One of the advantages of the Entrepreneurial Theory of Ownership (ETO) is that it explains initial appropriation without relying on an alleged original universal right to use unowned resources. Instead, it models the right to use unowned resources as an acquired right, obtained individually whenever we discover the value of each particular resource. This allows ETO to avoid the objection that appropriation displaces a pre-existing universal liberty that everyone normally enjoys: it claims that such universal liberty simply never existed.
Against this, Konstantin Morozov makes the following point. Even if it is true that there is no universal liberty to consciously use resources (Liberty 1), there is still a universal liberty to unconsciously interact with them (Liberty 2). Appropriation continues to supplant this latter liberty, even under ETO.
I want to make two quick points in response. Firstly, the private duty imposition objection is so perilous for traditional theories of appropriation because they need to assert a universal right to use resources to explain appropriation, which means that they cannot flat out deny that such a right exists when it is used against them. But what they assert is Liberty 1. They have no need for Liberty 2, and when accused of disregarding it, they can simply say that there is no such right.
And this brings me to my second point because I do not believe Liberty 2 exists, not in any interesting sense.Footnote 1 This is because the function of moral rights, as I see it, is to protect something valuable, and unconscious interactions are typically not such, almost by definition: as agents do not intend them, they would hardly be much frustrated if they were made impossible. To be sure, there are important exceptions, like breathing air, and I do believe that more work needs to be done to integrate such cases in ETO. But those are marginal cases. A paradigm case would be something like the stick example that my opponent uses, and I doubt that the duty to step around the stick, allegedly imposed on Gary, would inconvenience him in the slightest.
Even if it can be demonstrated that Liberty 2 exists in some formal sense, it would still be the case that it lacks genuine moral significance, and it would be much harder to build an argument against appropriation around it. In this way, by disarming a much more potent Liberty 1, ETO still makes a lot of progress in responding to the private duty imposition objection compared with traditional libertarian approaches.
Sergei Sazonov is a fellow at the Classical Liberal Institute at New York University Law School. He received PhD in philosophy from the University of Tartu (Estonia). His research interests lie in distributive justice and the philosophy of property rights.
