Lockean Property Ethics and Restitution

David Jarrett

• Publisher: Routledge
• Year: 2022
• Print ISBN:
  9780367546519
• eBook ISBN:
  9781000602524
• Topic: Politics & International Relations
• Subtopic: Political Philosophy
• Index: Politics & International Relations

In this book, David Jarrett argues that the influential Lockean thesis of justice in property, which traces back to John Locke, seems to entail much egalitarian property redistribution.

Put briefly, Lockeans argue that people justly own: (1) any unowned natural resources they labour on, (2) any resources they receive via voluntary transfer from a legitimate owner, and (3) any resources they legitimately receive in compensation for harm done to their person or legitimately held property. However, a question that has been largely overlooked by Lockeans is how to address the problem of property which did not arise in line with Lockean justice. What do we do about property which derives from feudal and colonial conquest, for example? Drawing on a range of theoretical and historical sources, this book argues that the legal concept of restitution is the most reasonable way to address the problem. If we apply this concept, it appears that much property in the world is held unjustly and should be redistributed in an egalitarian manner.

Lockean Property Ethics and Restitution will be of interest to political theorists and philosophers alike.

1Lockean property ethics

DOI: 10.4324/9781003090984-2

1.1 Introduction

As mentioned in this book’s Introduction, Lockeanism is made up of two broad types of rights: first, persons own their bodies (i.e., they may do what they wish with their bodies as long they do not infringe on the self-ownership or private property rights of another person); second, persons own their legitimately acquired property. There are three ways a person can legitimately acquire property: (1) they may labour on (i.e., homestead) unowned natural resources; (2) they may receive justly held property via voluntary transfer from a legitimate owner; and (3) they may gain property through some form of compensation, restitution, or rectification for relevant past injustices. For proponents of the Lockean thesis, these rights are considered natural rights.

Section 1.2 of this chapter provides a more detailed description of the concept of self-ownership. It aims to clarify what is implied by the concept, and what is not. Section 1.3 provides some detail on the concept of Lockean world-ownership and clarifies which notion of Lockean world-ownership we will be using in the rest of this book. Sections 1.4 to 1.10 are concerned with assessing the defences of the Lockean thesis taken as a whole. Seven types of argument are assessed: (1) that Lockean rights are self-evident; (2) Rothbard’s natural rights argument that Lockeanism is required for human survival; (3) the ‘slippery slope’ argument that if we do not respect Lockean rights, that we are on a path to social tyranny and/or chaos; (4) the ‘natural fact’ arguments that we simply do own our bodies and worldly resources that we acquire via Lockean justice; (5) Rothbard’s reductio ad absurdum argument that if persons do not own their bodies or the resources they acquire in line with Lockean justice, then who does?; (6) Hoppe’s argumentation ethic claims; and (7) Kinsella’s argument that Lockean rights are needed to avoid social conflict. It is argued in this chapter that none of the above arguments are very sound. Nevertheless, the remainder of the book will set aside these criticisms and simply investigate the implications of Lockeanism.

1.2 What is self-ownership?

In this section we provide a more in-depth introduction to the first natural right¹ which Lockeans argue that everybody has: self-ownership. Note, however, that we do not criticise the self-ownership thesis until later in the chapter. The idea of self-ownership is clearly delineated by Vallentyne, Steiner, and Otsuka in a jointly written article. They explain that ownership of any object entails five rights:

(1) control rights over the use of the object; (2) rights to compensation if someone uses the object without one’s permission; (3) enforcement rights (to prevent the violation of these rights or to extract compensation owed for past violation); (4) rights to transfer these rights to others (by sale, rental, gift, or loan); and (5) immunity to the nonconsensual loss of any of the rights of ownership.

(Vallentyne, Steiner, and Otsuka 2005, 203–4)

Proponents of self-ownership broadly agree that each person has these rights over their own bodies. It should be noted that the word ‘self’ in ‘self-ownership’ does not entail a belief in any mystical entity called a ‘self’ that is separate from one’s body (Kinsella 2013). Self-ownership is simply the right to control one’s own body as long as one is not infringing on the body-rights or legitimate property rights of other persons. The only major area of contention among proponents of self-ownership is whether one can sell oneself or not. On the one hand there are those (e.g., Vallentyne, Steiner, and Otsuka 2005) who argue that selling oneself into slavery is entirely consistent with self-ownership. In fact, without the right to sell oneself, one would not have full ownership of oneself. On the other hand, are those (e.g., Rothbard 1998, 135) that argue that self-ownership is ‘inalienable’, or precludes selling oneself.² We can therefore distinguish proponents of full self-ownership from proponents of inalienable self-ownership. This distinction will not be significant in this book as our arguments apply equally to both forms of self-ownership.

It should be noted that the political implications of the self-ownership thesis are unclear. Indeed, as discussed by Vallentyne, Steiner, and Otsuka, one criticism of self-ownership is that it is a useless concept because it is indeterminate. That is, it has ‘few concrete implications’ because ‘it can be interpreted in a variety of incompatible ways’ (Vallentyne, Steiner, and Otsuka 2005, 203). It does not therefore have a distinct position in political philosophy (Vallentyne, Steiner, and Otsuka 2005; see also Cohen 1995, 213–27). This criticism has some surface plausibility. There is much disagreement among adherents to self-ownership on the type of social system they would like to see. This is because self-ownership is compatible with many possible approaches to the ownership of objects external to one’s body—that is, approaches to world-ownership—and differences in world-ownership give rise to very different kinds of social order.

Here it is worth noting that it is common for those that adhere to the concept of self-ownership to refer to themselves as ‘libertarians’ (Vallentyne, Steiner, and Otsuka 2005). A notable dividing line among libertarians is between left-libertarians and right-libertarians (although there are many different types of both left- and right-libertarian). Unlike right-libertarians, left-libertarians believe in various types of egalitarian ownership of natural resources. Therefore, the difference in political programs between left- and right-libertarianism can be extremely vast. For example, Otsuka—a left-libertarian—argues that it is possible to have self-ownership alongside permanent economic equality (Otsuka 1998). If land is primarily allotted to the disabled and less productive persons, equality could be achieved by allowing them to claim the surplus produced by more able and productive persons. Right-libertarian, David Gordon (2014), acknowledges Otsuka’s position is logically sound but has criticised Otsuka for rendering self-ownership merely formal. Gordon asserts that Otsuka’s world is unappealing to him on the grounds that it would result in effective slavery to the poor and disabled. Cohen (1995, chap. 4), meanwhile, criticises the right-libertarian approach to world-ownership on the grounds that self-ownership is rendered merely formal if proletarians have to submit to the will of capitalist property-owning employers. So we see that there are very different views on the implications of self-ownership.

Vallentyne, Steiner and Otsuka acknowledge that there is ‘some indeterminacy’ to self-ownership but argue that there is still a ‘significant determinant core’ (Vallentyne, Steiner, and Otsuka 2005, 203). This core consists of the five rights over one’s body that we quoted above which constitute ownership of objects.³ Vallentyne, Steiner, and Otsuka note that questions still remain about the implications of self-ownership. For example, it is not clear what should be done to those that violate a person’s rights. However, they argue that the concept still carries ‘significant normative force’ (2005, 205). In particular, as long as the self-owner is not encroaching on the property rights of another person, they are at full liberty to use their own body, and has ‘a full security right over use of that object (i.e., no one else may use the object without [their] permission)’ (2005, 206). Put another way, one is free to do what one wants with one’s own body as long as this does not aggress against another person (or their legitimate property—although the concept of ‘legitimate property’ is disputed). An additional form of indeterminacy is how strictly self-ownership should be adhered to. Vallentyne, Steiner, and Otsuka (2005, 205–7) note that ‘strict full ownership of my body is violated, if, in the process of putting out a dangerous fire, you inadvertently send a small bit of stone one hundred yards away, where it lightly flicks my hand’, but they point out that most libertarians would not see this as a significant injustice.

1.3 Lockean world-ownership

Here we introduce the Lockean approach to owning property external to oneself—i.e., world-ownership—by comparing it with other well-known libertarian approaches to property: mutualism and Georgism (note that we are referring to ‘non-proviso’ Lockeanism and discuss the different Lockean provisos later in this section). As Carson (2004, 198–200) discusses, there are three main broad schools of thought on land ownership in the market libertarian tradition: Lockeanism, Georgism, and mutualism. Under each of them, one can only appropriate natural resources by labouring on said resources, but the nature of appropriation is different for each school. Under Lockeanism, natural resources are considered unowned until a person labours on—or homesteads—them, gaining full, permanent ownership. Under mutualism, natural resources are considered to be under the common ownership of humanity as a whole, with individuals only gaining possessory or usufructuary rights. Under mutualism, humanity’s common ownership is latent. Individuals have the right to possess any land and property they are using, but the latent communal ownership prevents people claiming more than for personal use, and when land is scarce it can be rationed (Proudhon 2015, 67, 82). Under Georgism, persons have a right to an equal share of the world’s natural resources (some Georgists view this right as an equal ‘collective’ right, whereas others see the right as ‘several’ [Carson 2006, 132]), with the community imposing a land tax on people corresponding to the estimated value of the natural resources claimed by an owner.

A key difference between mutualism and the other schools is the rules on abandonment. Under Lockeanism, one could slightly labour on more land than one needs (as we will discuss, according to Rothbard, just walking on it would count as labour), and then claim permanent ownership of it to gain future rental income. But this is not the case under mutualism. When one stops using a piece of land, or other property, after some socially agreed period of time, one is deemed to have abandoned it. One cannot leave property vacant and gain rental income as an absentee landlord. Under Georgism, one could own more land than one needs, but it should theoretically not benefit the absentee owner as the community tax should equal the rental value of the land. However, one could gain rental value for any housing or other property one labours to produce.

There are also a multitude of other potential ways of managing resources that are compatible with self-ownership. We have mentioned Otsuka’s suggestion. It is also worth mentioning that during the Middle Ages, Franciscan theologians argued for possession rights but not having the right to sell what one possesses (Tuck 1979, chap. 1). Finally, it is worth mentioning the ‘hard libertarian’ position outlined by Allan Gibbard (2000, 24). According to this position, one has natural rights over one’s body, and the right to transform objects in the world. For example, one has a right to clear the land for a farm or make lumber out of trees. However, Gibbard explains, ‘a person’s performing of such an act can never by itself deprive anyone else of his equal right to all things’ (Gibbard 2000, 25). He continues: ‘In absence of agreement to the contrary, a manufactured thing is to be regarded simply as commonly owned raw materials put into new form, and hence everyone has an equal right to it’ (Gibbard 2000, 25). According to this position, property rights—that is, the right to exclude somebody from using some resource—must be socially agreed somehow.

1.3.1 Lockean proviso?

Another question that arises with Lockeanism is whether there should be an ethical limit on the amount of resources one can ethically acquire. Locke, and those who have followed in his footsteps, have often put in place various ‘provisos’, limiting the amount of resources that persons can initially acquire. Locke himself puts in place a proviso that land acquisition should leave ‘enough, and as good left in common for others’ (Locke 1988, section 2.5.26). This has provoked several reactions from interpreters of his writing. Nozick (1974, 175–7) points out that it is technically impossible to acquire natural resources while leaving ‘as good left in common for others’. In this context there are a number of alternative provisos that have been proposed. Vallentyne (2009) categorises these provisos. The first two types are based on the assumption that resources are originally unowned. First, according to ‘Nozickean right-libertarianism’, unowned resources may be appropriated but other individuals must not be made ‘worse off by the appropriation compared with non-appropriation’ (Vallentyne 2009, 148).⁴ Vallentyne (2009, 148) explains that secondly, ‘sufficientarian (centrist) libertarianism’ requires that persons must be left with ‘adequate’ natural resources. ‘Adequate’ can be interpreted in different ways including the basics for subsistence, or enough for ‘minimally decent life prospects’ (Vallentyne 2009, 148).

Vallentyne also outlines two types of left-libertarianism. These positions begin from the assumption that resources are originally jointly owned. The first type is ‘equal share left-libertarianism’ (Georgism)⁵ in which persons may appropriate any natural resources as long as they leave enough for others to appropriate the same (Vallentyne 2009, 148). Alternatively, persons may appropriate more than this amount on the grounds that they pay compensation to others equal to the market value of the extra share taken....

Table of contents

• Cover
• Half-Title Page
• Series Page
• Title Page
• Copyright Page
• Contents
• Acknowledgements
• List of acronyms
• Introduction
• 1 Lockean property ethics
• 2 The Lockean law of restitution
• 3 Alternative approaches to addressing Lockean injustice
• 4 Unjustly acquired property
• 5 Redistribution
• Conclusion
• Appendix: More on Lockean exploitation
• Index