2. Short Reconstruction of ETO

Sergei Sazonov formulates ETO as a version of the position known as ‘radical right-libertarianism’ (Vallentyne and Mazor Reference Vallentyne, Mazor and Olsaretti2018: 137). Other proponents of this position include Eric Mack (Reference Mack1995), Jan Narveson (Reference Narveson1999), Israel Kirzner (Reference Kirzner, Vallentyne and Steiner2000), Murray Rothbard (Reference Rothbard, Vallentyne and Steiner2000), early Edward Feser (Reference Feser2005), Tibor Machan (Reference Machan2009), Daniel Russell (Reference Russell2010) and Billy Christmas (Reference Christmas2021). Radical right-libertarians argue that distributive justice depends entirely on the history of existing property entitlements. They also deny that the original appropriation of unowned resources is subject to any restrictions such as the Lockean proviso.Footnote ³ From this point of view, any distribution that results from a series of original appropriations and voluntary transfers without violence or fraud is just, even if it involves enormous poverty and inequality. Radical right-libertarians may support private initiatives to reduce poverty and inequality through private philanthropy and voluntary cooperation, but they do not regard such activity as a matter of justice and therefore do not welcome solutions to these problems through forced taxation and state redistribution.

ETO is an attempt to develop a theory of ownership that would avoid the PDIO, an objection to libertarian theories of original appropriation and ownership (see e.g. Waldron Reference Waldron1988: 253–283; Wenar Reference Wenar1998; Gibbard Reference Gibbard, Vallentyne and Steiner2000; Attas Reference Attas2003; Ripstein Reference Ripstein2009: 148–159; Dorfman Reference Dorfman2014: 439; Van der Vossen Reference Van der Vossen2015; Spafford Reference Spafford, Chartier and Van Schoelandt2021). PDIO can be formulated as follows: acts of original appropriation violate the original moral equality between persons because the appropriator unilaterally imposes on other persons the duty to respect his rights to the object he has appropriated. Thus, the appropriator acts as a privileged moral legislator who unilaterally changes the set of mutual rights and duties for himself and other persons, reducing the freedom of others and acquiring exclusive claims against them.

Hohfeldian analysis of rights can make this objection more clear (see Hohfeld Reference Hohfeld1917). Property rights in an object X are primarily rights to exclude others from using X (Schmidtz Reference Schmidtz2010: 80; Van der Vossen Reference Van der Vossen, Zwolinski and Ferguson2022: 121). These are, in Hohfeldian terminology, claim-rights that correlate with duties on all other people to refrain from using X without the owner’s permission. Accordingly, absent anyone’s claim-right to exclude, all people have equal liberty-rights to use X. The liberty-right correlates with the no-right, that is, the absence of the claim-right. In this case, if someone appropriates X, he unilaterally deprives all other people of liberty-rights to use X and imposes duties on them not to use X without his permission. Appropriation changes the set of mutual rights and duties in a way that seems morally troubling if we accept the moral equality of persons, as natural rights libertarians do. Proviso-libertarians, right and left, can at least mitigate, if not avoid, this objection because proviso limits the scope of appropriations and thus establishes a norm of reciprocity with respect to appropriation. The price of this is the restriction of property rights to certain ‘patterned’ principles, such as equality of shares (Steiner Reference Steiner1994), equality of opportunity for well-being (Otsuka Reference Otsuka2003; Roark Reference Roark2013), a threshold of sufficiency (Wendt Reference Wendt2019, Reference Wendt2022), maximization of utility (Torpman Reference Torpman2023), or non-deterioration under a certain comparative standard (Nozick Reference Nozick1974).

ETO is a radical right-libertarian (‘pure historical’) theory of ownership that seeks to address the PDIO without resorting to the Lockean proviso or any other ‘patterned’ restrictions.Footnote ⁴ ETO proposes a new concept of original appropriation, in which the act of appropriation occurs when the appropriator makes a use-judgement of some unowned object. A use-judgement is judgement about how an object can be used to achieve the appropriator’s personal ends. Such a judgement includes two components: (a) knowledge of how to reach the object and (b) a belief that it is useful (Sazonov Reference Sazonov2025: 50). Before a use-judgement is made, all physical objects are ‘brute objects’, as Sazonov calls them. Only the use-judgement endows the object with value and thus makes it a ‘resource’. The appropriator who first makes a use-judgement becomes the owner of the resource and can freely dispose of it, including by transferring and exchanging it with others.

How does this theory solve the problem of unilateral duty imposition? Sazonov argues that the division of physical things into ‘brute objects’ and ‘resources’ allows one to avoid unilateral changes in the mutual set of claims, liberties, and duties. Persons cannot have liberty-rights to use in relation to ‘brute objects’. For ‘brute objects’ do not have their own value before a use-judgement is made about them. The use of a thing presupposes interaction with it aimed at achieving the interactor’s ends. But at the moment when the interactor makes a use-judgement about a thing, he transfers that thing from a ‘brute object’ to a ‘resource’ and also makes it his property. Thus, no change in the mutual set of rights to the thing being appropriated occurs, because liberty-rights to use arise at the same moment when claim-rights to exclude arise.

However, liberty-rights to use are not the only type of rights that other people are deprived of in the case of appropriation. When an appropriation occurs, other people as potential appropriators are also deprived of the power of appropriation. The power is a right that allows a mutual set of claims, liberties, and duties to be changed; and the right of appropriation is an example of a power. And since all people have rights to appropriate ‘brute objects’ through use-judgements, this means that all have powers of appropriation over ‘brute objects’ that precede use-judgements. In response, Sazonov argues that appropriation does not deprive people of the power of appropriation, because other people can buy or trade the object from the appropriator. If they make a use-judgement about someone else’s resource, they can offer to trade with him, and the possibility of such a trade satisfies the power of appropriation, according to Sazonov.

3. Does ETO Overcome PDIO?

Unfortunately for Sazonov, ETO fails to overcome PDIO on the grounds he discusses. The problem is that Sazonov misses the ambiguity in the application of the word ‘use’ to physical things. He argues that the use of an object necessarily implies its involvement in achieving one’s own ends. On this view, you do not use X when you merely brush against it; only when you interact with X in order to achieve some of your ends do you really use X. This explains why you conceptually cannot use X before you make a use-judgement about it, since X cannot be intentionally put to one’s end before that (Sazonov Reference Sazonov2025: 50). From Sazonov’s point of view, it is logically impossible for someone to use an object that is unsuitable for use (Sazonov Reference Sazonov2025: 55), and therefore use is always necessarily preceded by a use-judgement.Footnote ⁵

However, this is not what is usually meant by ‘use’ in the context of property rights. When property rights are defined in terms of rights to exclude others from using an object of property, it is not merely a question of prohibiting others from using the object for their own ends. Rather, it prohibits any non-consensual physical interactions with the object, even when such interactions occur unintentionally, that is, without prior use-judgements (see e.g. Vallentyne et al. Reference Vallentyne, Steiner and Otsuka2005: 203).

Imagine, for example, a man with a broken leg named Lee. He loses his crutch while walking in the forest. He then decides to replace it with a stick that he comes across, making a use-judgement about it. He even carves his initials into the stick to socially cement his ownership claim to the stick, as required by ETO (Sazonov Reference Sazonov2025: 57). However, Lee then decides to lie down to rest on the side of the path and carelessly places his stick on the path. At the same time, Gary is walking along the same forest path. Unlike Lee, Gary has healthy legs and he does not need crutches. But Gary is inattentive and rarely looks under his feet while walking. Because of this, he steps on the stick that Lee had previously appropriated, thus violating Lee’s property rights.

Note that Lee has initialled the stick and has thus done what is necessary to socially signify his appropriation. Gary did not notice the stick not because Lee did not do enough in this regard. Gary is simply inattentive and could have similarly stepped on someone else’s phone, the breaking of which would undoubtedly be a violation of property rights. The fact that Gary unintentionally violated Lee’s property rights may be a mitigating circumstance for him, but it does not relieve him of all liability for violating Lee’s rights. Similarly, your ownership of your car prohibits me from damaging it even unintentionally. If I damage your car while reversing, I will be liable for it, even if I didn’t know your car was where I wanted to park mine. A reasonable theory of ownership cannot require you to notify every person in the vicinity of where you park your car in order to have a right to compensation if your car is accidentally damaged.

Why do we need the example of Lee and Gary? It shows that Sazonov’s model of appropriation does not solve the problem of unilateral duty imposition. In the example presented, Lee committed an act of appropriation that deprived Gary of the right to use the stick, even though Gary had not made any use-judgements about the stick. As we noted earlier, Sazonov misses an ambiguity in the meaning of ‘use’. In the narrow sense, it means engaging with some object in the pursuit of one’s own ends, and in this narrow sense Gary does not use Lee’s stick. But in the broad sense, use means any physical interaction with an object, and in this sense Gary ‘uses’ the stick. Even if we agree with Sazonov that the word ‘use’ should be limited to situations of the first type, and that rights to such use depend on prior use-judgements, this does not solve the problem with the unilateral duty imposition. For appropriation deprives people not only of the liberty-rights to engage an object for their own ends, but also of the liberty-rights simply to physically interact with that object without the owner’s consent. Ownership gives you the right to prohibit others from interacting with your property in any way, regardless of whether they want to use that property in the Sazonovian sense or not. The division of physical things into ‘brute objects’ and ‘resources’ does not resolve this difficulty, because ‘brute objects’ can be interacted with, including unintentionally. But property rights are needed to prevent even such interactions that were not preceded by any acts of assessment and evaluation.

A similar ambiguity is contained in Sazonov’s answer to the problem of deprivation of power to appropriate. Under ETO, appropriating X does not prevent people excluded from using X from making use-judgements about X. But there is a significant difference between use-judgements regarding appropriated resources and unowned objects. The power of original appropriation is unlimited. Under ETO, nothing more than a use-judgement is required to make an unowned object one’s property.Footnote ⁶ But the power to acquire an already appropriated resource is limited by two requirements. First, it requires the consent of the current owner to transfer the resource; original appropriation does not require anyone’s consent at all.Footnote ⁷ Second, it requires payment of compensation, that is, incurring some cost of acquisition; original appropriation does not require any cost at all.

Sazonov could try to answer the last part of this objection by referring to the fact that the original appropriation actually also involves certain costs. His own example is gold mining. The ‘gold rush’ miners had to search for gold and spend significant resources on this search (Sazonov Reference Sazonov2025: 60). Well, that may be true of some or many acts of appropriation, but it is beside the point. For ETO, there is no significant normative difference between someone who has spent significant resources searching for gold and someone who has simply found gold lying in the road. The justificatory work for property rights in ETO is done by use-judgements, not by resources expended on appropriation. In this case, a significant asymmetry remains between the power of original appropriation and the power of agreed acquisition. The former is not limited by any requirements, the latter is limited by requirements of consent and compensation. So we can still say that any act of appropriation deprives people of the power to appropriate resources, that is, to acquire them without requiring consent and compensation.

However, Sazonov could have offered another answer to this objection. He could have referred to the fact that the power of appropriation in ETO “is only a means to facilitate the opportunity to obtain exclusive control over the value added by one’s use-judgement” (Sazonov Reference Sazonov2025: 62). In other words, Sazonov argues that use-judgements add value to resources. Appropriators are the authors of use-judgements, and therefore the creators of this added value. This is why anyone who wishes to acquire this resource in the future must pay compensation to the appropriator, since part of the value of the purchased resource is created by the appropriator and his use-judgement.

Sazonov’s position on this matter is ambiguous. He simultaneously claims that use-judgements add value to resources and that these judgements discover the already existing value of resources (Sazonov Reference Sazonov2025: 61). If value is merely discovered, then it is unclear why use-judgements create strict exclusive rights to it. If appropriators create resource value, then the strictness of these rights is easier to understand due to the moral intuition that people have rights to the products of their labour. This same intuition underlies the Lockean labour-mixing theory of property and is sometimes interpreted as hidden desertism (Thomson Reference Thomson1992: 325–330). In this case, ETO could be called a ‘labour-mixing theory without real labour-mixing’. So, the same criticisms that have been levelled against Lockeanism can be applied against ETO. The difference is that Lockeanism, because of its emphasis on physical labour, at least contains an account of how bodily rights (self-ownership) extend to external resources. Since ETO focuses on private mental states akin to qualia of philosophy of mind (see Chalmers Reference Chalmers1996), it lacks an account of why the value produced by my use-judgements provides others with reasons for recognizing me as the owner of some object. And this lack of reasons highlights the fact that ETO fails to overcome PDIO, since other people’s use-judgements fail to motivate others to agree to alienate their freedom to use or appropriate an object.