Anthony de Jasay

Property and its Enemies. Part I. "Design Faults" in Locke's Theory of Property Taint Ownership with Guilt

Anthony de Jasay*
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See the Editor's Introduction to this article.

Ownership is a relation between an owner and a scarce resource, such that the owner is at liberty to use and alienate it, exclude all others from access to it except by his consent, and thus also at liberty to grant various kinds of prior claims and use rights in it for those towards whom it assumes contractual obligations. It is doubtful whether ownership, even ownership by a collective entity, has any meaning without some element of exclusion that separates owners from non-owners of the resource in question. When everybody owns a thing, nobody owns it.

The crux of moral and political aspects in property theory is how an unowned object first becomes legitimately owned. Once the legitimacy of first acquisition is settled, all subsequent acquisitions by the saving of income, exchange, gift or bequest of assets can be defended on the ground of mutual consent. If that test is met, the distribution of property cannot be condemned as unjust unless the voluntary transactions that gave rise to it are also condemned as either unjust or irrelevant to just ownership.

Some enemies of property ownership choose to attack initial acquisition, others the relevance for valid title of subsequent voluntary transactions. This article will treat the first of these two targets. Luck plays a large role in the history of ideas, and as bad luck would have it, the most influential theory of property to this day is that of John Locke1 His starting point is ambiguous. Arguably, a clear and straightforward theory of how an unowned resource comes legitimately to be owned had to wait till Hume's Treatise of Human Nature.2 In Locke, everything is, albeit in a vague way, already owned at the outset: "God has given the earth to the children of man", "...given it to mankind in common" (V.24) "...yet there must of necessity be a means to appropriate (the fruits)" to "a private dominion exclusive of the rest of mankind" (V.25). This suggests a passage from "common" to "private" ownership, though Robert Nozick3 interprets it as dealing with establishing rights "in an unowned object". Locke's text tells otherwise, but one might take it that his "common ownership" of everything by everybody can be dismissed as a mere verbal flourish that cannot have any force. However, the fatal fault line in Locke's design runs elsewhere.

For Locke contends that the passage of an object into exclusive ("private") ownership will not harm anyone provided "enough and as good is left for others", and—more problematically—he seems convinced that this condition is satisfied with the greatest of ease. He has two scenarios in mind. One is the English enclosures, where village commons of rough, swampy pasture were converted into well-drained, well tilled arable fields, yielding (as he put it) ten times the produce. The other was the clearing of the virgin forest by the American colonists of New England and Virginia. In both cases, a wide margin of abundance appeared to leave enough and as good for others. For the next three centuries, many theorists have taken it that Locke has established the legitimacy of private property and the state's duty to protect it.

However, a closer look reveals that the "enough and as good" proviso is in fact a sharp-edged weapon in the hands of the enemies of property. The "others" who are excluded by an act of first appropriation can suffer prejudice on two possible counts. One is loss of use, the other is loss of opportunity. Loss of use occurs when others, who used to hunt or graze animals on the land, or otherwise profited from free access to the resource in question without ever incurring exclusion costs to appropriate it for their private use, now find themselves excluded from it by the first appropriator. Two views could be held about this. The hard-nosed one is that since these free users had done nothing to ensure the perennity of their own access to the resource, they have no claim against the appropriator who excludes them. The other, less rigorous view is that the appropriator owes them some compensation. The question is whether he can possibly compensate them adequately for their lost way of life. Did the periodic free issue of beef cattle to reservation Indians compensate them for losing the buffalo hunts? Almost any answer to such questions is as contestable as any other.

Compensating for loss of use is awkward, but much, much more awkward is the problem of loss of opportunity in case "enough and as good" is not left for others to appropriate. The quandary bifurcates: one of its branches leads to known resources, the other to unknown ones to be discovered.

Known resources have all been appropriated long ago. None is left for the taking by today's propertyless "huddled masses". It is easy to see, and Nozick has nicely proved by backward induction (op.cit. p.176) that if there is not "enough and as good left" today, the most recent appropriation must have violated the proviso, and so have all the preceding ones including the very first. In vain do many defenders of the capitalist order argue that its prodigious capacity to create wealth allows today's propertyless to be as well off as if they had (some) property, so they have not really lost potential welfare. The fact remains that others who passed before them have pre-empted the opportunity to get property simply by taking possession of it. Becoming a well-paid employee of some owner may be no consolation for failing to become an owner. In a book of laboured and often twisted arguments, the far-left philosopher Gerald Cohen4 validly makes this point along with countless invalid ones. If the Lockean proviso is worthy of the respect accorded to it, all title is illegitimate and every owner is guilty of crowding non-owners out of the opportunities Locke said they ought to enjoy.

However, perhaps there is "enough and as good" opportunity left hidden in the as yet unknown world, to be discovered? Nobody knows what the as yet undiscovered part of the world conceals, but it is likely to contain valuable resources nobody owns.

Alas, the proviso will not let go. If a prospector finds a new gold mine or the wildcatter brings in a rich oil well, the probability of other prospectors and wildcatters making equally valuable finds diminishes, however slightly. If Edison discovers electricity, every other inventor has lost the opportunity to discover it. Exceptional strokes of genius, unexpected technological breakthroughs and lucky strikes remain possible. But on the average, every new discovery will raise the probable finding cost of the next comparable discovery. This trend is manifest in petroleum and minerals, as well as in most branches of applied scientific research. The burden of rising finding costs is aggravated by the fact that what is eventually found,—sub-surface resources or "intellectual" property—is as a rule not accorded fully owned status by the legislator as would be the case if the "finders, keepers" principle were respected.

The long and short of it is that "enough and as good" is never left for everybody who might wish to get it. Over time and over large numbers, known resources all pass into someone's ownership, and the finding cost of unknown ones must continue to rise as it has risen, irregularly but inexorably, through history. Locke's proviso, far from asserting that first appropriation is just, in fact tells us that ownership begins with an original sin. In a somewhat perverse way, he unwittingly lays the foundations for doctrines that profess that "property is theft".

There is a simple means of releasing Locke's stranglehold on property theory. It is politely to decline his opening gambit. Why does a person who takes an opportunity owe anything to others who might have taken it but did not?—and why is this debt forgiven if, but only if, there are "enough and as good" opportunities left for these others so they get a second chance? It would obviously be a nice and friendly physical world where one person could take his opportunity and there was in fact always another and as good left for another person. But if the physical world is not quite as nice as this, why ought the first person to abstain from taking his opportunity, and why is his resulting ownership illegitimate? Must society choose between "private" ownership and justice? The requirement is arbitrary and one should not allow oneself to be browbeaten by arbitrary demands.5


Footnotes
1.

Cf. John Locke, The Second Treatise of Civil Government (1690). Many editions but especially significant are John Locke, Two Treatises of Government: A Critical Edition with an Introduction and Apparatus Criticus by Peter Laslett (Revised edition Cambridge University Press, 1963), reissued with a new introduction by Cambridge University Press in 1988; Political Writings of John Locke, David Wootton (New York: Mentor, 1993).

2.

David Hume, A Treatise of Human Nature, ed. David Fate Norton and Mary J. Norton (Oxford University Press, 2000).

3.

Robert Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974), p.174.

4.

Gerald Cohen, Self-Ownership, Freedom and Equality (Cambridge University Press, 1995).

5.

Another such arbitrary demand is made by Cohen (op.cit.pp.83-84) who advances the moral postulate that all property is jointly owned, no one can unilaterally take out "his" share from the joint holding, and the latter should be managed by democratic consensus. We may note that the late lamented Soviet Union has come close to fulfilling these moral requirements. Their realisation, however, was regrettably discontinued.


*Anthony de Jasay is an Anglo-Hungarian economist living in France. He is the author, a.o., of The State (Oxford, 1985), Social Contract, Free Ride (Oxford 1989) and Against Politics (London,1997). His latest book, Justice and Its Surroundings, was published by Liberty Fund in the summer of 2002.

The State is also available online on this website.

For more articles by Anthony de Jasay, see the Archive.
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