Initial Appropriation, a Brief Venture Into Moral Philosophy
While I, like everyone else, hold views about right and wrong, I do not believe I have any way of showing that those views are correct. I can try to tease out the structure of my beliefs by introspection. I can attempt to construct an internally consistent account of them, and similarly for what I can deduce about other people’s beliefs. But since I cannot show that my beliefs are true, arguments based on them strike me as less useful for persuading reasonable people of my political conclusions than arguments that use economics to deduce the consequences of the institutions I favor and try to show that those consequences are desirable in terms not only of my values but of the values of those I wish to persuade.
Moral arguments are still interesting. It is particularly interesting to try to see whether and how the institutions I favor can be justified in terms of my own normative beliefs. This chapter offers two different approaches to doing so. It is based on an old article of mine responding to an article by Baruch Brody, a philosopher of generally libertarian inclinations. His article attempted to justify a moderate amount of income redistribution along libertarian lines. My response first reinterpreted his argument—something that only became clear from his response—and then offered an alternative. I start with my interpretation of his argument, go on to my alternative. Both have the same objective: Making private ownership of land, in particular the right of owners to exclude others, consistent with some version of libertarian moral theory. They are thus possible responses to a problem that I raised in the introduction and touched on again in Chapter 41, the probem of justifying ownership of unproduced resources.
First Try: Brody as Revised by Friedman
One ought generally to respect other people’s rights but, as I argued back in Chapter 41, not always; if the consequentialist gains from a rights violation are sufficiently large and the violation itself sufficiently small, the violation is justified. Earlier examples include stealing something of small value when doing so is the only way of preventing a catastrophe that will wipe out the human race and using a rifle against the wishes of its owner when doing so is the only way of preventing mass murder. As mentioned briefly in that discussion, such a rights violation establishes a debt: I ought, if possible, to compensate the owner whose rights I have violated.
The surface of the earth was not created by any human being, so nobody starts with a right to exclude any other human from any part of it. It follows that such exclusion is a rights violation. It is, however, highly desirable that individuals be able to own land and exclude others from it, since without private property in land the ways in which land can be used are very limited. The argument of the previous paragraph suggests that it is therefor proper to convert land into private property but that the claimant is obligated to compensate the people whose rights he violates by forcibly excluding them from the land he claims. In Baruch Brody’s version of the argument the exclusion was a rights violation in the distant past, when the property was first claimed. In my, I think improved, version, it is a current rights violation. My front yard is by nature a commons, since I did not create it, so keeping you out of it is a violation of your rights. So is keeping you out of my living room, or at least out of the land my living room sits on.
If I am violating your rights, I owe you compensation. In Brody’s view and, in a similar discussion, Robert Nozick’s, the compensation need not take the form of an explicit transfer. Land as property is a great deal more productive than it would be as a commons, with the result that there are more things available at lower cost, which is a benefit even to those who do not themselves own any land. Arguably, that provides fair compensation to almost everyone. But if there is anyone who is worse off in a world of private property than he would be if everything were treated as commons, he is owed compensation by those who gain from the existence of property in land. Thus this argument appears to justify some very minimal level of redistribution.
While that is a possible reading of the moral implications of enforcing private property in land, it is not one that fits very well with the redistribution implied by other arguments, such as utilitarianism or egalitarianism. To see why, consider someone who is blind or crippled. In the world as it is he is worse off than most other people. But he is better off than he would be in the much poorer world without private property in land, since in that world he would probably starve to death. Hence, following out the logic of (my revised version of) Brody’s argument, he is owed nothing. On the other hand the natural primitive, a good athlete with lots of survival skills and little taste for the luxuries of civilization, may actually be worse off than he would be in a world without property in land, and if so is owed compensation—even if he is doing pretty well in the world as it is.
There are other problems with the implications of the argument. Compensation that only brings the victim of rights violation back to the level he would be at if the violation had not occurred looks rather like a forced sale at a price based on the lowest the seller would accept rather than the highest the buyer would pay. If I violate your rights in a way that gives me a very large gain, why should you be just barely compensated while I get all of the difference between benefit and cost?
If we conclude that the proper rule is something more like an even split of the benefit, we have another problem with my version of Brody’s argument. If you were free to make any use you liked of the land my house sits on, you could inflict very large costs on me, so preventing you from doing so gives me a large benefit. If you are entitled to half of that benefit and half of the corresponding benefit to everyone else from your refraining from exercising your right to make use of “their” land, you have a claim to much more than a per capita share of the world’s output. So, along similar lines, does everyone else.
I will leave the exploration of other problems with this line of argument, both my version and Brody’s original, to readers interested in philosophical excursions, and move on to an approach to justifying property in land that I find, if not entirely satisfactory, at least a little closer.
Second Try: Locke as Revised by Friedman
John Locke famously justified private property in land as due to the owner having mixed his labor with the land. This argument raises at least two problems. One is why mixing your labor with the land gives you the land instead of costing you the labor. As Nozick put it, if I dump a can of soup into the ocean, do I now own the ocean or have I merely lost my soup?
A second problem, recognized by Locke, is that if the land starts as equally the property of everyone, my turning it into my property deprives you of something of value—the opportunity to turn it into your property. His conclusion was that you were entitled to turn common land into private property only as long as there was “as much and as good” available for other people to do the same thing with, sometimes described as the Lockean proviso. The problem is that the exception swallows the rule. Since good land is going to eventually run out, the first appropriator is depriving some later person of the opportunity to himself appropriate.
One cannot avoid the problem by claiming that it only arises with the person who wishes to appropriate the last piece of good land. He cannot do so, due to the Lockean proviso. But that means that the next to the last appropriator deprived the last appropriator of the ability to appropriate, so he cannot appropriate either, and so on all the way back to the first. Mathematicians will recognize the form of the argument as mathematical induction applied to moral philosophy.
My revised version of Locke’s argument starts with the observation that, while the land may, morally speaking, be a commons, I myself am private property—mine. You and I have the same right to stand on any particular piece of land. But your right to stand on the land I am currently standing on does not include a right to shove me off, since that is a violation of my property right in my body; that makes the land I am standing on, in a limited and very temporary sense, mine. Similarly, if you happen to have a rifle, you are entitled to use it for target practice on the commons—except in my direction, since you do not have a right to shoot me.
Following a little further along the same lines, imagine that I find a nice piece of land, pull out the weeds, dig it up, and plant wheat in it. A few weeks later the land has neat rows of little wheat sprouts. I point them out to you and explain that, while you still have a right to go on the land, you do not have a right to crush my wheat plants, since they were produced with my labor and so belong to me. If there is no practical way in which you can go on the land without damaging my property, I have established de facto ownership of that piece of land—at least until my wheat is harvested.
I want to make my effective ownership permanent, but wheat is all I want to grow and it only occupies the land part of the year. No problem. I build a fence around my wheat field. The fence may or may not be sufficient to keep you out, but if not, it is probably also not strong enough to survive undamaged your climbing over it. You have a right to be on the land but not a right to damage my fence—mine because my labor produced it.
We now have a version of Lockean appropriation that solves the usual problems. When I mix my labor with the land I do not acquire any right to the land, but I retain my ownership of my labor and what that labor produced. You are free to use the land in any way that does not injure my property—to dig underneath it for ore, to fly your hawk over it to hunt pigeons. But it may well be, depending on what I have done with it, that most of the ways you would want to use it are now barred to you because they would injure my legitimate property that I have mixed with our land. Whether there is as much and as good land available for you is irrelevant since I am not claiming ownership of any land, merely of what I have mixed with it.
This approach to justifying property rights has its problems. In order to maintain ownership of my land, I have to be careful to do things with it that make it impractical for anyone else to use it without damaging my property. I have to be particularly careful not to let anyone else do anything with it such that my future use would damage his property, since that could make the land effectively his. That is a cost that could be avoided if the land was my property in the usual sense.
Speaking as an economist, I find the rules implied by this argument to be inefficient ones. But they at least provide a justification for enforcing a form of property rights in land that is consistent with the libertarian view of rights.
 D. Friedman, “Comment on Brody, Social Philosophy and Policy volume 1 (1983)
 Richard Epstein, in Takings, uses a similar argument to distinguish regulatory takings, for which he believes that compensation is owed, from taxation for general purposes, for which the compensation consists of the benefit to the taxpayer from the services that his taxes pay for.