Robert Nozick, Anarchy, State, and Utopia (1974), pp. 174-182

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Locke’s Theory of Appropriation

[1] Before we turn to consider other theories of justice in detail, we must introduce an additional bit of complexity into the structure of the entitlement theory. This is best approached by considering Locke’s attempt to specify a principle of justice in acquisition. Locke views property rights in an unknown object as originating through someone’s mixing his labor with it. This gives rise to many questions. What are the boundaries of what labor is mixed with? If a private astronaut clears a place on Mars, has he mixed his labor with (so that he comes to own) the whole planet, the whole inhabited universe, or just a particular plot? Which plot does an act bring under ownership? The minimal (possibly disconnected) area such that an act decreases entropy in that area, and not elsewhere? Can virgin land (for the purposes of ecological investigation by highflying airplane) come under ownership by a Lockean process? Building a fence around a territory presumably would make one the owner of only the fence (and the land immediately underneath it).

[2] Why does mixing one’s labor with something make one the owner of it? Perhaps because one owns one’s labor, and so one comes to own a previously unknown thing that becomes permeated with what one owns. Ownership seeps over into the rest. But why isn’t mixing what I own with what I don’t own a way of losing what I own rather than a way of gaining what I don’t? If I own a can of tomato juice and spill it into the sea so that its molecules (made radioactive, so I can check this) mingle evenly throughout the sea, do I thereby come to own the sea, or have I foolishly dissipated my tomato juice? Perhaps the idea, instead, is that laboring on something improves it and makes it more valuable; and anyone is entitled to own the thing whose value he has created. (Reinforcing this, perhaps, is the view that laboring is unpleasant. If some people made things effortlessly, as the cartoon characters in The Yellow Submarine trail flowers in their wake, would they have lesser claim to their own products whose making didn’t cost them anything?) Ignore the fact that laboring on something may make it less valuable (spraying pink enamel paint on the piece of driftwood that you have found). Why should one’s entitlement extend to the whole object rather than just to the added value one’s labor has produced? (Such reference to value might also serve to delimit to the extent of ownership; for example, substitute “increases the value of” for “decreases entropy in” in the above entropy criterion.) No workable or coherent valueadded property scheme has yet been devised, and any such scheme presumably would fall to objections (similar to those) that fell the theory of Henry George.

[3] It will be implausible to view improving an object as giving full ownership to it, if the stock of unowned objects that might be improved is limited. For an object’s coming under one’s person ownership changes the situation of all others. Whereas previously they were at liberty (in Hohfeld’s sense) to use the object, they now no longer are. This change in the situation of others (by removing their liberty to act on a previously unowned object) need not worsen their situation. If I appropriate a grain of sand from Coney Island, no one else may now do as they will with that grain of sand but there are plenty of other grains of sand left for them to do the same with. Or if not grains of sand, then other things. Alternatively, the things I do with a grain of sand I appropriate might improve the position of others, counterbalancing their loss of the liberty to use that grain. The crucial point is whether appropriation of an unknown object worsens the situation of others.

[4] Locke’s proviso that there be “enough and as good left in common for others” (section 27) is meant to ensure that the situation of others is not worsened. (If this proviso is met is there any motivation for further consideration of non-waste?) It is often said that this proviso once held but now no longer does. But there appears to be an argument for the conclusion that if the proviso no longer holds, then it cannot ever have held so as to yield permanent and inheritable property rights. Consider the first person Z for whom there is not enough and as good left to appropriate. The last person Y to appropriate left Z without his previous liberty to act on an object, and so worsened Z’s situation. So Y’s appropriation is not allowed under Locke’s proviso. Therefore the next-to-last person X to appropriate left Y in a worse position, for X’s act ended permissible appropriation and so, since it worsened X’s position, W’s appropriation wasn’t permissible. And so on back to the first person A to appropriate a permanent property right.

[5] This argument, however, proceeds too quickly. Someone may be made worse off by another’s appropriation in two ways: first, by losing the opportunity to improve his situation by particular appropriation or any one; and second, by no longer being able to use freely (without appropriation) what he previously could. A stringent requirement that another not be made worse off by appropriation would exclude the first way if nothing else counterbalances the diminution in opportunity, as well as the second. A weaker requirement would exclude the second way, though not the first. With a weaker requirement, we cannot zip back so quickly from Z to A, as in the above argument; for though person Z can no longer appropriate there may remain some for him to use as before. In this case Y’s appropriation would not violate the weaker Lockean condition. (With less remaining that people are at liberty to use, users might face more inconvenience, crowding, and so on; in that way the situation of others might be worsened, unless appropriations stopped far short of such a point.) It is arguable that no one legitimately can complain if the weaker provision is satisfied. However, since this is less clear than in the case of the more stringent proviso, Locke may have intended this stringent proviso by “enough and as good” remaining, and perhaps he meant the non-waste condition to delay the endpoint from which the argument zips back.

[6] Is the situation of persons who are unable to appropriate (there being no more accessible and useful unowned objects) worsened by a system allowing appropriation and permanent property? Here enter the familiar social considerations favoring private property: it increases the social product by putting means of production in the hands of those who can use them most efficiently (profitably); experimentation is encouraged, because with separate persons controlling resources, there is no one person or small group whom someone with a new idea must convince to try it out; private property enables people to decide on the pattern and types of risks they wish to bear, leading to specialized types of risk bearing; private property protects future persons by leading some to hold back resources from current consumption for future markets; it provides alternate sources of employment for unpopular persons who don’t have to convince any one person or small group to hire them, and so on. These considerations enter a Lockean theory to support the claim that appropriation of private property satisfies the intent behind the “enough and as good left over” proviso, not as utilitarian justification of property. They enter to rebut the claim that because the proviso is violated no natural right to private property can arise by a Lockean process. The difficulty in working such an argument to show that the proviso is satisfied is in fixing the appropriate baseline for comparison. Lockean appropriation makes people no worse off than they would be how? This fixing of the baseline needs more detailed investigation then we are able to give it here. It would be desirable to have an estimate of the general economic importance of original appropriation in order to see how much leeway there is for different theories of appropriation and of the location of the baseline. Perhaps this importance can be measured by the percentage of all income that is based upon on transformed raw materials and given resources (rather than upon human actions), mainly rental income representing the unimproved value of land, and the price of raw material in situ and by the percentage of current wealth which represents such income in the past.

[7] We should note that it is not only persons favoring private property who need a theory of how property rights legitimately originate. Those believing in collective property, for example those believing that a group of persons living in an area jointly own the territory, or its mineral resources, also must provide a theory of how such property rights arise; they must show why the persons living there have rights to determine what is done with the land and resources there that persons living elsewhere don’t have with regard to the same land and resources.

The Proviso

[8] Whether or not Locke’s particular theory of appropriation can be spelled out so as to handle various difficulties, I assume that any adequate theory of justice in acquisition will contain a proviso similar to the weaker of the ones we have attributed to Locke. A process normally giving rise to a permanent bequeathable property right in a previously unowned thing will not do so if the position of others no longer at liberty to use the thing is thereby worsened. It is important to specify this particular mode of worsening the situation of others, for the proviso does not encompass other modes. It does not include the worsening due to more limited opportunities to appropriate (the first way above, corresponding to the more stringent condition), and it does not include how I “worsen” a seller’s position if I appropriate materials to make some of what he is selling, and then enter into competition with him. Someone whose appropriation otherwise would violate the proviso still may appropriate provided he compensates the others so that their situation is not thereby worsened; unless he does compensate these others, his appropriation will violate the proviso of the principle of justice in acquisition and will be an illegitimate one.¹ A theory of appropriation incorporating this Lockean proviso will handle correctly the cases (objections to the theory lacking the proviso) where someone appropriates the total supply of something necessary for life.²

[9] A theory which includes the proviso in its principle of justice in acquisition must also contain a more complex principle of justice in transfer. Some reflection of the proviso about appropriation constrains later actions. If my appropriating all of a certain substance violates the Lockean proviso, then so does my appropriating some and purchasing all the rest from others who obtained it without otherwise violating the Lockean proviso. If the proviso excludes someone’s appropriating all the drinkable water in the world, it also excludes his purchasing it all. (More weakly, and messily, it may exclude his charging certain prices for some of his supply.) This proviso (almost?) never will come into effect; the more someone acquires of a scarce substance which others want, the higher the price of the rest will go, and the more difficult it will become for him to acquire it all. But still, we can imagine, at least, that something like this occurs: someone makes simultaneous secret bids to the separate owners of a substance, each of who sells assuming he can easily purchase more from the other owners; or some natural catastrophe destroys all of the supply of something except that in one person’s possession. The total supply could not be permissibly appropriated by one person at the beginning. His later acquisition of it all does not show that the original appropriation violated the proviso (even by a reverse argument similar to the one above that tried to zip back from Z to A). Rather, it is the combination of the original appropriation plus all the later transfers and actions that violates the Lockean proviso.

[10] Each owner’s title to his holding includes the historical shadow of the Lockean proviso on appropriation. This excludes his transferring it into an agglomeration that does violate the Lockean proviso and excludes his using it in a way, in coordination with others or independently of them, so as to violate the proviso by making the situation of others worse than their baseline situation. Once it is known that someone’s ownership runs afoul of the Lockean proviso, there are stringent limits on what he may do with (what it is difficult any longer unreservedly to call) “his property.” Thus a person may not appropriate the only water hole in a desert and charge what he will. Nor may he charge what he will if he possesses one, and unfortunately it happens that all the water holes in the desert dry up, except for his. This unfortunate circumstance, admittedly no fault of his, brings into operation the Lockean proviso and limits his property rights.³ Similarly, an owner’s property right in the only island in an area does not allow him to order a castaway from a shipwreck off his island as a trespasser, for this would violate the Lockean proviso.

[11] Notice that the theory does not say that owners do have these rights, but that the rights are overridden to avoid some catastrophe. (Overridden rights do not disappear; they leave a trace of a sort absent in the cases under discussion.) There is not such external (and ad hoc?) overriding. Considerations internal to the theory of property itself, to its theory of acquisition and appropriation, provide the means for handling such cases. The results, however, may be coextensive with some conditions about catastrophe, since the baseline for comparison is so low as compared to the productiveness of a society with private appropriation that the question of the Lockean proviso being violated arises only in the case of catastrophe (or a desert-island situation).

[12] The fact that someone owns the total supply of something necessary for others to stay alive does not entail that his (or anyone’s) appropriation of anything left some people (immediately or later) in a situation worse that the baseline one. A medical researcher who synthesizes a new substance that effectively treats a certain disease and who refuses to sell except on his terms does not worsen the situation of others by depriving them of whatever he has appropriated. The others easily can possess the same materials he appropriated; the researcher’s appropriation or purchase of chemicals didn’t make those chemicals scarce in a way so as to violate the Lockean proviso. Nor would someone else’s purchasing the total supply of the synthesized substance from the medical researcher. The fact that the medical research uses easily available chemicals to synthesize the drug no more violates the Lockean proviso than does the fact that the only surgeon able to perform a particular operation eats easily obtainable food in order to stay alive and to have the energy to work. This shows that the Lockean proviso is not an “end-state principle”; it focuses on a particular way that appropriative actions affect others, and not on the structure of the situation that results.

[13] Intermediate between someone who takes all the public supply and someone who makes the total supply out of easily obtainable substances is someone who appropriates the total supply of something in a way that does not deprive the others of it. For example, someone finds a new substance in an out-of-the-way place. He discovers that it effectively treats a certain disease and appropriates the total supply. He does not worsen the situation of others; if he did not stumble upon the substance no one else would have, and the others would remain without it. However, as time passes, the likelihood increases that others would have come across the substance; upon this fact might be based a limit to his property right in the substance so that others are not below their baseline position; for example, its bequest might be limited. The theme of someone worsening another’s situation by depriving him of something he otherwise would possess may also illuminate the example of patents. An inventor’s patent does not deprive others of an object which would not exist if not for the inventor. Yet patents would have this effect on others who independently invent the object. Therefore, these independent inventors, upon whom the burden of proving independent discovery may rest, should not be excluded from utilizing their own invention as they wish (including selling it to others). Furthermore, a known inventor drastically lessens the chances of actual independent invention. For persons who know of an invention usually will not try to reinvent it, and the notion of independent discovery here would be murky at best. Yet we may assume that in the absence of the original invention, sometime later someone else would have come up with it. This suggest placing a time limit on patents, as a rough rule of thumb to approximate how long it would have taken , in the absence of knowledge of the invention, for independent discovery.

[14] I believe that the free operation of a market system will not actually run afoul of the Lockean proviso. (Recall that crucial to our story in Part I of how a protective agency becomes dominant and a de facto monopoly is the fact that it wields force in situations of conflict, and is not merely in competition, with other agencies. A similar tale cannot be told about other businesses.) If this is correct, the proviso will not play a very important role in the activities of protective agencies and will not provide a significant opportunity for future state action. Indeed, were it not for the effects of previous illegitimate state action, people would not think the possibility of the proviso’s being violated as of more interest than any other logical possibility (Here I make an empirical historical claim; as does someone who disagrees with this.) This completes our indication of the complication in the entitlement theory introduced by the Lockean proviso.

1. Fourier held that since the process of civilization had deprived the members of society of certain liberties (together, pasture, engage in the chase), a socially guaranteed minimum provision for persons was justified as compensation for the loss (Alexander Gray, The Socialist Tradition (New York: Harper & Row, 1968), P.188). But this puts the point too strongly. This compensation would be due those persons, if any, for whom the process of civilization was a net loss, for whom the benefits of civilization did not counterbalance being deprived of these particular liberties. ↩

2. For example, Rashdall’s case of someone who comes upon the only water in the desert several miles ahead of others who also will come to it and appropriates it all. Hastings Rashdall, “The Philosophical Theory of Property,” in Property, its Duties and Rights (London: MacMillan, 1915).
   We should note Ayn Rand’s theory of property rights (“Man’s Rights” in wherein these follow from the right to life, since people need physical things to live. But a right to life is not a right to whatever one needs to live; other people provided that having it does not violate anyone else’s rights. With regard to others. (Would appropriation of all unowned things do so? Would appropriating the water hole in Rashdall’s example?) Since special considerations (such as the Lockean proviso) may enter with regard to material property, one first needs a theory of property rights before one can apply any supposed right to life (as amended above). Therefore the right to life cannot provide the foundation for a theory of property rights. ↩

3. The situation would be different if his water hole didn’t dry up, due to special precautions he took to prevent this. Compare our discussion of the case in the test with Hayek, The Constitution of Liberty, p. 136; and also with Ronald Hamowy, “Hayek’s Concept of Freedom; A Critique, “New Individualist Review, April 1961, pp. 28-32. ↩