II. Property: The General Story

The general story is clear enough. We have property because we need it, or at least want it, or, most likely of all, want things that require property notions and rights in order for us to have them. Moreover, we have the institution of property rights because we are particular people, vulnerable to various interventions by other people, and not happy at the prospect of continual incursions from them. For human beings, drawing lines around stable things and designating them as “belonging” to certain individuals as such, and thus not belonging to others, is just what is necessary to enable us to get on successfully with our lives.

Property is exclusionary. To say that x “belongs” to A is to say that others not identical with A are not to use x without A's permission. Others are, in short, excluded from the sort of unilateral voluntary utilization of x that was enjoyed by A at the time of his initial acquisition of x. A is in charge: A becomes the authority on the use of x, and thus has the authority to exclude others who would make competing use of x. This I take to be a matter of definition.

On that point, we must make a further distinction, following Jean-Jacques Rousseau (among others).Footnote ² This is the distinction between possession and ownership. ‘Possession’ is understood here as a purely descriptive relation between the possessor and the thing possessed, while ‘ownership’ is understood as a normative concept. If, after stealing it, I am in possession of your BMW, I am able to use it without your permission, though I have no right to do so. Likewise, if you own the BMW, then you are normatively permitted to use it without anybody else's say-so, though it does not follow that you are actually in a position to do so. Ownership, then, is entitlement to possession, which is to say, entitlement to use the thing oneself and to exclude others from using it. Ownership is also transferable, being a set of alienable rights. These rights are not only alienable but decomposable, so that one can transfer a part of one's rights, or transfer one's rights temporarily, and so on, to designated other parties. What makes ownership ownership is that the owner has the normative authority to do these things.

III. Self-Ownership and Liberty: The Latter Not Founded on the Former

Many authors have treated ‘self-ownership’ as a basic concept, from which comes our general right of liberty; in turn, all other property stems from that general right. I think this view is mistaken. But there are different reasons why one might think it is mistaken. One thought would be that the concept of ownership is logically inapplicable to the self. Another would be that the idea of ownership of the self is morally objectionable. A third view would be that although neither of the first two objections can be sustained, it is also not the case that the ownership of anything else that can be owned comes from self-ownership.

The first view holds that the concept of ‘ownership’ does not apply to oneself. On the face of it, though, it seems as though the concept does. For to say that one owns anything is to say that others may not use it without one's permission. To say that one “owns oneself” is to say that others may not use one's self without that self's permission. Why, then, would there be a problem?

Those who object to such talk complain, especially, that in the case of our selves, the notion of being able to market those selves, transfer their ownership at will, and the like, does not apply. But those complaints are not obviously correct. Among the larger issues discussed among libertarians, for example, is the issue of whether voluntary slavery would be permissible. If it would be either permissible or not permissible, however, then transferring ownership of oneself is evidently being treated as at least logically possible. Thus, slavery as normally understood surely appears to be a case in which person A is owned by person B: A does not get to do with A whatever A chooses, being instead compelled to do what B chooses. This does not seem to be such a stretch; indeed, it seems to be the natural way to describe the situation. Whether slavery is normatively shipshape is, of course, an issue—if perhaps a dead one by now. But how could it ever have been an issue if the notion of ownership of selves doesn't even make sense in the first place?

Voluntary slavery is, of course, tricky. For one thing, it sounds like a contradiction in terms, slavery being quintessentially involuntary. For another, it is difficult to see what's in it for the voluntarily enslaved person. My hiring myself out to do a job for someone, in return for payment, makes so much sense as to be paradigmatic of the whole idea of employment. My “selling” myself into slavery suffers from an obvious problem: it's hard to see how I could be in a position to collect if slaves have no authority over themselves; the slave owner could simply prevent the now-enslaved person from collecting, ever. And there are other issues. For example, what if the voluntarily enslaved person has a change of mind, or heart, and wishes to withdraw? If the contract of slavery specified conditions for termination, the previous problem would obtain; that is, the owner could simply prevent the enslaved person from suing for the enforcement of the contract. If this problem did not obtain, if the enslaved person had the option of suing, then would we not have to say that the individual in question was not quite a slave? Slaves ordinarily so called had no such options, after all.

The voluntary slave could perhaps make a contract calling for payments or other compensation to someone other than the slave (e.g., to his wife). In such cases, there might be legal enforcement of the condition as well. There is still a question about the moral acceptability of any such thing, and a question about whether a rational being could contemplate binding himself thus; but neither of those points casts doubt on the applicability of the terminology of ownership in the context of slavery. And we do read of the Roman era and others in which slaves could accumulate income and buy their release from that condition.Footnote ³

If self-ownership were self-evident, it is hard to see how there could ever have been such a thing as slavery. If I own myself, then you don't, and if that is self-evident, you not only don't but can't. Yet slavery was practiced in a wide range of human societies, for a very long time. All this suggests that the ownership of persons by themselves is conceptually possible, and is basically on a par with the ownership of any other things that can be owned.

The second view is that talk of self-ownership is morally objectionable. This objection, of course, is partisan: that is to say, whether we are going to hold that people do indeed own themselves depends on what we think of freedom. People can ruin their own lives, or so we think. But even if we grant that, there is the question whether they have the right to do so. And there is, at least, a considerable weight of popular opinion behind the libertarian's view of the matter: the right to “go to hell in a handbasket” is one that we can defend without in the least endorsing any individual's choice to take that path.

In any case, I argue here for the third alternative: that, while self-ownership is both coherent and morally defensible, it is not helpful to suppose that the general right of property is founded on self-ownership. The argument that property is so founded would hold that the general right of liberty stems from self-ownership, and that the right of property follows from that general right. The problem here is fundamental. There seems to be an idea in the literature that the general principle of liberty, as in John Stuart Mill and John Locke, rests on the notion of self-ownership as its foundation.Footnote ⁴ But the preceding analysis should make it clear that this cannot be so. To act is to use oneself in some way—to put oneself into motion in some direction or other. Being at liberty means that one acts as one's own self directs, rather than as some other self directs; it therefore means that one uses oneself as one directs. The moral thesis of self-ownership asserts that this liberty is rightful. But if one wants to claim that people “by nature” own themselves, then one is simply proclaiming their general freedom to do as they please—which is exactly the libertarian principle itself, neither more nor less. The libertarian principle may be unfounded, but it cannot coherently be said to be founded on self-ownership, for to say that is to say that it is founded on itself.

IV. Self-Ownership and Self-Possession

Perhaps what is meant by the claim that the general right of liberty is founded on self-ownership is something else: what we may call self-possession. Recalling our distinction between ownership, which is moral, and possession, which is descriptive, we can see that it is plausible to say that people “by nature” possess themselves. Individuals, we may say (and I would say) are essentially “souls,” that is, personalities, minds. The point of self-possession talk would be that each individual is built in such a way that the decision-and-control parts of the individual's mind are connected with a certain body, and with the rest of the same mind, in a manner enabling that particular decision center to exercise (to whatever extent) direct control over that body. That is what makes us call it “his” (or “her”) body and mind.Footnote ⁵ Paralysis might disable some of the connections that normally obtain; external interference might make normal control difficult or impossible. But still, it is a fact about people that they can get their bodies moving on the say-so of the decision-and-command-making faculties that define those people as the particular persons they are (however those faculties are to be conceived).Footnote ⁶

Nevertheless, it of course does not follow from the fact of possession that we have a particular normative status in doing either some or all of those things that we can by nature do. If there is anything to the idea that getting from ‘is’ to ‘ought’ is a problem, this is surely a case in point. Let A be ever so competent to decide to do this or that, the question whether he ought to do it, or even has a right to do it is logically open, as the foregoing discussion of slavery makes clear. It is a matter of substantive moral principle to say that he does have such a right or obligation. No amount of sheer description of how the human frame is put together will suffice to establish any normative claim about the relation between decision-and-command-making faculties and the associated self.

V. Property: Public and Private

Discussions of property tend almost exclusively to be discussions about the legitimacy, extent, and nature of private ownership. This is understandable, but it has to be pointed out that there is no inherent reason why ownership cannot be public as well as private.

Using land as our prime example, we can distinguish three categories of ownership here:

1. (a) “Common” in the sense that there is no ownership;

2. (b) “Common” in the sense that there is collective ownership by some group or other; and

3. (c) Private ownership in the usual sense, that is, ownership by a person as such—one person (normally, or in the first instance), or else sets of persons who, in some specified arrangement, share control over the thing owned by them.

Each of these categories plays an important role in political communities. To be sure, the first and third categories, no ownership and private ownership, are prima facie nonpolitical. More precisely, we can distinguish between moral and political types of ownership (or senses of the term ‘ownership’) and can then note that the case for A's being taken to be the legitimate owner of x may be exclusively moral, or it may be political and legal in the sense that the question is whether A's possession of x is recognized and upheld in law or in the political structure of the community in question. I claim that the moral sense of ownership is the basic one, so that what we are discussing here is essentially moral, but with important and pervasive connections to the legal and political realm.

It is part of the logic of society, as we may put it, that ownership must begin with non-ownership, and that the beginnings of ownership must be by some process of acquisition. But how does this work? It is to this question that I now turn.

VI. From Self-Ownership to Thing-Ownership?

Moral and social philosophers have long been concerned about the status of property in respect of things external to the self—though more recently, and interestingly, they have also been concerned about things such as intellectual property, which is (in a sense) not external, though its connections with what is external are very strong. We will see that the very nature of intellectual property (as an interface between the internal and the external) makes it important for the subject of ownership of “externals” in the more usual sense. Meanwhile, the situation has been, generally speaking, that many philosophers are inclined to accept some such thesis as self-ownership, but are disinclined to accept, without considerable qualification, ownership of things. The qualification in question is substantial. For if we suppose that whatever people earn by their work, with conditions of payment negotiated by parties acting voluntarily, counts on the face of it as theirs, then rates of taxation running from 30 to 50 percentFootnote ⁷ would seem to fly rather strongly in the face of accepting private ownership with any sort of robust conscience.

Why the concern? What makes theorists hesitate to accept that people can fully own various bits of the world? ‘Fully owning’ would mean that the owners may do whatever they want with the things in question so long as it does not violate the same rights of other persons, rights to themselves and to their property. But to say this is not to say very much until we are reasonably sure just which rights they have, and that is less than obvious. As a general principle, though, we can certainly say that the right not to be harmed by others is paramount here. And, as another very relevant fundamental principle, we can say that the notion of ‘harm’ must in the end be determined by the interests of the person in question, as that person sees them. Footnote ⁸ Thus, we have David Gauthier's lucid formulation, that A is not to pursue his interests by thwarting those of B, unless there is no other way for A to avoid damage to himself.Footnote ⁹ Each person is a sort of barrier, or boundary, to each other person, not to be crossed without that person's permission, actual or implied.

Keeping this in mind, we need to ask: Why is the acquisition of property such a contentious issue? The reason is that appropriators of bits of the world, insofar as they engage in such appropriation, are accused of a sort of theft. It will be said that such acquisition cuts into the natural supply of resources available, in principle, to all, and that it deprives the excluded from a liberty they previously had. Thus, Freyfogle writes:

So when individual A acquires bit of land x in what appears to be a condition of wilderness, no other persons being present, theorists like Freyfogle have a surprise for him: people in general do have a claim on this land, despite their absence—indeed, despite the fact that, in most cases, they have not even been born yet. This thesis, which is apparently affirmed even by the otherwise sensible Locke,Footnote ¹¹ evidently presumes that, somehow, everything basically belongs to everyone, where ‘belongs’ is taken in a strongly normative sense. For if it did not belong to them, how could the person who takes it be accused of taking it from them? So understood, this thesis is among the more intriguingly subversive bugbears of social philosophy.

To claim that everything “belongs to everyone” is, on the face of it, to claim that each person has the “right” to exclude every other person from the use of everything, that is, of any natural object whatever. This seems to be a textbook example of utter nonsense at work. Consider any thing, x: the claim implies that person A has the right to exclude B from use of x; yet, on this idea, person B in turn also has the right to exclude A from the use of x. So A may compel B to desist from using x, thus leaving A free to use it, but meanwhile B may also compel A to so desist, thus leaving B free to use it. Thus, the claim models the “condition of nature” according to Thomas Hobbes, where “every man has right to every thing.”Footnote ¹² But in the usual sense of the term ‘right’, what one has by right others (by that very fact) do not have, and thus the right-holder may legitimately defend his right, others being in the wrong. Obviously, to try to make this universal is simply nonsensical, as we have just seen. No coherent assertion about rights can be derived from this claim.

Any such claim, then, if it is to make any sense, has to be understood collectively. So understood, there is the usual problem that collectives do not have minds, and thus some kind of internal structure of command and control must be envisaged here. And what will that be? One tradition identifies it with the will of the King, who personifies “the community”—whether I or you happen to go along with that identification or not. Persons of liberal persuasion, in turn, will interpret the command-and-control structure democratically: the collective will make decisions about what to do with its estates by majority rule. For all x, then, the majority decides what is to be done with x and by whom. Yet majority rule is the very juggernaut against which individual rights are typically asserted in the first place: a right is what a mere majority does not get to overrule. Rights are a constraint against the majority, rather than a status that is entirely theirs to decide.

Whether those who agree with Freyfogle are correct in holding that the excluded individuals are somehow harmed by the first-comer's ownership of things is a crucially important question, and I will argue that they are not harmed. My reasons are as follows.

To begin with, if the idea is that excluded individuals are being harmed in the particular way that property owners are harmed by robbery, then the idea can be denied straight off. To say that excluded individuals are thus harmed is, really, to deny that there is such a thing as “property”—that natural items ever can be “acquired”—since, of course, for anyone to acquire anything is, logically, for others to be excluded from future use of it by the acquirer. But since, by hypothesis, the excluded individuals already “own” the things in question, they cannot be so excluded. And since ownership is, by definition, rightful use with power to exclude, it is a plausible inference that the situation of supposed “universal ownership” is a situation of universal uselessness.

Next, we observe that notionally, at least, “first-comers” are precisely people operating in a hypothetical environment in which no others are or have been around to acquire claims arising from previous use. Thus, by hypothesis, there simply is no one there to be “harmed,” unless the question is begged by simply proclaiming the possession of rights over things by all, prior to and independent of any use anyone makes of the things in question, and in the absence of any reasons for the proclamation.Footnote ¹³ That can hardly qualify as an “argument” for the claim that those rights are due to the harms to these individuals that would be caused by prior occupation.

Finally, we may ask whether possible future acquirers are indeed deprived of a liberty, as Freyfogle claims. I argue that they are not. We are all at liberty, given an environment in which there is unacquired potentially useful stuff lying around, to attempt to acquire some of it. We still have this liberty even though others have used the same liberty successfully in acquiring this or that bit of stuff. But we are not morally at liberty to acquire what others already have, and we are not automatically entitled to any particular bit of the Earth, or indeed to any of it at all. We must either earn what we have, by making or discovering or occupying it, or else be given it by someone else who legitimately has it. Now, first-comer A does not prevent B from attempts to acquire something; he merely, by being there first, prevents B from becoming the possessor of this already-possessed thing. Since nothing can be wholly owned by more than one independent party, the fact that occupancy by one person prevents occupancy by others obviously cannot visit a “harm” in the sense of a deprivation of something the others could also have had. For they “could have had” the thing only if someone else did not have it. Obviously, there cannot be a universal right to all things. There can only be a right to exert oneself in the pursuit of one's goals, given the similar right of others. And the acquisition of something one would like to have had, by someone else, does not deprive one of that right. Nor does it deprive one of the thing itself, which of course one did not have before. This means, therefore, that acquisition does not visit harms on others.

Meanwhile, of course, most finders of things do not operate in an uninhabited environment, and when they do not, there are others “around,” with possible claims to be considered and cleared before acquisition by a particular individual can be legitimate. Most ownership issues will require negotiation and agreement at some point, leading to the adoption of more specific rules about many matters. Yet one of the premises that has to strongly influence the formulation of such rules is that an individual's use and occupation of some bit of nature, in the evident absence of others making competing claims by their presence at the time, gives that individual's property claim a very strong priority over any other claims. Possession, as the saying goes, is nine points of the law. In state-of-nature cases, make that virtually ten.

VII. The Positive Argument for Liberty— and, Therefore, Property

The idea of self ownership—that is, of a general right to liberty—is rooted in our particularity and our individuality. Persons are separate: one person's purposes are not another's; there is no necessary normative output from A's interests to B's. Consequently, when the pursuit of interests is to be curtailed by consideration of the interests of others, this will have to be due to aspects of interaction, specifically the impinging of some persons on others in such a way as to create a potential for cooperatively derived mutual benefit—or the reverse. This provides genuine reason, seen from each agent's internal point of view, for restricting one's own pursuit of benefit: the reason is simply that we stand to do better with such restrictions than without them, provided, of course, that others accept such restrictions as well.

This abstract result seems to be viewed with alarm by many theorists, who apparently suppose that morals must require self-abnegatory altruism. The trouble with that, however, is that selves are the only beings with interests; they are, normatively speaking, all we have, and therefore, negating them means, on the face of it, abandoning the whole point of being someone in particular—as we all are, after all. If the point is generalized, then it raises the problem that if my self means nothing, why should anybody else's mean something? If the satisfaction of some self doesn't count, independently of who provided the sources of that satisfaction, then the point of altruism is as completely defeated as the initial self-interest to be abnegated.

Our individual persons and pursuits are what we have, and the general principle of liberty protects us in being the persons we are, doing what we want to do, and thus acquiring what we can and want to acquire, compatibly with the similar right of others.

VIII. Original Acquisition Is Exchange

Once things are acquired, their owners, having the right to do whatever they wish with the acquired items, provided they do it peaceably in relation to any others encountered, may proceed to exchange. Exchange, if voluntary, is for mutual benefit: A exchanges his x with B's y because A prefers y to x and B prefers x to y; otherwise, the exchange would not voluntarily take place. Thus, both benefit from the exchange. Persons acquiring the sort of property (e.g., land) that can be improved by making it more productive of things (e.g., crops), the rights to which can be transferred from one person to another, will most likely proceed to just such exchanges, given the familiar story of diverse abilities and tastes as well as diverse resources.

What needs to be appreciated is that the situation leading to “original” acquisition is itself actually one of exchange. Each of us, as Hobbes puts it, “lays down” his or her liberty to interfere and “despoil” in exchange for similiar forbearance by others. The benefit of peace is a strictly public good: A can only get it from B, and B from A. Both are better off with it than without it, and so, if these value assessments are right, peace will be sought by reasonable people as a fundamental good and, indeed, the precondition of all other goods, including that of acquired property. When A allows B to acquire, and B allows A to acquire, they are trading liberties.

This provides an underpinning for taking the point of view of the “social contract”: self-imposed restriction of one's pursuits will be motivated by those very pursuits, in view of the ways that others relate to one. Classically, the social contract idea has led to major emphasis on what have come to be called “negative” rights: the agreement to refrain from inflicting damage on the other person, in return for a similar resolution on the other's part. Despite being negative, these rights are benefits in relation to what could otherwise be expected. They are, indeed, enormous benefits from the point of view of nearly anyone. If the social contract works, we are all safe from each other's capability of inflicting all manner of losses, up to and including death: we receive the benefit of being able to count on being alive tomorrow and next year, insofar as death could result from the intentional activities of others. For all of us, being alive is a necessary condition for accomplishing anything we are interested in—even suicide, which requires that its subject be alive to commit it. But more generally, being free from the predation of others, and not just having one's life intact, is a necessary condition for our accomplishing anything at all. The social contract recognizes this, in the ways made familiar by Hobbes and Locke: The “First Law of Nature,” Hobbes writes, is to “seek peace” and resort to violence only when peace is not available from others.Footnote ¹⁴ Locke, in his very similar version of “the Law of Nature,” has Reason telling us that “no one ought to harm another in his Life, Health, Liberty or Possessions,”Footnote ¹⁵ with a subsequent reference to people's “Lives, Liberties and Estates, which I call by the general Name, Property.”Footnote ¹⁶ That all this should be reasonably accounted “property” is what I shall argue further below. The general case of being able to use one's body and mind implies the slightly more restricted case of being able to use them to manipulate, fashion, and transform various bits of the world into bits more to one's liking and more conducive to flourishing and longevity.

IX. The Basic Reason for Property

Property is closely bound up with negative rights. Indeed, it essentially is a negative right (or several?)Footnote ¹⁷ itself. To own something is for others to be required to keep off. They are already, we are supposing, required to keep off you. You have property only if others are required to keep off it, unless you permit them to use it. So we can now pursue the central question of how to get from “you” to “it.” What connects them? I believe that the answer is not very far to seek, even if it isn't exactly staring us in the face.

Ownership is a normative relation with three terms: (1) you, the owner; (2) whatever you own; and (3) everybody else. It is not a relationship between you and the thing owned, simpliciter. This seems not to have been appreciated by some writers, and one can only suppose that the reason is that from the point of view of the owner, it might look that way. But to think that is to confuse possessions with property. When I merely have something in my grasp, that has no immediate entailments for what anyone else ought to do, though it might have implications for what they would need to do if they are to get it out of my possession. But as soon as someone else makes a claim to the thing, I need to show that my possession of it is not only a fact but also legitimate—that my claim is reasonable, and thus to be respected. That means that the relation between me and that thing has to be claimed by me in such a way as to imply that you, and others, are morally (or, as may be, legally)Footnote ¹⁸ required to keep off. That is what is meant by insisting that ownership is three-termed, not two-termed. To fail to recognize this is to deny ownership any potential for resolving any normative problems. It can resolve such problems only if A's ownership has reasonably clear implications concerning what B, C, and so on may or may not do.

X. All Rights Are Rights to Act

There is another point to emphasize about the nature of rights: rights all fundamentally concern actions. A “right to a thing” is a right to do something with it. My rights against you are rights that you do or not do certain things to me, and, similarly, that I do or not do them to you. Any assertions about rights “to things,” as we are accustomed to putting it, are assertions about what we may do in relation to each other, with or to or about the things in question. Rights enable us to tell each other where to get off—where to desist from doing what one might like to do (or perhaps not only to desist, but to do something else quite specific instead). Rights, then, relate the will of the right-holder to the wills of all others. The right-holder may do this or that, and this means that others are normatively required to refrain from or to do something. On the general libertarian view, the rights in question are, as I have said, fundamentally negative: they say what others are not to do, but not, basically, what they are to do.

Thus, the question is: Which facts about my possession of various things are such as to supply relevant premises for normative claims against the activities of others? To this, the libertarian has a general answer. Libertarianism proclaims that we all have a general right to liberty, and to have that right is, precisely, to have a right that others refrain from interfering with, negating, or undermining that liberty (i.e., interfering with, negating, or undermining the course of action, or inaction, that the right-holder has in mind to engage in). Libertarianism, in short, is essentially the affirmation of a general right against the initiation of force and the use of fraud by others against any person.

Why should we accept such a view? To begin with, I have denied that the hypothesis of a general collective ownership of everything natural has any rational standing. Instead, there is only (1) us—people—a bunch of organisms possessed of and animated by minds, and of various powers, including the power to communicate with each other, and in enough contact with each other to present potential problems for (as well as potential benefits to) each other; and (2) a whole lot of natural stuff which, so far as it goes, has no normative status whatever. What does have normative status is (or stems from) us: our lives, our actions, our interests.

Taken by themselves, however, our individual assertions of value have little purchase against others. To arrive at principles for us all, we must ask what we, collectively, might stand to benefit from and what we might stand to lose from. Abstractly, the case is pretty straightforward: what we each want is whatever is good for ourselves (at least), and what we want to avoid is what is bad for ourselves. So a general prohibition of actions that tend to undermine our welfare is called for, and a general endorsement—but not a flat requirement—of what tends to promote our various welfares is also called for.

How, then, do we get to property? In brief, the answer is that many of our actions involve the use of various bits of the world outside of ourselves. We want to be able to engage in those actions successfully, and to do this requires, generally, that others not intervene to upset those trains of actions, given the plans governing them. Successful actions “require” this in the straightforward sense that noninterference is a logically necessary condition of their success: if you stop me from doing x, then I don't do x, by definition; but x here is, by hypothesis, the very thing I wanted to do.

This can generate misunderstanding, in one important respect. Obviously, many of our actions involve others, and many involve the joint use, by ourselves with others, of assorted material objects, spaces, and processes. A few actions might involve many others. But in virtually all of these cases, it is possible to distinguish between those in the group of persons acting together and those not in that group, with the latter, usually, vastly exceeding the former in size. In those cases, persons outside the group can often act to prevent or greatly increase the difficulty of successful performance by those inside, including oneself. Here, too, property rules will often be necessary, or at least useful. A group of condominium owners (for example) needs freedom from a lot of external intervention, and each of its members has an interest in that freedom. The point generalizes: just as every individual is to have a right of liberty as against every other individual, so too every group, however small, has such a right against every other, however large.

The question from my individual point of view is: How do I induce you to refrain from such interferences? The proposed answer is that I make a very general deal, or arrangement, or agreement, with you: You refrain from interfering with me, in regard to certain bits of the world, and I refrain from interfering with you in your use of certain other bits of it. This is the proposed answer because, given that we are both capable of such interferences, mutual refraining is of mutual benefit for us. We both do better in the absence of such interference: with rights, we do as well as our own powers and our relation to our environment and to each other will enable us to do. This result is far superior to what we would be able to achieve under a regime where interference, by all and sundry, is common and expected (because it is not prohibited).

XI. Property-Respecting as a Moral Duty

The moral dimension of all this is that, for full effect, we want this tendency to refrain from interference to become a strong internal commitment: we want everyone to have an internally monitored aversion to such interfering activity, a disposition to ask before we encroach, and not to proceed without assurance of (or reason to expect) an affirmative answer. The general possession of such a disposition is, I propose, to our maximum mutual advantage. I say “maximum” mutual advantage because this arrangement permits the widest range of potentially useful action on the part of each individual: if we ask for more, it will, by definition, be at the expense of someone else. Moreover, that expense is uncompensated, since if it were compensated to the satisfaction of the affected persons, an imposed restriction on those persons' powers would be unnecessary. For we suppose that we will do what benefits ourselves, and a deal from you leaving me better off does benefit me—but it also benefits you, since you need not have made it, but did so. Hence, we would voluntarily accept such a deal if it were offered, and so, mutual benefit ensues.

All that said, we very often know those with whom we interact well enough that we can, in many cases, anticipate permission from them for what would otherwise be infringements of their rights. Sometimes what I want of yours is trivially costly to you: the cost to you of my asking for it, even when that would be easy to do, exceeds the cost to you of parting with the items in question. Sometimes we are friends and are disposed to help each other out, and sometimes we are neighbors, whose utility profiles are familiar enough to each other that we have developed mutually beneficial patterns of borrowing and trading various helpful things. And so on. But for all these things to work properly, the baseline has to be the general negative right to oneself and one's things, and a habitual respect for them by (preferably) everyone.

XII. Original Acquisition

The preceding exposition emphasizes that the acquisition of things is the beginning of property rights. In the course of action, we use things, and if nobody else is already doing so, then the way is clear for us to use them, and to insist on the right to continue to use them. We do not need to justify our acquisition of x by demonstrating that it will best serve the public good if we are allowed to use it rather than someone else—even though that is, quite often, true. The point is that people being able to use what was previously unused, at will, enables a better-off society. Indeed, it enables that better-off society even in the (presumably numerous) cases in which there is someone out there who might make better use of it than the person who becomes the owner. That is because, on the face of it, the new acquirer, A, adds value, while subtracting none from anyone else. (A is prohibited from doing the latter.) If someone else, B, comes along and undoes A's good work, then B negates this addition of value; and he or she thereby also undoes the pristine Paretian quality of A's activities. I refer here to the criterion of Pareto efficiency, according to which an outcome is Pareto-efficient if it makes no one worse off and at least one person better off. Those who acquire property are better off, and those who don't are not worse off—they are only in whatever condition they were in before (namely, without possession of the thing that the envisaged new acquirer acquires). Of course, this sets the stage for further improvements due to exchanges of property.Footnote ¹⁹

The argument here does not appeal to views about interpersonally compared utility; nor does it appeal to a supposed “intrinsic value” of liberty. The claim that the libertarian argument requires some such premise is made, for example, by John Christman in The Myth of Property, where he writes:

What this seems to amount to is that we are not interested in liberty except insofar as its absence is a restriction on something we want to do because we value it. The reason for attributing “intrinsic” value to liberty is found there: ordinarily we do what we do because we value something enough to do it, as a way of achieving or promoting that value. If that is Christman's point, he is certainly correct. But why does he think this is a problem for the libertarian? It is true that if I am prevented from doing something that I have no interest in doing anyway, then my liberty to do it is not of much interest to me. But suppose I later become interested in doing it, as well I might? Do I not have reason to prefer a system which does not deprive me of that liberty in advance? I think it's obvious that I do, even though I might be ready to trade it off for something more important. But, of course, doing that is not trading off liberty tout court: it is trading off a particular liberty to do a particular kind of thing, and we do that all the time. Trading off our general liberty (e.g., by putting oneself into slavery) is, on the face of it, a very different matter. In short, our liberty matters because our lives matter. A necessary condition of doing anything is that one was not prevented from doing that thing. There is nothing “iffy” or problematic about affirming the importance of liberty, even though it is hardly an “intrinsic” value.

There is sometimes talk of comparing liberty: we want to say that someone's liberty has been enhanced or the reverse, and also that some people have more liberty than others in some places or at some times. On this matter of “comparative” liberty, when someone sees himself to be better off, that involves a comparison, of course; but it need not be a comparison between his own utility state and that of others. Rather, it involves a comparison between two states of himself or, more precisely, two possible states of himself, between which he is to choose. The moral rule about property that I am proposing is required by the criterion of mutual benefit from interaction: an acquisition must not make someone else worse off as compared with what he or she would enjoy in the absence of that acquisition. Here no interpersonal comparisons of utility are necessary; nor do we compare the “amount” of liberty enjoyed by A relative to B. Rather, each person's liberty is to be respected by the other (and any relevant others). In many cases, acquisition is not interactive in the sense that A's taking possession of some item x involves affecting someone else, B, in some way (apart from the fact that A's acquisition means that B is no longer able to acquire that particular item). When no such interaction occurs, the original complaint of the socialist, as we may call him—that acquisition robs the nonacquirer—is pointless, since it is logically impossible for both of two people to acquire the same item. Thus, there is no relevant complaint on that score: we cannot reasonably complain about what is logically impossible. If A's action left B without something that B previously possessed, that would be another matter. In such cases, assuming that B's previous possession of the item was not, in its turn, at the expense of others, then B's permission must be secured by A before A can take possession. However, in the case of initial acquisition, A deprives no current possessor of anything. On the one hand, then, he does not inflict any injury on B. On the other hand, someone's now taking x from A would inflict a harm on A. A currently both has it, and wants it; he prefers this to not having it, else he would part with it voluntarily—and for that, B needs but ask. What we term ‘theft’ is, therefore, the infliction of a harm: it makes the victim worse off than he was in the status quo prior to the thief's act. Were the thief not to engage in thievery, of course, his condition would be the same as it was in the status quo. Thus, theft is, as should be no surprise, action at someone else's expense. It is Pareto-inferior to its alternative.

XIII. Is “Initial Acquisition” a Useful Concept?

Of course, it might be objected that initial acquisition is an empty category, since everything now is owned by someone or other. But that is not entirely true even in the most ordinary sense; and in two further respects—both very significant—it is quite the reverse of true.

I deal first with the ordinary sense in which it is not true that initial acquisition is an empty category. Every now and then someone leaves various objects—“junk,” leftovers, and so on—with the intention of simply abandoning his own right to them. In this case, they go to whomever happens upon them and wants them, thus having precisely the status that natural things have in the social contract account. Cases like this are rare, of course, but far from nonexistent, and certainly not impossible. Some uncharted areas of the world remain as well, and some areas that have been abandoned by previous inhabitants. Of course, all such areas are claimed by some state or other by now, complicating the inquiry. If we argue that states ought to grant maximum freedom to their inhabitants, however, then the rule of first users can be applied by states in such areas, and this too would be a nontrivial domain for the application of the first-use idea.

I turn now to the two more significant senses in which it is not true that initial acquisition is an empty category. The first of these concerns the extremely important case of ideas—intellectual property, as it is now called, including also artworks, scientific discoveries, and inventions. The creator of an invention or a work of art, or an original author, produces something altogether new. While this creation may involve paper, computers, canvas, and so on as material components or production aids, the created work is not identical with any of those. Given that it is the product of its creator and has not previously been in the possession of anyone, we can say, at least prima facie, that authors and artists do acquire rights in their work by original acquisition. (There are, to be sure, serious difficulties. One major difficulty is that, unlike the case with discovering a particular bit of the Earth, it is logically possible for two different persons to come up with the same idea, independently. In the case of scientific discoveries, this is not only logically possible but happens quite often. I discuss this topic further below.)

Second, there is the extremely fundamental case of self-possession. No one owns Louisa Jones prior to her first appearance, and she neither creates nor is given possession of herself. Nor does anyone relevantly create her. Parents, in a sense, produce her, but they do not and cannot create her: they don't work out a blueprint and make up a person out of prior stuff well put together. Insofar as anyone does that, nature does it, and neither parents nor anyone else can claim any entitlement to a child on the basis of natural possession. Rather, as soon as she counts as a person at all (this being, to be sure, a disputed matter) she is also the possessor of that person “by nature” (as I argued in Section IV), but not by nature the owner (as I argued in Sections II and III).

All these cases, ranging from trivial to critically important, show that the category of initial acquisition is not by any means an empty one. Of course, this last case, self-ownership, leans on the others. I possess myself by “getting there first,” by finding myself to be in control of various bits of a certain body and mind, and intimately affected by their various changes of condition; that is what makes me their possessor. It is also what creates my interest in liberty: those of us sympathetic to the liberal view of morals will also declare this prior possession to be a good ground for awarding moral ownership as well.

XIV. Problem Cases

The theory of original acquisition gets us somewhere, but it falls far short of self-evidently answering all questions. The general point of view of this essay is that the principles of social morality are indeed social rules, and not “natural” ones. They are not genetically implanted in our minds, but must be worked out in the course of life, and especially of social life, that is, in the course of interaction with others. Nevertheless, we make these rules not arbitrarily but in the light of reason, or more precisely, reasons. We have good reason to want not to be damaged or interfered with, but we also have good reason to get along with our fellows. Rules on these matters, I suggest, have the support of reason in that it would be a good idea for each individual to agree to certain general rules about these matters, provided that one's fellows also subscribe to those rules. Obviously, there is the interesting theoretical problem that some may not “subscribe,” and the practically much more serious problem that some who profess to subscribe do not in reality do so. Just how enforcement costs factor into the moral computation is a difficult and important question, which I cannot explore in any serious depth here.

The need for enforcement measures and their administration, and the inevitable vagueness and variability of what is agreed upon, mean that the rules can, to some extent, be arbitrary. Still, they cannot be entirely arbitrary, nor even very much so. In particular, the rules cannot simply be the arbitrary edicts of some strongman or, for that matter, some deliberative body. Considerations exist to guide any such bodies or rulers if they mean to be addressing us as reasonable beings. The arguments of the foregoing sections are intended to be examples of this: they are meant to pick out basic features of our situations and ourselves, attention to which leads us to adopt certain rules and not others. The question about original acquisition to be explored here is: How do we decide just what it is we have acquired when we do so in a “natural” way? That is, how do we do this when we do not have preexisting clear boundaries to form natural baselines for mutually beneficial agreed-upon exchanges?

The cases we want to focus on to begin with are cases of acquisition of land, water, and mineral resources. I will look especially at land, in part because of its importance: the acquisition and ownership of land has been the subject of most military conflicts since time immemorial, as well as of local disputes among individuals and small groups. A special feature of land for this purpose is that it is readily divided into parcels, with definite locations and areas, and generally stays put (though earthquakes and volcanic activity may alter things; and water, of course, is a lot trickier in this respect). This characteristic of land, along with its usefulness, makes it a plausible subject for theorizing about ownership. We may well suppose that if lands puts us in intractable difficulties, things look bad for property in general.

In the subsections below, then, I will consider several problems that confront the property rights theorist. The general point of view from which I will pursue these problems has been set forth above. Rights to property are part of rights to action, that is, rights to do what we want to do—what we take to be the pursuit of the best life we can manage. This pursuit often involves or requires reliable use of various stably identifiable and definable “things,” and when it does, there is an interest that our use of these things be stable and identifiable. This, given the enormous potential for conflict and competition, requires rights, absent which we will not be able to pursue our interests effectively in the social environment in which we all live. But that is all. There is no further source of “natural” rights. Rights to things are as natural as our interests, but those, after all, are to a very large extent malleable and socially shaped. And the existence of other people is natural, so far as we are concerned—that is, their existence is due to features of our social environment that are largely beyond our own control—and so we need to shape the rules by which we will relate to those other people as best we can.

With that in mind, let us consider several sources of difficulty for property rights. Property rights work very well when applied to real estate and to material objects, ranging from very small (but not microscopically small) to large (but not astronomically large). They work for land because that is what we walk around on. When we instead walk on other surfaces, someone has created those surfaces, invariably as the result of arrangements with various others, and thus we have ample evidence to go on in tracking the relevant rights. When objects are visible and manipulable, they become both convenient to use and easy to transfer to others. But when these characteristics are lacking, things can get difficult. In the following seven subsections, I discuss some principal areas in which difficulties arise.