II. The Individualist Ur-Claim and the Natural Right of Property

Let us survey at least some of the underlying considerations that rights-oriented classical liberals give—or should give—for affirming an original right of self-ownership. Rights-oriented classical liberalism depends, I believe, on an embrace of a robust form of moral individualism. Crucial to that individualism is the thesis that each person's good is the ultimate rational end of that individual's actions. As far as goal-rationality is concerned, each person's good is that which she is rational to promote. (This is consistent with one individual's good or aspects of one individual's good being partially constitutive of another individual's good.) The moral individualist starts here with the most noncontentious claim about practical rationality—namely, that individuals have reason to promote their utility—while avoiding contentiously narrow conceptions of what an individual's utility consists in. Moral individualism takes seriously the separateness of persons. It does this not merely by denying that there is some supra-individual “social entity” whose good is the object of rational social principles, but also, and more importantly, by denying that any sort of concatenation of the good of individuals constitutes a common substantive end which individuals at large have reason to serve even at the cost of their own individual good. There is, according to this moral individualism, no common substantive end—no “higher” good—for the sake of which it is rational for individuals to sacrifice their own well-being.

However, it does not follow from Bekah's having good reason not to impose losses on herself to advance the good of others or her having no obligation to impose such losses on herself, that Bekah is wronged by others when they impose losses on her which she is not obligated to impose upon herself. To hold that Bekah is wronged by others when they impose such losses upon her—that is, to hold that some principle of (natural) rights or (natural) justice protects her against such impositions—is to go well beyond the assertion that each individual has good reason not to impose such losses upon herself and even the assertion that each has good goal-oriented reason to resist the imposition of losses on her by others. It is to go from the moral individualist's central contention about the good (that each individual has a good of his or her own which he or she has reason to promote) to his central contention about the right (that each individual has claims against others not to be interfered with, in certain ways, in the course of his or her value pursuits). The crucial and difficult task for a moral individualism which includes interpersonal constraints on how individuals may treat others in the course of their pursuit of their own ends is to explain how the affirmation of such constraints is supported by—albeit, not entailed by—each individual's having in her own well-being an ultimate rational end of her own.

Here is one way in which lines of support might run. That other persons also have rational ends of their own to which they sensibly devote their actions, capacities, and lives is a striking (normative) fact which marks other persons off from objects like (unowned) sharp pieces of stone or (unowned) acorns which one sensibly views as means available for one's own use in the advancement of one's own ends. It would be odd for this sort of striking fact about others not to have some sort of directive import for oneself—just as it would be odd for the fact that one has ultimate rational ends of one's own not to have some sort of directive import for others. It would be odd if the fact that other persons have ends of their own which they are rational to promote did not itself matter to one—if it did not itself make a difference with respect to how it is reasonable to conduct oneself in one's interactions with others. After all, it seems that reasonable conduct toward entities of a certain sort has to reflect or be marked by cognizance of the striking and distinguishing facts about entities of that sort. Yet the difference made in how one has reason to conduct oneself toward others by the fact that they also have rational ends of their own cannot plausibly be seen as due to their ends standing alongside one's own ends as objects of one's rational promotion. For those ends are their (respective) rational ends—not one's own; and, as ends for those others, they are not imbued with an agent-neutral value which summons all rational agents to their promotion. What, then, is left as a sensible reflection in one's conduct toward others of the fact that they are beings with rational ends of their own? What is left is one's eschewing treating these other value-seeking beings as though they are—as lots of other entities are—material which one is morally at liberty to employ for one's own purposes. These beings do not stand as morally available means to one's own ends. The appropriate fundamental interpersonal regulative norm for a kingdom of beings each of whom has in his own well-being an ultimate end of his own—and, thus, is a normatively independent being—calls upon each of us to respect the independence of others by allowing others to live their own lives—to pursue their own ends—in their own chosen ways. This is the ur-claim on behalf of each individual against all other individuals (and groupings of individuals) to be allowed to live her own life in her own chosen way, to be free of interferences by those individuals (or groupings) which prevent her from exercising her capacities as she sees fit in the pursuit of her own ends.

Here is a slightly different tracing of lines of support. A first step toward morality taking seriously the separateness of persons is its affirming for each person a moral liberty not to volunteer for subjugation to the ends of others, that is, a moral prerogative not to impose sacrifices on oneself for the sake of others' ends. But the affirmation of a bare liberty not to volunteer for subjugation—a naked prerogative not to impose sacrifices on oneself for the sake of others' ends—leaves each other agent morally at liberty to impose such subjugation (or sacrifices) upon one. Moreover, each one of us is pervasively vulnerable to others exercising this prospective moral liberty to subordinate us to their purposes, that is, to impose sacrifices upon us to advance their ends. For these reasons, a morality that takes only that first step of affirming a liberty or prerogative not to subordinate oneself to the ends of others advances hardly at all toward genuinely taking seriously the separateness of persons. If morality is to make a significant advance in taking seriously the separateness of persons, a second step is required: namely, the inclusion within that morality of constraints against others' interference with one's exercise of that liberty or prerogative. A morality will genuinely take seriously the separateness of persons only if it clothes the liberty or prerogative it ascribes to each individual not to subordinate himself to the ends of others with a moral claim against others' precluding his exercise of that liberty or prerogative. This is our now familiar ur-claim to be allowed to live one's life in one's own chosen way.

The natural right of self-ownership is part of the articulation or codification of this ur-claim. Since it is one's person which has rational ends of its own, one's person is excluded from the set of objects which are (or at least begin as) morally available as means to others' ends. A moral liberty of doing as one sees fit with one's own person—a liberty that others are obligated to respect—is central to a moral code that takes its cue from the claim of each individual to be allowed to live her own life in her own chosen way. Perhaps everything necessary to a full articulation of the ur-claim could be inserted (shoe-horned?) into a capacious characterization of this right of self-ownership. This would be one way of dividing (or not dividing) things; and I am not unalterably set against such a project. Nonetheless, I am inclined to think that we get a clearer picture of the range of implications of the reasons which support a noncapacious right of self-ownership if we do not insist that each of these implications is part of an all-encompassing right of self-ownership. Clarity may be served by restricting what we understand an agent's right of self-ownership to be to that agent's right over that which comprises his person, while recognizing additional rights of the agent that share an underlying rationale with that noncapaciously conceived right of self-ownership.

Consider this well-known passage from Isaiah Berlin's “Two Concepts of Liberty,” which offers an argument quite similar to my first tracing of the case for the ur-claim to be allowed to live one's own life in one's own way:

The ultimacy of the value available within each individual life makes it unreasonable—in “contradiction” to the facts—for anyone to use other men as means. Although it departs from terminology with which Berlin would feel comfortable, it does no substantive violence to Berlin's passage to say that one implication of its argument is a right of self-ownership. No man is a means to any other man's ends—although each is a means (is morally available to himself as a means) to his own ends.

Yet the passage takes off from the fairly specific intuition that individuals have a (natural) claim against being lied to and deceived. Moreover, this apparent right against being lied to or deceived is part of what the passage seeks to justify as another part, one might say, of the codification of the really basic claim of each individual against being subordinated to the will of others. My point here is threefold: (1) Something like a right not to be lied to or deceived is an implication of the arguments that Berlin and I offer. (2) Something like a right of self-ownership is an implication of these same arguments. (3) There is no good reason to attempt to subsume the right not to be lied to or deceived under the right of self-ownership. One can be precluded from living one's own life in one's own way by being deprived of discretionary control over the elements that comprise one's person. One can also be precluded from living one's own life in one's own way by being lied to or deceived. One reason it is important to be prepared to see distinguishable ways in which persons can be precluded from living their own lives in their own chosen ways is that this opens the door to seeing that being precluded from acquiring and exercising discretionary control over extrapersonal objects is another way of having one's claim to be allowed to live one's own life in one's own way violated. Precluding Bekah from acquiring and enjoying discretionary control over extrapersonal objects infringes upon her claim to live her life in her own chosen way because, for human beings (of which Bekah is one), life is lived through the acquisition, transformation, and utilization of extrapersonal objects.

Insofar as one adopts the practice conception of rights-generation—in contrast to the inherent-feature conception—one will cast the natural right of property as the original, nonacquired right not to be precluded from participation in a rule-constituted practice through which entitlements to extrapersonal objects are acquired (and transferred and relinquished, etc.). Given the right of self-ownership, however, that natural right of property cannot be a positive right that others must deliver such a practice to one if such a practice is not already available to one. For the natural right of self-ownership rules out persons' being born to positive obligations to deliver goods or services or desirable practices to others. Individuals who found themselves in an environment bereft of a practice of private property and who could create such a practice would violate no right of one of their number who yearned to participate in a practice of private property if they simply sat around and twiddled their thumbs instead of constructing the yearned-for practice. If the yearner had a right to have such a practice be made available to him, that right would forbid those thumb-twiddling individuals from exercising their self-ownership.

Three premises connect the ur-claim that each individual is to be allowed to live her own life in her own chosen way with this natural right of property. The first of these is that almost all human life, almost all human goal-pursuit, takes place in and through the purposive acquisition, transformation, and utilization of objects in the extrapersonal world. We are not merely embodied beings; we are beings whose lives are mostly lived in and through the physical world that exists beyond the outer surface of our skin. The second premise is that individuals' living their own lives in their own chosen ways in and through the purposive utilization of objects in the extrapersonal world is greatly facilitated by their acquiring and exercising ongoing assured discretionary control over extrapersonal objects—in contrast to individuals' having merely a liberty temporarily to put objects to use. The third premise is that the possibilities for individuals' acquiring and exercising ongoing assured discretionary control over extrapersonal objects is greatly extended by the presence of a rule-constituted practice of private property. A practice of private property is an artificial extension of the means available to individuals to acquire, enjoy, and exercise discretionary control over portions of the extrapersonal world.

I should add that I do not mean here to suggest that, when such a rule-constituted practice of private property arises, it does so through people's intentionally constructing it. Rather, such practices are characteristically collations of evolving customs, conventions, and judicial rulings which tend to survive and be reinforced by their (typically only dimly perceived) tendency to enable people with their own ends and ambitions to live peacefully and productively with one another. Such practices are the results of human action, but not of human design. They are artifacts, just as practices of promising or contracting are. But we will be misled if we think that such artifacts must appear—or even typically do appear—as anyone's or any group's foreseen invention.Footnote ⁸

Rule-constituted practices of private property will vary in how successfully they fulfill their function of creating an environment in which individuals can (more readily) acquire, enjoy, and exercise discretionary control over (and transfer and relinquish, etc.) extrapersonal objects. We can identify several features of such a practice that will contribute to its fulfilling this function. The practice will be coherent insofar as the entitlements generated by acting in accordance with its rules are compossible. It will be transparent insofar as the entitlements generated under it can be readily identified. It will be comprehensive insofar as it facilitates the establishment of private rights over all extrapersonal objects (except for those objects, if any, which are not appropriate candidates for private ownership). A more moralistic and difficult to formulate feature is that the practice must be inclusive. All persons must be equally eligible to participate in the practice. I will say—with somewhat less than total precision—that a practice of private property is justifiable if and only if it instantiates these features to a reasonably acceptable extent. The more precise formulation of the natural right of property under consideration is that it is a right not to be precluded from participation in a justifiable practice of private property. Of course, the maintenance of one justifiable practice will preclude individuals from participation in other justifiable practices that might be instituted. That sort of precluding will not count as a violation of the right not to be precluded from participation in a justifiable practice of private property.Footnote ⁹

We may anticipate that the right not to be precluded from living under a justifiable rule-constituted practice of private property would be subject to violation at two quite different levels. At the more general level, individuals would suffer violations of this right if they were precluded from establishing such a practice or from entering into participation in such an established practice. At the more specific level, individuals who have entered into the practice—for example, by acquiring extrapersonal objects in accordance with the rules of the practice—would suffer violations of this right if they were treated by others in ways that violated rules of the practice—for example, if those objects were taken from them. Alternatively, in these cases, we might more naturally say that the individual's acquired property right to that extrapersonal object would be violated; but we must appeal to the individual's natural right not to be precluded from participation in a justifiable practice of private property to explain the existence of that individual's acquired property right. (Recall my intention to consider and reject the social practice view.)

III. Locke on Natural Rights and the Natural Right to the Earth

Locke's own arguments for ascribing original, nonacquired rights to persons is at least highly congruent with the lines of argument traced above in support of the ur-claim on behalf of each individual that he be allowed to live his own life in his own chosen way.Footnote ¹⁰ On Locke's view, although everyone's happiness is, in some abstract sense, part of the good, each individual's own happiness is the part of the good that he is rational to promote.Footnote ¹¹ Each individual can, therefore, be said to exist for purposes of his own; and, in this strong sense, no individual exists for any other individual's purpose. We are not merely naturally morally equal; we are all by nature morally “equal and independent” agents.Footnote ¹² For Locke, this implies not merely that no individual is naturally required to submit to subordination to others, but also that others are naturally required not to subordinate that individual to themselves. It is not merely that each individual is naturally at liberty to decline to volunteer for (and naturally at liberty to resist) subordination to the will of others; it is, further, that others are naturally obligated not to dispose of this individual for their purposes—“as if we were made for one another's uses.”Footnote ¹³ That Bekah is an equal and independent being who exists for her own purposes does not merely defeat the proposition that Josh has a right to subordinate her to his (noble or ignoble) ends; it also defeats the proposition that Josh is at liberty to treat her in this way. Thus, Josh is obligated not to treat her in this way and, correlatively, Bekah has a right—a right founded on her natural equality and independence—against the subordination of her person to the will of Josh (and all others).

It may well be that the implications of this argument—similar as this argument is to the arguments traced in my previous section—are only partially codified in a natural right of self-ownership. It is noteworthy that when Locke presents his main arguments for natural rights in chapter II of the Second Treatise, he formulates his conclusion more broadly, and not specifically in the language of self-ownership. He tells us instead that “no one ought to harm another in his Life, Health, Liberty, or Possessions,”Footnote ¹⁴ and that no one may “unless it be to do Justice on an Offender, take away, or impair the life, or what tends to the Preservation of the Life, the Liberty, Health, Limb, or Goods of another.”Footnote ¹⁵ The presence of “Possessions” and “Goods” in these formulations is especially striking since Locke has not yet presented his famous labor-mixing theory of rights to extrapersonal possessions and goods. Perhaps this provides some basis for thinking that we can read into Locke some sort of a natural right with respect to external holdings—a right that is reflective of the necessary role of extrapersonal objects in the human pursuit of happiness and self-preservation.Footnote ¹⁶

In addition, we should note an explicit way in which Locke does not hold that the right of self-ownership is the one and only natural right. Almost in passing, Locke affirms an original, nonacquired right of persons to have promises made to them and contracts made with them kept: “For Truth and keeping of Faith belongs to Men, as Men, and not as Members of Society.”Footnote ¹⁷ It seems to be in virtue of this natural claim that specific promises and contracts that men make with one another are binding in the state of nature. It is because of this background right that the contracts men make to exit the state of nature have binding force. Since the breaking of promises or contracts, like acts of lying and deceit, are ways of subordinating others to one's own purposes, it seems likely that the right not to be subjected to such treatment can be taken to be a further implication of the arguments that also yield the right of self-ownership.

Locke goes on to offer an account of the rise of acquired rights over extrapersonal objects. A necessary background presumption of Locke's account of rightful initial appropriation by individuals is that the Earth itself—the totality of raw materials that stand before mankind—is originally unowned, and hence available for individual use and appropriation. This seems to be a reasonable enough starting-point; for the burden of proof seems to rest on those who would assert that persons do have nonacquired rights over this raw material. However, Locke puts himself in a position from which he has to argue against at least one version of the proposition that there is an original, nonacquired right to the Earth. Locke's explicit target throughout the Two Treatises of Government was the authoritarian doctrines of Sir Robert Filmer;Footnote ¹⁸ and one of the important claims advanced by Filmer was that Adam, through donation from God, was the original (human) owner of all the Earth. When Locke sums up his arguments against this claim by Filmer, he does so by saying that God has given the Earth not to Adam but, rather, to mankind in common.Footnote ¹⁹ That is, in his eagerness to oppose Filmer, Locke seems to accept the view that there is a natural right of joint-ownership over the Earth. This appearance creates a serious problem for Locke qua champion of individual ownership because he accepts the entirety of the following argument offered by Filmer.Footnote ²⁰

1. 1. If the Earth is originally jointly owned by all mankind, then unanimous consent among those owners is necessary for any individual ownership of portions of the Earth to arise.

2. 2. No such unanimous consent among mankind has ever occurred or is ever going to occur.

3. 3. Therefore, if the Earth is originally jointly owned by mankind, no individual ownership of portions of the Earth has ever arisen or will ever arise.

In seeming to affirm original joint-ownership, then, Locke seems to commit himself to the idea that no individual ownership of portions of the Earth has ever arisen or will ever arise.

To get around this problem, Locke has to argue against the proposition that the Earth is originally jointly owned by mankind. Then he can say that, of course, he cannot reasonably be construed as meaning that when he says that God gave the Earth to all mankind in common.Footnote ²¹ Indeed, he must be construed as simply meaning that “no body has originally a private Dominion, exclusive of the rest of Mankind, in any of [the extrapersonal objects], as they are thus in their natural state.”Footnote ²² In the Second Treatise, Locke argues that given the correctness of Filmer's argument, if all individuals were joint-owners of the Earth, then “Man [would have] starved, notwithstanding the Plenty God has given him.”Footnote ²³ That is to say, everyone who would behave with propriety (i.e., who would abide by others' joint-ownership rights) would have to simply sit and starve.Footnote ²⁴ For Locke, this reduces the joint-ownership thesis to absurdity. For each individual with propriety pursues his self-preservation; and each at least typically pursues his self-preservation through the use or appropriation of a portion of “the Plenty” God has given to man. The positive claim Locke seems to be making here is that, given the propriety of each man's pursuit of self-preservation and the necessity of using or appropriating portions of nature in order to achieve self-preservation, each man must be at liberty to use or appropriate a portion of the Earth; since each must have this natural liberty to use or appropriate without asking leave of or being subject to the will of others, there cannot be an original joint-ownership of the Earth. Hence, again, Locke's statement that God gave the Earth to all mankind in common cannot be meant to assert the original joint-ownership of the Earth.

Locke's more extensive discussion in his First Treatise of man's original normative relationship with nature is cast in terms of a right of self-preservation and a consequent right—not merely a liberty—of men to use the “Creatures” which have been presented to them. (Locke speaks of rights to “Creatures” because he is tracking Filmer's presentation, which is cast largely in terms of God's purported donation to Adam of all the Creatures of the Earth.) Presenting matters in terms of God's plan for how human life should be conducted, Locke points to the “strong desire of self-preservation” which God has planted in man and to God's having “furnished the World with things fit for Food and Rayment and other Necessaries of Life.” All this evinces God's design “that Man should live and abide for some time upon the Face of the Earth [and not] perish … after a few moments continuance.”Footnote ²⁵ Because men with propriety pursue self-preservation through the use or appropriation of the raw materials furnished to them, “Man had a right to a use of the Creatures….”Footnote ²⁶ And here it is because men have a right to a use of these creatures—and the fruits of the Earth and portions of the Earth—that there cannot be an original joint-ownership which would morally preclude the exercise of that right.

The remainder of section 86 from the First Treatise deserves to be quoted in full for its affirmation of a natural right with respect to extrapersonal objects:

Locke repeats this claim in the next two sections. In section 88, he tells us: “The first and strongest desire God Planted in Men, and wrought into the very Principles of their Nature being that of Self-preservation, that is the Foundation of a right to the Creatures, for the particular support and use of each individual Person himself.” In section 87, we are told that all individuals have “an equal right to the use of the inferior Creatures, for the comfortable preservation of their Beings …” and that “Every Man has a right to the Creatures, by the same Title Adam had, viz., by the right every one had to take care of and provide for their Subsistence… .”

However, it seems that if the right to the creatures (or other raw materials) is an emanation of the right of each individual “to take care of and provide for their Subsistence,” the former right must be a right not to be prevented from acquiring and retaining some creature (or other raw material), rather than a right to some specific creature (or raw material) or some share of creatures (or raw materials). Furthermore, no such natural right to property would be compatible with Locke's claim that “no body has originally a private Dominion, exclusive of the rest of Mankind, in any of [the extrapersonal objects], as they are thus in their natural state.”Footnote ²⁸ Nor does Locke give any indication that he thinks the natural right with respect to raw materials that he asserts in the First Treatise involves anyone's having a natural nonacquired property in any particular thing or share of things. Rather, and very strikingly, in section 87 of the First Treatise he tells us that it “shall be shewn in another place”—obviously, the property chapter of the Second Treatise—how an individual can make “himself a Property in any particular thing.” Thus, the natural right with respect to property which we have in virtue of our right to pursue “comfortable preservation” must be a right not to be blocked from acquiring and retaining discretionary control over extrapersonal objects. We have that right not to be precluded from making things our own as an emanation of our right to pursue comfortable preservation, because beings like ourselves at least typically need to acquire and exercise control over extrapersonal “things fit for Food and Rayment and other Necessaries of Life” in order to advance our comfortable preservation.

Thus, on the standard reading of Locke, in virtue of the propriety of each individual's pursuit of comfortable preservation, each individual has a natural liberty to use and appropriate raw material, while on the reading which attends to Locke's First Treatise passages, in virtue of that propriety, each individual has a natural right to use and appropriate raw material. What difference, if any, does this difference make? And, if it does make a difference, does that difference provide a reason to affirm the bolder First Treatise assertion?

Imagine a number of hunter-gatherers who are endowed with rights of self-ownership and a liberty of using or appropriating natural materials, and who are hunting and gathering in an area furnished “with things fit for Food and Rayment and other Necessaries of Life.” Let us presume that there are no violations of self-ownership (or of the right to have promises kept) among these hunter-gatherers. And, more directly on point, let us presume that none of the uses and (minor) appropriations of raw material engaged in by any of these hunter-gatherers affects what is available for the use and (minor) appropriation of others. Perhaps this is because each individual's use or appropriation is like one individual taking a drink out of a river. “No man could think himself injured by the drinking of another man, though he took a good draught, who had a whole river of the same water left to quench his thirst.”Footnote ²⁹

Now suppose a scientifically advanced and malicious Trickster comes along and simply sprays every bit of raw material with a coating that makes it impossible for any of our hunter-gatherers to use or appropriate the material. If, in addition to their rights of self-ownership and promise-fulfillment, the hunter-gatherers have only a natural liberty to use or appropriate raw material, then the Trickster does not wrong them. For that natural liberty would only be a matter of no one else's having a natural right over that raw material which morally precludes the hunter-gatherers from its use or appropriation. There is no violation or denial of their natural liberty in the Trickster's exercise of his liberty to spray the coating on all that raw material. The Trickster's spraying does not take away this natural liberty from the hunter-gatherers; it only (!) precludes them from engaging in uses or appropriations. Nor (it seems) does the Trickster's action violate any right of self-ownership possessed by the hunter-gatherers. For the Trickster is very careful not to trespass upon their persons. He fastidiously avoids expropriating any of their bodily parts or skills or self-owned labor. If, nevertheless, one thinks that the Trickster does wrong the hunter-gatherers through his precluding them from engaging in any use or appropriation of the raw material, one has to think that these individuals are also endowed with a natural right of property, that is, a natural right not to be precluded from acquiring and exercising discretionary control over portions of previously unowned material.Footnote ³⁰ Since it is reasonable to think that the Trickster wrongs them, it is reasonable to think that the hunter-gatherers (and, hence, people at large) are endowed with this further natural right.

Actually, the argument by way of this example proceeds too quickly. However, correcting for this will enhance the case for the natural right of property. The argument proceeds too quickly because it ignores an alternative Lockean explanation for the wrong done by the Trickster. This is that the Trickster violates the Lockean proviso, which requires that one leave “enough, and as good” for others.Footnote ³¹ So this wrong is to be explained on the basis of the validity of such a proviso, rather than on the basis of a natural right of property.Footnote ³² To slip past this difficulty, we need a Trickster who does not violate this proviso but still wrongs individuals in a way that is best described as a violation of their natural right of property. Let us return, then, to our hunter-gatherers and allow them to proceed merrily in their hunter-gatherer ways. This includes the presumption, which we already made above, that among themselves these agents do not violate the Lockean proviso. Whatever use or (minor) appropriation any one of them engages in is like taking that draught from the river. But now suppose that some of these individuals set themselves to move beyond hunting and gathering to an agricultural existence. It is this move, as Locke realized, which marks the transition from a world that is pretty much innocent of property to a world that is chock-full of property. As Locke points out, the movement of individuals (or households) from non-propertied hunter-gatherer existence to propertied agricultural existence does not pose the threat of violating the “enough, and as good” proviso. For individuals (or households) seeking comfortable preservation by way of a propertied agricultural existence need less in the way of raw materials—especially less land—than do individuals (or households) seeking comfortable preservation by way of a non-propertied hunter-gatherer existence. “And therefore he that incloses land, and has a greater plenty of the conveniences of life from ten acres, than he could have from a hundred left in nature, may truly be said to give ninety acres to mankind… .”Footnote ³³

Suppose that the Trickster steps in now with a modified device which sprays whatever raw material any aspiring agriculturalist sets out to acquire as property with a coating that renders it unfit for that agent's use. (The coating does not prevent hunter-gatherer-style use of the raw material, so if the aspiring agriculturalist gives up his aspiration, he can revert to unimpaired hunting and gathering.) By employing his modified device, the Trickster prevents individuals from engaging in all the acquisition of property that is involved in moving beyond the hunter-gatherer mode of interaction with extrapersonal objects. Once again, however, the spraying does not, strictly speaking, trespass upon the persons seeking to make the transition to an agricultural way of life. And now the spraying does not itself violate anyone's claim to have enough and as good raw material left for his use. If, nevertheless, one thinks that the Trickster's use of the modified device does wrong the aspiring agriculturalists—and surely one will think this if one thinks that individuals have a basic claim to live their own lives in their own way—one must think that this is because they possess a natural right not to be precluded from acquiring property in previously unowned raw materials.Footnote ³⁴ If a less scientifically advanced Trickster comes along and prevents the aspiring agriculturalists from proceeding with their appropriations by credibly threatening to kill or imprison anyone who betrays his hunter-gatherer heritage or the Trickster's socialist five-year plan, that Trickster too would be a violator of their natural right of property.

IV. Locke on Self-Ownership and the Investment of Labor

It is only when Locke sets out in chapter V of the Second Treatise to explain the rights of individuals to their acquired estates that Locke invokes self-proprietorship as an implication of his earlier and main arguments for natural rights. Instead of staking out the broadly restrictive rule that no one may “harm another in his Life, Health, Liberty, or Possessions,”Footnote ³⁵ Locke now tells us that “every Man has a Property in his own Person. This no Body has any Right to but himself.”Footnote ³⁶ Each agent's right to his own labor then comes along as an implication or aspect of each agent's self-ownership. “The Labour of his Body, and the Work of his Hands, we may say, are properly his.” Absent (uncoerced) alienation, each laborer's labor is “the unquestionable Property of the Labourer.”Footnote ³⁷ Moreover, when an individual mixes his labor with some unowned physical material, he “annexes” that which is naturally his own to that material, and this removes the labored-upon object (or the material that comprises the object) from the commons and makes it the property of the laborer. Locke writes as though the annexing itself does the crucial work; it sounds as though once the labor is annexed to the unowned material, the laborer's right to the labor flows over to that material. We are left to wonder why this flow takes place. Still, Locke is usually and reasonably read more charitably than this.

On the more charitable reading, to say that an agent mixes his labor with (or annexes his labor to) some unowned material is to say that the agent invests some aspect of his industriousness in the purposive transformation of some unowned material. To some non-negligible degree, the agent puts some productive aspect of himself into that material. Since that productive aspect is not itself a physical part of the agent, we do not have literal mixing or annexing. Rather, we have an investment of the agent's effort, skill, or insight. The change in the condition of the (previously) unowned material counts as an investment and not a relinquishment of his effort, skill, or insight because that effort, skill, or insight is directed toward some anticipated change in the material. So the hunter invests a portion of his owned labor in the stick that he sharpens to make a hunting spear and in the rabbit that he tracks and spears with the sharpened stick. When such a transformation through labor investment occurs, the resulting object cannot be taken from the agent without taking from him his (still owned) invested labor. Because (1) taking the object from him without his consent would take that invested labor from him without his consent, and (2) taking that invested labor from him without his consent would violate his self-ownership, it follows that (3) taking the labor-invested object violates the agent's rights, and (4) we can say that the agent has a right to that object. One way of expropriating another's labor is to coerce her—for example, through a threat of bodily injury—to perform some labor for you, for example, to sharpen a stick that one already possesses into a spear. Another way is to wait for someone to engage in that labor and then make off with the labor-invested object. It is because the two methods of expropriation are at least close to being on a moral par, that the labor-investing agent ends up with a right to the object in which he has invested his labor.

Given my agreement with Locke's affirmation of self-ownership, I find this Lockean labor-investment story to be highly persuasive—as far as it goes. My only problem with the story is its limited range of application. What I mean by this is that there are many cases in which it is reasonable to say that an individual has through her actions acquired a right over some extrapersonal object and yet the acquisition of the right cannot plausibly be said to be a matter of labor investment. Take, for example, the case of an individual who acquires a right over forty nice raw acres by placing forty stakes around the boundary of those acres, or the case of an individual who acquires a right to the gold flakes that can be obtained through panning a certain segment of a stream by spending some time panning in that stream segment for gold and filing a claim at the local mineral rights registry office. In these cases, we can say—and it is sometimes tempting to say—that the agent invests his labor in the forty acres or the stream segment by driving in those stakes or by panning and filing that claim. But such statements will simply raise the questions: (1) Why do these actions count as labor-investing, if they do count as labor-investing? And (2) if we count these actions as labor-investing because we count them as rights-generating, must we not have a distinct (non-labor-investment) explanation for their being rights-generating? As my questions suggest, I think that any disposition to describe these actions as labor-investing comes from the combination of our taking them to be rights-generating actions and our desiring to retain the doctrine that (initial) property rights arise through labor investment. Whether or not we indulge the latter desire, the real and pivotal issue is what sort of non-labor-investment explanation (if any) is available for our taking these actions to be rights-generating.

In case one is still tempted to describe the stake-driving as an instance of labor investment, here is a more concrete way of making the point that what is really at stake is what non-labor-investment explanation (if any) can be given for the driving of the forty stakes giving rise to the driver's right to the forty acres. If driving in the forty stakes counts as investing labor in the forty acres, then it seems that driving in thirty-eight stakes should count as .95 times as much of a labor investment and, hence, .95 times as much of a rights-generating action—giving rise to .95 times as much of a right to the forty acres. Yet driving in thirty-eight stakes does not count as .95 times as much of a rights-generating action as driving in forty stakes. Hence, driving in the forty stakes does not yield the right to the forty acres by way of the labor investment involved in that action.

How, then, does the driving in of the forty stakes generate a property right to the forty acres, if it does generate that right? It seems that driving in forty stakes generates that right if and when driving in forty stakes is a recognized way of acquiring a right to that acreage within an established (and justifiable) practice of property acquisition. The appropriate response to someone who expresses puzzlement about what our stake-driver is doing is: “This is one of the ways in which a property right (in land) is established around here.” Our responder might well continue:

When we encounter the stake-driving and the registry of the segment of the stream cases, our judgment that the property right in question cannot plausibly be thought to be grounded in labor investment is not accompanied by disbelief in the property right. The explanation for this is that we are at the same time informed of the procedures—the stake-driving and the panning plus registration—through which our agents have acquired the forty acres or the stream segment; and we take these procedures to be part of a recognized (and justifiable) practice of private property. “This is one of the ways in which a property right (in land) is established around here.” Our disposition is to think that there does not need to be some feature which is inherent in the agent's individual action—namely, the feature of being a labor investment—which grounds the agent's right to the object of his action. Rather, we think that the rights-generating force of the agent's individual action derives from the action's being in accord with such a justifiable practice—a practice whose suppression would violate people's claim to live their own lives in their own ways as that claim is codified in the natural right of property. Thus, the problem with the labor-investment theory is not so much that it does not broadly enough vindicate particular property rights, but rather that it encourages us to search for an inherent feature in each action that generates a property right in virtue of which that right arises, and hence it directs us away from appreciating how a practice of private property provides people with artificial ways of generating such rights. Relative to the range of objects (or aspects of objects) to which it is valuable for persons to be able to acquire property rights, there is a scarcity of natural (practice-independent) rights-generating actions. The evolution of practices of private property fills this gap. Such practices satisfy a mostly inchoate demand for further ways for individuals to establish property rights and thereby to secure their possession of and discretionary control over extrapersonal objects.

It is instructive here to compare Locke's labor-mixing account of just initial acquisition and Robert Nozick's neo-Lockean historical entitlement conception of justice in initial acquisition.Footnote ³⁸ Nozick seems to have serious doubts about whether labor-investment ever accounts for the generation of a property right. Might not all laboring be like pouring your can of tomato juice into the ocean? Rather than acquiring a right to the new mixture, you may simply relinquish what you previously had a right over. So, without this being his conscious motivation, Nozick shifts to what I have been calling a “practice conception” of the generation of initial property rights. That is, he shifts to an account which turns on the thought that what matters is that acquisition take place in accordance with the procedures of a recognized and justifiable practice of private property. Nozick does not say what those procedures are. Perhaps he senses that under a practice approach there need be no inherent feature of the rights-generating action in virtue of which the right is generated, and hence that there is no such feature which he must identify. Nozick does recognize, however, that he needs to provide a reason for endorsing his historical entitlement approach against all competing end-state and pattern conceptions of justice in holdings. And this is the point at which he appeals to good old-fashioned Lockean self-ownership. For Nozick's crucial claim is that, in contrast to the historical entitlement doctrine, all end-state and pattern doctrines make some individuals the partial owners of others, and therefore all such doctrines are to be rejected for contravening self-ownership.

Yet why is it that, for example, John Rawls's difference principle institutes partial ownership for the least advantaged over the talented or energetic? The tax collector merely shows up and trucks off x percent of the corn that talented Bekah has grown and harvested, and y percent of the beef that energetic Josh has raised and cured, and delivers that corn and beef to Harry. The system institutes Harry's ownership over that seized corn and beef. But on what basis can it be said that this amounts to instituting Harry's partial ownership of Bekah and Josh? To say this, one has to say that part of what they own as self-owners is seized by the tax collector; and that part must be the labor they have invested in the corn or the beef. But, then, Nozick's attempt to provide a reason for favoring his historical entitlement view over all end-state and pattern views relies upon precisely the doctrine upon which he wants not to rely, namely, the labor-investment view.Footnote ³⁹ My point here, of course, is not that no justification can be given for the historical entitlement practice view but, rather, that the appropriate justification is the invocation of the natural right of property.

V. Practices and Independent Justifying Norms

My focus on the practice conception of property-rights-generating actions—combined with the parallels I have drawn between, on the one hand, particular property rights and the natural right of property and, on the other hand, particular promissory rights and the natural right to have promises made to one kept—calls to mind a competing view about promissory rights and, by extension, about property rights. The competing view about promissory rights is that they are creatures of persons' participation in the rule-constituted practice of promising. Bekah enters into the game of promising by, for example, saying to Josh, “I promise you that I will do z,” and, having so entered the game, Bekah falls under the rule of the game according to which if one says “I promise you that I will do z,” one is obligated to the addressee to do z. This “social practice” view of particular promissory obligations and (correlative) rights is a competitor to the view of particular promissory obligations and (correlative) rights with which I have aligned myself, because it takes the generation of a promissory right to be fully explained by reference to the practice through which it arises. The explanation makes no reference to any practice-independent norm, for example, a natural right to have promises made to one kept. By extension, a friend of the social practice view may maintain that, if one is going to take seriously the notion of a practice of private property and of particular property rights arising through individuals' making plays within that game of property, one should similarly take the resulting property rights to be fully explained by reference to the practice through which they arise. One should not think that those particular acquired rights are tied to an independent, nonacquired right of property.

There is one disanalogy between the promissory rights case and the property rights case which might well allow one to accept the social practice view with respect to the former and reject it with respect to that latter. In the promissory case, an agent obligates herself through her participation in the promissory practice, while, in the property case, an agent would have to be said to obligate others (indeed, all other persons) through her participation in the property practice. At first blush anyway, it seems more likely that an agent could obligate herself to others by making certain moves within a rule-constituted practice than that she could obligate others to herself by making such moves. However, I shall not take this easy way out—both because I favor the rejection of the social practice view even in its most promising application, and because explaining my basic reason for rejecting the social practice view helps me refine this essay's claims about property rights.

Rather than engage in an extended critique, let me indicate quite baldly the basis on which I would reject the social practice account of promissory rights and obligations. What makes an agent's failure to fulfill her promise an instance of her wronging the recipient of the promise is not her transgression of some rule that is partially constitutive of the practice. Rather, what makes that failure wrongful is the manner in which she treats the recipient through the conjunction of her making and then failing to abide by the promise. Her promising provides the agent with an opportunity to treat the recipient in this manner; but the wrongfulness of treating the agent in this manner is not itself a creature of the promising activity. That this manner of treating another is wrongful is independent of the promising practice. This view is supported by there being cases in which an agent inflicts the same wrongful treatment upon another without having created the opportunity for that wrongful treatment through plays made within the promising game. This shows that the wrongfulness of the type of treatment inflicted through breaking promises is not itself a product of the promising practice.

For instance, suppose that Josh is on a beach that is about to be submerged by a rising and dangerous tide. He is thinking of escaping by running down the beach—across a point that will very soon be flooded—to the only staircase leading up the surrounding cliffs. Before he sets out, however, he sees Bekah gesturing to him and lowering a rope ladder to him from a near point on the cliffs. Relying upon that ladder still being there when he arrives at it, Josh heads toward it and forgoes the chance of crossing over to the foot of the staircase. As he approaches the rope ladder, Bekah pulls it up and waves.Footnote ⁴⁰ The wrong-making feature of Bekah's conduct is her manipulation of Josh through deception (rather than, e.g., through the imposition of force or the threat of force); and this, I take it, is also the wrong-making feature of her failing to fulfill her earlier promise to Josh to do z. If we think that in both cases Bekah's conduct violates Josh's rights (rather than merely lowers social utility), it must be because we believe that Josh possesses a right against Bekah not to be subjected to manipulation through deception. Such a right may be thought of as a part of the codification of Josh's ur-claim not to be precluded from living his life in his own chosen way—a partial codification which is a bit more general than the right to have promises that have been made to one kept.

In explaining my rejection of the social practice view as it applies to the case of promising, I have appealed to the idea of a wrong-making feature of promise breakings—a feature in virtue of which they are violations of rights. By extension, I should be prepared to identify the wrong-making feature of acts which seize from people holdings that they have acquired in accordance with a (justifiable) practice of private property or which deprive them of discretionary control over those holdings. The wrong-making feature of those actions is the precluding of the holder from pursuing his own ends through his chosen disposition of those extrapersonal holdings. The independent norm which explains why such actions are violations of the holder's right is the natural right not to be precluded from acquiring and employing extrapersonal objects as one sees fit in the service of one's ends. That such interferences with persons' possession and chosen employment of the holdings they have acquired under a (functional) practice of private property has this inherent wrong-making feature is consistent with my denial that there must be some inherent feature in all property-rights-generating actions in virtue of which they engender such rights.