A Thinking Reed

"Man is but a reed, the most feeble thing in nature, but he is a thinking reed" – Blaise Pascal

Property and justice

My earlier post wasn’t intended to be a comprehensive critique of libertarianism, but one interesting issue that came up in the comment thread was the justice of initial property acquisition.

Libertarianism, at least in its natural-rights form, says that holdings in property are just if they are the result of just initial acquisition and voluntary exchange. So, if someone justly acquires some property, and that property is transferred by means of voluntarily entered-into contracts, then the resulting pattern of distribution is just.

One problem that vexes this account is how property can be justly acquired in the first place. The main tradition, going back at least to John Locke, is that one acquires a right to some piece of property when one removes some resource (e.g., a portion of land) from the “state of nature.” One does this by “mixing” one’s labor with it. Determining what adequately counts as “mixing” in this scenario is notoriously difficult, and, it should be noted, Locke held that such initial acquisition is only just if one leaves “as much and as good” for others (the so-called Lockean proviso).

But beyond this question, we might also ask whether it’s correct to say that natural resources start out unowned in the first place. Why suppose that the earth belongs to no one and that, therefore, anyone may remove resources from the common pool and take them as their own private property? Does everything start out unowned, without anyone else having claims upon it? At the very least, this assumption requires defense, since it’s not obviously true.

An equally plausible assumption might be this: every person (or maybe even every living, or at least sentient, creature) has a prima facie claim on an adequate portion of the earth’s resources to enable it to live a good life according to its capabilities. In other words, the earth is held in common by all living creatures to support their needs.

The plausibility of this assumption can, I think, be buttressed by considering the alternatives: if no one has such a claim, then how can anyone be expected to survive and flourish? Alternatively, if only some have such a claim, then there must be some morally relevant difference between those who have this claim and those who don’t. But what could this be?

The assumption that all sentient creatures have a prima facie claim to some portion of the earth’s goods is, at least, not obviously false, and it strikes me as having equal or greater plausibility as the assumption that material resources start out as unowned and open to unlimited private appropriation.

Even, however, if there is a theoretically possible immaculate conception of private property along the lines proposed by natural-rights libertarians, once we turn to the real world, we’re faced with the fact that very little of the existing pattern of property distribution is traceable to a pure origin. As philosopher Peter Vallentyne, a “left”-libertarian puts it:

According to libertarianism, the justice of the current distribution of legal rights over resources depends on what the past was like. Given that the history of the world is full of systematic violence (genocide, invasion, murder, assault, theft, etc.), we can be sure that the current distribution of legal rights over resources did not come about justly and that adequate reparations have not been made. At the same time, however, we have little knowledge of the specific rights violations that took place in the past (e.g., we have little knowledge of all but the most egregious rights violations that took place more than one hundred years ago). Thus, we have little knowledge of what justice today requires.

To treat the current distribution as a just baseline, then, would require ignoring the very principles of justice that natural-rights libertarians want to uphold in the first place. At the very least, this calls into question the usefulness of this ideology in providing clear-cut answers to problems facing us in the real world. By contrast, the alternative proposed above: that everyone has a prima facie claim on adequate resources, could provide concrete guidance in assessing the justice of currently existing arrangements.

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8 responses to “Property and justice”

  1. Rick Ritchie

    So let’s say I own a blanket. Someone walking down my street decides he’s really cold. He knows that I probably have a blanket in the house, and then thinks that there is likely some injustice in this. Perhaps the cotton mill has existed since the time of slavery. Is this possibility of past injustice enough to justify his entry into my house to take the blanket?

    My point here is that I think this “just distribution” idea is too vague to be helpful. I would be more inclined to take an expansive idea of “mixing labor” into the natural resource. The act of shopping for the product would give a claim to the person who bought a product over a stranger off the street who did not. (Why should the stranger get the benefit of my searching for the best product I could find?) If you could prove that the good was stolen, that’s another story.

    As to people having a claim on adequate resources, something in this idea is fruitful. If there is no land anywhere open to someone, I want to know why. Here I think the government holds too much land for itself, and does what amounts to too much free policing of large areas of land for others. At this point I think that you can make a case that in the state of nature people couldn’t naturally hold land beyond what they could pay to police. To hold more would be a privilege, not a right.

    But how do you see a concept like this being helpful when you are talking about something like developed property?

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  2. Gaius Sempronius Gracchus

    Lee,

    Am I misreading you?

    You seem to be conceding the libertarian ideas

    (1) That justice in holdings depends entirely on how they are gotten,

    (2) That the justice of processes of acquisition doesn’t depend in any manner or degree on their outcomes, and

    (3) That in any case neither holdings nor processes of production or acquisition are rightly and necessarily subject to wholesale state regulation, revision, or replacement to reflect a social compact, democratically arrived at by the sovereign people, governing the economic life of society.

    No to mention the libertarian errors

    (4) That what is just acquisition can best be determined by looking at an imaginary state of nature, and

    (5) That what seems just in such a circumstance is not only just in civil society but binding on civil society.

    Your substitution of the Catholic and stoic natural law claim of intrinsic universal right (which I would have endorsed a few years ago) for the libertarian view of individually acquired natural right in resources seems to reflect your continued acceptance of that framework.

    Oh, and you seem to rely for your argument on the general libertarian rejection of the idea that the passage of time and generations can cause to lapse the claim that holdings are unjust because unjustly acquired.

    Land titles in Britain, for example, are neither morally nor legally undermined by our recollection of the successive invasions of Angles, Saxons, Jutes, Danes, and Normans.

    Nor is it anything but the same mistaken fixation on processes of acquisition that would lead to the notion that there are or must be just rules of inheritance that would enable us to determine who, at this date, are the rightful heirs to the land of Great Britain, given enough relevant historical and biographical detail concerning the hundreds of millions of people involved, all the way back to those invasions.

    That is not just false but absurd.

    Old news, old enough, is simply irrelevant.

    I repeat, to believe otherwise is a result of that same libertarian fixation on the processes of acquisition and total denial of other factors that can be far more important in deciding the justice of anything at all related to the economy, and help us individually and collectively decide what processes are just in the first place.

    This is not to say that I don’t agree with you that current holdings are massively unjust.

    I think they are for a variety of reasons including their vast inequality and their perpetuation by unjust legal authority.

    But nothing could be further from my mind than the related errors that they are unjust because, and solely because, their history includes episodes of unjust acquisitions and that there are right now, though unbeknownst to us all, rightful heirs to whom all holdings could and should as a matter of justice be restored.

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  3. Lee

    So I guess this post wasn’t as clear as I’d hoped…:)

    I don’t accept the idea that “justice in holdings depends entirely on how they are gotten.” What I was trying to suggest is that even if you hold that, present-day holdings don’t even approximate justice, and, further, that the libertarian principle of justice in holdings doesn’t provide sufficient guidance for what to do in such a situation.

    However, I do think how holdings are gotten does bear on their justice. As Rick suggests, there are plenty of common-sense cases where how someone acquired some property is quite relevant to whether or not they’re entitled to it.

    But these kinds of considerations have to, I think, be balanced or constrained by others, one of which is need. As St. Thomas argued, a man in great need would be justified in stealing under some circumstances. So, justice can’t just be a function of how property is acquired.

    I think this idea is under-girded by my “plausible assumption” that everyone has some claim on adequate resources for them to live and flourish, and this assumption is similar to the Catholic Church’s teaching on the “universal destination of goods.”

    Specifically, as the catechism says, “God entrusted the earth and its resources to the common stewardship of mankind to take care of them, master them by labor, and enjoy their fruits.” Private property is legitimate, but can be regulated by political authority for the sake of the common good. The common good here would include not just cases of others’ needs, but attempts to address “externalities” like pollution.

    I also suspect that there’s no universally right answer to how these principles should be worked out in any particular context. That is, different societies might well have different rules for regulating property, all of which are consistent with justice. Rules of property are largely historically evolved, not attempts to instantiate some a-historical ideal.

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  4. Rick Ritchie

    “As St. Thomas argued, a man in great need would be justified in stealing under some circumstances.”

    I probably agree with St. Thomas here. There is a further question of whether you want to change the law against stealing so that this is not longer regarded as illegal. I think it should be regarded as illegal, and when the circumstances are known, probably be left unpunished. The individual should know he is crossing a line, and is only doing so because circumstances really do demand it.

    This is similar to torture. The laws should forbid all torture. If there are some extreme situations where it ends up being best, I still think it should be against the rules. And those who do it should probably expect to be prosecuted.

    When you speak of “adequate resources,” are you primarily imagining raw materials or finished products? If the latter, you are saying each of us is born with some kind of claim on the labor of others. I would want to know how that is determined.

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  5. Lee

    Rick, regarding the first point, I think the logical solution is to institutionalize some form of welfare so, instead of people taking from others on an ad hoc basis, society discharges this obligation of justice in a more formal, structured way. (As pretty much all developed societies have done to some extent or another.)

    On the second point, by “adequate resources,” I just mean those things people need for flourishing lives – food, shelter, education, etc.

    Now your objection is that this gives people a “claim on the labor of others.” I assume you’re referring to the fact that any scheme of redistribution or common provision of goods would be financed by taxation? But what I’m asking is whether people are necessarily morally entitled to their entire “earnings,” since those earnings reflect, in part, inputs from natural resources which are – or so I maintain – held in common. I’m by no means convinced that this is an adequate account, but that’s where my thinking is at.

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  6. Rick Ritchie

    I think that the idea of the original post, that everyone has some kind of claim on natural resources is good as a question that can be put to our arrangements. What I want to know is whether our society acts towards the natural world in a way that leaves people free to use it.

    What I fear is that this idea of using natural resources will be conceived as follows. Everyone who has property now has gotten a certain amount of it by fraud. So since everyone is guilty, everyone should be willing to give out a certain part of their holdings back so that the needy will have enough to sustain them. In this way, our common holding of the earth and its resources will be honored.

    The problem with this is that it fails all parties. There will be a certain number of people who did not get their property by fraud. So they are being stolen from supposedly to create justice for others. Also, it ignores how common holding is being controlled by a state which through vast land holdings, zoning laws, and any number of laws makes it difficult to own and live on property. Welfare rarely turns people into owners in any real sense. So the little that people are given doesn’t really make things right for them.

    I think there are ways of framing this so that the needy don’t have to have anything given to them. They will be able to take, not from other people, but from nature. That idea has virtually disappeared from our world. I think that welfare ends up doing most of its giving from the other side of the equation. What is given is the fruit of the labor, often with little of value by way of natural resources.

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  7. Lee

    I think you raise a good point that we need to think harder about ways in which opportunities for use are being foreclosed by our established arrangements.

    I also wonder if the tangled web of historical deeds and misdeeds makes any backward-looking principle of just entitlement useless.

    Reply
  8. Camassia

    […] a short post about property rights that led to a lengthy comment thread, which he followed up on here. This has led me to several different trains of thought, which I might elaborate on later. But for […]

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