If anyone is looking for a really excellent book on property rights, I’ve got a good one to recommend, The Not So Wild, Wild West: Property Rights on the Frontier, by Terry L. Anderson and P. J. Hill. (I’d read bits of it in the past, but recently I had the opportunity to read the book from start to finish.) The economic explication of such concepts as rent and rent dissipation are elegant and easy to grasp and the application to particular historical cases helps to sort out a lot of difficult issues.
The book led me to think a bit more about the difficult issue of how persons or groups can come to acquire rights over objects that were previously unowned, or, as John Locke put it, over those things that were previously “in common.” (A useful distinction, the understanding of which is lacking in all of the socialist misreadings of Locke, such as that of G. A. Cohen, is that between “positive community” and “negative community.” The former refers to things that are owned in common by a group of people; the latter, as Locke’s contemporary Samuel Pufendorf put it, refers to things “as they are considered previous to any human deed which declares them to belong more especially to this person than to that. They are also, in this sense, said to be no one’s, that is, in the negative sense of not yet having been assigned to anyone in particular rather than the privative sense of being incapable of such assignment.”[1]) By making something the property of a particular person or group of persons, the rights of appropriation of all others are thereby extinguished. What could justify such an extinction of the rights of the rest of humanity?
Locke is often interpreted as stating that the only way to acquire initial property rights is through “mixing one’s labor” with unowned objects. You own your body, and therefore your labor, so you own that with which the labor is mixed. Murray Rothbard frequently repeated that formulation[2], arguing that improvement through labor a necessary condition for acquisition of property.
In fact, Locke never stated such a condition; he argued only that such labor would be a sufficient condition for acquiring property, but never that it was a necessary condition. Indeed, in the Second Treatise, he merely states “And ’tis plain, if the first gathering made them not his, nothing else could.” That is, Locke argues that gathering unowned acorns is sufficient to create a property right that extinguishes the rights of others to gather them, but he does not argue that it is necessary, and elsewhere he discusses other ways in which property can be initiated.[3] (Nor, it is worth pointing out, was Rothbard correct in claiming that Locke’s “enough and as good” proviso on appropriation “may lead to the outlawry of all private ownership of land”[4], for, as Locke points out, the only way to meet the proviso is to convert land from “negative community” to “several property,” since “he who appropriates land to himself by his labour, does not lessen but increase the common stock of mankind.”[5]
Anderson and Hill give us lots of sound economic reasons to reject sole reliance on improvement through labor-mixing as a criterion for acquisition of property, among them that that it led to wasteful dissipation of rents as people invested resources in living on or improving land before it generated positive rents. In addition, the requirement of improvement meant that land was acquired in plots too small to be productive [6] and in ways that generated artificially high transaction costs for the efficient voluntarily organized irrigation of arid land.
Anderson and Hill’s work shows clearly the value of factual knowledge of the world, guided by a coherent understanding of the role of institutions and incentives, for making sense of morally significant institutions, such as rights.
[1] The Political Writings of Samuel Pufendorf, ed. by Craig L. Carr, trans by Michael J. Seidler (Oxford: Oxford University Press, 1994), p. 176.
[2] Murray N. Rothbard, The Ethics of Liberty (Atlantic Highlands, NJ: Humanities Press, 1982), p. 39: “all ownership on the free market reduces ultimately back to: (a) ownership by each man of his own person and his own labor; (b) ownership by each man of land which he finds unused and transforms by his own labor; and (c) the exchange of the products of this mixture of (a) and (b) with the similarly-produced output of other persons on the market.”
[3] Second Treatise of Government, Chap. V, Paragraph 28.
[4] The Ethics of Liberty, p. 240.
[5] Second Treatise of Government, Chap. V, Paragraph 37. Locke continues, “For the provisions serving to the support of human life, produced by one acre of inclosed and cultivated land, are (to speak much within compasse) ten times more, than those, which are yielded by an acre of Land, of an equal richnesse, lyeing wast in common. And therefore he, that incloses Land and has a greater plenty of the conveniencys of life from ten acres, than he could have from an hundred left to Nature, may truly be said, to give ninety acres to Mankind.”
[6] See also the discussion in Walter Prescott Webb’s The Great Plains (Lincoln, Nebraska: University of Nebraska Press, 1981), esp. pp. 385-431.
I think that the Lockean homesteading is the “Achilles heel” of his propriety rights philosophy. Nozick’s explanation isn’t much convincing either.
Kirzner has a interesting approach based in his “entrepreneurial discovery” concept. It’s in the final essay of his “The Meaning of the Market Process”.
The Rothbard revisionism continues, which of course is the best way to honor his memory.
Next up: his mythical “copyright stamp.”
Miguel, I thought that Palmer’s point was that homesteading wasn’t “Lockean.” Or, at least, that such homesteading was not meant by Locke to be the unique means of converting the unowned into the owned.
Do you know the title of the essay itself? I don’t have the book (although I am going to try to get it). Is the essay available in other forms, or online, as well?
Ok. It’s been a while since I read Locke so I’ll have to look it up.
As for Kirzner’s essay I try to put the title here when I get home. I don’t think it is online. At least for free…
Here’s the info, AZ:
“13. Discovery, Private Property, and the Theory of Justice”
Journal des Economistes et des Etudes Humaines, 1 (October 1990)
Thanks for the tip to Kirzner. His approach is indeed quite interesting and helpful.
Overall, though, I take a more pluralistic approach to the issue of property acquisition than either Rothbard or Kirzner, each of whom offers a moral justification that has, I think, some force to it but which can’t account for all legitimate forms of property, hence, is not a necessary condition for property acquisition. Locke and Pufendorf (and property lawyers) recognize that property can arise in a number of ways. A central insight that motivates at least most of the libertarian tradition, has been that property in one’s own person is, at the least, that form of legitimate property that does not rest on the consent or even recognition of others for it to be legitimate. Locke seizes on that as a lever to upend Sir Robert Filmer, who had taken Grotius’s less sophisticated treatment of property (an institution he believed had emerged by common consent) to argue that if the consent of all were required, then the dissent of but one would render all the property in the world invalid. Locke’s argument focuses on property in one’s own person as not requiring the consent of others and, thus, property in other things that arises from that would not require the consent of others. But his move is highly strategic. He defeats Filmer’s objection, but doesn’t go on to do what Rothbard did, which is to create a uni-foundational theory of all property rights. It wasn’t necessary to his purpose and, as an examination of Rothbard’s theory shows, it generates problems that could be avoided by a more pluralistic approach.
What is remarkable is how often the ultra-absolutist royalist Filmer’s arguments are revived by socialist-leaning theorists, such as G. A. Cohen (whose view is virtually indistinguishable from Filmer’s) and Cass Sunstein.