Mind the Economy/Justice 78

What is the origin of private property and what are the rights of those excluded from it?

A just society is one that, starting from a just situation, has evolved through legitimate acquisitions and transfers

7 July 2024

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8' min read

The theory of justice of Robert Nozick, another great giant of 20th century political philosophy, along with John Rawls and his radical critic, is a structurally rather simple theory. It is in fact based on a fundamental assumption, that of the so-called 'valid title'. A 'possession', says Nozick, is legitimate if it has been legitimately acquired or transferred. Extending the discourse we can say, then, that a just society is one characterised by a state of affairs, an allocation of resources and goods that, starting from a just situation, has evolved through legitimate acquisitions and transfers. We can say that a transfer is legitimate when, firstly, the 'possession' is legitimate - the person who wants to transfer the good, donate it or exchange it, has come into possession of it following just rules - and, secondly, this transfer has taken place voluntarily.

The acquisition of possession

Last week we discussed at length the topic of transferring possessions from one subject to another, analysing what Nozick calls the "principle of justice in transfers". Today we are going to get to the bottom of a point that is logically precedent. We should begin by asking ourselves, that is, how possessions are 'originally' acquired. Not all the possessions we might come into possession of during our lifetime are in fact obtained through transfers; some we might acquire without previously belonging to someone else and some we might produce ourselves. Besides transfers, there are, in fact, forms of original acquisition not mediated by exchange.

Legitimate possession

What, then, is the source of the legitimate possession of something that until then has not been possessed by anyone? This question is of special importance for a libertarian like Nozick. For to come into possession and to be able to claim ownership of a certain good is equivalent, as Bentham argued, to the possibility of legitimately depriving everyone else of the enjoyment of that good. Property implies, that is, what economists call 'excludability' and which, not by chance, is a defining characteristic of all private goods. Original appropriation, in this sense, insofar as it imposes obligations on others without their express consent to accept those obligations, is naturally a particularly delicate problem for a theory of justice that is based, as we have seen, on the original right to 'ownership of self'.

The theory of justice in acquisition

This is the area in which Nozick develops his 'theory of justice in acquisition'. The historical reference point in this regard is of course Locke's theory of property. According to the English philosopher, property rights over a property without an owner originate when someone 'mixes', as Nozick writes, his labour with it, provided, Locke specifies, that the appropriation of that property without an owner leaves for others 'sufficient and equally good things'. From this perspective, for example, a farmer who were to begin cultivating an uncultivated and ownerless piece of land could legitimately take possession of it, but only on the condition - so goes the Lockean proviso - that there would be enough land and of like quality for other farmers who wished to proceed in the same way. In what way, Nozick asks, should 'mixing' one's labour with another good, say, land, raw materials, an idea, generate a property right over the fruits of that labour and those materials used? Nozick finds Locke's justification in this regard not entirely satisfactory and on this point he starts with a series of famous questions. The first is highly topical, and this is hardly surprising given that Anarchy, State and Utopia was published in 1974. "If a private astronaut," Nozick writes, "makes an area of Mars habitable, has he mixed his work with (and therefore comes into possession of) the whole planet, the whole uninhabited universe, or just that particular plot? How much land does an action make owners of? The minimum (possibly separate) area such that the action decreases entropy in that area, and not elsewhere? Can one take possession of virgin land through a Lockean process (perhaps flying over it at high altitude for an ecological survey)? Fencing off land would presumably make one owner of the fence alone (and the land immediately below). (...) Why mix what I own with what I do not own,' the philosopher continues, 'is it not a way of losing what I own rather than gaining what I do not own? If I possess a jar of tomato juice and pour it into the sea, so that its molecules (made radioactive in order to detect them) are evenly mixed throughout the sea, do I thereby come to possess the sea, or have I just foolishly wasted my tomato juice?'

Perhaps with his interpretation Nozick does not do full justice to the complexity of Locke's argument but, in fact, he does not consider it possible to adopt it as it is, and this not only because of its alleged incompleteness, but especially, as Jonathan Wolff points out in his Robert Nozick. Property, Justice and the Minimal State (Polity Press, 1996) because of its fundamental premise and political implications. The Lockean theory, in fact, has a metaphysical basis - the earth given by God to men who then possess it in common - that Nozick cannot accept. Secondly, then, while it is true that from this premise of common ownership, Locke derives the necessity that some things should be owned privately because this facilitates human development, it is also true that along with the duty of ownership, an equally stringent duty to assist the poor derives from Lockean reasoning. This point too, of course, is unacceptable from Nozick's libertarian perspective. But then, in addition to providing its historical root, what is the role of Lockean theory in Nozick's argument. It is, after all, unclear. Nozick is elusive on this point. He seems to promise a more complete articulation of his theory, which, however, will never come, neither in the later pages of Anarchy, State and Utopia, nor in other works. We have seen, moreover, that he will deal very little with political philosophy in later years.

Possible interpretations

The issue, therefore, is a source of various interpretations. Jonathan Wolff proposes three. "The first would suggest that Nozick generically accepts Locke's defence of private property on the basis of his 'built-in labour' theory, and although he criticises many parts of Locke's argument, an amended version of his theory seems acceptable to him. The second interpretation predicts that Nozick rejects Locke's argument in its entirety, but concludes that some version of his limiting clause is a necessary condition for the justification of original appropriation (...) The third interpretation suggests that Nozick simply accepts and regards the Lockean clause as a necessary and sufficient condition for justifying legitimate appropriation. Neither of these interpretations seems fully satisfactory,' Wolff concludes, although the third would seem the most faithful to the spirit, if not also to the letter, of Nozick's thought.

The limiting clause

As we have said, Locke's starting point is correct but incomplete. His limiting clause is also correct but in Nozick's eyes appears too demanding. The clause, let us remember, requires that after the original appropriation of a certain good, the situation of all others should not be worsened. For the New York philosopher, however, this requirement is excessive. In this regard, he presents the example of an individual who appropriates materials with which he builds goods through which he will compete with another producer of similar goods. The situation of the second individual is certainly 'worsened' by the presence of a new competitor, but this 'worsening' cannot be a sufficient reason to consider the original acquisition made by the first one illegitimate. Nozick generalises this reasoning by means of a procedure that game theorists call backward induction, a reasoning that works as follows: "Consider the first person Z for whom there are no longer sufficient and equally good things left to appropriate. The last person Y to appropriate something has left Z deprived of his previous freedom to act on an object, and has thus worsened Z's situation. Thus the appropriation made by Y is not permitted by Locke's limiting clause. Thus, the penultimate person X to appropriate something left Y in a worse position, because X's act ended the series of permissible appropriations. Thus, the appropriation made by X was not permissible. But then he who appropriated something before the penultimate one, W, ended the series of permissible appropriations and therefore, because he worsened the position of X, the appropriation made by W was not permissible. And so on, backwards to the first person A who appropriated a permanent property right' (p. 188). If the limitation clause worked in this way, as Nozick thinks it does in Locke's version, it would be logically inapplicable. Therefore, a more sophisticated version must be thought of. In this regard, Nozick points out that the harm that someone might obtain from someone else's original appropriation of a certain good may result from two distinct processes: 'first,' he writes, 'by losing the opportunity to improve one's situation by a particular or any appropriation; and second, by no longer being in a position to use freely (without appropriation) what he was previously able to use'. This distinction is important because while the Lockean clause prohibits both conditions, it is possible to think of a weaker version of it that would exclude the second way, but not the first. By virtue of this weaker requirement, 'although person Z can no longer appropriate anything, there may be something left for him to use as before,' Nozick points out.

The comparative advantages

What the philosopher seems to be suggesting with this passage is that the situation of one who is excluded from a possession need not worsen as a result of the possessions of others. This can only happen as long as he can, while not possessing them, use those possessions or derive benefits from them that he would otherwise not have been able to obtain had those possessions not been established. This is a version of the classic argument in favour of private property and comparative advantage: if goods are allocated to those who can make the most of them, it is eventually possible to imagine forms of compensation or exchange that generate mutual benefit and allow those who possess and those who do not possess but can use them to be better off overall. This is why it is possible, Nozick continues, to consider as legitimate a situation in which 'a person whose acts of appropriation would otherwise violate the limitation clause, can still make the appropriation as long as he compensates others so that their situation is not made worse; if he does not compensate them, his appropriation will violate the limitation clause' (Anarchia, Stato e Utopia, Il Saggiatore, 1981, p. 194).

The original property

We can conclude, then, that for Nozick the reason for the legitimacy of an original appropriation through the input of labour lies in the fact that we already possess our labour, in a manner not unlike the way we possess ourselves, and thus inextricably mixing something we possess in such an original way with something we do not yet possess but over which no one has ever legitimately claimed a valid title, makes this matter our legitimate possession. Ownership of something we already possess - labour - infects, as it were, that which no one yet possesses and can do so because the nature of the ownership we can claim over our labour is similar to the ownership we can claim over ourselves, i.e. an original ownership. This process is entirely legitimate but only as long as the 'principle of rectifying justice', the Lockean clause, that is, in its 'weakened' version, is respected. The original appropriation must not limit anyone else's opportunities, and if this were to happen, some form of compensation would have to be provided. The debate around the siting of wind farms or photovoltaic parks, the rights of communities and individuals who lose possession of that land, and the role and forms that compensation for their benefit should take, could emerge enriched, I believe, by an albeit minimal perspective of this kind.