The Natural Right to Property as an Instrumental Right

1 Locke’s Labour Theory

In Locke’s “Two Treatises of Government”, he lays down (i.) natural rights, (ii.) how property can be acquired, and (iii.) under which conditions.^[2] Locke postulates the universal nature of natural rights, since they spring from Natural Law, which is also universal. This Natural Law is evident to reason; therefore, natural rights are also (Locke 1988, 2.11). There are, of course, objections (Strauss 1953) that Locke’s approach to this topic contradicts his claim that innate moral ideas are not possible.^[3] On the other hand, Locke’s construction seems viable, even when based on consequentialist foundations (Rashdall 1913, 40).

Locke’s labor theory of the acquisition of property serves as a prime justification for the property.

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 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, hath by this 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. (Locke 1988, II. 27–28).

Rashdall (1913, 44) asks if mixing little labor with much raw material can secure a right over that material (e.g. constructing a ring fence around one thousand acres of the best soil). Some may argue that the construction of a ring fence around a thousand acres is enough labor to appropriate the land within the circle. Rashdall’s objection seems somehow potent, and can be dealt with only after close analysis. However, it is not essential for this article, because this article aims at the conceptions that accept Locke’s labor theory of appropriation of property.

The essential parts of Locke’s theory of appropriation of property are also two limitations to such appropriation. The first proviso is concerned with spoiling and can be demonstrated by these passages: “the earth, and all that is therein, is given to men for the support and comfort of their being” (Locke 1988, II. 26). “Nothing was made by God for Man to spoil or destroy” (Locke 1988, II. 31) “the exceeding of the bounds of just Property not lying in the largeness of his Possession, but the perishing of anything uselessly in it” (Locke 1988, II. 46). Even if the first claim seems to be theological, it can not be denied that it also possesses a teleological emphasis that is placed upon securing the survival of humankind and efficient usage of the property. It is true that with the invention of money, the proviso of spoilage is weakened, because one is able to exchange the property for money. However, this fact does not render this proviso useless or somehow invalid. Nevertheless, Locke admits what consent to the use of money leads to:

But since gold and silver, being little useful to the life of man in proportion to food, raiment, and carriage, has its value only from the consent of men, whereof labour yet makes, in great part, the measure, it is plain that men have agreed to a disproportionate and unequal possession of the earth, they having, by a tacit and voluntary consent, found out a way how a man may fairly possess more land than he himself can use the product of, by receiving in exchange for the overplus gold and silver which may be hoarded up without injury to any one, these metals not spoiling or decaying in the hands of the possessor. This partage of things in an inequality of private possessions men have made practicable out of the bounds of society and without compact, only by putting a value on gold and silver, and tacitly agreeing in the use of money. (Locke 1988, II. 50).

This last claim is also one of the reasons why Locke is seen as a defender of unlimited capitalistic appropriation by some contemporary philosophers (Shrader-Frechette 1993, 206–207).

The second proviso is sometimes called Locke’s Proviso.^[4] To differentiate these two limitations of appropriation of property, henceforth the first will be referred to as the spoilage condition and the second as Locke’s Proviso. “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”^[5] (Locke 1988, II. 27). This Proviso secures the right of others to appropriate in the case of monopoly (Locke 1988, II. 33). The Proviso counts on the weaker position of the spoilage condition in the (capitalist) society, and therefore it can be seen as a strengthening condition. As a condition that secures the limitation of appropriation. It seems evident that, in the state of nature, the spoilage condition is a more substantial limitation of property than the Proviso. However, in society, it is the contrary. In society, there is a tacit agreement on the use of money, which serves as a means to accumulate value without spoiling one’s property. On the other hand, in the state of Nature, without the possibility of accumulating value through money, the option to acquire every single unit of the same type of property without spoiling it seems impossible. Therefore, the combinations of these limitations exclude the possibility of unlimited accumulation of property. Thus Strauss’s (1953) interpretation of Locke as a supporter of unlimited accumulation of property is invalid. It is essential to mention that “the law of nature stands as an eternal rule to all men, legislators as well as others. The rules that they make for other men’s actions must, as well as their own and other men’s actions, be conformable to the law of nature” (Locke 1988, II. 135). This claim negates the objections from some philosophers that these conditions should apply only to the state of Nature.

2 Nozick’s Reformulation of the Proviso

“I assume that any adequate theory of justice in acquisition will contain a proviso similar to the weaker of the ones we have attributed to Locke” (Nozick 1974, 178). Nozick here talks about Locke’s Proviso, and this section is dedicated to his redefinition, which is not coherent with the rest of his conception.

Nozick argues that the original Locke’s Proviso is too strong to be fulfilled.^[6] Therefore he formulates a weaker version of the Proviso: “Someone whose appropriation otherwise would violate the (Locke’s)^[7] Proviso still may appropriate provided he compensates the others so that their situation is not thereby worsened; unless he does compensate these others, his appropriation will violate the proviso of the principle of justice in acquisition and will be an illegitimate one” (Nozick 1974, 178). It follows from this paragraph that compensation (or its absence) plays an essential role in determining whether the appropriation (that violates Locke’s Proviso) is legitimate or not. The principle of compensation is a part of Nozick’s conception, and a considerable part of “Anarchy, State, and Utopia” is dedicated to this topic.

The principle of compensation recognizes the boundary line of an individual, which is set by a weaker formulation of Kant’s second form^[8] of the categorical imperative.^[9] Unsurprisingly, Nozick, a libertarian, is a champion of negative freedom; thus, his principle of compensation bears these signs and claims that prohibition of one’s action can be done only when this action can be harmful: “those who are disadvantaged by being forbidden to do actions that only might harm others must be compensated for these disadvantages foisted upon them in order to provide security for the others” (Nozick 1974, 82–83). As an example, Nozick mentions a person with epilepsy who is forbidden to drive, because such actions could mean harm to the public. In this example, he points out that, in such a case, the restriction foisted upon an epileptic person is legitimate if and only if such a person is compensated (e.g. free taxi or public transportation or by other means). However, the compensation proposed by Nozick in the case of appropriation is inconsistent with his principle of compensation. The main difference lies in the fact that when A (who already owns some property) violates Locke’s Proviso, then B (a group of people who do not own any property) is not able to appropriate. Therefore, B’s right to property is violated. There is no doubt that the appropriation of property is not a harmful action whatsoever, unlike appropriation which violates the right to appropriate. Therefore, according to Nozick’s conception, suppressing the right to appropriate should not be allowed.

Libertarians can argue that A’s right to appropriate property is also violated. However, the violation of that right is more severe on the side of B than A. It also has to be pointed out that favoring the appropriation right of B is not necessary. In a market society, the last parcels of land will inevitably be of enormous price; therefore, it is not likely that individuals from the B would be able to pay this price for this land. However, that does not mean these parcels cannot stay in the commons or be collectively owned. In addition, the right to property is limited by Nozick’s usage of the redefined Locke’s Proviso. Nozick himself, when concerned with compensation, argues that: “For example, is the manufacturer who is prevented from pursuing his best alternative (though having other profitable alternatives) especially disadvantaged if everyone else may pursue their best alternatives, which happen not to be dangerous? Clearly not” (Nozick 1974, 83). In this case, we can see that the limitation of someone with a less productive alternative is not a disadvantage if he is prevented from the most productive alternative, which harms others. However, in the case of appropriation, Nozick is not holding the same ground. The appropriator can appropriate in a way that violates Proviso even if harming the rights of others.

There is another possible way of violating one’s boundary line legitimately. The second type of compensation is called market compensation – “market compensation is the amount that prior negotiations to get his consent would have fixed upon” (Nozick 1974, 68). The essential part of market compensation is the necessity of prior negotiations. Since there are no prior negotiations in Nozick’s account of the Proviso, it is clear that market compensation is not the same type of compensation as the Proviso’s compensation. It follows that Nozick’s account of the Proviso is not consistent with the rest of his conception because Nozick lacks the theoretical means to satisfy his theoretical demands. It follows that Nozick’s account of the Proviso is not consistent with the rest of his conception. An analogy of such compensation is illuminating. Suppose we replace the act of appropriation (violating the Proviso) with the act of suppressing one’s freedom of movement (without previous mutual agreement). In that case, it becomes evident that mere compensation is not, in this case, sufficient as retribution, but a penalty must follow. Some may argue that this analogy is too loose. There is an even better example of an analogy. If we replace an act of suppressing one’s freedom with the act of breaking someone’s hand, the question of compensation and penalty will vary according to the actor’s intention.

One may argue that if the act was unintentional, then the penalty is not necessary, and only the compensation will be sufficient. However, the penalty must occur if the actor intended to break the hand. The penalty can be expressed in the amount of compensation. Since, according to Nozick, “Full compensation is an amount sufficient, but barely so, to make the person afterwards say he’s glad, not sorry, it happened” (Nozick 1974, 68). However, is it possible to unintentionally perform an act of appropriation? It seems that it is not the case. The problem lies in the fact that Nozick recognizes two types of compensation, the first one is the compensation for legitimate crossing of the boundaries, and the second one is for illegitimate crossing. What exactly does that mean? The type of compensation designated as redress for illegitimate crossing cannot be used in the Proviso violation case. This kind of compensation does not have the power to transform illegitimate conduct into a legitimate one. Limiting one’s right at the expense of another’s right is not legitimate for two reasons. The natural right to property (or the boundary line of oneself) is supposed to be inviolable. Therefore, its violation without previous consent from everybody affected by such a violation cannot be overruled by simple compensation. The second reason is the problem with Nozick’s notion of compensation in the case of appropriation that violates the Proviso.

Imagine the case that Nozick’s notion of the Proviso is valid and not inconsistent with his own theory of compensation. Then the logically following question is, “Who will be compensated and how?” Nozick claims,

Fourier held that since the process of civilization had deprived the members of society of certain liberties (to gather, pasture, engage in the chase), a socially guaranteed minimum provision for persons was justified as compensation for the loss […]. But this puts the point too strongly. This compensation would be due those persons, if any, for whom the process of civilization was a net loss, for whom the benefits of civilization did not counterbalance being deprived of these particular liberties. (Nozick 1974, 178, footnote)

This claim is the only mention of how compensation for violating the Proviso should be handled. It is unclear whether the second part of the above claim aims merely at Fourier’s argument, or if it includes compensation for violating the Proviso. Since the aim is ambiguous, both options must be provided with counterarguments. Nozick’s argument of the benefits of civilization is very brief, therefore, vague. It almost seems that Nozick thinks violating the Proviso is a necessary condition for civilization. This assumption is interesting, but it cannot be analyzed here, because such an answer needs exhaustive analysis.

When Nozick says, “This compensation would be due those persons […]” it is not clear if he is talking about Fourier’s notion of compensation, or if he is talking about some one-time payment compensation. If the former is true, then it follows that anyone for whom the process of civilization was not a net loss is entitled to the one-time payment. In the case that the latter is true, then it flows that anyone for whom the process of civilization was not a net loss is not entitled to any compensation whatsoever. Nevertheless, the former interpretation seems more plausible, assuming that Nozick is consistent with his previous claim about the Proviso.

Therefore, the next level of analysis works with two interpretations: (i) Nozick’s notion of compensation for violating the Proviso is the same as Fourier’s if and only if the process of civilization was a net loss; otherwise, it is a mere one-time payment. (ii) Nozick’s notion of compensation is always a one-time payment, and the footnote is wholly aimed at Fourier’s notion. Nevertheless, both accounts have similar difficulties. Firstly, there is an epistemological difficulty; this difficulty lies in estimating the amount of compensation. How much should be paid to the people for depriving them of the natural right to appropriation? Is the market price enough? For example, Proudhon claims:

The soil has not only an integrant and actual value, it has also a potential value – a value of the future – which depends on our ability to make it valuable, and to employ it in our work. […] Destroy the land, or, what is the same thing, sell it – you not only transfer one, two, or several crops, but you annihilate all the products that you could derive from it; you and your children and your children’s children. (Proudhon 1970, 106–107)

Proudhon’s claim shows that Fourier’s type of compensation seems more suitable than the one-time payment. It seems that depriving human beings of the possibility of being economically independent and offering them as redress only a one-time payment when the appropriation was not legitimate is not sufficient. The problem in the determination of the amount of compensation is inherent in both notions. However, this difficulty is more prominent in the one-time payment compensation. The other epistemological difficulty lies in the claim “for whom the process of civilization was a net loss”. How does Nozick want to determine or measure if this is the case? There is another possible objection. Suppose the case in which someone has benefited from civilization, but would personally prefer to own land and live the life of an Amish farmer. Is not Nozick’s approach to that matter a limitation of one’s freedom to choose how to live life, therefore coercion in some sense, and consequently a limitation of one of the most prized values of liberalism?

A similar problem is connected to market compensation. Due to the fact that if someone would like to use market compensation in the case of violating Locke’s Proviso, then this person would need confirmation from everybody in question (which is again difficult to acquire), but most importantly, “individuals in combination cannot create new rights which are not the sum of preexisting ones” (Nozick 1974, 90). This means that even if all the individuals from B would somehow agree with the appropriation of the last parcels by A, then it would not matter because no individual would have the right to appropriate; therefore, their consent with the appropriation of someone else would not even matter, because the whole body of B would not create a new right, or gain some new legitimacy.

3 Inherent Incoherence

What is the reason for the incoherence that we see above? Maybe the reason behind this incoherence is inherent in Nozick’s interpretations of Locke’s notion of the natural right to property. Nozick sees Locke as a defender of unlimited property, or at least is using his notion to defend the right to accumulate unlimited property. However, this interpretation may be a mere instrumentalization of Locke’s notion. The goal of this part is to analyze Locke’s notion, to understand whether Nozick’s interpretation is correct (and therefore, the incoherence is not inherent in his interpretation), or whether it is not, and he is using Locke instrumentally. In order to do that, the question of how Locke looked at idea of unlimited property must be answered.

As mentioned above, there are interpretations of Locke that support unlimited appropriation. One of the most well-known examples is made by C. B. Macpherson, who articulated the theory of possessive individualism. While Macpherson makes great comments about using money without the need of society, his attempt to avoid the Lockean Proviso is not very convincing.

His (Locke’s^[10]) chain of thought seems to have been that the automatic consequence of the introduction of money is the development of a commercial economy, hence the creation of markets for the produce of land hitherto valueless, hence the appropriation of land not hitherto worth appropriating. And by implication, consent to the use of money is consent to the consequences. Hence an individual is justified in appropriating land even when it does not leave enough and as good for others. (Macpherson 1990, 211)

This argument is not strong due to its loose form. The connection between the individual steps of this argument is relatively weak. Also, it is hard to imagine that removing the Proviso, which is clearly stated, would be encrypted by Locke in such a manner. In contrast, when Locke talks about the spoilage condition, he clearly states that the invention of money has lessened its significance. Another problem with this interpretation is that, while Macpherson is contemplating the Proviso, he is omitting parts of Locke that do not support his position.

In defense of his position, Macpherson claims that Locke’s section 37, in which Locke describes that appropriated and cultivated land can produce 10 times more than uncultivated land, means that because of the cultivation, it takes less land to meet the needs of the humankind, is an argument supporting his position. He uses the first half of that section in his book. However, he does not mention that the other half of that section is focused on spoilage condition instead of Proviso. This makes one wonder if such a connection to the Proviso, in this case, is real. I believe his argument against Proviso is not convincing, even for libertarians, because since his book was published in 1962, many libertarians have tried to overcome Proviso in their own way.^[11]

Shrader-Frechette (1993, 209) points out that Nozick, and others who interpret Locke in a capitalistic way, talk about the appropriation of unowned property. In doing so, they are omitting the State of Nature and its Original Community in which humans are “sharing all in one community of nature”^[12] (Locke 1988, II. 6). This common ownership over everything is also mentioned in Locke’s labor theory: “he has 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 has placed it in”^[13] (Locke 1988, II. 27–28). Therefore it is clear that there is not any genuinely unowned property, only common property which can be used by everyone.

When people enter societies (and therefore leave the State of Nature), then, according to Locke, they must subject their property to the law of that society (Locke 1988, II. 120). On the other hand, society’s laws must be consistent with the Law of Nature, because people constitute and enter these societies to enforce and secure the Law of Nature. Since the end of the society is to secure the Law of Nature, then the power of such society must be “limited to the public good of the society” (Locke 1988, II. 135). Locke’s emphasis on society is apparent throughout the Second Treatise of Government. However, even in the First Treatise of Government, the emphasis on the community is expressed; “twould always be a Sin in any man of Estate, to let his Brother perish for want of affording him Relief out of his Plenty.” Therefore, “no Man could ever have a just Power over the Life of another, by right of property in Land or Possessions” (Locke 1988, I. 42). The accent put on community over an individual is clear. In contrast, Nozick claims:

No rights exist in conflict with this substructure of particular rights.^[14] Since no neatly contoured right to achieve a goal will avoid incompatibility with this substructure, no such rights exist. The particular rights over things fill the space of rights, leaving no room for general rights to be in a certain material condition. (Nozick 1974, 238)

Another of Locke’s strong claims for the sense of community (humanity) over private property is “The same Law of Nature that does by this means give us Property does also bound that Property” (Locke 1988, II. 31).

Shrader-Frechette, similarly to Rashdall, thinks that natural law in Locke’s notion corrects and limits the power of a sovereign. Nevertheless, she further claims that natural law does not apply solely to the power of the government but also to “the economic and political power of persons who injure others through their accumulation of vast properties” (Shrader-Frechette 1993, 212). To support this interpretation, she uses a particularly interesting quote from Locke: “Man can no more justly make use of another’s necessity, to force him to become his Vassal, by with-holding that Relief, God requires him to afford to the wants of his Brother, than he that has more strength can seize upon a weaker, master him to his Obedience, and with a Dagger at his Throat offer him Death or Slaver” (Locke 1988, I, 42). The injury can have the form of the absence of the possibility of acquiring land (or violation of Locke’s Proviso) due to its monopolization; therefore, it can be translated to Nozick’s term “harm”. Now the contrast between Locke and Nozick is starting to be apparent. While Locke emphasizes the community (and its good) and natural law, which should protect the individual from power (of whatever nature) over him, Nozick uses Locke’s notion of property only to support unlimited capitalism within the minimal individualistic state. Furthermore, the right to life is minimized to the right not to be killed.

This emphasis on the community is rooted in the idea that the Law of Nature focuses on preserving the individual (and humanity that consists of individual humans). Shrader-Frechette compares that notion to the negative version of Rawls’s (1999) second principle of justice (Shrader-Frechette 1993, 214). This similarity is indeed striking and should not be overlooked.^[15] Wolf similarly approaches Locke’s Proviso. He argues that, in the case of competing claims over a particular property, the person who is about to satisfy his basic needs holds the trump card over the claim of a person who is about to satisfy his adventitious needs. That would suggest that, in the case above, when the appropriation of A was in question, the claim of B (as co-owned property, commons, or individual property of anyone from B) is stronger than that of A.

Wolf interprets the Proviso as a harm principle. It follows that any appropriation of property cannot cause harm (physical or in the sense of violation of rights). The Proviso as a harm principle is used by Wolf to protect the rights of the future generation. This debate, even if interesting, is not essential here. However, Wolf’s proposal can be used here. Wolf proposes replacing full-blown (or absolute) property rights with usufructuary rights (Wolf 1995). Full-blown property rights can be summarized as the right to use and abuse (Proudhon 1970, 66). Therefore, full-blown ownership includes the right to destroy the property in question. On the contrary, usufructuary right can be seen as a “limited property claim that affords the claimant the right to use and to consume the fruits of property but no right to damage or destroy its substance” (Wolf 1995). This second notion of property is essential, because it considers the world’s limitations. We should remember that this article focuses on land and natural resources; these were not, in the times of John Locke, as scarce as today. Therefore, there was no need for different notions of property rights regarding property or land.

4 Conclusion

Nozick’s notion of property is not coherent (concerning the Proviso). For Locke, in his times of proto-capitalism, it was hard to imagine that all of the lands could be appropriated in such a manner that the Proviso would be broken. Nozick is writing his “Anarchy, State, Utopia” in the age of late capitalism.^[16] Such differences in the organization and complexity of societies can not be overlooked. One can say that if this theory and the conditions should be considered just or legitimate, then they should be universal. This counterargument fails to recognize that these notions mentioned above are not independent notions, but rather extensions of the original theory. However, one can argue that Nozick’s reformulation of the Proviso can be seen as such an extension.

Nonetheless, as is shown, that is just not the case because the Lockean notion is more focused on the good of the community than on the possibility of the unlimited property of an individual. Therefore Nozick is using Locke’s notion not only instrumentally defending his theory with his Proviso and the labor theory, but intentionally (or unintentionally) taking it out of context. In her article, Held (1976) claims that there are more common characteristics between Filmer (and his writing “Patriarcha”) and Nozick, than between Locke and Nozick.

One of the sources of this problem could be the absence of willingness to admit that land is a unique kind of property on its own. Therefore, it should be the subject of a different set of principles than “ordinary” property, because it cannot be multiplied, its mineral resources cannot be multiplied, and it is essential for the life of every (even merely potentially) living creature. Also, it can create capital and, therefore, be used as a means of production. These are unique properties and characteristics that together cannot be found in any other type of property.

After this article has shed light on how Nozick instrumentally used Locke, there is no doubt that this claim is plausible, because the interpretation and reformulation of the Lockean Proviso by Nozick is not true to Locke’s original text. This raises the question of whether Nozick’s entitlement theory holds together, when such an essential part seems incoherent. However, such a question must be answered somewhere else.