson, , The Realm of Rights [Cambridge: Harvard University Press, 1990], p. 323). Thomson argues that the thesis is in fact true (ibid., p. 336).
7 In Locke, of course, the act is the unilateral extension of prior property in one's person and one's labor into things in the external world. In Grotius and Pufendorf, the act is the multilateral historical compact or agreement. Concern that no human acts could create property from nothing has led some contemporary philosophers to reject the “Ownership-Has-Origins Thesis” (see note 6 above), and to claim that property must in some sense have existed all along. See, e.g., Steiner, Hillel, “The Natural Right to the Means of Production,” Philosophical Quarterly, vol. 27, no. 106 (01 1977), esp. pp. 48–49; and Mack, Eric's reply to Steiner in “Distributive Justice and the Tensions of Lockeanism,” Social Philosophy & Policy, vol. 1, no. 1 (Autumn 1983), pp. 140–43. Classically, of course, Filmer, Robert's Patriarcha supplied the best example of the view that the world was owned from the beginning of the human race (by virtue of God's gift to Adam).
8 See Waldron, , The Right to Private Property, p. 60. I here use the notion of a “private property system” in, I think, roughly the way detailed by Waldron (ibid., pp. 31–33, 37–46).
9 Waldron contends that “a philosophical argument can determine only, as it were, the general shape of a blueprint for the good society. Even if we find that there are good moral grounds for preferring private property to collective property, we still face the question of what conception of private property to adopt” (ibid., p. 61). But I assume Waldron would happily allow that the more specific demonstration, if successfully completed (contrary to his expectations), would count as a different, and even more powerful, justification of private property.
10 Most moral theories that admit the distinction, of course, hold that moral optimality entails moral permissibility. I assume such a view in these remarks.
11 Locke, John, Two Treatises of Government, ed. Laslett, Peter (New York: Mentor, 1960), Second Treatise, sections 38, 45. Subsequent references to the Two Treatises of Government will be by I or II, followed by section number.
12 See my Lockean Theory of Rights, pp. 307–18.
13 Thomas Horne argues at some length that Grotius, , Seiden, John, Hobbes, , Cumberland, , Pufendorf, , Tyrrell, James, and Locke, all “accepted the legitimacy of private property in general and, more specifically, the distribution of property that existed in their society” (Horne, Property Rights and Poverty [Chapel Hill: University of North Carolina Press, 1990], pp. 10, 17, 31, 48). I state below my disagreement with this position in the case of Locke.
14 See my Lockean Theory of Rights, pp. 288–306, 317–18.
15 Pufendorf, Samuel, De Jure Naturae et Gentium Libri Octo (The Law of Nature and Nations in Eight Books) , vol. 2, trans. , C. H. and Oldfather, W. A. (Oxford: Clarendon Press, and London: Humphrey Milford, 1934), bk. 4, ch. 4, section 4:
Yet it was far from God to prescribe a universal manner of possessing things, which all men were bound to observe. And so things were created neither proper nor common (in positive community) by any express command of God, but these distinctions were later created by men as the peace of human society demanded.
16 I summarize Locke's argument below and in note 17.
17 This argument, of course, seems to show not only that private property is morally permissible, but also that it is obligatory to create it. For if (a) we are obligated to preserve ourselves (II, 6), (b) we need the earth's resources to survive, and (c) we can only productively use those resources by privately appropriating them, then it follows that we are obligated to appropriate. Premise (c), of course, is the weak premise in the argument1, since productive use of common property seems quite possible. Locke's argument runs specifically as follows:
‘[T]is very clear, that God … has given the Earth … to Mankind in common. But this being supposed, it seems to some a very great difficulty, how any one should ever come to have a Property in any thing. … God … hath also given them reason to make use of [the world and its resources] to the best advantage of Life … yet being given for the use of Men, there must of necessity be a means to appropriate them some way or other before they can be of any use, or at all beneficial to any particular Man. (II, 25, 26; some italics deleted)
18 Pufendorf, , De Jure Naturae et Gentium, bk. 4, ch. 4, section 5.
19 One possible form of the complaint that I will not discuss here is that most OA justifications have concerned themselves exclusively or primarily with tangible property, where today our concerns about property centrally include such things as intellectual property, equity in companies, etc. I will simply assume here (without argument) that a suitably revised OA justification could deal satisfactorily with nontangible property as well.
20 Virginia Held claims that
Locke's assumptions concerning the justifiable acquisition of property are, however, seldom plausible in the contemporary world. The unowned wilderness waiting to be appropriated, so central to Locke's argument, no longer exists. Rarely do we simply mix our labor with naturé. … An even more serious difficulty … is that the Lockean proviso, in the contemporary world of overpopulation and scarce resources, can almost never be met. (“Introduction,” Property, Profits, and Economic Justice, ed. Held, Virginia [Belmont: Wadsworth, 1980], pp. 5–6)
See also Grunebaum, James O., Private Omnership (London: Routledge & Kegan Paul, 1987), pp. 53, 66–67, 85, and Grunebaum, , “Ownership as Theft,” Monist, vol. 73, no. 4 (10 1990), p. 544; Becker, Lawrence, Property Rights (London: Routledge & Kegan Paul, 1977), p. 48; and Mautner, Thomas, “Locke on Original Appropriation,” American Philosophical Quarterly, vol. 19, no. 3 (07 1982), pp. 267–68. For a response specifically to concerns about the Lockean Proviso (on which I do not comment here), see Schmidtz, David, The Limits of Government (Boulder: Westview Press, 1991), pp. 17–27.
21 Waldron, , The Right to Private Property, p. 259.
22 Mautner argues on these grounds that “a theory of original appropriation is irrelevant to questions concerning contemporary property rights” (“Locke on Original Appropriation,” p. 268). See also Lomasky, Lorcn E., Persons, Rights, and the Moral Community (Oxford: Oxford University Press, 1987), pp. 115–16; Kymlicka, Will, Liberalism, Community, and Culture (Oxford: Oxford University Press, 1989), pp. 158–59; and Schmidtz, 's reply in The Limits of Government, pp. 27–31. For a much earlier version of this style of argument, see Spencer, Herbert, Social Statics (1851), ch. 9, section 3 (New York: Augustus M. Kelley, 1969), pp. 115–16.
23 See my Lockcan Theory of Rights, pp. 235–36. My Moral Principles and Political Obligations (Princeton: Princeton University Press, 1979) challenges the moral authority of existing governments or states to enforce such laws and to make treaties or agreements of this sort on our behalf.
24 Indeed, even Marx, and Engels, allowed that “we by no means intend to abolish this personal appropriation of the products of labour, an appropriation that is made for the maintenance and reproduction of human life” (The Communist Manifesto, in Karl Marx: Selected Writings, ed. McLellan, D. [Oxford: Oxford University Press, 1977], p. 232). See also Reeve, Andrew's remarks on the “pure artisan” and “integrated production” models of productive activity in Reeve, , Property (Atlantic Highlands: Humanities Press, 1986), pp. 128–29.
25 Eric Mack argues for what he calls “the Practice theory of private property,” claiming that we have a natural right to a justifiable practice of private property (Mack, , “Self-Ownership and the Right to Property,” Monist, vol. 73, no. 4 [10 1990], p. 535). That may seem to amount to an insistence on justification solely at the level of systems of property. But Mack allows as well (as I do here) that certain “vivid instances” of property rights “stand on their own. They need not draw their moral force from their place within any larger normative system” (ibid., p. 529).
26 Mautner, , “Locke on Original Appropriation” (supra note 20), p. 267.
27 Gaus, Gerald and Lomasky, Loren, “Are Property Rights Problematic?” Monist, vol. 73, no. 4 (10 1990), pp. 496–98.
28 OA justifications of the sort described here are historical in something like Nozick's sense: current justifiability of a particular claim depends (in the Lockean version of the argument) on past labor and on the (presumed) absence of past wrongs or presence of rectifying adjustments or developments in the history of the particular claim in question. There is no appeal to structural or patterned considerations—e.g., to an independent principle of desert or equality. And while the force of OA justifications does not turn on the plausibility of any story about the primitive historical origins of property (as Gaus and Lomasky rightly insist in ibid., p. 498), OA justifications do, of course, apply to historical circumstances in the same ways they apply to contemporary or future ones (as argued above). In this regard, Gaus and Lomasky are right to compare the use of OA histories in property theory with the use of state-of-nature stories in political philosophy (ibid.). The state of nature (in Locke, for instance) can be thought of as a particular relation among persons which may be exemplified at any time, including past, historical times. As such, the state of nature is not the first period, or any particular period, in human history, though it is a relation that has had many historical instantiations. On the state of nature, both as it is used by Locke and as a concept of general interest in political philosophy, see my On the Edge of Anarchy: Locke, Consent, and the Limits of Society (Princeton: Princeton University Press, 1993), ch. 1.
29 In Grunebaum, , “Ownership as Theft” (supra note 20), pp. 545–46, “partial” justifications are contrasted with “complete” ones. In Grunebaum, , Private Ownership, pp. 57–59, 62–63, 66, the contrast is with “conclusive” justifications. See also Waldron, , The Right to Private Property, p. 252.
30 Grunebaum, , Private Ownership, pp. 53, 74, 80–81, 84–85. Grunebaum's primary target is Nozick, but he generalizes the attack on p. 85.
31 See my Lockean Theory of Rights, pp. 264–65, 275.
32 The possibility of parallel, equally justified, but quite different property systems (even within the same territory) is discussed by James Tully in the context of his interesting examination of Aboriginal and colonial property in North America. See Tully, , “Aboriginal Property and Western Theory: Recovering a Middle Ground,” in this volume.
33 Pufendorf, . De Jure Naturae et Gentium, bk. 4, ch. 6, sections 3–4.
34 I have argued elsewhere that Locke's conception of original community is one of positive community (Lockcan Theory of Rights, pp. 236–41, 279–81).
35 Waldron, , Wie Right to Private Property, pp. 265–71. See also Becker, , Property Rights (supra note 20), p. 44; and Gibbard, Allan, “Natural Property Rights,” in Readings in Social and Political Philosophy, ed. Stewart, R. M. (New York: Oxford University Press, 1986), pp. 237–38. Waldron argues further that the kinds of principles defended in OA justifications fail the negative test of hypothetical consent (The Right to Private Property, pp. 272–78), but he allows that incorporating a strong Lockean Proviso may permit an OA justification to escape his attacks (ibid., pp. 281–83). I will not here discuss these additional components of Waldron's case. I should note here as well that Waldron's argument strikes primarily against Lockean-style OA justifications. OA justifications xvhich appeal to compacts or agreements, of course, involve defending no rights of unilateral imposition of obligation. But such arguments face other obvious problems of their own.
36 Gaus, and Lomasky, , “Are Property Rights Problematic?” esp. pp. 492–93. For a different style of attack on Waldron's argument, but one which also emphasbes the significance of desert claims, see Munzer, Stephen R., “The Acquisition of Property Rights,” Notre Dame Law Review, vol. 66, no. 3 (1991), pp. 669–78.
37 Gaus and Lomasky deny that this obligation is consensual (“Are Property Rights Problematic?” p. 492), although they say only that they “doubt” that both parties have consented to the “system.” But all that is necessary to render the case hopelessly disanalogous to the one which worries Waldron is that the obligated party has himself agreed to bear this particular obligation. And it seems plain that this is our normal understanding of the position of a department head, at least in any context in which we would take her to have an obligation to reward merit. We do not think that just anyone has an obligation to reward any kind of merit in any other person; one's exceptional performance in an academic department surely imposes no new obligations on, say, Madonna or Mother Theresa.
38 Waldron, , The Right to Private Property, p. 268. Schmidtz takes issue with this characterization of the acquisitions of our forebears in The Limits of Government (supra note 20), ch. 2.
39 Waldron, , The Right to Private Property, pp. 282–83. See Munzer, , “Acquisition of Property Rights,” pp. 667–68.
40 I try to sketch the outlines of such an argument, following a reconstruction of broadly Lockean claims, in my Lockean Theory of Rights, esp. pp. 271–77, 292–94.
* For their helpful comments on an earlier draft of this essay, I am grateful to the other contributors to this volume, to its editors, and to Nancy Schauber.
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