Since there are many different sorts of approaches to libertarianism – including many different sorts of moral approaches – there are many different sorts of routes to the topic of “Libertarianism and Land.” Fortunately, the implicit context of this symposium is the natural rights approach to libertarianism – which I would (elsewhere) argue is the most fitting, fruitful, and feasible approach.[1. See, e.g., Eric Mack, “Individualism and Libertarian Rights,” in Contemporary Debates in Political Philosophy, ed. J. Christman and T. Christiano (Oxford: Blackwell, 2009).] More specifically, the implicit context of this symposium is the contrast between two natural rights oriented positions, viz., (so-called) right-libertarianism and (so-called) left-libertarianism. It is within this context that the moral status of raw land has been a direct focus of philosophical attention.

As commonly conceived, the first of these two positions asserts one fundamental natural right, viz., a right of self-ownership, and the second of these positions asserts both a fundamental natural right of self-ownership and a fundamental natural and equal right to raw material stuff. It is not just that every person equally has some right to raw material stuff but, rather, that the content of the right is in some way equal. So, as commonly conceived, the dispute between the right and the left libertarian is about whether, in addition to a natural right of self-ownership, there is a natural and equal right to raw material stuff.

In this symposium contribution my major goal will be to support disbelief in any fundamental natural and equal right to raw material stuff.[2. For an elaborate discussion that focuses on the powerful work of Hillel Steiner, see my “What is Left in Left-Libertarianism?” in Hillel Steiner and the Anatomy of Justice, ed. S. de Wijze, M. H. Kramer, and I. Carter (New York: Routledge, 209).] If I accepted the standard picture of the dispute between right and left libertarianism, I would then be affirming the right of self-ownership as the sole fundamental natural right. But I do not accept this picture of the dispute. That, of course, has been the message of my judicious insertions of “(so-called).” I do not accept the standard picture of the dispute mostly because I do not think that the natural rights libertarianism that stands in contrast to left-libertarianism is well represented as the affirmation of self-ownership as the single fundamental natural right.

Indeed, the position designated by “right-libertarianism” is in fact almost entirely the creation of G.A. Cohen, who both came up with the labels “right-libertarianism” and “left-libertarianism” and an enormously influential reading of Robert Nozick’s Anarchy, State and Utopia that greatly exaggerates the role and the fundamentality of self-ownership within that work and within natural rights libertarianism at large. (Check out how infrequently “self-ownership” appears within Anarchy, State and Utopia and how it does not appear at all until chapter seven’s defence of the entitlement theory. Similarly, self-ownership does not appear in Locke’s Second Treatise until Locke turns to his account of property rights in external things in chapter five.)

I believe that a better approach to a natural rights libertarianism that would stand in contrast to left-libertarianism begins with a defense of a really basic natural moral claim of each individual not to be precluded from living his own life in his own chosen way; and this approach goes on to articulate or codify this moral claim through the ascription to each individual of certain natural rights. Among these would be a right of self-ownership, a right against manipulation by deception (or something like that), and a natural right of property, which is a right not to be precluded from making (unowned) things one’s own and not to be precluded from exercising discretionary control over what one has made one’s own.[3. See my “The Natural Right of Property,” in Social Philosophy and Policy, v.27 no.1 (Winter 2010).] Unfortunately, this symposium is not the place to ground and develop this approach or to deal with further aspects of the proper articulation or specification of original moral rights.

So I turn to the more limited topic of what justifies disbelief in any original rights over the earth. I will advance three claims. First, the burden of proof rests on those who would affirm such a right. In the absence of a persuasive case on behalf of such rights, disbelief is the rational stand. Second, no plausible arguments on behalf of an original substantively equal right to the earth have been offered. Third, all the specific candidates for such a right that have been advanced are deeply problematic in (so-to-speak) their own right. They typically suffer from one of two problems. Either the purported equal right to the earth clashes with a right of self-ownership which the left-libertarian also asserts or advocacy of an equal right to the earth runs into severe problems in explaining what an equal share of the earth would be.

1. The Burden of Proof.

Cohen says that Nozick makes the “blithe assumption”[4. G.A. Cohen, Self-Ownership, Freedom and Equality (Cambridge, Cambridge University Press, 1995) 94.] that the earth is naturally unowned. But surely there is nothing irresponsible about beginning with non-belief in a natural right to the earth. Just as rights of self-ownership cannot properly be assumed to exist, so also original rights over extra-personal raw stuff cannot properly be assumed to exist.

Moreover, our pre-theoretical judgments on behalf self-ownership are much more powerful and inescapable than any pre-theoretical judgments that can be mustered on behalf of an original and equal right over raw extra-personal stuff. Pre-theoretical judgments on behalf of self-ownership powerfully answer to or articulate our sense that it is not merely a very bad thing for any (innocent, non-aggressing) individual to be killed, maimed, enslaved, and so on; they answer to our sense that such harmings deeply wrong those who are subject to them and that each individual has a distinct moral claim against herself being subjected to such treatment. (So centered within that subject is the moral claim against such treatment that – absent special circumstances – that individual alone can, by her choice, make the harmful treatment permissible.) These pre-theoretical judgments seem to be inescapable within any rights-oriented approach because the possession of rights confers morally protected choice upon the bearer of rights; so the rights possessed must include rights against the most direct and obvious choice-denying activities, viz., activities like killings, maiming, and enslaving.

My point here is not that these and further judgments in support of a natural right of self-ownership themselves add up to a (fully satisfying) argument for affirming that right (as perhaps one among our natural rights).[5. For a more extensive survey of these pre-theoretical judgments, see my “Self-Ownership, Marxism, and Egalitarianism: Part II. Challenges to the Self-Ownership Thesis,” Politics, Philosophy, and Economics, vol.1 no.2 (June 2002).] For one thing, they don’t provide a grounding account of this right. Rather, my point is that, in the absence of any inkling of a comparable convergence of pre-theoretical judgments on behalf of a natural right to raw stuff, starting-point disbelief in this latter right is especially reasonable.

2. No Persuasive Argumentation.

As far as I can see, there is a striking dearth of arguments offered to move us from disbelief to belief in an original and equal right to the land. I will here consider the best arguments I recall encountering.

a. One possibility is that reasoning about these matters is supposed to start with some very strong egalitarian premise that calls in general for an original equality in the distribution of personal and extra-personal raw material – perhaps for the sake of an original equality in the distribution of capacity for action. An original and equal right to the earth is then taken to be the implication of applying this general and basic egalitarian premise to the distribution of raw material. However, there are two obvious problems here.

One problem is that the egalitarian premise that is carrying all the water here is at least as contentious as the original and equal right to the earth that this premise is supposed to deliver. The other problem is that if we go on to apply this egalitarian premise to the distribution of personal resources, we get nothing like self-ownership. For equality in the distribution of personal resources will require that some persons be only partial owners of themselves while other persons will be full owners of themselves and partial owners of others. (Or it will require that no one be a self-owner because everyone is simply an equal joint-owner of everyone.)

b. Especially, in his early ground-breaking essays on behalf of what become “left-libertarianism,” Hillel Steiner argued that there could not be just initial acquisition without there antecedently being original titles to the raw stuff that would be acquired.[6. See Steiner’s “The Structure of a Set of Compossible Rights,” Journal of Philosophy vol. 74 (1977).] For, he maintained, no action could be rightful unless the agent already had title to all the physical components involved in the action. So, if just initial acquisition is possible and any antecedently existing rights to the earth must be equal, we get the conclusion that persons must possess an original and equal right to the earth. Unfortunately, this argument depends upon the highly implausible proposition that just initial acquisition requires an antecedent title to whatever will be acquired. (If this proposition were true, there would be no point to bothering with any acquisition story about just titles.)

c. Alternatively – albeit this might be thought to be merely a rallying of pre-theoretical judgments on behalf of an original and equal right to the earth – one might point, as Steiner often has, to the sort of concrete situation that lead Herbert Spencer to affirm mankind’s original joint-ownership of the earth. In the early editions of his Social Statics, Spencer wrote,

… if one portion of the earth’s surface may justly become the possession of an individual, …eventually the whole of the earth’s surface may be so held… [I]f the landowners have a valid right to its surface, all who are not landowners, have no right at all to its surface. Hence such can exist on the earth by sufferance only.[7. Herbert Spencer, Social Statics (New York: Robert Schakenbach Foundation, 1970) 104.]

Spencer thought that the way to escape from this sort of unhappy situation was to affirm mankind’s original joint-ownership of the earth – or, in any case, each society’s ownership of the portion of the earth associated with it. However, this solution hardly mitigates concerns about an individual’s existence being a matter of others’ “sufferance only.” This point was nicely made by the American natural rights libertarian, Lysander Spooner.

In asserting its right of arbitrary dominion over that natural wealth that is indispensable to the support of human life, [government or “society”] asserts its right to withhold that wealth from those whose lives are dependent upon it. In this way it denies the natural right of human beings to live on the planet. It asserts that government owns the planet, and that men have no right to live on it, except by first getting a permit from the government.[8. Spooner, “A Letter to Grover Cleveland,” (1886) in The Collected Works of Lysander Spooner, ed. C. Shively (Weston, MA: M&S Press, 1971) 34.]

Notice also that an original equal division of the earth would do little to mitigate the problem depicted by Spencer. For no such equal division will help people who are not already on – or within a quick hop of – their own share of the earth’s surface. (And maybe some people’s equal shares will not include any of the earth’s surface!)

d. Friends of an original and equal right to property often point to Locke’s assertion that God has given the earth to mankind in common. In doing so they invoke Locke as a fountainhead of libertarian thought and also suggest that an original and equal right to land is a natural accompaniment of Lockean rights of self-ownership. But (almost) all that Locke meant by the earth being originally common to all mankind is that by nature neither the earth as a whole nor any part of it belongs to any particular person. I cannot resist here citing some lines I have just read from the enormously influential, early 17th century proto-liberal (and proto-Lockean) Hugo Grotius, who also repeatedly asserts that originally the earth is common to mankind.

Nature produces the rest of things [i.e., all extra-personal raw stuff] for men, but without distinction, not “this for this one and that for that one.” Therefore, in order that this thing become the property of that man, some deed of the man should intervene, and therefore nature itself does not do this by itself… [W]hat has not yet been occupied by any people or by a man [Grotius has an occupation theory of just initial acquisition] is still common, that is, belongs to no one and is open equally to all. By this argument it is surely proved that nothing belongs to anyone by nature.[9. Hugo Grotius, “Defense of Chapter V of the Mare Liberum,” in The Free Sea, ed. D. Armitage (Indianapolis: Liberty Fund, 2004) 85]

The proto-Lockean and Lockean understanding of the idea that the earth naturally belongs to all mankind is entirely consistent with Nozick’s “blithe assumption” that the earth is originally unowned.

e. The last argument on behalf of some sort of original and equal right to the earth is a cousin of the argument that points to the Lockean endorsement of the earth originally being held by all mankind in common. This last argument points to Locke’s and Nozick’s endorsement of an “enough, and as good” proviso as evidence of a deeper and unacknowledged commitment on the part of these friends of self-ownership to a natural and equal right to the earth. The thought is that the underlying rationale for such a proviso must be (or is most plausibly understood to be) each persons’ moral claim to equal original ownership of the earth.

The problem with this last argument is that the endorsement of an appropriate and well-crafted “enough, and as good” proviso is very different from the endorsement of a natural and equal right to the earth. The role of a proviso is to provide each individual with moral protection against a certain sort of worsening of her condition – a worsening that might arise through (otherwise) legitimate acquisition or exercise of property rights. If the acquisition or exercise of (otherwise) valid property rights would worsen the situation of an individual in the specified ways, the individual has a complaint in justice against the holders of those rights or against the worsening exercise of those rights. The key point here is that the establishment, development, and exercise of property rights might very well lead to unequal outcomes for individuals without anyone’s condition being worsened (in the specified sense) and, hence, without an appropriately formulated proviso being triggered.

Advocates of a Lockean proviso always begin with an individual being in an especially difficult position in virtue of another’s monopoly ownership of some material resource (the proverbial waterhole) or, more precisely, because of the owner’s specific decision about the deployment of that resource (e.g., a decision not to allow access to the water to anyone who does not sign a slave contract). The role of provisos in the Locke-Nozick tradition is to protect individuals against these sorts of dire possibilities rather than to protect individuals against inequality of holdings.

A proposed proviso that would be triggered whenever any significant inequality appears (along the relevant dimension) would not really be a proviso, i.e., “an additional bit of complexity”[10. Robert Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974) 174.] that attaches to a freestanding theory of property rights. Instead, it would be an alternative and egalitarian principle of distributive justice. I have not here argued against such principle. But I have argued that such a principle cannot be implicated in the advocacy of a Lockean or Nozickian proviso.

One of the ways in which a well-developed natural rights libertarianism can go beyond the standard “right-libertarian” picture is by motivating a well-crafted proviso (or set of provisos) that will deal plausibly with problems of the sort posed in the Spencer passage. In the development of such a proviso, the idea is to build on the obvious fact that not everything I can do with my property is permissible. One builds on this idea by including certain sorts of non-invasive worsening among the impermissible actions. Although I own this knife, I may not permissibly insert it in your chest. Although I own this plastic cage, I may not permissibly lower it so that it surrounds and imprisons you. Although I own this donut shaped piece of land, I may not permissibly preclude you from passing out of the donut’s hole.[11. See the fascinating discussion in Book II, chapter II of Grotius’ The Rights of War and Peace (1625) in light of which Locke’s proposals for provisos must be read. (Indianapolis: Liberty Fund, 2005).] In Locke’s language, the latter two actions impermissibly (albeit non-invasively) “straiten” you. Note, by the way, how much better such a proviso handles Spencer’s land problem than any natural and equal right to the earth does.

3. Problematic Construals of a Natural and Equal Right to the Earth.

Everyone knows that there are two basic construals of the purported right to the earth. There is the joint-ownership construal, i.e., the earth is collective property and all persons are equal shareholders in it. And there is the equal division construal, i.e., each person has a private right to an equal share of the earth. The fact that both the composition of the set of persons and the inventory of raw material are constantly changing greatly complicates any determination of what the application of these rights to the real world would be like. However, even if we put aside these massively inconvenient facts, in well-known ways both the joint-ownership right and the equal division right are deeply problematic.

Part of the problem with the joint-ownership right has already been expressed in Spooner’s response to the early Spencer. Joint– and, hence, monopoly — ownership of the earth seems to subject individuals to a much more inescapable form of the tyranny that Spencer associates with private ownership. (Many private owners are remarkably eager to have others on their property and are remarkably unable to push people around by excluding them from their individual domains.) It is worth noting how extensively under joint-ownership the collectivity would be able to exercise power over the individual.

Spencer assumed that “society” would rent land to individuals at the rates that would prevail if land remained privately owned. Hence, except for land as such, private ownership and private returns from skill, effort, and entrepreneurial alertness would not be fundamentally affected by the societal right to the earth. However, if society were a single owner of all land, the cost of leases granted by society would at least tend to rise to the point at which leaseholders would barely gain at all from acquiring those leases. Through its monopoly pricing of land the collective would capture almost all of the gains due to leaseholders’ skill, effort, and alertness. Almost all the fruits of individual labor would accrue to the collectivity.

Moreover, there is no reason why the collectivity should limit to economic matters the assertion of its monopoly-based will over the individual. Almost anything the collectivity favors individuals doing – e.g., signing petitions on behalf of joint-ownership of the earth – the collectivity will be able to make a condition of being a leaseholder (or even being permitted on any leasehold).[12. I am aware that some people will think, “But the collectivity is us.” Right.] In more ways than he realized, Cohen was correct when he said that joint-ownership of the earth renders self-ownership nugatory.[13. Cohen, 98.]

In contrast, the well-known problem with the equal division construal of the right to the earth is figuring out what an equal division would be — even if we know how many equal shareholders there are. (There is also the difficulty of figuring out which equal share goes to which person.) The most plausible proposal is that equality in shares is a matter of equality in market value of shares of raw material and that shares of equal market value be attained through an auction of all of raw material into which each member of society enters with equal auction vouchers. Unsurprisingly, I think there are problems with this proposal. Here I try to spell out some of my concerns.

Participants in this auction may seem to have some idea of how much to bid for which allotments of raw material on the basis of (what may at first appear to be) existing market prices for various types of raw material. (Will that be the market prices that exist before or after the announcement of the pre-auction social confiscation of all raw materials?) But are there really market prices for raw stuff as such that might guide our auction participants?

Suppose that there is believed to be a ton of a certain sort of coal in a certain hill. How much of the current market price for the right to extract that anticipated ton of coal is the market price for the raw coal as such? How much is the price for that right instead a matter of the expected costs of extraction, or processing, or transporting that coal and a matter of the expected gains from doing so – which expected gains are a function of all sorts of preferences and beliefs people have with respect to made goods (and other raw material)?

Even if we (or some of us) could isolate the contribution that some batch of raw stuff will or might make to the value of some final product, there is still a sense in which the raw material only makes any contribution at all – and therefore only has some value — because of the productive activities of an indeterminable number of people who have created the uses to which that raw material can be put and the means of putting that material to those uses. For this reason, any scheme for an equal distribution of raw materials on the basis of the market value of that material as such must in part involve a redistribution of (the value of) people’s productive efforts. Do current people possess natural and equal rights to the past and current productive efforts that give to raw materials whatever value they now contribute to final products?

In addition, some people are going to be much better at assessing the future value of all sorts of bits of raw material than others will be. What those people purchase at the auction will turn out to be much more valuable than what bad assessors purchase. Isn’t this as bad as some people being quicker than others at getting to or laboring upon unowned raw materials? Are the unequal outcomes of people’s unequal insights into future values to be allowed to persist or are they to be taxed away? If the taxing away is announced in advance, lots of useful knowledge about the future value of different bits of raw stuff will not be developed.

I am uncertain, however, whether these sorts of considerations are theoretically fatal to the idea of a natural right to an equal share of the earth or merely show that no scheme to institutionalize the right is feasible.

A complete survey of the prospects for a natural and equal right to the earth would also look at less robust versions of the joint-ownership and the equal division rights. On these versions the relevant equal claim to the earth is merely protected by a liability rule so that, e.g., a society’s right to the land would merely consist in its claim to be compensated for any individual’s unauthorized taking of this or that bit of its land. This attenuation of the right of original joint-ownership would in effect destroy the monopoly power of society over the earth. However, it seems to make more urgent the need to identify the value of the portions of the earth that are taken without authorization. I leave the evaluation of these less robust versions of original rights to the earth as an exercise for another day.

Concluding Remarks.

I have argued that the burden of proof rests on those who affirm a natural right to the earth, that this burden is not successful borne by advocates of such a right, and that such rights are problematic in their own right. I want to close with a different sort of point.

One of the major problems with discussions of an (alleged) natural right to the earth is the implicit background presumption that initial possession of raw material is an important determinant of wealth or welfare. Since the total supply of raw material cannot be increased, once there are lots of people around, any one person’s possession of raw material will diminish the amount of raw material available (without permission) to others. If the initial possession of raw material is a key determinant of wealth or welfare, it follows that once there are lots of people around, any one person’s possession of raw material will tend to diminish others’ prospects for wealth or welfare. Hence, the demand for some sort of initial equal distribution of raw material.

However, this background assumption is massively off-base. We all gain from others getting hold of raw materials and transforming them into resources. We (almost always) gain much more from this than we would by merely getting a first grip on raw stuff. As Locke points out, the reason that we can all end up as winners even if no raw stuff remains available for initial acquisition is that human beings are creatively productive. “This shews how much numbers of men are to be preferred to largeness of dominions… [at least when there are] … established laws of liberty to secure protection and encouragement to the honest industry of mankind.”[14. John Locke, Second Treatise of Government (1689) (Indianapolis: Hackett Publishing, 1980) §42.]