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Subject Area: Political Theory

Property and the Right to Liberty - Leonard P. Liggio, Literature of Liberty, Autumn 1981, vol. 4, No. 3 [1981]

Edition used:

Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.

Part of: Literature of Liberty: A Review of Contemporary Liberal Thought, 20 vols. 19781-982

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


Property and the Right to Liberty

Anthony Fressola

  • University of Wisconsin, Madison

“Liberty and Property: Reflections on the Right of Appropriation in the State of Nature.” American Philosophical Quarterly 18 (October 1981): 315–322.

If consent and the “mixing” of labor with things are inadequate explanations of how property rights are acquired, how might we properly ground a right of appropriation?

One possibility is to work out the implications of what it could mean to have an equal natural right to liberty. On the assumption that humans are not just agents but rational planners, to respect humans would have to involve recognizing that they have a right to act upon their plans and projects across time. And since human action is always a kind of interaction between humans and the physical world, a person has a right to act upon his plans and projects only if no one else has a right to make use of those physical components of his action that are necessary to his plan. Thus, a right to liberty would have to concern the distribution of rights with respect to material things.

Now if all are equally entitled to liberty, none may have at the outset any right to non-produced resources that goes beyond the rights of others. How, then, should the equal title of all persons to non-produced resources be interpreted? Fressola denies that all persons have, collectively, a joint right to the whole body of naturally occurring substances. His argument is that the necessity of obtaining the consent of all co-owners before using anything could then be used to deny individuals the privilege of acting on their own plans—plans that might not be acceptable to everyone else. Everyone cannot have an initially equal share in the stock of naturally occurring substances, for there is, typically, no way to say when one person's share is equal to another's. The things to be shared are just not commensurable without market prices, which already presuppose property titles.

But it could be the case that in the absence of a right of appropriation, everyone has the natural (Hohfeldian) privilege of using whatever unproduced resources which no one else is using. The right to liberty could then be construed as the right to carry on with the use of whatever it is that one is using, provided that one was at liberty to use the thing in the first place. “Using a thing” could be broadly construed as incorporating it as a physical component of ongoing activities, projects, and programs of action. The boundaries of the right would then be a function of the nature of the use (for example, a person who cultivates may acquire by that activity a right to the surface of the land but not to the minerals which lie beneath.

Four conditions for initial appropriation seem consistent with an equal right to liberty: (1) the entity must be unowned; (2) the appropriator must physically take possession; (3) the entity must be put to some use; and (4) the intention to appropriate and use the entity must be made public.