1. Introduction
Contemporary political philosophers who take property rights seriously often regard them as the most appropriate juridical protection of one’s liberty – or more specifically, one’s fundamental interest in autonomous project pursuitFootnote 1 (Kant Reference Kant and Gregor1779; Nozick Reference Nozick1974; Lomasky Reference Lomasky1987; Mack Reference Mack1990, Reference Mack1995, Reference Mack2002, Reference Mack2010; Waldron Reference Waldron1990; Steiner Reference Steiner1994; Ripstein Reference Ripstein2009; Tomasi Reference Tomasi2012). Whilst humans are essentially purposive beings (Aristotle 2009: I.1), we are also essentially social beings (Aristotle 1981: 1253a). Therefore, these projects are not necessarily in isolation of others but often in combination with them. What is crucial, however, is that we get to choose how to cooperate with others. This means we not only need liberties and claims to extra personal resources, but also powers over those liberties and claims, so that we can exchange them with others.Footnote 2 When we cooperate with others voluntarily, the collective end becomes one of our own ends. When we are conscripted, however, we become a mere means to the ends of others (Kant Reference Kant and Gregor1779: II.18).
Such deontic accounts of property connect our rights over extra-personal resources to our personhood. We respect a person by complying with her property rights. Rather than connecting that compliance with scaled up, macro-level social goods such as aligning incentives to contribute to overall welfare, these accounts take the primary value of such compliance to be what those acts of compliance are in and of themselves – acts of respect for persons as purposive agents.Footnote 3
These general kinds of deontic considerations with regard to the value of property rights are often leaned upon as moral reasons for upholding some kind of private property system. It is often thought that the deontic account justifies property systems at the macro level, but can do little to tell us which property rights ought to be favoured at the micro level – that is, what the precise shape of whose rights to what kinds of resources ought to be. Richard Epstein and David Schmidtz, for example, believe that there are strong deontic reasons to think that persons have some property rights but believe that ultimately the marginal questions as to their content and distribution are answered by looking at the scaled up effects of the rival answers (Epstein Reference Epstein1994, Reference Epstein1998: Ch. 9; Reference Epstein2015; Schmidtz Reference Schmidtz2009, Reference Schmidtz2010, Reference Schmidtz and Klosko2011; cf. Russell Reference Russell, Schmidtz and Pavel2018, Reference Russell2019).Footnote 4
There are some that view the ultimate working out of the fuzzy edges as dominating the moral space in which property rights, qua the elementary particles of justice, are assigned, and hence dwarfing the import of the deontic reasons for supporting a property system at all. If justice is open enough for us to tweak the contours of the property system to ensure an expansion of aggregate benefits, then the first order deontic considerations connecting property with person become vanishingly relevant, and the analysis of different kinds of property conventions becomes the real site of theorizing justice.Footnote 5
Indeed, some pursue this line of reasoning so far as to render the structure of our property rights wholly subservient to other kinds of considerations of justice, such as distributive justice and/or democratic equality. If our property rights can be tweaked without damaging our ultimate deontological interest in project pursuit, then massive re-ordering of the property system is consistent with that aspect of justice, and hence can become a mere tool of securing distributive justice or the democratic will (Murphy and Nagel Reference Murphy and Nagel2002). Arthur Ripstein refers to such views as following a ‘public law in disguise’ model of property (Reference Ripstein2006: 1291; Reference Ripstein2009: 86–90), in which private law has no distinctive moral standing per se, but is a mere tool for public law.Footnote 6
In this paper I want to show that we can afford to take seriously the primacy of our deontic interest in project pursuit, and thereby temper the inclination to back away from Lockeanism. Specifically, I want to show how it can do a lot more work than one might initially think, stopping in its tracks the temptation to lean on macro-level consequentialist considerations at the margins. Each person’s fundamental moral status that is appealed to, one way or another, in deontological arguments for private property can also be used to ground common forms of property where they are appropriate. That private property is no panacea, then, is no reason to reject Lockean natural law approaches to property.
Arguments connecting person with property, such that our deontic respect for persons must extend to compliance with property rights, typically centre around the question of original acquisition. This is a heuristic device – typically associated with John Locke (Reference Locke1689) – for working out when and why we ought to respect property rights in virtue of our respect for personhood generally. Original acquisition is what happens where persons interact with virgin resources in some way which extends our duties to them as persons to duties of compliance with certain property rights. It is an application of our more basic rights over ourselves to rights over extra-personal resources.Footnote 7
Accounts of original acquisition are typically limited to explaining when, how and why privatizations of the commons are legitimate. I will argue here that this is wrong-headed, and exudes an implicit prejudice in favour of private property and against commons arrangements.Footnote 8 A modified Lockean theory can give deontic justification for a full spectrum of property rights including private ownership, easement, usufruct, public and collective property, as well as combinations thereof. This modification in fact makes Lockeanism more parsimonious rather than less. As I will argue, the existing complexity of Lockeanism, such that it is, is actually borne of its need to self-correct its prior bias in favour of private ownership.
Lockeans typically carry some implicit bias in favour of private property. It is often assumed that is the only way to apply individuals’ abstract interest in autonomous project pursuit. The philosophical work takes place in examining when this power might be legitimately restricted. Locke famously said that one could acquire ownership of natural resources so long as one left ‘enough, and as good’ for others (Reference Locke1689: II.V.27). Rather than a holistic principle that tells us which particular kinds of property rights persons can have in resources depending on the kinds of resources they are and how they are used, the theory presumes private ownership is the only kind of property, and tells us how to not let it go too far. This means that property systems that precede typical Western style land ownership are rendered illegible and presumed by Lockean theory to be in a state of non-ownership. The village communes in pre-enclosure England, or the native American territories, etc.,Footnote 9 are not regarded as settled property systems simply because they did not consist in enough fee-simple, private ownership. This has led some to argue that early modern property theorists were not necessarily interested in developing a universalist account of property and justice, but rather, primarily with the establishment of European property systems in the Americas, and their concomitant administration by European states (Tully Reference Tully1994: 156; Arneil Reference Arneil1996). The theory followed the political goal, rather than the other way around. Whilst those whose lands or resources are subject to expropriation in putatively Lockean fashion were not deemed to be without any moral consideration, it is just that they are rarely considered to have property rights on a par with those that the appropriator seeks. Instead, they merely had some claim to compensation thereafter, or assurance that the private property system will serve their welfare at least as well as their archaic system did.Footnote 10
A positive account of what connects person with property would not need a countervailing principle to limit it because it would protect persons who have property rights that are not rights of private ownership from having those rights unilaterally acquired by a prospective privatizer. Problematizing the connection between person and particular resources means we don’t start with a one-size-fits-all presumption, and then have to appeal to ad hoc principles when that size in fact fails to fit persons’ actual interests in project pursuit.
The implicit bias in favour of private property is well displayed in Robert Nozick’s discussion of original acquisition. He never gives a positive account of how or why it is that individuals can acquire ownership over parts of the hitherto unowned world, but merely describes why private property is desirable for other, non-rights based reasons, and then discusses potential checks to the power of acquisition which might also be desirable.Footnote 11 Thus assuming that private ownership is the only kind of property right that can protect our fundamental interest in project pursuit.
Here enter the various familiar social considerations favoring private property: it increases the social product by putting means of production in the hands of those who can use them most efficiently (profitably); experimentation is encouraged, because with separate persons controlling resources, there is no one person or small group whom someone with a new idea must convince to try it out; private property enables people to decide on the pattern and types of risks to bear, leading to specialized types of risk bearing; private property protects future persons by leading some to hold back resources from current consumption for future markets; it provides alternate sources of employment for unpopular persons who don’t have to convince any one person or small group to hire them, and so on. These considerations enter a Lockean theory to support the claim that appropriation of private property satisfies the intent behind the ‘enough and as good’ proviso, not as a utilitarian justification for property. (Nozick Reference Nozick1974: 177)
The power is supposed to be the manifestation of our own interest in control of extra-personal resources, and the proviso is supposed to ensure that the rights we acquire do not entrench upon other persons’ like interests (Attas Reference Attas2003; cf. Scanlon Reference Scanlon1976: 23). This two-stroke approach demonstrates the poverty of the implicit theory of property that lies behind many Lockean theories: that we know that private ownership is what is required to protect persons’ respective interests in autonomous project pursuit, and yet we need a proviso to protect the residual interests that are left by the way-side by this very power of privatisation. As Jeremy Waldron articulates it:
the idea that individuals can, by their own unilateral actions, impose moral duties on others to refrain from using certain resource … is a very difficult idea to defend in an unqualified form. (Waldron Reference Waldron1988: 253; emphasis added)
If we did not assume private property was the panacea for project pursuit, it would not stand in need of qualification.
We need not assume that private ownership is the only way of concretizing an individual’s interest in autonomous project pursuit. It is manifestly possible for a resource to be used by a variety of agents in a non-rival way without any one of those agents having unique authority over it (Levine Reference Levine1986; Rose Reference Rose1986; Ostrom Reference Ostrom1990, Reference Ostrom2003, Reference Ostrom2012; Ellickson Reference Ellickson1993; Gardner et al. Reference Gardner, Ostrom and Walker1994; Schmidtz Reference Schmidtz1994; McKean and Ostrom Reference McKean and Ostrom1995; Scott Reference Scott1998, Reference Scott2014; Carson Reference Carson2011; Pennington Reference Pennington2013). So where individuals’ interest in a given project does not extend as to justify her total ownership of it, there is no need – deontologically speaking – to presume she must have ownership of it.
The modification to Lockeanism defended here starts with persons’ basic claim to autonomous project pursuit, and then applies this to extra-personal resources, to see how different kinds of property right protect that interest with regard to different kinds of resources in different kinds of contexts. As I will show, we can end up with a highly mixed property system that includes private ownership, but in no way demands it in every case.Footnote 12 Rather than assuming we know what kind of property rights are needed to protect persons’ property interests, we should start out agnostic, and see where persons’ actual property interests lead us. Such an account needs no proviso because it adequately moulds property rights to the actual property-based interests individuals have in the first place. The proviso mops up the mess of the implicit assumption that private property is a panacea. Where the account of original acquisition makes no mess, we need no mop.Footnote 13
One of the important implications of ambidextrous Lockeanism, then, is that any residual justice-based complaint anyone legitimately has against an appropriation is a surrogate for a complaint about the violation of one or more of her non-interference-based property rights by the appropriator.
Nozick invokes a Kaldor–HicksFootnote 14 proviso to protect those who have resources that they are actively engaged in the use of appropriated by a newcomer. He argues that since (and if) they are made worse off by their deprivation of access to this resource, the appropriator must make a transfer to them in specie or kind in order to justify the appropriation (Nozick Reference Nozick1974: 176; cf. De Jasay Reference De Jasay1997: 171–180). Under the view developed here, any such ex post transfer only legitimizes the appropriation with the consent of the transferees, since their prior use of the resource places a duty upon the newcomer not to interfere without their consent.
Steiner invokes an egalitarian proviso because of the purported possibility that the entire universe could become the private property of some individual or group, and therefore when new generations enter the universe, without a natural right to an equal share of that world (granted in his proviso), they would have no right to exist in that world (Steiner Reference Steiner1994: 86–101; Reference Steiner, de Wijze, Kramer and Carter2009: 241; cf. Spencer Reference Spencer1851: XI.II). Under the view developed here, the legitimacy of all property rights is naturally subject to their non-interference in the ongoing activities of others, which includes (at a bare minimum!) their existence and subsistence. The checking of all property rights against subsistence – insofar as non-interference in subsistence is presupposed by non-interference with ongoing activities – also removes the need for the a sufficientarian proviso countenanced by Fabian Wendt (Reference Wendt, Brennan, van der Vossen and Schmidtz2018). Any appropriation that turned out to interfere with a person’s use of standing space or consumption of food etc. is a violation of that person’s non-interference-based property rights.Footnote 15
There are no doubt a number of different formulations of the proviso that could be made. However, as long as the proviso is a vehicle for rights-oriented considerations that are related to or consistent with liberty as non-interference, they can be catered for by non-interference itself given that private property will only ever be legitimate when properly grounded in non-interference itself.Footnote 16
Before getting into the substance of the paper, an important caveat ought also be noted. I invoke the, now dominant, Hohfeldian analysis of rights as being liberties, claims, powers and immunities, with correlating duties, liabilities and disabilities in third parties (Hohfeld Reference Hohfeld1913, Reference Hohfeld1917). The generic term ‘right’ sometimes refers to any one or combination of the former four Hohfeldian incidents, and ‘duty’ or ‘obligation’ as any one or combination of the latter three.Footnote 17 When I say ‘right’ I am referring to a Hohfeldian claim, which has correlative Hohfeldian duties in third parties.
Moreover, as the elementary particles of justice, property rights are sets of legitimately enforceable rights. It is a presumption of the general normative framework I am working within here that if something is a right, it is legitimate to enforce its correlating duties.Footnote 18 Whilst coercive enforcement of duties of justice is legitimate, systematized coercion is not necessarily the most effective way of making sure those duties are complied with. In political philosophy, there is a bias toward the assumption that a vindication of, for example, some particular right, being a demand of justice, just is a vindication of the need for legal formalization of that right, and/or that right being the explicit subject of some policy of the state. The attainment of justice through non-state means of social organization is assumed away (Levy Reference Levy2015, Reference Levy2017; Brennan Reference Brennan2016: 243–247; Reference Brennan and Levy2017, Reference Brennan2018; Byas and Christmas Reference Byas, Christmas, Chartier and Van Shoelandt2019). When we assume that justice is the unique and exclusive purview of Leviathan, we license Leviathan without adequate evidence that that licence would in fact serve justice in practice. Moreover, we analytically impoverish justice as it makes us pre-emptively blind to those social arrangements that are not typically achieved through Leviathan. Political philosophy is not legal or political consultancy, and political philosophers squander their skills when they proceed as if it is.
The appropriate institutionalization of the rights I discuss here might be ‘informal’ social norms, consisting in normative expectations that induce compliance (Bicchieri Reference Bicchieri2006), or ‘formal’ legal restrictions that threaten coercion to induce compliance, or most likely, a mutually complementary combination thereof. Theorizing the moral content of the rules of justice as one thing or another does not thereby imply any particular institutionalization of those rules from the armchair. Philosophy tells us what would be morally permissible, not what would be most effective.
2. Original acquisition: connecting person and property
John Locke famously said that individuals have natural rights, and can extend those rights to natural resources. Importantly, given that these rights are natural, they are both temporally and normatively prior to any political settlement.
Though the Earth and all inferior creatures be common to all men, yet every man has a property in his own person … The labour of his body, and the work of his hands, we may say are properly his. Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath thereby mixed his labour with, and joined to it something that is his own, and thereby makes it his property. It being by him removed from the common state nature hath placed it in, it hath by his labour something annexed to it, that excludes the common right of other men. For this labour being the unquestionable property of the labourer, no man but he can have a right to what that is once joined to, at least where there is enough, and as good left in common for others. (Locke Reference Locke1689: II.V.27)Footnote 19
This passage has been interpreted in a number of different ways by Lockean scholars, leading into at least five subtly different formulations of the principle of acquisition. I will outline some of these below as a prelude to showing how my own ‘ambidextrous’ version captures what is attractive in most other interpretations, without being exclusively concerned with private ownership, but also other kinds of property rights.
Physicalism. Some have understood the grounds for acquisition to be that, one owns one’s body, and that when one physically interacts with external objects, self-owned energy from one’s body is physically transferred into it. If those objects were not already owned by someone else, then their containment of one’s self-owned energy gives one the best claim.Footnote 20
Labour-fruits. Rather than hinging on the physical relation of one’s physiological body with external objects, the right of acquisition hinges on economic production. One owns ‘the work of [one’s] hands’ not because of anything necessarily reducible to physics, chemistry or biology, but because one has added value to the world, and ought to be the one to capture that value and thereby benefit from the work one invested.Footnote 21
Agnosticism. Robert Nozick offers some arguments for why private property rights ought to be regarded as natural (Nozick Reference Nozick1974: 160–174; cf. Brennan and van der Vossen Reference Brennan, van der Vossen, Brennan, van der Vossen and Schmidtz2018), but regards the question of what particular actions are sufficient to ground any particular acquisition as orthogonal to these.Footnote 22 Nozick is more concerned with what a necessary condition is for an action to justify acquisition (Gibbard Reference Gibbard1976: 83; Nozick Reference Nozick1974: 178–182; Wolff Reference Wolff1991: 114), namely, the condition that it not make anyone worse off than they would have been had the acquisition not taken place. As discussed above, Nozick is more interested in how the proviso restricts acquisition than how acquisition is to be justified in the first instance.
Conventionalism. This view is best understood as a development of Nozickian agnosticism. The right to private property has a basis that is independent of the normative status of the particular action taken to acquire something. Whatever the socially recognized convention for acquiring property is, one acquires by performing the relevant acquiring-action. Our natural right to acquire property only tells us that we ought to have some such convention, and that everyone has a right to participate in it, and a duty to comply with it (Lomasky Reference Lomasky1987: 123; Mack Reference Mack2010).
A variant of this view is that the convention must take the form of some kind of physical interaction with the property being acquired. For example, Eric Mack (Reference Mack1990, Reference Mack2009: ch. 2; Reference Mack2010) argues that some sort of physical interaction with an object (the particular content of that action is largely arbitrary) is a salient, publicly ascertainable sign that something has become owned by the acquirer and is now off-limits. It is simply a way of showing the community of other right-holders that one has particularized one’s general right to private property (cf. Kant Reference Kant and Gregor1779: II.10; Ripstein Reference Ripstein2009: 105; van der Vossen Reference van der Vossen2009, Reference van der Vossen2015). One can view physical interaction with a resource as simply providing a signal that one was the first occupant of the resource, and therefore the one with the best claim.Footnote 23 This is not a species of physicalism but of conventionalism because it merely specifies that a convention must involve physical interaction so as to be socially salient, not because physical interaction in itself carries any normative import.
The ambidextrous view. The general spirit of all these accounts can be captured in a well-specified principle of acquisition, grounded in a claim against interference in one’s ongoing, non-interfering activities. The reason Lockeans believe that persons can acquire private property rights is that as autonomous, social beings, they have a very strong interest in control over external objects. Moreover, we have a higher order interest in having control over our control over external objects. As mentioned above, it is crucial that we have power over our property rights (Hart Reference Hart1982: Chs 7–8; Steiner Reference Steiner1994: Ch. 3). The reason the particular act that constitutes acquisition is important, beyond the mere fact that some external action is necessary to socially signal acquisition, is that our interest in controlling resources is very particular. Those resources that are subsumed within our ongoing projects or activities are the ones we need control over (Brennan Reference Brennan2014: 79). Locke mentions acts of ‘labour-mixing’ because labouring upon land is one important way – particularly in the times and places he was thinking of – of engaging physical objects into one’s projects or activities (Thomson Reference Thomson1976: 665; Sanders Reference Sanders and Schmidtz2002). When our activities constitute physically attaching or transforming external resources, the non-interference principle prohibits others from interfering in these activities, and with the objects themselves to the extent that it is necessary. When our activities are improving natural resources, the non-interference principle likewise protects these activities and their material substrata. Rather than there being some independent power of acquisition, acquisition is simply the application of the right to non-interference, after persons have acted upon or within the world.
Each individual, then, prior to any political settlement, has claim to non-interference in her ongoing, non-interfering activities. Correlatively, each also has a duty not to interfere with the non-interfering activities of others. The principle of acquisition that this entails is that person’s ‘acquire’ property rights simply as applications of this claim to the particular activities they engage in with regard to extra-personal resources. The extent of a person’s property rights will be that which is required to protect her ongoing activities.Footnote 24 Both private property and various forms of commons have the same basic deontic justification. The next section will show how an application of the claim against interference can ground private ownership. Thereafter we will see how it can ground forms of common property.
3. Private ownership
How can a claim to non-interference ground a bundle of property rights like private ownership? One might be sceptical that private property can be justified by an appeal to non-interference in the use thereof. After all, the essential characteristic of private property – as opposed to other forms of property rights, like rights of usufruct – is that it allows one to exclude others from an object or space even when one is not presently using it (Schmidtz Reference Schmidtz2009: 7; Reference Schmidtz2010: 80; Reference Schmidtz and Klosko2011: 599–600). Often, the right to exclude others from one’s privately owned property is regarded as being independent of the particular use-rights one has to it. A. M. Honoré (Reference Honoré and Guest1961) famously said that exclusive possession and use were independent incidents of ownership. However, the right not to be interfered with can ground a sufficiently expansive right of exclusion, in certain cases, so as to make it indistinguishable from that which characterizes private ownership, without resorting to any independent, blanket right of exclusion. It is manifestly possible to use something in a way such that for anyone else to make almost any other use of it, would thereby interfere with your own use of it.
Some uses require the full (or near-enough full) exclusion of third parties (Christmas Reference Christmas2017b: 7–14). For example, when one cultivates a field and plants crops in the soil, there are very few uses of this land that can now be made by anyone else without interfering in one’s crop-cultivation. Building on the land, or using the soil for alternative crops, are obviously ruled out, as this would immediately stop the crops from being harvestable, and hence interfere in one’s activities. Indeed, one would also have the right to exclude others from building structures nearby that would block out the natural sunlight, or from extracting all the water from the water table, or polluting the soil, or blocking one’s access to the site, as these would all interfere with one’s cultivation of crops. One would also have the right to exclude others from walking over the land as this would damage the crops. Of course, one will not have the right to exclude others from carefully walking along an easement to the side of the cultivated area, so long as one was not using this pathway for anything that was thereby interfered with. One would also not have the right to exclude persons from flying airplanes over the land. One does not have the logically strongest set of rights over the parcel, but one does have some rights beyond the parcel. This bundle of exclusion rights maps on pretty clearly to common notions of what it means to privately own land (Penner Reference Penner1997).
While one has an open-ended right to exclude others – since there is a strong presumption that the use of the land by others would interfere with one’s ongoing agricultural use of it – this right of exclusion is incomplete – since there are some uses of the land that can be made by others. Others can fly over it, impose innocuous pollution, etc. So one has ‘a protected sphere of indefinite and undefined activity’ (Penner Reference Penner1997: 72), yet not to the point where others are excluded from effecting any physical change whatsoever within that sphere. Similar considerations take effect, to varying degrees, for any intensive use of hitherto virgin resources or vacant land for one’s ongoing activities, such as building a permanent dwelling.
Of course, ‘[n]othing in the world is naturally of exclusive interest only to the one most closely associated with it’ (Penner Reference Penner1997: 72), and therefore it is never going to be the case that one can acquire a totalizing exclusionary right over a particular spatial sphere. No matter how expansive a person’s use of a range of physical objects is, technological innovation always leaves open the possibility that some use could be made of the object without constituting interference. A model of private property that did not admit this would be a caricature, or worse, a straw man (Brennan and van der Vossen Reference Brennan, van der Vossen, Brennan, van der Vossen and Schmidtz2018). It is only critics of private property that take it to be totally exclusionary in this way (Railton Reference Railton and Gibson1985; Sobel Reference Sobel2012), and not those who actually understand it. Private property as ‘sole and despotic dominion … in total exclusion … of any other individual’ (Blackstone Reference Blackstone1753: §II.I) has always been more folklore than actual legal or moral practice.
Many uses of natural resources depend upon a stream of benefits from that resource generated by other persons’ exclusion from it (cf. Fisher Reference Fisher1906: Chs 2, 13), hence such uses of natural resource justify the acquisition of private ownership with such exclusionary characteristics. The use is expansive, so the claim against interference is expansive, which means the duties of others to exclude themselves are expansive. Whilst this private ownership does not include the logically strongest right to exclude others – since there are some uses of the resource which do not run counter to one’s interest in – private ownership need not include such an exclusionary right anyway (cf. Fressola Reference Fressola1982: 320, n.15).
What about when one’s use of a resource does not depend so much on other persons abstaining from the resource altogether? In the exact same way, one still has a right to non-interference in that use, leaving action-space open to non-rival uses of the same resource by others. This means that persons can acquire property rights more closely akin to easements or usufructs in resources. In this way, the right to non-interference also grounds various forms of common property, as well as private ownership.
4. The commons
There are two forms of common property that can emerge through the application of the non-interference principle. I refer to these as collective property and public property. Collective property is when a resource is privately owned by a group of persons, what G. A. Cohen (Reference Cohen1995) called ‘joint ownership’ and Carol Rose calls ‘property on the outside, commons on the inside’ (Rose Reference Rose1998: 144). The group as a whole has the right to exclude (almost) any use of the resource by non-members.Footnote 25 Public property, on the other hand, is when there is an open-ended set of right-holders, each of whom has the right to use the resource in a fairly narrow way.Footnote 26 There is no collective who has the right to exclude all outsiderstout court because the set of users at the given time do not use it in a way that renders any (or nearly any) use by an outsider an interference.Footnote 27
It is crucial to distinguish public property from what Locke referred to as the common and is often referred to as open-access; where there are no persons, nor uses of the resource, which are excludable (Ellickson Reference Ellickson1993). Such would better be understood as non-ownership – a sheer vacuum of property rights that is simply waiting for individuals to establish them. In Roman Law this is called res nullius and refers to resources which are not yet subject to any property rights, and hence are sites of original acquisition by first users. The two kinds of commons I discuss here are closer to variations of res communis: when resources are not used in ways that make them suitable to private ownership by an individual, and remain in a settled state of use by many persons.
Public property as I am conceptualizing it does not sit easily within much of the existing categories discussed in the literature. Scholars often take what varies between property systems as who is excluded from a given resource, rather than what uses of the resource are excluded. This leads them to viewing property as being either private (fully owned by one or a few persons), or collective (fully owned by society at large, most likely governed by the state that purports to represent them), or unregulated open-access (where no one is excluded) (cf. Stevenson Reference Stevenson1991; Ellickson Reference Ellickson1993).
Elinor Ostrom (Reference Ostrom1990) famously shed light on how some natural resources are used in rule-governed, efficient ways, which nonetheless do not rely upon the power of a single locus of final authority – whether it be a private owner or a political authority. Rather, where a number of persons or groups have an established interest in a resource, they find ways to use it without creating interpersonal conflict nor degradation of the resource.
Garret Hardin (Reference Hardin1968) famously described a ‘tragedy of commons’ as arising where there was no ownership over a natural resource that was subject to use by multiple agents.Footnote 28 Given that there is no agent with the power to exclude other users, no agent has an incentive to use the resource sustainably, since they cannot exclude other agents who might free ride on one’s sustaining activities and capture a greater share of the value of the resource. Hardin contends that resources must either be divided up so that discrete individuals own particular units, and given their right to exclude others, have an incentive to invest in the resource rather than degrade it. Or there must be Leviathan-like control of it by a collective representative that commands how it is to be used in a sustainable way. Within this picture, the key right in question is supreme power of control, and hence exclusion. The only question Hardin leaves to be answered is: who should be in control, Leviathan, or several private owners?
What Ostrom shows, however, is that we need not think of natural resource governance as a question of who has total control over a given resource. Rather than starting with the rule-maker, she observes that sometimes we start with the rules. In Hardin’s model, agents are not able to communicate anything other than their decision to deplete the resource or abstain from it. In the real world, however, those with common interest in a particular resource have some shared social fabric, such as a background of expectations, trust, etc. Rules can emerge through trial-and-error, through negotiation, and other forms of social intercourse other than sheer exercises of expulsive power. Rather than property rights being concerned with who the owners are, the way to understand what I call public property is what the permitted uses are. Where agents are able to converge on an appropriate set of usufructuary rules through intersubjective learning or dialogue, the tragedy of the commons is averted and a comedy of the commons takes place (cf. Rose Reference Rose1986).Footnote 29
Such commons can emerge through unilateral and multilateral use of hitherto unused resources in conjunction with the application of the non-interference principle, as I now detail.
4.1. Public property
When an individual uses a resource in a way that leaves action-space open for use by another, their acquisition of the relevant use-right is consistent with the resource’s use by third parties, so long as those uses are non-interfering. In the case of cultivating a field of crops, the extent of that residual action space is extremely limited, so limited as to justify our calling the farmer’s property right ownership. However, imagine that instead of cultivating a crop, the individual in question merely uses a beaten path to cross from one location to another. The non-interference principle implies that no third party may use the path or the land around it in a way that would obstruct the first user’s use of the path as a thoroughfare. A third party could use the path herself as a thoroughfare, so long as she did not do so in an interfering way – say, by driving down it at a hundred miles an hour while the first user is also passing, thus endangering her. Imagine now that more and more people start using the thoroughfare. Each one uses the thoroughfare in a way that does not interfere (as per the non-interference principle), and in turn, as a new user is added, any prospective user may only use the resource in a way that is non-interfering of each of the existing users. This may be quite simple with regard to the use of a thoroughfare. If each person simply uses it for walking down (one way or the other), the rules of use are fairly simple – don’t obstruct the thoroughfare of others. With other kinds of resources used in other ways, a more complex set of rules will be required by the non-interference principle. Consider a large fishing pond. When an individual starts fishing, she acquires a right to the pond. No one may take the fish she catches, nor kick her off the embankment, nor engage in noise pollution that scares all the fish away, or water pollution that kills the fish, etc. An additional fisher would not necessarily interfere, however. Assuming the second fisher’s rate of capture did not come at the expense of that of the first fisher’s, then her fishing is non-interfering.Footnote 30
For these kinds of uses of resources – walking across an expanse of land and fishing in a pond – there is action-space left with regard to the resource such that there are relatively expansive uses by others still open (at least, the same use being made by the present user). I call resources subject to this composition of acquired rights public property because of the extent to which they are more open to new users than with private ownership. Whereas with the privately owned farm, so many uses by others are not permitted that it is functionally equivalent for all third parties to be excluded altogether (or nearly so), with public property, there are so many potential uses that permissibly could be made by third parties that the required property rules do not exclude all other persons, but more closely permit access by anyone, but importantly regulates their use to those that do not conflict with pre-established ones. Though I assign different labels to private and public property, the distinction is one of degree and not kind. The right to exclude is always contingent upon such exclusion being justified by the particular interest the user (or set thereof) has established in the resource.
One can imagine the resources that each member of a community uses in the more fleeting, less intensive ways must remain subject to public property rules. No one may privately appropriate the public square without the consent of all those who presently have established easement rights to it, which is the class of persons who frequently pass through it such that its privatization would constitute interference. One can imagine public parks, streets and squares emerging this way, as well as many rural, large-scale resources.
4.2. Collective property
Whatever the use of the public resource, however, there will be some point at which an additional user (making like use) will necessarily interfere with the existing users. There is an issue of establishing the cut-off point; there is a point at which another person along the path interferes with the existing users, or where another fisher in the pond, or another occasional swimmer in it, overcrowds the resource in such a way that the previously established uses are being interfered with.Footnote 31 At this point, the status of the resource vis-à-vis outsiders resembles that of private property: there is (almost) no use that can be made by an outsider that does not interfere. The difference, though, is that the class of users is greater than one. Between them, the group of users collectively own the resource since the admission of use by another would interfere, and hence they have a right to exclude all third parties. At this stage of development, the resource goes from public property to collective property. Margaret McKean and Ostrom note that stable commons often evolve in precisely this way:
Historically common property regimes have evolved in places where the demand on a resource is too great to tolerate open access, so property rights have to be created, but some other factor makes it impossible or undesirable to parcel the resource itself. (McKean and Ostrom Reference McKean and Ostrom1995: 6)
Where the use of a resource is not diminished by additional users, it remains open to new users. Existing users are free to negotiate with each other about how to mutually alter the resources disposition, but they may not exclude other non-rival uses of the resource. At the point at which (almost) no additional use can be made, the group of existing users has far broader powers of exclusion and may govern the resource as their collective, private property. This would give the users of an overcrowded thoroughfare the right to enforce a traffic management system, and/or charge user fees, for example,
The particular governance mechanism is entirely up to the users themselves. They may abstain from formally organizing, and simply negotiate with each as and when they need to. When an individual wants to augment her existing use of the resource, in a way which would interfere with another existing user, she needs to obtain the latter’s consent, and may have to offer up something in exchange. Without any formal organization of all the users together, it would be managed through a nexus of such spot-transactions. Depending on the nature of the resource and the use it is being put to, however, this may be extremely costly to the users. Negotiations take time, contractual agreements bring uncertainty. After all, no matter how well specified the contractual arrangement is, it is still possible for one party to renege on the contract ex post. This will be a violation of the other’s rights, of course, but that is no guarantee it will not happen. Moreover, there will be costs just in discovering who one needs to get the consent of, where the complexity of the resource is such that it is not obvious who one’s change of use imposes costs on, and hence who one needs to negotiate with. Where such transaction costs are sufficiently high, it will be efficient for the users to collectively consent to a set of primary rules binding each individual user (Coase Reference Coase1937; Klein et al. Reference Klein, Crawford and Alchian1978). Rather than behaving like interdependent, individual users, they will then behave more like a firm: each following a set of agreed-upon rules and procedures, rather than unilaterally negotiating with one another each step of the way. Indeed, if the need to change these rules may be an ongoing possibility, it will be efficient for them to also consent to a set of secondary rules, so that certain among them are empowered to make changes to the primary rules when necessary, without the need for a new consensus. Indeed, it may be easier to obtain consensus on secondary rules rather than directly upon primary rules (Rawls Reference Rawls1955; Brennan and Buchanan Reference Brennan and Buchanan2000: Ch. 2).Footnote 32
All of these ways in which the use of a collectively owned resource can be made more efficient are entirely open to its users from the perspective of their natural rights to it. The only caveat is that it must be by each user’s consent that she be incorporated. Any decision to alter the disposition of the use of the resource that interferes with a non-consenter’s ongoing use would be unjust. Even if she herself would ‘benefit’ from being forced into a situation in which her use of the resource is governed by a set of overarching rules, it would still be a violation of her claim to non-interference to conscript her into the firm. The fact that she might be compensated for this rights violation ex post does not legitimize the violation ex ante.
The foregoing entails that individuals could strategically withhold their consent to incorporation in order to increase any compensation she might receive in exchange for her consent. However, others may legitimately threaten the holder-out with sanctions falling short of rights-violations. For example, through ostracism or abstaining from other future contracts that the holder-out is dependent upon. If this all proves ineffective, however, the holder-out remains free, normatively speaking – to hold out. This will present costs to other individuals, but that is the cost of individual’s being endowed with natural rights.Footnote 33
If our rights are merely protected by liability rules – that is, their boundaries can be crossed in exchange for payment of appropriate compensation, in cash or in kindFootnote 34 – then we cannot be said to be endowed with the power over our rights. Where one has a power to waive or demand compliance with one’s rights, a violation of one’s rights without a waiver is not legitimized by ex post compensation. Whilst compensation is required due to a rights violation, it does not remove the fact that it was a violation. The rights-holder would have been within her rights to forcibly stop the violation in its tracks, regardless of any promise of compensation. Under the view that one’s rights merely impose liability rules, it is merely a reserve level of welfare that is protected by rights, rather than our power to make choices with regard to how others interact with us. It is precisely protection from other person’s presumptive decisions as to how we might benefit from certain actions that makes rights, in part, attractive (Mack Reference Mack2000; Zwolinksi Reference Zwolinski2014: 13; Christmas Reference Christmas2017a).
4.3. The role of convention
As we can now see, the way in which a resource is used by a group is highly instrumental to how the property rights ought to be arranged. From a position of our abstract rights, we cannot know prior to our actual interaction with resources what kind of property system any given set of extra-personal objects and spaces ought to be subject to. All we can say from the armchair is that no one may interfere with the ongoing, non-interfering activities of any other. In order to apply this in the real world, we need to know what constitutes the various activities within which persons subsume extra-personal resources, whether they be productive, recreational, religious or what have you. Highly contextualized understanding of the particular uses made of resources will be required in order to make a judgement about what the individual person’s natural rights amount to – that is, what specific actions may be taken by others without violating those rights.
The social conventions regarding the constitution of the relevant activities therefore furnish person’s natural rights with content. Of course, conventions that permit others to acquire rights to interfere with the activities of others have no standing here, neither would conventions that permit one group of persons to conscript others into cooperation without their consent. Natural rights in the abstract tells us that much. The role that actually-existing conventions do play is in telling us what kinds of actions count use, interference or consent. The theory of natural rights normatively orders these act-types, but only social convention can tell us what actual behaviours constitute these act-types.Footnote 35
A description of our natural rights cannot tell us what counts as fishing, hiking, drilling for oil, building houses, etc. We can only get that from an anthropological study of how these activities are in fact engaged in, based upon hermeneutical understanding of what makes them different and similar from one another.Footnote 36 The kind of information required to ‘fill in’ our natural rights is not immediately legible, so there are strong barriers to the extent to which we should expect states to be able to accurately formalize property rights in the more complex cases of actively evolving commons.Footnote 37 Therefore any successful institutionalization of the rights therein is likely to be achieved outside out of the positive law of central political authorities (cf. Ostrom et al. Reference Ostrom, Walker and Gardner1992; Ellickson Reference Ellickson1994).
The theory of natural rights only tells us, once someone is engaged in one of these activities, others have a duty not to interfere. Therefore, a correct application of the Lockean principle is going to look different in different social contexts because the salient understandings of what constitute the relevant activities will be different.
5. Conclusion
In this paper I have attempted to show that a modified version of the Lockean principle of original acquisition offers a deontic justification for both private ownership and various forms of commons with regard to natural resources, as and when they are appropriate to the resource, and the way in which persons actually interact with it. Lockeanism often involves an implicit bias in favour of private property, which means Lockeans often invoke a proviso, to account for those whose interest in autonomous project pursuit is ill served by a system of pure private property. Removing this bias, and problematizing the relationship between persons’ interest in autonomous project pursuit and property rights, rather than assuming the former to always be served by private ownership, allows us to formulate a principle that gives just enough property-based protection as is called for. A claim against interference in one’s ongoing activities captures the basic liberal impulse behind the various interpretations of Lockeanism, and entails a far more flexible principle of acquisition. Under ambidextrous Lockeanism, the commons often turn out to be protected not by some countervailing principle that checks a prior power to privatize resources, but by the principle of acquisition itself.
Ambidextrous Lockeanism ought to be viewed as a far more palatable approach to natural rights theory. Firstly, it can deal with the complexities of resource usage without having to ultimately kick away the deontological ladder that gets one into property rights in the first place, in favour of cost-benefit analysis at the margins. We can afford to think about natural resource governance in terms of natural law when we adopt the ambidextrous view, unlike the account that takes private ownership as a panacea. Secondly, removing the bias in favour of private ownership reveals the true relation between one’s personhood and one’s property rights. The hand-waving from liberty to private property is often viewed as a disingenuous, ideological Trojan horse for political laissez-faire (Barry Reference Barry1975; Nagel Reference Nagel1975; Murphy and Nagel Reference Murphy and Nagel2002; Rossi and Argenton Reference Rossi and Argenton2017). However, showing when and why our fundamental interest in autonomous project pursuit does and does not entail private property shows that the connection between person and property is in fact robust. And moreover, that any free market economy underwritten by this account of natural rights is one that includes public and collective property as much as private property.
Acknowledgements
Thanks are due to Liam Shields for suggesting the ‘ambidextrous’ prefix to my view of property acquisition, and to Shruti Rajagopalan for encouraging me to write this paper.
Billy Christmas is a Lecturer in Political Theory at King’s College London. He received his PhD from the University of Manchester, after which he was a Fellow at the New York University School of Law. His work occupies the intersection of philosophy, politics, economics and law, and engages specifically with the topics of rights, property and justice.
