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Anthony de Jasay: Property and its Enemies, Part I: "Design Defaults" in Locke's Theory of Property Taint Ownership with Guilt, in: The Library of Economics and Liberty, August 4, 2003

I. Exclusion

Ownership is a relation between an owner and the thing owned, such that the owner is at liberty to use it, to concede specific rights in it to others, and to alienate it, as well as to exclude access to it by others except with his consent. Full ownership and these liberties are mutually entailed. Exclusion is inherent in ownership; without separation of the owner from non-owners, property is empty of meaning. Where everybody ‘owns’ a thing, nobody owns it.

The thing owned is normally an asset (and sometimes another's liability). It may be a tangible or intangible good, or a claim upon a good (e.g. a right to the future delivery of the good, or the right to an income stream). Henceforth, I will use the term ‘resource’ to denote all variants of it.

The owner may be an individual, a corporation, a public body or a collectivity lacking legal personality. Much confusion surrounds the use of the word ‘private property’. All property is private in the sense that the very concept implies closure, exclusion. To speak of ‘private property’ is analytic in the manner of ‘wet water’. In this essential respect, ‘public’ property is no different. We are not supposed to travel on the state-owned railways without a ticket, nor to borrow the locomotive for the children to play with, even if we are paid-up members of the public in question, though if we are, we have some distant interest in the railways’ profits or losses. Publicly owned goods behave much as so-called private property does, except when they function as ‘public goods’ (e.g. the street, the meteorological service, the crown jewels, the off-patent molecule), – but then they altogether cease to be property. ‘Common ownership’, too, lends itself to confusion, for it may refer either to a relation where each member of a defined group uses as much of the common as intensely as he wishes (e.g. fishing grounds, grazing land), or to one where the share of each is defined (e.g. medieval two-field village agriculture, modern partnerships), and it is best to make clear which is the intended meaning.

Exclusion, that is the denial of access to owned resources except with the owner's consent, has consequences that are perhaps evident, but it can do no harm to spell them out. Where people's talents, capacities as well as their preferences differ – as they do in every real society – exclusion engenders exchanges in the first place, production for exchange in the second. Regardless of the distribution of property, exclusion powerfully forces the allocation of resources to converge toward the most efficient pattern. Can Pareto-optimality be far away? Though it may not be reached, it is hard to conceive of a different, non-exclusive social order that would be likely to bring it closer. However, these tested and tried verities do not stop humanity from being bitterly at odds over property and a large part of opinion from heartily hating it.

Atavistic instincts tell us the difference between ‘mine’ and ‘thine’. The practice of respect for one another's property seems to be as old as human society itself, though it did not always cut across ethnic boundaries. Game theory can show that under plausible assumptions adherence to the practice is a rational ‘best response’ of everyone to everyone else, (i.e. a ‘Nash equilibrium'). However, under incomplete information and poor understanding of the likely long-term outcome, means-to-ends rationality itself may incite revolt against 'mine' and `thine'. Getting something for nothing is more attractive than paying for it, and taking a short cut beats scruples over trespass. Exclusion is prima facie a violation of certain, albeit crude and gross notions about freedom, equality and – why not? – justice. Though it is not wholly useless to show that these notions are crude and gross, it will hardly stop them from remaining virulent as crude and gross things are apt to do.
They are wind in the sails of the sophisticated enemies of property who construct theories in which ethics is enlisted to impregnate ownership with guilt. Some imply that property cannot be legitimate at all ('property is theft'), most others conclude that it is in society's gift and its distribution ought to be at the sole discretion of society's collective choice that some are entitled to impose upon others ('property is myth'). The resulting advocacy of ceaseless redistribution may run in terms of stocks (wealth) or flows (income), but this is mainly a matter of convenience and does not impinge on the fundamental argument.

The present essay takes a critical look at some typical theories of the enemies of property. Happily, the critique of the enemies also leads us to recall that impeccable standard of reference, the work of Hume – a moment of respite from the usually less lucid reasoning of those in the opposite camp who blithely ignore him.

II. ‘Enough and as good left for others’

As luck would have it, the philosopher who has probably had the greatest influence on Anglo-American ethical theorizing about property is Locke . Ironically, he had set out to demonstrate the legitimacy of first appropriation , made it conditional upon his famous proviso that enough and as good must be left for others, was confident that the proviso could be satisfied with the greatest of ease, but since it could not be, he unwittingly left ownership illegitimate and burdened with a moral debt. Having declared that "God has given the earth to the children of man", " … given it to mankind in common" (V.24), it seemed to follow that somebody's taking a resource out of this universal pool could be a cause for justified concern for everybody else. Yet "there must of necessity be a means to appropriate (the fruits)" to "a private dominion exclusive of the rest of mankind" (V 25). Hence the proviso; no one need feel harmed if after removal of a resource from the common pool enough and as good is left for him or her.
Now that all known resources are 'privately' owned, the existence of millions of propertyless persons is prima facie proof that at some point in the past, the proviso ceased to be satisfied. Consequently, the most recent first appropriation was illegitimate, and backward induction shows that so was the second most recent one and the one before that and the one before that, back to the very first. Nozick (176) proves this neatly. Strangely (coming from his 1974 self) he argues that while the Lockean proviso cannot be satisfied as such, some kind of proviso is morally necessary. He finds that a weaker one could be met. He, and many other defenders of the capitalist order; point to its prodigious capacity to generate wealth, and conclude that today's propertyless are on the whole no less well off than if they had been left (some) property when resources could be had for the taking.

This kind of compensation test will not do. The point of becoming an owner may or may not be merely the securing of an income, and earning the same or higher income from paid employment may or may not be equivalent, or even commensurate, with it. In a book teeming with specious or baffling assertions, Cohen correctly dismisses this attempt of saving the Lockean proviso by watering it down.

Now it may be objected that the proposition that God has given the earth to mankind in common is just a verbal flourish, empty of real content, for resources that everybody owns are exactly as if they were unowned. If so, the ostensible ground for setting up the Lockean proviso proves to be a gaping hole. If a resource is really unowned, no one is harmed by someone taking exclusive possession of it, and there is no call for a proviso safeguarding those who are thus excluded.

However, property may yet turn out to be illegitimate, for the Lockean proviso could be thought morally necessary even if Locke had clearly recognized that resources were initially unowned - which is how Nozick (174) reads him.

The passage of an unowned resource into someone's ownership opens up two putative sources of loss to others: loss of use, and loss of opportunity. Loss of use occurs when others who, for example, used to hunt or graze their herd on the unowned land, now find themselves excluded from it. One view about this is that since they had done nothing to appropriate the land for themselves while they could, they have no claim against the new owner who has done so. The other view is that compensation for loss of use is due. It is an open question whether compensation is at all possible; did the periodic issue of free beef to reservation Indians compensate them for the lost buffalo hunts? Clearly, it is not the quantities of meat involved in the loss that decide the adequacy of the compensation. The issue has no obvious resolution and it is just as well that its importance diminishes as history trudges on.

Loss of opportunity, on the other hand, would remain a major problem if it were a genuine one. We shall have to see whether it is. The argument runs along these lines:-

The world divides into two parts, the known and the unknown. All resources in the known part are now owned, and enough and as good has not been left for the propertyless. The owners have in fact pre-empted the opportunities that would otherwise have been available to the propertyless. Perhaps it was inevitable that some people go short, but why these particular ones? (Cohen notes with indignation that accepting this would mean accepting that first come, first served. One wonders why first come, first served should be an object of indignation); However, there is still the unknown part of the world to consider. If it is not too unlike the known part, it is likely to contain resources, hence opportunities to discover them. Maybe the fatal proviso, violated in the known world, can yet be satisfied in the unknown one?

However, it seems plausible to suppose that over large numbers, each discovery diminishes the average probability of an at least equivalent one left waiting, if only because the easiest discoveries are likely to be made first. A better way of expressing this idea of search yielding diminishing returns is to say that the finding cost of resources as a proportion of their value increases in the long run. There was a time when the individual prospector or wildcatter had a good chance of getting rich, with finding costs per ounce of gold or barrel of oil not exceeding a few cents. More importantly, inventions of very great commercial value were often made by lone inventors at the cost of a few man-years or less. Today, finding costs for sub-surface resources may run to a quarter or more of their value, and the lone inventor has almost disappeared in the shadow of great research laboratories manned by battalions of scientists. Freak strokes of genius and lucky strikes are no doubt always possible, but their share in resource discovery is surely declining while average finding cost keeps rising. Edison having discovered the light bulb, everybody else has lost the opportunity to discover it. There will be a next-best opportunity, and one after that, but 'enough and as good' for all will not be satisfied for all that.

Has Locke's proviso really condemned ownership to plain illegitimacy, a fact of life with dubious moral status? I believe the answer ultimately depends on whether we accept the claim that if someone had an opportunity he did not take and someone else took it, the latter owes a debt to the former if the remaining opportunities are less valuable. This, rather than the sheer drying up of the last remaining opportunity, is how in a generalized case Locke's proviso is violated. The claim that there is such a debt is entirely arbitrary It can be argued for; but like other arbitrary claims that contest the validity of title on grounds other than evidence of a stronger title, it cannot compel conviction.