THE CONVERSATION

1. Eric Mack's Reply to Jan Narveson (January 15, 2013)

I thank Jan Narveson for his generous, thoughtful, and thought-provoking comments. Narveson raises five or six really important issues, including concerns about whether there is any need to argue against the proposition that nature is the joint property of all mankind, concerns about how precisely to formulate Locke’s “enough, and as good” proviso, and concerns about my non-Lockean willingness to assign a major role to conventional rules in the generation of legitimate property rights. [1]

However, at this point, I am going to focus almost entirely on one issue where I think there is a really deep philosophical disagreement between Narveson and myself. In doing so I hope to highlight a crucial and contentious feature of natural-rights doctrines – a feature that is much too readily taken to be a fundamental defect of such doctrines. To complement the discussion of the character of natural-rights theory, I will say a word or two about Narveson’s alternative approach to vindicating really basic moral rules. Needless to say, I will only be dipping a toe or two into the depths.

The really deep philosophical dispute between Narveson and me concerns what sorts of reasons exist for endorsing or condemning actions, or for affirming or rejecting really basic moral principles or really basic rights. I think (and I construe Locke as thinking) that certain “morally significant features” of other people provide me with nonprudential and nonstrategic reasons to be circumspect in my conduct toward them. Because persons have these features they matter; and they matter in a way that limits what I may do to or with them. Natural-rights theories seek to identify core natural features of persons that explain why they have a status or standing that morally precludes their being subject to certain sorts of treatment. For Locke these morally significant features include others being one’s moral equals, others not being made for one’s own purposes, others having ultimate ends of their own that they are rational to advance, and others each having reason to claim freedom from interference as the crucial condition of their advancing their own ends. Natural-rights theorists think that such facts about others have moral import for one. They provide one with reason not to do certain things to other people – like destroying them, locking them up, or converting them into wall-hangings – which one is perfectly morally free to do to other sorts of entities.

Why is one morally precluded from destroying other people, locking them up, and converting them into wall-hangings? Why may they demand that one not subject them to such treatment? According to any natural-rights doctrine the crucial answer is not that such treatment would have untoward consequences – for the agent or for the subject or for society at large. Bad consequences for the agent may provide the agent with prudential reasons not to impose that treatment, and bad consequences for the subject or for society at large may provide the agent with reasons of benevolence not to impose that treatment. Nevertheless, the wrongness of imposing those sorts of treatment is not contingent upon that treatment having untoward consequences for the agent or the subject or society at large. The wrongness of imposing those sorts of treatment is not contingent on the agent having prudential reasons or reasons of benevolence for eschewing those kinds of treatment. That is why, according to the natural-rights theorist, one can know that one ought not to inflict such treatment without knowing that its infliction would have bad consequences for the agent or the subject or society at large. One can know that one ought not to inflict such treatment without knowing that it will have untoward consequences because one can reason from persons having traits like being one’s moral equal, not being made for one’s purposes, and so on to one’s having reason not to inflict such treatment. Or so natural-rights theorists like Locke contend.

My point here is not that all these contentions are correct but rather that it is crucial to any (genuine) natural-rights position that there are nonconsequentialist reasons against certain types of action – reasons that are provided to one by morally significant features of persons. One subscribes to the consequentialist conception of reasons if one believes (as many do) that all reason for or against actions is a matter of the value or disvalue of the consequences of those actions. And, if one subscribes to this consequentialist conception of reasons, one will think that the sort of reasons that have to exist for natural-rights doctrines to make sense simply do not exist. I believe that Narveson thinks that all purported natural-rights accounts of fundamental moral principles have to be “[b]ad accounts, or non-accounts” precisely because he subscribes to such a consequentialist conception of reasons.

However, this narrow conception of reasons is challenged by the thought that persons – beings who are one’s moral equal, who are not made for one’s purposes, and so on -- matter in a way that places moral limits on what one may do to or with them. Since natural-rights accounts incorporate this thought, invoking the consequentialist conception of reasons to dismiss natural-rights accounts illicitly presupposes a conception of reasons that natural-rights doctrines reject. This does not show that any natural-rights account is correct. It merely shows that dismissing all such accounts as bad accounts or as non-accounts on the basis that all reasons must be consequentialist in character fails to take the character of natural-rights positions seriously.

Narveson prefers a mutual-advantage account of basic moral rules. On this account a rule is justified if and only if we are all better off with general compliance. But the well-known problem with this approach is that (almost) every individual would be better off yet if others generally complied with the rule while he got to violate it when he can do so without being detected. (Narveson himself asks, “What about those who exploit the compliance of most of us with Locke’s natural law…?”) The problem is that if each individual is prepared to break the rule when doing so is more advantageous for him, and each knows that each is so prepared, we get general noncompliance – which is worse for everyone.

My contention is that we will get general compliance with nifty rules – like refrain from violence against nonviolent others – only if people take themselves to have nonconsequentialist reasons to abide by those rules. The perception that there are certain constraints on how one may treat other persons -- because they are persons – is a necessary catalyst for the general compliance that is mutually advantageous. As Locke put it in his early Essays on the Law of Nature, “Thus the rightness of an action does not depend on its utility; on the contrary, its utility is a result of its rightness.” [2]

Endnotes

[1] On the conventional rules issue, see Eric Mack, “The Natural Right of Property,” Social Philosophy and Policy, v.27 no.1 (Winter 2010), 53-79.

[2] Essays on the Law of Nature, 79-133, in Locke: Political Essays, Mark Goldie, ed. (Cambridge: Cambridge University Press, 1997), 133.

 

2. Jan Narveson's Comment on Eric Mack (January 15, 2013)

Eric Mack is right to think that we have a serious philosophical disagreement on the matter of the foundations of rights. We are in agreement (and everybody else is too, I hope!) that rights are natural in the sense that they aren't a matter of what some legislature or king decrees, but stem from how people are, how they relate to each other and their environment. He characterizes my counterview as: “The wrongness of imposing those sorts of treatment“ is “contingent on the agent having prudential reasons or reasons of benevolence for eschewing those kinds of treatment.” I admit that I don't see how this could not be so. Why would we care about rights if the things they protected for us were things that just didn't matter to us? Eric says that persons “matter.” As a moral proposition, I agree: But matter how? On his view (or Kant’s comparable one), it seems that other people “mattering” is a fact about all of us. If it were so, why do some people kill others or take their stuff? I don’t see how the answer could be anything other than that morality is interpersonal -- it's the forming and inculcating of interpersonally authoritative rules of behavior. I can’t expect you to respect me and what matters to me if I won't in turn respect you and what matters to you. If that isn’t enough (and apparently for some it isn’t) to induce us both to make and keep the commitments of morality, then we are reduced to war -- and telling our enemies that they are bad people while they’re at it, though true, isn’t going to do any good unless there is some reason (that they can understand) why people who do the sorts of things they are doing are rationally regarded as bad.

It is not a “problem” with the social-contract view that while cooperation is better for all, noncooperation is often better for each. The fact that general noncooperation is far worse for everyone, including the noncooperating agent, tells us a lot -- in the end, I think, everything. It explains both why people often do evil and why we need to redouble our efforts to see to it that they don’t. But it does not in the least impugn that what they are doing is indeed wrong -- for wrongness is a matter of acting against rationally imposed rules for all. It not only doesn't need to be anything else, but it really can’t be.

 

3. Eric Mack’s Response to Peter Vallentyne (January 16, 2013)

I now thank Peter Vallentyne for his very gracious and challenging comments. I want to address several of the issues that Vallentyne raises. Most of these issues arise within the context of the debate – or, let us say, conversation – between theorists (like myself) who are labeled “right-libertarians” and theorists (like Vallentyne) who are labeled “left-libertarians.”[1] Moreover, since most, if not all, members of each of these philosophical sub-camps see themselves as endorsing “a Locke-inspired version of libertarianism,” one can also describe the philosophical conversation as being between “right-Lockeans” and “left-Lockeans.” This is not a conversation about exactly what John Locke actually believed but rather one about what is the best philosophical elaboration of the basic elements of Lockean political theory as those elements themselves are best understood.

"Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his own person: this no body has any right to but himself."

Both “right-Lockeans” and “left-Lockeans” recognize in Locke and themselves affirm that “every Man has a Property in his own Person. This no Body as any Right to but himself. The Labour of his Body, and the Work of his Hands, we may say, are properly his.” [ST §27] This is a statement about each person’s natural (or original) moral condition. Each is “Master of himself, and Proprietor of his own Person” [ST §44] in the sense that each is morally at liberty to dispose as he sees fit of the elements that compose his person and each has rights against all others not to be prevented from disposing of his person as he sees fit.

For our current purposes, it is important to note that this affirmation of “self-ownership” is anti-egalitarian in the sense that individuals are ascribed rights over very unequal “shares” of personal resources. Some individuals will have rights over considerably more in the way of mental or physical capacities and levels of energy and get-going-ness than others. In addition, it looks as though the affirmed and rightful inequality in personal resources will in all likelihood generate inequalities in extra-personal holdings – in the number of acorns that people will gather, the extent of the fields that they will cultivate and the crops that they will harvest, and the minerals they will mine and refine. As Locke says, “Different degrees of Industry were apt to give Men Possessions in different Proportions….” [ST §48]. And when the invention of money engenders more elaborate forms of labor and commerce, this inequality in extra-personal holdings will be enlarged. When individuals with rights over their talents, energy, and labor bring these factors to bear on the natural materials that surround them, we seem to get rightful inequalities of extra-personal holdings. Left-Lockeans, however, want to push back against these apparently anti-egalitarian implications. They want to find bases within a fundamentally Lockean approach for something like equality in the distribution of the blessings of nature – or even (in some left-Lockeans) something like equality in the distribution of all extra-personal holdings.

The Lockean text suggests four ways in which a Lockean might launch an argument for some degree – perhaps a very considerable degree – of mandated equality in extra-personal holdings. The least promising of these is Locke’s advocacy of a spoilage proviso according to which, even if I have mixed my labor with some natural material – e.g., even if I have gathered all three of these bushels of berries – if some of the labor-invested material will spoil in my possession, others are morally at liberty to take that material. But, as Locke points out, the spoilage proviso provides little room for inequality reducing transfers of extra-personal holdings, for only the most irrational people will invest their labor in gathering more berries than they can consume without spoilage or can barter away for other consumption goods. And once money comes along, all those extra berries can readily be converted in to silver and gold coins that never spoil.

Locke tells us that the earth has been given to all mankind in common. There are two very strong interpretations of this claim, each of which seems to require something like an equal distribution of the blessings of nature. One interpretation is that we are all by nature joint-owners of the earth and hence any private appropriation requires everyone’s agreement. The other interpretation is that each of such is naturally the owner of a discrete equal share of the earth. (Locke himself rejects both of these interpretations.) As I see it, the history of left-Lockeanism (or left-libertarianism) has largely been the history of people trying to defend one or another of these strong propositions and then trying to show the coherence of a system that includes one of these propositions and self-ownership. One of the striking things about Vallentyne’s left-Lockeanism is that Vallentyne disavows both of these strong claims about original equal rights to nature and accepts the position of Locke (and of right-Lockeans) that nature is originally unowned.

"… which Question will at first seem strange, since the Establishment of Property seems to have extinguished all the Right that arose from the State of Community. But it is not so; for we are to consider the Intention of those who first introduced the Property of Goods. There is all the Reason in the World to suppose that they designed to deviate as little as possible from the Rules of natural Equity;"

Another opening for the insertion of equality into a Lockean system is Locke’s claim that an individual who is in extreme want is morally at liberty to take the loaf of bread that she needs to avoid starvation from the otherwise rightful owner of that loaf. Vallentyne agrees, and so do I. Locke in fact seems to make a much stronger claim on behalf of the party in dire circumstances. In his First Treatise he declares that “charity gives every Man a Title to so much out of another’s plenty, as will keep him from extream want, where he has no means to subsist otherwise….” [FT §42]. Notice that this moral-liberty argument goes beyond the spoilage proviso because the party who needs to take the loaf to avoid starvation may take the loaf even if it will not otherwise spoil.[2] On the other hand, the doctrine that people are not obligated to sit and starve or even that there is a duty of charity to prevent starvation hardly gets one to anything like an egalitarianism of extra-personal shares of nature.

Notice that in this First Treatise passage Locke says that the person in extreme want has a “Title” to what she needs to survive – albeit it is a title bestowed by charity and not by justice. This raises some of the same philosophical issues considered by Vallentyne toward the end of his remarks. Does the loaf-holder have a duty to hand the bread over to the starving individual? Does he at least have a duty to allow her to exercise her liberty to take the bread? If the loaf-holder has duties with respect to the person in extreme want does that mean that she has claim-rights against the loaf-holder? In A Letter Concerning Toleration, Locke holds that although uncharitableness is a sin, it is not subject to punishment by the magistrate because uncharitable conduct is “not prejudicial to other mens Rights….”[3]

The fourth opening for something like the equal blessings of nature into a Lockean system is Locke’s advocacy of the “enough and as good” proviso. The core idea of such a proviso is that people’s acquisition of property and/or their decisions about how they will employ their property may not worsen the condition of others in some way. But in what way may people’s condition not be worsened? And what is the baseline for determining whether a person’s condition is worsened in the specified way? And what justifies any such proviso and how does the affirmed proviso fit into an overall Lockean political theory? All these are matters of complex debate. What is salient here is that Vallentyne’s left-Lockean position turns on the inclusion of a bold “enough and as good” proviso. Vallentyne’s proposed proviso requires that an equally valuable share of natural resources be left for each individual or that each individual receive due compensation for anything less than an equally valuable share being left for her. [FN4: Vallentyne might go further. He might require that each be left with a large enough share to provide her with an equal opportunity for wellbeing or receive due compensation for not being left with such a share.]

Vallentyne quite rightly notes that he cannot be expected to defend this claim in a short commentary on a short essay about Locke. So it would be unjust for me to launch a full-scale critique here. I will merely highlight three difficulties that I expect readers of this conversation to have. The first is the difficulty of determining what an equally valuable share of natural resources would be. The second is the difficulty of seeing why the benefits provided by natural resources should be shared equally. The third is the difficulty of thinking that raw nature, to any significant degree, provides us with benefits. An important Lockean doctrine is that what provides us with benefits is people doing things with raw stuff that would otherwise be worthless.

Endnotes

[1] For a variety of reasons, I dislike these “right”–“left” labels.

[2] A really interesting discussion of this issue of which Locke must have been aware appears in Hugo Grotius’s great 1625 treatise, The Rights of War and Peace, (Indianapolis, IN: Liberty Fund, 2005), Bk.II, Ch.II, VI-IX. Editor’s Note: Hugo Grotius, The Rights of War and Peace, edited and with an Introduction by Richard Tuck, from the Edition by Jean Barbeyrac (Indianapolis: Liberty Fund, 2005). Vol. 2. Bk. II CHAPTER II: VI: Of Things which belong in common to all Men. < http://oll.libertyfund.org/title/1947/121278/2448195>]

[3] A Letter Concerning Toleration, ed. J. Tully (Indianapolis, IN: Hackett Publishing, 1983), 44. Editor’s Note: Or see Liberty Fund’s edition, John Locke, A Letter concerning Toleration and Other Writings, edited and with an Introduction by Mark Goldie (Indianapolis: Liberty Fund, 2010). <http://oll.libertyfund.org/title/2375>.]

4. Peter Vallentyne’s Reply to Eric Mack (January 17, 2013)

I have no disagreements with Eric’s excellent response to my commentary. I will here take the opportunity to reply, very briefly, to the three questions he raises at the end.

The first question concerns how the value of shares of natural resources is determined. I would defend an appeal to the competitive value (based on demand and supply) of the rights held over (unimproved) natural resources. There is some indeterminacy in this notion, but a suitable auction would be one example, as would be the market-clearing price in a suitable free market. This general approach is endorsed by Hillel Steiner and Henry George,[1] and some jurisdictions (e.g., Hong Kong, I believe) tax landowners on this basis.

Related to this is the third question, which concerns how raw natural resources could have any value apart from what people might do with them. I fully agree that their value so depends. The value of rights over some natural resources (e.g., beautiful beachfront) is higher than that of rights over other resources (e.g., ugly beachfront) precisely because there is more that people can or want to do with them.

The second, and remaining, question is why the value of natural resources should be shared equally. This is a more difficult question. If I were a moral realist, I would say that moral reality includes such a requirement (and of course I would need to justify this claim). I am not, however, a moral realist, and so I view this a matter of what moral principles we would endorse in a suitable reflective equilibrium (after much information gathering, reflection, discussion, etc.). I find full self-ownership plausible, but I also find a limited requirement for some form of substantive equality plausible. Some kind of egalitarian proviso on appropriation (and use) of natural resources seems like a plausible limited requirement. I fully recognize, however, that others (most others!) do not share this view. I thus view it, like all normative matters, as a matter for continued reflection and investigation. I should emphasize, however, that the issue of justification arises no matter what position one takes on the appropriation proviso. One can always ask why some specific proviso is the relevant one, rather than some other one, or none. The egalitarian proviso does not face, that is, any special burden of justification compared to other versions. They all face a very strong burden.

[1] Hillel Steiner, An Essay on Rights (Cambridge, MA: Blackwell Publishing, 1994). Henry George, Progress and Poverty (New York: Robert Schalkenbach Foundation, 1879). See the OLL edition: Henry George, Progress and Poverty: An Inquiry into the Cause of Industrial Depressions and of Increase of Want with Increase of Wealth, The Remedy (Garden City, NY: Doubleday, Page, & Co. 1912). <http://oll.libertyfund.org/title/328>.

 

5. Eric Mack's Comment on Michael Zuckert (January 20, 2013)

I have already thanked Jan Narveson and Peter Vallentyne for their gracious and thought-provoking comments. I now thank Michael Zuckert, who, as is always the case, reveals to me interesting ways to look at philosophical texts and issues that would otherwise be beyond my ken. It is very gratifying to have such distinguished thinkers as commentators and friends.

Zuckert zooms in on what seems to be a curious feature of Locke’s Second Treatise. Locke’s treatise is very reasonably viewed as (among other things) a defense of an economic order in which owners of extra-personal productive resources employ individuals who possess little in the way of productive resources beyond themselves. Such an economic order will be shot through with employer-employee relationships – or, in Locke’s language, with master-servant relationships. Moreover, Locke mentions master-servant relationships as one of the several types of relationship that are to be distinguished from the political ruler-political subject relationship. Nevertheless, while Locke devotes good segments of chapters to the owner-slave, the parent-child, and the husband-wife relationships before going on to ruler-subject relationship, he does not seem to offer a comparable discussion of the master-servant relationship. Zuckert’s resolution of this curiosity is that the chapter “Of Property” – which is located between chapters that focus on these other relationships – is in reality about the master-servant relationship. It is an elaborate justifying explanation of the emergence of an economic order that is shot through with employer-employee relationships.

I think that this is a very illuminating point even though (or especially because) the only explicit reference to servants that I recall in “Of Property” is Locke’s assertion that,

Thus the Grass my Horse has bit; the Turfs my Servant has cut; and the Ore I have digg’d in any place where I have a right to them in common with others, become my Property, without the assignment or consent of any body. The labour that was mine [including my horse’s labor and my servant’s labor], removing them out of that common state they were in, hath fixed my Property in them.[1]

Still, I think that there is another respect in which “Of Property” is strangely silent given Locke’s place as a crucial defender of a private property commercial order. Locke never takes up the question of why freely contracted exchanges give both parties rights against the world at large to what those parties receive through such exchanges.

Consider a situation in which A has a property right to a particular silver coin and B has a property right to a particular wool coat and they voluntarily agree to an exchange of the coin for the coat. It is pretty clear why, in virtue of their agreement, after the exchange A has a right against B that B not grab the wool coat and that B has a right against A that A not grab the coin. Each has the specified right against the other in virtue of the binding moral force of contracts. As Locke says, agreements are binding in the state of nature because “truth and keeping of faith belongs to men, as men….”[2]

But why does A now have a right against everyone that they keep their hands off the wool coat and why does B now have a right against everyone that they keep their hands off the silver coin? One might say – albeit Locke does not try this – that A and B don’t merely exchange the coin and the coat; they also exchange their rights. A transfers to B his right against the world to the coin and B transfers to A her right against the world to the wool coat. But I think saying this at best amounts to saying that somehow the agreement between A and B results in A having a right against the world to the coat and B having a right against the world to the coin. Yet what is needed is some explanation of how the voluntary exchange has this effect. I think that there are two factors that explain Locke’s failure to note the need to provide an explanation for how voluntary transfers of just holdings bring it about that the recipients now have rights against the world to what they have received in trade.

First, I think that Locke is quite appropriately impressed with the moral power of agreement. For this reason he does not notice that, while it is clear that if I agree to transfer my coin to you, I am bound not to grab it back, it is not so clear why everyone else becomes obligated to you not to take the coin. Second, along with all other 17th-century theorists, Locke is focused on how property rights initially arise – on how portions of the natural world are justly removed from the commons and converted into property. The task that he sets for himself in “Of Property” is to explain how just initial acquisition is possible (in the absence of the world at large agreeing to such acquisition). Locke simply takes it for granted that justice in transfer is possible.

There is another significant silence in and around Locke’s chapter “Of Property.” I’ve argued that Locke provides a forceful explanation for why the appearance and increasing articulation of a system of private property and trade will benefit all (or nearly all) persons. But this is, as Zuckert points out, a bit of “ideal theory” that may not fully address the world as it actually is. One way that Locke’s theorizing about how the rise of property could be just and mutually beneficial does not connect to the actual non-ideal world is that Locke remains silent about the extent to which the actual holdings – especially the land holdings -- of the world in which he lived were just or unjust and to what extent individuals were worse off than they would be because unjust holdings were in fact upheld. My presumption is that it simply does not occur to Locke to investigate the gap between his philosophical account of just holdings and those actually existing holdings. Perhaps – I think this is a Zuckert-like thought -- he saw the gap but judged that the most he could do was to leave it to others to see the gap as well.

Zuckert is impressed by the extent to which the gains to participants in Lockean commercial society are unequal – more specifically, by the extent to which the gains to those who are propertied are greater than the gains to those who are property-less. As I understand Zuckert, he is saying that, although justice may not condemn this unequal gain, we have to recognize the sense in which Lockean commercial society is a class society. Here I would just want to put forward an alternative picture for consideration. On that picture (i) many of the gains and the losses in Locke’s actual world and in ours derived or now derive from the sorts of economic predation that good Lockeans condemn; (ii) many of those illicit gains accrued and now accrue to those who are already powerful and hooked up to concentrated political interests, and many of those unjust losses fell and now fall on those who are already weak and unrepresented in coalitions of concentrated interests; and (iii) the important class division is the too-often unrecognized division between those who gain from predatory measures that Lockeans should condemn and those from whom those gains are extracted.

Endnotes

[1] Second Treatise, §28. <http://oll.libertyfund.org/title/222/16269/704360>.
[2] Second Treatise, §14.<http://oll.libertyfund.org/title/222/16245/704328>.

 

6. Jan Narveson's Reply to Eric Mack (January 20, 2013)

Libertarians need to address, very seriously, the questions raised between Eric Mack and Peter Vallentyne regarding, broadly speaking, the treatment of those on the "bottom" (that is, the bottom of the honest-dollar scale, but not the robbers and wastrels.)

Locke's opening pitch in the famous chapter on property takes it that nature belongs to mankind in common. Mack's original essay in effect says that Locke virtually undoes that position. In a sense that's true, but it's also true that he is in a position of having to undo it. He evidently thinks that there is something very robust about the claim, even if it's only a strong prima facie claim.

Now, Locke also says, in introducing the thought, that "God gave the earth to mankind in common." This introduces theological notions into the foundational discourse on these matters, and there is decisive, definitive reason for refusing to countenance such notions here -- a fact that Locke isn't sufficiently aware of (hence the, it seems to me, totally inexcusable book by Jeremy Waldron holding that all of Locke's views depend on his religion, and apparently implying that he was even somehow on the right track in this respect.[1] But Waldron is completely wrong about that. In the present context, the point that can easily be made is: How does Locke know that God gave the earth to all of us equally, as he says, rather than, say, just the Aryans or the Inuits, or whatever, or that he gave it highly unequally to his buddies? In context, it's obvious that Locke "knows" this because he believes, antecedently, that the earth does belong to us all in common, and therefore of course that's who God would, in all conscience, have given it to. The circularity is obvious.

But what that means is that some independent argument has to be given for it. And such argument is, to put it mildly, seriously lacking, even though my impression is that somewhere just short of 100 percent of contemporary social philosophers seem to agree with Locke on the substantive point.

But I don't, and I don't see how libertarians in general can. The reason they can't is simple: If indeed all we have, at bottom, is the right to liberty, then that right must be essentially negative. Now, a negative right over the earth has the problem that all rights are rights against other people. And a right against those others to a "share" of “the earth” is one that cannot be backed by strictly negative rights. If the earth is available for exploitation by free men, then there is no way to infer that everyone is entitled to some, either in the way of an equal share or anything else. If our only duty is to refrain from aggression, then some may starve because others, quite nonaggressively, neglect them.

I don't see how "left libertarianism" can be founded in liberty, and in Peter Vallentyne's account, it's not. On his account, it seems to me, liberty is a surd. But that’s not a point of contention between Eric Mack and myself, so I won’t pursue it here.

The question that remains is: Do we have any business asserting such positive claims if we are libertarians? If we are it would have to be this: that somehow, in the process of appropriating bits of the earth, those who end up with nothing in pure free-enterprise environments, due to whatever -- say, lack of talent or brainpower, or whatever -- have somehow been deprived of something by the rest, the ingenious and industrious. If that were so, we of course could infer our duty to help them out.

But it’s at least not obviously so. The person born with no brain, or whatever, isn’t going to make it regardless of his property rights. The Lockean idea, not to mention the Rawlsian idea, simply can’t be based on that. Let’s agree that the libertarian insists that we not put people below the relevant baseline. (In response to both Mack and Vallentyne, this baseline is simply where people would be in a state of nature even if it’s Lockean rather than Hobbesian.) The answer, unfortunately, is that quite a few of them would be dead. Locke is perfectly right to point out that nature of itself supplies us with nothing. Some technology is essential, however minimum. (I include, say, the rudimentary, innate technology by which newborns seek their mothers’ breasts. It does not, however, include the know-how necessary to increase product when Mom’s breasts, alas, don’t work properly or she is too low on sustenance to keep the supply coming.)

Nevertheless, there are three points that seem to me between them necessary and sufficient.

First, in any even moderately decent times (and if that’s lacking, see point three), there are lots of caring people around who will be ready and willing to contribute to appropriate helping agencies. We who worry about the down-and-out do not have a problem. We have, of course, a horrendous problem with governments whose policies shore up the unemployment rate, but we do not have a problem that people will starve to death in a libertarian world -- at least, not so long as most of them are pretty much like almost everybody that you and I know. The frequent aspersions on private charity by the friends of the welfare state -- exhortations that we shouldn’t throw the very poor on the “tender mercies of arbitrary charity” etc. -- are not just derogatory but completely baseless. It is characteristic of leftists, and a good many knuckle-headed rightists, to say such things, but anyone who knows any appreciable number of real people knows that the cynics simply don’t know what they’re talking about. (Of course, those who will be charitable if they can may sometimes be unable to be so. See point three below.)

Secondly, let’s also agree that modern technological environments make it highly likely that a lot of people who are perfectly competent will nevertheless end up unemployed now and then, and it may be that the skills some of them honed with years of study and practice and that are now redundant may also make it very difficult for those people to switch to other occupations that would get them back on track economically. However, I don’t see that these problems of themselves generate the kind of across-the-board, open-ended case for “equal rights to natural resources,” with whatever Vallentyne can somehow extract from that in the way of hard cash. What’s needed is a return to prudence: saving for the future during good years, etc.

And thirdly, any idea of “guaranteeing” equality, and in particular guaranteeing it in such a way that every individual is kept above some floor level, enough to keep him alive and functioning, has the problem that moral principles can’t of themselves actually guarantee anything whatever. If there absolutely isn’t enough to go around, then what? It is, again, impossible to see how the libertarian can say anything other than that in such circumstances the smart, the quick, and the lucky will make it and those with the opposite properties will not. But as I’ve said above, there is absolutely no reason to think that the world we live in either is now or will in the foreseeable future be a world of such niggardliness. All that’s true here is that advocates of positive rights for all have to run out of gas on sheer supply problems at some point, so far as pure theory is concerned. The earth will get zapped by a comet, or boil, or freeze, and there may not be a thing we can do to prevent mass starvation or some such. Pure theory is for debaters only: Again, in the real world the efforts of so many ingenious and humane people -- think, e.g., of Norman Borlaug -- have simply solved any real supply problem, and they will continue to do so as long as the earth bears much resemblance to what it has been for the past many millennia. The claim that Borlaug is merely “equal,” in libertarian terms, to the most down-and-out incompetent among us when it comes to claims on “shares” of developed resources is so utterly absurd as to make the egalitarian case a nonstarter.

The upshot is that libertarians do not need to follow Locke in his inconsistent insistence on positive rights for the starving. (It is inconsistent: Mack points out that “Locke holds that although uncharitableness is a sin, it is not subject to punishment by the magistrate...” -- and that, after all, is the only point at issue.) Some people’s rights, of themselves, will not keep them alive; but warmhearted, sympathetic, and industrious people will do so. That’s all we need -- as well as all we are theoretically entitled to.

Endnotes

[1] Jeremy Waldron, God, Locke, and Equality (Cambridge: Cambridge University Press, 2002).

 

7. Michael Zuckert's Comment on Eric Mack (Janaury 20, 2013)

Eric’s generous opening gesture about my comment bringing out insights “beyond his ken” may be a bit of an overstatement, but it does bring out something of a difference between many of us who approach political philosophy from within political science and those, like Eric, who do so from within the discipline of philosophy. I suppose there are many ways to describe the difference but one way is to note what Eric’s comment directly points to—readers like me are more emphatically concerned with the text of the philosophers than readers like Eric. He is directly concerned with the arguments and tends to see them in an acontextual and ahistorical manner. We tend to be concerned more with the text as text and to be attentive to the place of arguments within texts and within history. Thus in my original post I was trying to solve a puzzle about Locke’s organization and order of argument. But in doing so, I believe, some substantive points of interest emerged that do not nullify the excellent interpretation that Eric developed but give some different emphases to Locke’s property doctrine. Although the differences between us are slight I think they do mostly revolve around this difference in the way we approach philosophers like Locke.

With that preface let me make some specific responses to Eric’s comments.

1. On a relatively fine textual point: Eric observes quite correctly that the only place where Locke refers to the master-servant relation directly in chapter five is the famous “the turfs my servant has cut” passage. This was the passage that C.B. Macpherson (Possessive Individualism) referred to as merely reflecting emerging market relations in and therefore as evidence for his Marxist way of reading major texts of the 17th century.[1] One of my points was to show that Locke was not merely not taking for granted relations in his society, but that the very point of the chapter was to show how there might rightly be masters and servants. But beyond that, Locke refers once more, though not in these terms, to the master-servant relation when he speaks of the day laborer in a passage Eric too makes much of. Locke has shown us how there come to be day laborers, i.e., men who have no land and no direct access to the fruits of the land and who therefore must sell their labor. To show that they are not harmed in their rights or in their welfare is, one could plausibly say, the main point of the chapter.
2. Eric uses this example of the servant and turf to raise an interesting philosophical question: How does Locke explain the force of exchange and contract in creating rights against all comers, not just vis-à-vis the exchangers. Here Eric makes a move rather like Macpherson—he concludes that Locke is just taking for granted a relation or practice that exists in his society and has not given it any thought. Perhaps, but I wonder if the Lockean line of answer to this question would follow tracks similar to those that lead to rights against all comers for original appropriators. I do not follow that up here, but it would be an interesting argument to pursue.
3. Related Links:
   • Sir Robert Filmer (1588-1653)
   Similarly, Eric says that it does not occur to Locke to investigate the gap between his account and current holdings. I cannot believe that this is correct. Locke’s discussion in the immediate context has the purpose of refuting Filmer’s claim that existing property relations cannot be justified on the basis of the contractarian/state of nature/original commons arguments he means to counter with his patriarchal doctrine. Only if the world is originally owned and then passed on can private ownership rightly exist, as Filmer has it. This point comes out very strongly in Filmer’s critique of Grotius on property and the law of nature. So Locke’s task is precisely to show the legitimacy of the existing relations and distribution of property—in general if not in every detail. He could not have overlooked the bearing of his argument on property holdings in his society. I actually think Eric and I agree more here than he sees, for he makes much of Locke’s poor-law proposal, which is a response to the “gap” between the very general account he gives of property in a money economy with its assumption for this purpose of a full employment economy and the realities of his and all societies.
4. Eric suggests that my claims about the class character of Lockean society is perhaps more a result of economic and political practices and policies of which Locke would not approve and which he would work to overcome. Probably correct to some degree. Nonetheless, I believe the main point still holds. First, as I suggested above, Locke is writing to legitimate the property relations of his society. These are marked by great inequality of holdings. Second, he seems to believe that the dynamic of the money economy leads to great inequality under all conditions. After all, he takes on the burden of trying to show that the situation of the day laborer is just and right. And advantageous for all. The reason I raised the class issue in the first place is that it poses a serious political problem that Locke should need to face, and it is not evident how he meets it. That problem is how to maintain the property regime that benefits all but does so unequally in the face of temptations of the disadvantaged to disrupt those relations. We enter here issues such as the distribution of political power among the population, special constitutional means to protect property, and so on. The problem Locke points to but does not seem to resolve set the agenda for much of the political thinking and action of the next century, as men like Montesquieu and Madison (and many others) grappled with it.

Endnotes

[1] Macpherson, C.B., The Political Theory of Possessive Individualism: Hobbes to Locke (Oxford University Press, 1964).

 

8. Eric Mack's Comment on Jan Narveson 2 (January 20, 2013)

Jan Narveson provides a powerful response to my claim (on behalf of natural-rights theory) that one has reasons to be circumspect in one’s treatment of others that are not reasons of prudence or benevolence. Jan’s response is that there are things that matter to one and things that matter to others and surely this exhausts everything that matters. If one’s reasons for action or forbearance derive from what matters, then all one’s reasons must be reasons of prudence or reasons of benevolence. Jan’s response is powerful because, at least for a moment, it is difficult to say what else matters.

Fortunately, I just watched a great documentary on the left-wing Current channel entitled Marijuana Outlaws, about folks growing marijuana in northern California – entirely, of course, for the legal medical marijuana market. These were all more or less counterculture people who have not had the friendliest past relationships with law enforcement. Because they don’t know what to expect from the maze of law enforcement agencies – especially since they may be accused of supplying marijuana to nonmedical consumers – they grow their crops in very remote places. Unfortunately, a consequence of this is that their crops can readily be stolen just as they are about to be harvested.

The last segment of the show involved interviews with growers whose crops had just been stolen. What was striking was the nature of their condemnation of what had been done to them. They all clearly believed that they had been wronged precisely because of the labor, effort, attention, and energy that they have devoted to their crops. Of course, they did not like ending up with $70,000 or $80,000 less income than they expected. They were not happy about that financial loss. Still, a great deal of what mattered to them was that they have been treated in a way that in itself was unacceptable. Their view was that human beings don’t (i.e., shouldn’t) go around taking other people’s hard-earned stuff. There is something wrong with people who do treat others in these ways. (One grower said the thieves were “shits”; another said the thieves were creating “bad karma” that would eventually do them in.)

So everything that matters matters to someone. But one sort of thing that matters to people is not being treated in certain ways (above and beyond the consequences of being treated in those ways) and not themselves treating others in those ways. (The growers also talked about how much it mattered to them that their rights over their land be respected and how much it mattered to them that they respect others’ land rights.) I think our view that there are certain constraints we ought to abide by in our interaction with others and that they ought to abide by in their conduct toward us is too deep to be a product of any sort of ends-oriented deliberation about what rule-compliance will be advantageous to oneself or to everyone.

Jan is right, of course, that for some people, being circumspect in the treatment of others does not in fact matter. Nothing I have said in this conversation shows that these people nevertheless have reason to be circumspect – though I think the sort of considerations Locke lines up do combine to provide reasons not to act in ways that interfere with others’ pursuing their own ends. In some of my own essays, I have tried to lay out why any reasonable moral code has to contain important deontic restrictions.[1] All of that is a much bigger conversation.

Endnotes

[1] See “Prerogatives, Restrictions, and Rights,” Social Philosophy and Policy, vol.22 no.1 (Winter 2005) 357-93, and “Individualism and Libertarian Rights,” in Contemporary Debates in Political Philosophy, edited by John Christman and Thomas Cristiano (Oxford: Blackwell, 2009), 121-36.

 

9. Jan Narveson's Comments on Eric Mack and Michael Zuckert (January 20, 2013)

It is easy to misstate and to misread the view of us “reductivists” on moral matters, and it may be that Eric and I agree more than he thinks. His marijuana growers are of course right to complain about the thieves who deprive them of the fruits of their labors. The ground of their complaint is of the essence: Others intervened to lower their utility level – their quality of life -- relative to a nonaggressive Lockean baseline. But the complaint itself is expressed precisely and correctly in emotivist-approved terms – those thieves are a bunch of “shits.” To say this we surely need no further metaphysics, do we? (Of course, government intervention here is nearly at its worst and makes it most unlikely that the growers will be recompensed. In such a situation, use of “deontological” language is sure to flourish!

Eric’s response to me interacts with a point of Zuckert’s. The baseline of interaction is always the same: Lockean (and Hobbesian) nonaggression. Interactions that worsen no one’s condition are permitted; interactions that lower anyone’s condition are not. Aggression mucks up social relations, giving victims reason to react defensively, instead of being free to do their best with their natural endowments, such natural resources as may remain, and exchanges with others who have increased their property meanwhile. In the largely hypothetical original state, a person’s capital is mostly natural and affords a barely tolerable living; in developed social conditions, it makes even the day-laborer remarkably well off by comparison. But all that changes is the level of typical legitimate possessions of the rest of society. Given the potent combination of normal entrepreneurship plus normal levels of compassion, as time goes by this level gets very high.

None of the above entails anything about how much actual inequality there will be. We should note that as regards any Lockean intention of justifying the specific kinds of inequalities prevailing in his day, the huge problem is simply that the British landed gentry got their land by conquest and not by Locke-approved means. Justifying that on libertarian grounds is, prima facie, impossible. It’s a wholly different problem than the “problem” of justifying Bill Gates or Warren Buffet. The latter’s holdings are (unless there are things going on that I don’t know about) due to beneficial interaction with millions and millions of people who freely spend their legitimately earned money on things they like or can use to advantage. Insofar as that was the case with persons of whatever class in 17th-century England, the moral situation is precisely the same.

Surely the problem of today is government “control” of economic relations. That was a factor in Locke’s time too, but not, I would think, nearly as great a one.

 

10. Peter Vallentyne's Response to Jan Narveson (January 20, 2013)

Jan asks whether left-libertarianism (i.e., with some kind of egalitarian proviso) can be “founded in [negative] liberty.” It can be so founded in the weak sense that (1) it is a form of Lockeanism that recognizes self-ownership and a unilateral moral power to appropriate natural resources, and (2) property rights ground negative liberties. It can also be founded in liberty in a stronger sense of being compatible with maximum equal negative liberty. I believe, however, that there is more than one set of rights that are so compatible (e.g., both radical right-libertarianism and radical left-libertarianism are so compatible). All the hard work is in justifying one set of rights rather than another.[1]

Jan writes, “If the earth is available for exploitation by free men, then there is no way to infer that everyone is entitled to some, either in the way of an equal share or anything else.” This seems quite false to me. We agree that agents initially have maximal equal liberty-rights, against all others, to use (unappropriated) natural resources. The point of disagreement concerns the conditions under which someone may unilaterally acquire private property in some natural resources, thereby causing others to lose their liberty rights to use those resources. Jan holds that (1) agents have very strong moral powers to acquire such private property (e.g., it’s enough to stake a claim or mix one’s labor, with no proviso), and (2) agents have a very weak moral immunity to losing their initial liberty-rights to use the natural resources. My left-libertarian view is quite similar, but it holds that the moral powers to acquire private property in natural resources are weaker (e.g., subject to making a payment for the competitive value of private property rights acquired in excess of a fair [e.g., equal] share), and the moral immunities to loss of the liberty-right to use natural resources are stronger. This is not, I claim, a matter of Jan recognizing stronger negative rights than I do. It is a matter of his holding that the initial negative rights to use natural resources are more easily lost than I hold them to be.

Concerning Jan’s three final points: (1) I fully agree that we are addressing only the enforceable duties of agents, and that agents frequently help others even when they don’t have an enforceable duty to so and even when they have no duty at all to do so. (2) I fully agree that inequality of various sorts is unavoidable and that, even when it is avoidable, justice does not require equality of outcome (e.g., equal wellbeing, or equal wealth). Individuals are, for example, accountable for managing their resources wisely and are owed no duty of justice to undo losses incurred when they fail to do. (3) The issue is simply that of whether the proviso on appropriation requires a payment to others for any excess share appropriated. If it does, then that is a matter of property rights. The others have an enforceable right to acquire the payments owed to them.

To make this last point maximally clear, suppose that: (1) one person unconditionally owns a tract of land and some buildings on it (as Jan might hold), (2) she transfers full ownership of the buildings to her husband, and (3) she transfers full ownership of the land to her husband, except that it is conditional on his making an annual payment to each of the two adult children (while alive) equal to one-third of the competitive rental value of the land. This situation can arise under Jan’s version of right-libertarianism. Left-libertarianism merely allows that something like this arises for all natural resources. Jan and others can reasonably reject this substantive view. I don’t, however, see how this view is any less compatible with maximum equal negative liberty than Jan’s preferred view.

Endnotes

[1] For discussion of this issue, see Shelly Kagan, “The Argument from Liberty,” in In Harm’s Way: Essays in honor of Joel Feinberg, edited by Jules Coleman and Allen Buchanan (Cambridge: Cambridge University Press, 1994), 16-41; Jan Narveson and James P. Sterba, Are Liberty and Equality Compatible? (New York: Cambridge University Press, 2010.); and Peter Vallentyne, “Equal Negative Liberty and Welfare Rights,” International Journal of Applied Philosophy, 25 (2011): 237-41 (as well as the pieces by Narveson, Sterba, and Gibbard in that issue).

 

11. Eric Mack’s Reply to Peter Vallentyne 2 (January 20, 2013)

Peter Vallentyne’s nice brief response to the questions that I have posed has got me thinking about a standard move that “right-Lockeans” such as myself make in conversations with “left-Lockeans” like Peter. This move is to challenge the use of “natural resources” to describe the “raw stuff” (berries growing on bushes, fish swimming this way or that, that ugly sticky stuff that we now call proven reserves) that left-Lockeans say ought to be equally divided among persons or say (as Peter does) everyone should receive the equal blessings of either through equal shares being left for everyone or due compensation being paid to everyone for whom an equal share is not left.

I think this right-Lockeans challenge is based on the idea that, if there is some deep, natural, original, equal right with respect the earth, then that right must be a right to an equal share of that raw stuff or to have an equal share left for one or to be duly compensated if an equal share of the raw stuff is not left for one. Ten of us just find ourselves right next to a heap of ten yummy acorns. If there is a natural right to the earth, it seems that in this situation it would be a right of each to one of those acorns or to have one acorn left for one or to be duly compensated if one is not left for one.

But the earth is not one big heap of acorns. There are berries, fish, and that ugly sticky stuff. So the question always gets posed: In a world with different types of stuff, what counts as an equal share? And the answer that is always given by left-Lockeans (and that Peter gives) is: An equal share is (something like) a share of equal market price. Right-Lockeans tend to go along with this proposal about what would count as an equal share because they are so happy to hear a market-oriented answer.

But it now occurs to me that “right-Lockeans” should resist this move – this interpretation of equal shares. The reason for resisting is, I think, this: That which has market value is no longer merely a raw bit of the earth. That which gives any bit of the earth market value – people having views about how it can be made available for use and consumption, how it may be consumed, how it can be utilized for production, how it can be preserved for future use – makes it into a not-that-natural “resource.” Hence, whatever intuition there is on behalf of an equal division of the earth, i.e., of that raw stuff, or on behalf of compensation for those who do not get an equal share of the earth does not carry over to an equal division of “natural resources.”

The role of people and their beliefs and actions in determining how much of a natural resource any bit of the earth is (at any given moment of human history) seems to make any claim to an equal share of natural resources very different from a claim to an equal share of raw stuff. That is why it seems to me that calling for each person receiving a share of equal value or having such a share of equal value left for him or being compensated for not have a share of equal value left for him goes way beyond calling for each to share equally in the blessings of nature – whatever that equality would be.

12. Eric Mack’s Comment on Michael Zuckert 2 (January 21, 2013)

Let me begin by saying that I meant what I said about learning things about texts and about philosophical doctrines associated with those texts from readers like Michael that otherwise I would never see. Indeed, I wasn’t disputing Michael’s proposal that Locke’s chapter “Of Property” be seen as his treatment of the master-servant relationship when I said that the turf passage is the only passage in that chapter that explicitly mentions that relationship. I was trying to work my way over to something else that Locke does not explicitly talk about, viz., how the purchaser acquires a right against the world to the item that he has purchased. In this case, however, I have drawn the conclusion that Locke did not see any need to explain how it comes about that purchaser acquires a right against all comers and not merely against the seller. I offer an exculpating explanation for Locke’s not investigating acquisition of rights through transfer, viz., that the problem about private property rights for 17th-century theorists was how to explain the justice of initial acquisition. Filmer’s dispute with Grotius and Locke’s dispute with Filmer is focused on the possibility of just initial appropriation.

Moving along with my theme of things that Locke does not attend to, I say that Locke does not step back and ask whether the land holdings that actually exist in England in, say, 1689 are just in light of his own theory of just property rights. I think I want to stick by this claim – although there may somewhere be textual evidence against it. Again, I do not take this to be a huge criticism of Locke. I think it is quite natural for very deep thinkers not to raise questions about every facet of the world that they inhabit that might be questioned on the basis of the doctrines they develop. (Think of all the questions that we should be raising but which we do not think of to raise.)

As Michael points out, both he and I think that the sort of aid to the poor that Locke recommends in his “An Essay on the Poor Law” is a least partially motivated by his sense that the “enough and as good” proviso is triggered by the actual conditions in late 17th-century England. But I do not think that this is evidence for the proposition that Locke is questioning the property rights of those who will be required to fund that aid. This belief on my part stems from my picture of what the “enough and as good” proviso says and demands. As I see it (and, perhaps, as Locke saw it) the proviso requires that holders of property not depose of their property in ways that add up to any individual being made worse off with respect to (something like) economic opportunity. (See the Mack-Vallentyne dimension of this conversation.) If the proviso is violated, those who do the violating have to provide the victim with compensating economic opportunity. But the property rights of the violators are not nullified – except insofar as some of their holdings will have to be used to provide the required economic opportunities. There is no more general questioning of property rights than there is when I am found in a civil suit to be liable to make some compensation payment.

Lastly, I think that Michael is correct to raise the issue of “how to maintain the property regime that benefits all but does so unequally in the face of the temptations of the disadvantaged [I would have said “the less advantaged”] to disrupt those relations.” I now see my remarks as cautions against casting this as a class issue. My suggestion was that there is more class conflict in the zero-sum battles about who will be the beneficiaries and who will be the losers of political interventions in the market. My view is that most of those on the lowest rungs of the current economic ladder would be quite a ways further up that ladder were it not for policies that good Lockeans should condemn. Hence, to address the problems that arise because people are currently not very far up that ladder should not be described as addressing a problem attributable to Lockeanism.

 

13. Jan Narveson's Comment on Peter Vallentyne (January 22, 2013)

I think that the idea that Mankind owns The Earth In Common and Equally is untenable as well as, in the case of Locke, unmotivated. Peter’s latest argument here is interesting, but seems to me flawed. He says, “Suppose that: (1) one person unconditionally owns a tract of land and some buildings on it (as Jan might hold), (2) she transfers full ownership of the buildings to her husband, and (3) she transfers full ownership of the land to her husband, except that it is conditional on his making an annual payment to each of the two adult children (while alive) equal to one third of the competitive rental value of the land. This situation can arise under Jan’s version of right-libertarianism. Left-libertarianism merely allows something like this arises for all natural resources. Jan and others can reasonably reject this substantive view. I don’t, however, see how this view is any less compatible with maximum equal negative liberty than Jan’s preferred view.”

Here the problem is that while it is easy to see how some individual who owns something can give it to someone else with liens, and so, as Peter says, such “a situation … can arise” on my version of libertarianism, it simply doesn’t follow that libertarianism can even allow that this could be the general case. For obviously, at the start, somebody has to be in the position of the initial extender of that qualified right to others, meaning that that person was not under the obligation to make an annual payment. But if Peter’s idea is right, everybody including that person has to be in that condition – and where could that come from in a regime of pure negative rights? (Of course, you could succumb to the theological infection and suppose that God, who after all made it all, was in that position and … but we have seen through such gambits.)

More generally: Vallentyne’s idea that we can solve the otherwise embarrassing problem of attributing a workable value to what “everyone” is supposed to get in the scheme of universal ownership of undeveloped resources seems to me not workable. The value of strictly natural resources qua natural is zero. This remains true no matter how far mankind has come along: unless and until someone is in a position to exchange the resource with someone else, in return for something else, there is no economic value to discuss. But once there is, it arises from the activities of individual people in using bits of nature. The idea that when Jones comes across x in a strictly natural state and “takes it into his possession,” he is thereby, as the unjustifiably fashionable phrase has it, depriving someone else of the liberty of taking it, is entirely mistaken. Everyone’s liberty is constrained by everyone else’s liberty, which means that nobody gets to aggress against anyone else – to deprive anyone else of the fruits of his or her labor, or inflict wounds, disease, or death on any innocent person. And to claim that Smith is noninnocent because he has undertaken to use something not previously used by anyone else, is a misuse of the notion of “aggression.” It is logically impossible for us all to acquire the same item: Ownership means control, and if your and my desires, interests, willings are different with respect to the use of particular item x, then somebody must necessarily be frustrated. The full possession of any given thing presents a zero-sum game. And there cannot – logically cannot – be a universal solution to such a game.

But libertarianism doesn’t have that problem, because it is essentially historical: If person A gets there first, then x is no longer in a state of undeveloped, unpossessed nature, and so person B who comes next cannot in his turn make an initial acquisition of x. Instead, B will be aggressing against A if B undertakes use of x without A’s permission.

Writers on Locke tend to talk about three possible cases of legitimate acquisition: finding, making, and transfer from some previous owner – i.e., initial acquisition, creation, and transfer. But the first two are not generically distinct, for when anyone takes anything into use, that person is creating value: The item now serves a purpose that it didn’t before (even if the owner chooses not to alter it, like those who leave their suburban yards wild instead of planting and mowing grass there.) That’s why A is now in a position to consider exchange, if some B is likewise in possession of something else, y, such that A’s and B’s situations with respect to those things can be voluntarily reversed – A supplying B with x and B supplying A with y.

That is why Locke is essentially right. All rights are rights to act, to do or not do as we choose, and the ownership of things is just the right to perform actions involving the things in question. When those things are inordinately complex and “artificial,” requiring immense technology to produce (such as electron scanning microscopes), the point may be more obvious but the logic is precisely the same.

"The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions"

If we could talk of equal ownership of nature, each person’s share would have a value of zero, since what is supposed to be shared in that condition has that value. And once we are into sharing things that do have value, that value arises from use, from work, and so the Vallentynian egalitarian would be giving us all a share in everyone else’s labor – the very thing that his theory says we are not entitled to do with anything insofar as it does have human labor “mixed with it.”

Thus “left” libertarianism is not a coherent theory. There isn’t “left” and “right” libertarianism: there is either libertarianism or not. (Or: There is libertarianism supplemented by one sort of mistake (say, Marxist), or that sort supplemented with another sort (say, Henry George’s, as just discussed), and so on. But basically there is just the one fundamental moral idea: that no one is to use force or fraud (which I think can be analyzed into a sort of force) against anyone who has not in his turn used it against others; or in Hobbes’s terminology, no one is to make war against any peaceable person; or in Locke’s, that “no one ought to harm another in his life, health, liberty, or possessions.”

 

14. Peter Vallentyne's Response to Jan Narveson 2 (January 22, 2013)

Jan says: “The value of strictly natural resources qua natural is zero.” I disagree. Suppose that we each need water for our apple trees. What is the value of the rights to control a water hole? If an auction were held, each of us would bid some positive amount for those rights. Of course, the water may have no value to us without adding some labor (e.g., transporting it to our plants), but that is factored into our bids. Our bids are based on what we can do with the natural resource when combined with our labor, etc.

Related to this, Eric says: “That which has market value is [on the left-libertarian view] no longer merely a raw bit of the earth. That which gives any bit of the earth market value – people having views about how it can be made available for use and consumption, how it may be consumed, how it can be utilized for production, how it can be preserved for future use – makes it into a not-that-natural ‘resource.’ Hence, whatever intuition there is on behalf of an equal division of the earth, i.e., of that raw stuff, or on behalf of compensation for those who do not get an equal share of the earth does not carry over to an equal division of ‘natural resources.’”

I fully agree that what gives natural resources market value is what individuals can and want to do with them. Eric thinks that raw stuff is different, but I don’t understand the difference. Natural resources, as I understand them, simply are stuff in the world that does not have any moral standing (e.g., no self-ownership) in its original state prior to modification by agents (so a chair is not a natural resource, but its production ultimately involves the use of natural resources). Natural resources are, it seems to me, just raw stuff. Moreover, even if the two are somehow different, I don’t understand why the issue of market value distinguishes the two. Suppose (counterfactually) that raw stuff is homogeneous and we divide it up to give everyone an identical share of each kind of stuff. Each has private property in her bundle. Given that the bundles are tradable, they each have an equal market value, which depends on what individuals can and want to do with it. So, the market value of rights over raw stuff depends on what individuals can and want to do with them.

Jan says: “The idea that when Jones comes across x in a strictly natural state and ‘takes it into his possession,’ he is thereby, as the unjustifiably fashionable phrase has it, depriving someone else of the liberty of taking it, is entirely mistaken.” I fully agree, but the issue is not about taking into possession (which is a form of use) but about appropriation (acquiring rights to exclude others from using). Appropriation, by definition, deprives others of their former negative liberty to use the unowned natural resources.

Jan says that libertarianism is “essentially historical.” I fully agree.

Jan says: “All rights are rights to act, to do or not do as we choose, and the ownership of things is just the right to perform actions involving the things in question.” I fully agree.

Jan says: “Thus ‘left’ libertarianism is not a coherent theory.” I, of course, disagree. I think of libertarianism, even right-libertarianism, as a family of theories that disagree on various points (just as utilitarianism is such a family). For example, different libertarian theories can disagree about how strong the enforcement rights are that protect one’s property. (Does one have a right to kill someone, who due to an innocent mistake, is about to take one’s chocolate bar, when this is the only way of stopping such use? Does one have a right to kill a murderer purely for retributive reasons?). I view the (perhaps empty) proviso on appropriation as a similar issue on which libertarians can disagree. I don’t see that much is gained by reserving the libertarian label only for those who endorse an empty proviso.

This will be my last post. So, future silence should not be interpreted as inability to answer any later posts!

 

15. Eric Mack's Final Comments (January 22, 2013)

I do not think that it is part of my official duties to call an end to our conversation. So, rather than doing that, I simply want to thank again Jan Narveson, Peter Vallentyne, and Michael Zuckert for their spirited and instructive comments and to suggest that our further conversation be carried on in the private recesses of hyper-space (if any such private recesses really still exist).

 

16. Jan Narveson's Final Comment on Peter Vallentyne (January 22, 2013)

(1) Peter says, "Suppose that we each need water for our apple trees. What is the value of the rights to control a water hole? If an auction were held, each of us would bid some positive amount for those rights. Of course, the water may have no value to us without adding some labor (e.g., transporting it to our plants), but that is factored into our bids. Our bids are based on what we can do with the natural resource when combined with our labor, etc."

This is not relevant. Of course, if there is an auction, then somebody is in a position to distribute these things and has already taken some kind of possession; or a bunch of people have come upon the water hole and have decided to divvy it up; or whatever. So we no longer have value in situ: we have the minimum requirements for exchange and distribution (which itself is a kind of exchange). 

If Elmer had stumbled on the water hole before any others came along, he would then be in a position to sell water (= water rights) to second comers. That is to say, their use of it would be an item in an exchange.

Further, the value that a given resource would get at a hypothetical auction is not obviously relevant as a way of ascribing value to natural resources for Peter's purpose. For his idea, as I understand it, is to understand natural resources as such to "belong to" everyone by nature.  I do think that this Henry George idea confuses use value with exchange value. Economics is entirely about the latter, though of course exchange value always arises from the interaction of persons who have previously found a use-value for various things that they come to possess. Perhaps Peter is trading on the same confusion? For insofar as what we are trying to do is to enable all to share in the "value" of natural resources, that value in the use-value sense varies hugely as a function of technology (in the broad sense of, any idea of how to put stuff to use); to divvy that up is clearly to distribute the "labors" (again, in the broad sense of taking or putting anything to use) of persons. Distributing the "things' independently on their technologically-modulated use makes no sense. 

(2) And then, "the issue is not about taking into possession (which is a form of use) but about appropriation (acquiring rights to exclude others from using). Appropriation, by definition, deprives others of their former negative liberty to use the unowned natural resources." However, what libertarianism does, just because that's what it is, is to give everyone rights to whatever they possess which was not acquired by molesting or robbing from others.Taking what some person has previously acquired is aggression, and is disallowed.

Now, the crucial question is broached when Peter says, "Appropriation, by definition, deprives others of their former negative liberty to use the unowned natural resources." My point about this is that it is impossible for more than one person to take into his possession any particular object. So to say that one deprives others of a liberty when one gets there first is to say nothing that constitutes a complaint. There has to be some other ground for complaint about A's acquiring x than that in so acquiring it, B "no longer can." As Locke observed, acquisitions by anyone are impossible if they must be compatible with acquisitions of the same thing by someone, let alone everyone, else. A right to attempt to use x is all we can have, as well as all we need. Having it means that no one may interfere with my attempts, but also that the previously successful attempts of others are not to be interfered with either. I don't see how left-libertarianism can fail to be guilty of doing just that.

Libertarians can disagree about lots of things, among which estimates of proper enforcement levels is an excellent example. But I don't see that this matter of supposed rights to natural resources is one such. Rights are duty-entailers: for A to have a right against B is for B to be required to act in certain ways toward A. I can't imagine what else property rights can be based on than first possession. Peter agrees that the liberty principle is, as I put it, essentially historical. So it seems to me that when A acquires something not previously acquired by anyone else, the case that taking it from him without his consent is the sort of aggression that liberty forbids is definitive. And redistributing it "equally" to everyone, since it amounts to redistributing the varying labors of a lot of people, is thus, so far as I can see, just such an aggression. 

No doubt Peter will have some interesting further comments, but like him, I shall rest with this for now.

But I'll take the opportunity to thank the Liberty Fund for the opportunity to engage in these discussions!

 

17. Michael Zuckert's Concluding Thoughts (27 January, 2013)

My colleagues seem to have signed off, but many issues remain worth discussing. So here come a few comments on the exchange as it is now pretty much at its end. Two large issues have dominated: Locke on property—what does he mean, how sound are his arguments?--and broader arguments about property and the nature of rights. I want to say a bit about both by looking first at some of the replies to my earlier comment.

Both Eric (entry 12) and Jan (entry 9) pick up on a theme from my initial reply to Eric. Both maintain, in effect, that property relations in Locke’s England cannot satisfy his own criteria for just acquisition and therefore for just current holdings. As Jan says, “The British landed gentry got their land by conquest and not by Locke-approved means.” Eric surmises that “Locke does not step back and ask whether the land holdings that actually exist in England in, say, 1689 are just in light of his theory of just property rights.” Locke, to be sure, does not address explicitly that question, i.e., he does not say what Eric and Jan say—that the property holdings of his day are unjust. I would add a parallel case where Locke also fails to explicitly address an issue where his doctrine has unsettling implications for political and economic life of his day. According to him, conquest cannot generate legitimate political authority, a doctrine unsettling to all European powers of the day, including Britain. I wish to reiterate my point that Locke’s silence on these points cannot be inadvertent, as Eric claims, for the context of his book is the debate with Filmer, in which the legitimacy of the property distribution of the modern world was precisely what was ultimately at stake. It is true, as Eric says, that the debate was explicitly over the means of initial acquisition, but Filmer made clear that the justice of current holdings was at stake in the debate: Only his account of an initial private property could legitimate current private property.

The challenge Locke faced was to develop an alternative theory that could validate the property regime of his own time. That was the very thing Filmer meant to put in play. Cagily, Filmer was counting on the propertied in England to support his argument for absolutism because it would provide stronger support for their property claims than the Whiggish contractarian arguments he was opposed to. Therefore, Locke could not have been unaware of or indifferent to the implications of his doctrine for property relations in his England. Yet it is true that he does not pause to examine whether the current property distribution is just on his own criteria, nor, even more, to denounce those holdings as unjust. In proceeding as he does, we must ask what could Locke be thinking that he does not pause to make the point Nozick makes: that the theory of acquisition may have very disruptive implications for the reigning property regime? (See Loren Lomasky’s “Libertarianism at Twin Harvard.”) [1] Here we must be speculative, for Locke does not explicitly address the issue of his own silences.

So if speculate we must, here goes. My speculation concerns the overall character of Locke’s argument. On property—and on quite a few other things—we should see Locke as making a two-stage argument. In the first place he means to show that the two large institutional arrangements of civilized society—private property and the state—are rational and just on the basis of a contractarian/natural rights-based argument that in its nature calls both into question initially. He shows that there is an argument that starts with an initial situation in which property is unowned (I am with those like Eric who argue that Locke means by “the earth belongs to mankind in common” that it is initially unowned, but ownable) and in which there is no political authority, i.e., a state of nature. He then tries to show that one can move form that state to one where private property and the state rightfully exist. That argument takes the form of a “history”—an idealized and fabulous history, as many of its critics have maintained over the years. That history is idealized in the sense that it shows what would happen if the actors understood their moral situation correctly and acted rationally in light of it. That argument is meant to show that the state and private property in general are just and beneficial to all who live in civilized society. Therefore, the argument is meant to show that it is rational for denizens of the civilized world to will these institutions as if they made the contract and underwent the history of property as Locke explained it in chapter five. He shows that the current property regime benefits all and that it would be irrational for anyone to will its destruction or severe disruption. Locke himself must recognize that the present arrangement, though falling short of strict justice on the basis of his own theory, is both more just and more beneficial to all and to the society as a whole than would be the project of starting all over again and insisting on strict justice according to his criteria of just acquisition. It is not rational for him to propose such a thing, and it is not rational for any of us to will such a thing. So, on the basis of asking the important political and philosophical question, “compared to what,” Locke can treat present property relations as just enough.

Related Links:

• Thomas Hobbes (1588-1679)
• Leviathan (1651)

However, once Locke has brought forward the true criteria of justice in property relations (and political construction) future actions should be governed by this standard, so far as he can win agreement to his criteria. That is to say, knowledge of the true character and justification of property has implications both looking backward and looking forward. In looking backward, Locke approaches Hume in validating a private property regime on the basis of social benefit, but in looking forward he keeps individual rights much more to the fore for reasons both of justice and of social benefit. (However, this last comment must be qualified by his statement at the end of chapter five on the power of the civil authorities to regulate property, but this takes us too far afield).

"And because the condition of Man, ... is a condition of Warre of every one against every one; in which case every one is governed by his own Reason; and there is nothing he can make use of, that may not be a help unto him, in preserving his life against his enemyes; It followeth, that in such a condition, every man has a Right to every thing; even to one anothers body."

To my mind the most interesting issue that has arisen in the discussion is the one debated between Eric and Jan about the basis of rights. On the whole I am on Eric’s side but I believe that Jan raises an important question and challenge when he asks: “Why are those feature of persons” that Eric appeals to in order to ground rights “morally significant”? Jan goes on to observe that “bad accounts or non-accounts … abound.” He has a point—as the many manifestoes on human rights demonstrate. He seeks an alternative, less mushy account, roughly of a Hobbesian sort. That his account does not work is clear from a claim he makes that is, I believe, incorrect. He identifies “the more fundamental question: Why should we think each other to be ‘owners’ of ourselves in the first place? (Hobbes’s answer is clear: because if we don’t, we’ll be facing an awful state-of-nature situation.).” That is, he agrees with Eric that self-ownership is a crucial piece of the argument but disagrees with Eric’s Lockean-Kantian-Nozickian way of speaking in terms of “morally significant features of persons.” He thinks he can get the necessary self-ownership claim on the basis of harder-nosed Hobbesian arguments. But contrary to what he says, Hobbes does not arrive at a doctrine of self-ownership and his doctrine of natural right forecloses him from doing so. According to Hobbes, we have a right of nature, which is a right to everything, including one another’s bodies. If others have a right to our bodies we are not self-owners, for ownership of self implies immunities that rule out Hobbes’s right of nature. So far as we recognize such immunities, they are not natural rights but conventional rights based on the law of nature (not really a law and not really natural as Hobbes tells us) or on the civil law. The absence of a doctrine of self-ownership is what leads Hobbes to deny a natural right of property. We have liberty to take what we need in the state of nature but no property right in the sense that others are obliged to respect our right to what we have taken and perhaps stored. There is no injustice in the state of nature because there is no mine and thine. Locke differs with Hobbes on more than the sovereign—he affirms a natural right that has the character of property and therefore can affirm the possibility of injustice in the state of nature.

As Eric maintains and as I agree, Locke affirms a natural right of property in part on the basis of self-ownership and affirms that on the basis of those morally significant features of persons. Jan is apparently unconvinced by Eric’s way of developing this theme, and were there world enough and time I would put forward an alternative account that perhaps he or others would find persuasive. In lieu of that I will mention my attempt to develop a Lockean theory of self-ownership on entirely nontheological grounds in my Natural Rights and the New Republicanism (1994), chapter nine. [2] Two comments about the argument I make there. First, I think Locke did have a nontheological argument in addition to the theological arguments he presented in two treatises. How the arguments relate is a fine question that I try to address in the introduction to Launching Liberalism. Second, the nontheological argument for self-ownership is developed from Locke’s treatment of self and person in the Essay on Human Understanding.

I regret that I have not had time to address Peter Vallentyne’s comments or many of the other issues raised by the discussion here. There seems to be enough material and disagreement to keep going for another year or two, I am sure. But like my colleagues, I have a few classes to teach and dissertations to read, so I too will sign off. Many thanks to Liberty Fund for pioneering yet another way to keep the discussion of important issues of liberty on the table.

Endnotes

[1] Loren E. Lomasky, "Libertarianism at twin Harvard," Social Philosophy and Policy 22 (1):178-199 (2005). Abstract at <http://philpapers.org/rec/LOMLAT>.

[2] Michael P. Zuckert, Natural Rights and the New Republicanism (Princeton University Press, 1994). Chapter 9 "Locke and the Reformation of Natural Law of Property."

 

18. Jan Narveson's Response to Michael Zuckert (January 28, 2013)

As I have been at pains to point out, "self-ownership" is not a basis of libertarianism. It simply is one of the several ways of stating it, and nothing else. Since Hobbes is a libertarian in moral principle -- his First Law of Nature is, precisely, the nonaggression principle, as his deductions from it make clear, tabling, as usual, the strictly political arguments -- he does "arrive at" the self-ownership in question, though he doesn't call it that.

Hobbes's "right of nature," as I have also pointed out, is not and cannot be a right, a term he carefully defines in its proper moral connotation. For each to have a "right" "even to another man's body" is for nobody to have any rights at all. What there is, is the "liberty" of nature, which as Hobbes says gets us into nothing but big trouble. Rational people, therefore, go by -- agree to -- his Laws of Nature: "willing, when others are so too, as far-forth, as for Peace, and defence of himself he shall think it necessary, to lay down this right to all things; and be contented with so much liberty against other men, as he would allow other men against himself." He calls it a "right" but what it is, in his own account, is and can only be a liberty, and in no way a right. Rights entail duties; liberties, as such, do not.

Hobbes indeed acknowledges, as Michael points out, that the law of nature is “not really a law and not really natural as Hobbes tells us.” But Hobbes didn't take Philosophy 100. His Laws of Nature are moral, not civil or legislated, and they are natural in the only important sense, which is that they are based, as Hobbes says, on the nature of man, and so long as that nature remains roughly as it is, they are, as he says, "eternal and immutable." But the aspect of man's nature that they are based on is (practical) rationality, given our various needs and desires and bodily limitations. Seeing our situations and predicaments, we see the need for the Law(s) of Nature.

I am sorry not to have seen Michael's books that he refers to, and will hope to have time to peruse them one day!