legal theory: philosophy

Robert Nozick: Anarchy, State and Utopia

pp. 178-182 (1974)

The Proviso

Whether or not Locke's particular theory of appropriation can be spelled out so as to handle various difficulties, 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. A process normally giving rise to a permanent bequeathable property right in a previously unowned thing will not do so if the position of others no longer at liberty to use the thing is thereby worsened. It is important to specify this particular mode of worsening the situation of others, for the proviso does not encompass other modes. It does not include the worsening due to more limited opportunities to appropriate (the first way above, corresponding to the more stringent condition), and it does not include how I "worsen" a seller's position if I appropriate materials to make some of what he is selling, and then enter into competition with him. Someone whose appropriation otherwise would violate the 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. * A theory of appropriation incorporating this Lockean proviso will handle correctly the cases (objections to the theory lacking the proviso) where someone appropriates the total supply of something necessary for life. **

A theory which includes the proviso in its principle of justice in acquisition must also contain a more complex principle of justice in transfer. Some reflection of the proviso about appropriation constrains later actions. If my appropriating all of a certain substance violates the Lockean proviso, then so does my appropriating some and purchasing all the rest from others who obtained it without otherwise violating the Lockean proviso. If the proviso excludes someone's appropriating all the drinkable water in the world, it also excludes his purchasing it all. (More weakly, and messily, it may exclude his charging certain prices for some of his supply.) This proviso (almost?) never will come into effect; the more someone acquires of a scarce substance which others want, the higher the price of the rest will go, and the more difficult it will become for him to acquire it all. But still, we can imagine, at least, that something like this occurs: someone makes simultaneous secret bids to the separate owners of a substance, each of who sells assuming he can easily purchase more from the other owners; or some natural catastrophe destroys all of the supply of something except that in one person's possession. The total supply could not be permissibly appropriated by one person at the beginning. His later acquisition of it all does not show that the original appropriation violated the proviso (even by a reverse argument similar to the one above that tried to zip back from Z to A). Rather, it is the combination of the original appropriation plus all the later transfers and actions that violates the Lockean proviso.

Each owner's title to his holding includes the historical shadow of the Lockean proviso on appropriation. This excludes his transferring it into an agglomeration that does violate the Lockean proviso and excludes his using it in a way, in coordination with others or independently of them, so as to violate the proviso by making the situation of others worse than their baseline situation. Once it is known that someone's ownership runs afoul of the Lockean proviso, there are stringent limits on what he may do with (what it is difficult any longer unreservedly to call) "his property." Thus a person may not appropriate the only water hole in a desert and charge what he will. Nor may he charge what he will if he possesses one, and unfortunately it happens that all the water holes in the desert dry up, except for his. This unfortunate circumstance, admittedly no fault of his, brings into operation the Lockean proviso and limits his property rights.* Similarly, an owner's property right in the only island in an area does not allow him to order a castaway from a shipwreck off his island as a trespasser, for this would violate the Lockean proviso.

Notice that the theory does not say that owners do have these rights, but that the rights are overridden to avoid some catastrophe. (Overridden rights do not disappear; they leave a trace of a sort absent in the cases under discussion.)* There is not such external (and ad hoc?) overriding. Considerations internal to the theory of property itself, to its theory of acquisition and appropriation, provide the means for handling such cases. The results, however, may be coextensive with some conditions about catastrophe, since the baseline for comparison is so low as compared to the productiveness of a society with private appropriation that the question of the Lockean proviso being violated arises only in the case of catastrophe (or a desert-island situation).

The fact that someone owns the total supply of something necessary for others to stay alive does not entail that his (or anyone's) appropriation of anything left some people (immediately or later) in a situation worse that the baseline one. A medical researcher who synthesizes a new substance that effectively treats a certain disease and who refuses to sell except on his terms does not worsen the situation of others by depriving them of whatever he has appropriated. The others easily can possess the same materials he appropriated; the researcher's appropriation or purchase of chemicals didn't make those chemicals scarce in a way so as to violate the Lockean proviso. Nor would someone else's purchasing the total supply of the synthesized substance from the medical researcher. The fact that the medical research uses easily available chemicals to synthesize the drug no more violates the Lockean proviso than does the fact that the only surgeon able to perform a particular operation eats easily obtainable food in order to stay alive and to have the energy to work. This shows that the Lockean proviso is not an "end-state principle"; it focuses on a particular way that appropriative actions affect others, and not on the structure of the situation that results.*

Intermediate between someone who takes all the public supply and someone who makes the total supply out of easily obtainable substances is someone who appropriates the total supply of something in a way that does not deprive the others of it. For example, someone finds a new substance in an out-of-the-way place. He discovers that it effectively treats a certain disease and appropriates the total supply. He does not worsen the situation of others; if he did not stumble upon the substance no one else would have, and the others would remain without it. However, as time passes, the likelihood increases that others would have come across the substance; upon this fact might be based a limit to his property right in the substance so that others are not below their baseline position; for example, its bequest might be limited. The theme of someone worsening another's situation by depriving him of something he otherwise would posses may also illuminate the example of patents. An inventor's patent does not deprive others of an object which would not exist if not for the inventor. Yet patents would have this effect on others who independently invent the object. Therefore, these independent inventors, upon whom the burden of proving independent discovery may rest, should not be excluded from utilizing their own invention as they wish (including selling it to others). Furthermore, a known inventor drastically lessens the chances of actual independent invention. For persons who know of an invention usually will not try to reinvent it, and the notion of independent discovery here would be murky at best. Yet we may assume that in the absence of the original invention, sometime later someone else would have come up with it. This suggest placing a time limit on patents, as a rough rule of thumb to approximate how long it would have taken , in the absence of knowledge of the invention, for independent discovery.

I believe that the free operation of a market system will not actually run afoul of the Lockean proviso. (Recall that crucial to our story in Part I of how a protective agency becomes dominant and a de facto monopoly is the fact that it wields force in situations of conflict, and is not merely in competition, with other agencies. A similar tale cannot be told about other businesses.) If this is correct, the proviso will not play a very important role in the activities of protective agencies and will not provide a significant opportunity for future state action. Indeed, were it not for the effects of previous illegitimate state action, people would not think the possibility of the proviso's being violated as of more interest than any other logical possibility (Here I make an empirical historical claim; as does someone who disagrees with this.) This completes our indication of the complication in the entitlement theory introduced by the Lockean proviso.


* Fourier held that since the process of civilization had deprived the members of society of certain liberties (together, pasture, engage in the chase), a socially guaranteed minimum provision for persons was justified as compensation for the loss (Alexander Gray, The Socialist Tradition (New York: Harper & Row, 1968), P.188). 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.

* For example, Rashdall's case of someone who comes upon the only water in the desert several miles ahead of others who also will come to it and appropriates it all. Hastings Rashdall, "The Philosophical Theory of Property," in Property, its Duties and Rights (London: MacMillan, 1915).

We should note Ayn Rand's theory of property rights ("Man's Rights" in wherein these follow from the right to life, since people need physical things to live. But a right to life is not a right to whatever one needs to live; other people provided that having it does not violate anyone else's rights. With regard to others. (Would appropriation of all unowned things do so? Would appropriating the water hole in Rashdall's example?) Since special considerations (such as the Lockean proviso) may enter with regard to material property, one first needs a theory of property rights before one can apply any supposed right to life (as amended above). Therefore the right to life cannot provide the foundation for a theory of property rights.

*The situation would be different if his water hole didn't dry up, due to special precautions he took to prevent this. Compare our discussion of the case in the test with Hayek, The Constitution of Liberty, p. 136; and also with Ronald Hamowy, "Hayek's Concept of Freedom; A Critique, "New Individualist Review, April 1961, pp. 28-32.

* I discuss overriding and its moral traces in "Moral Complications and Moral Structures," Natural Law Form, 1968 pp.1-50

* Does the principle of compensation (Chapter 4) introduce patterning considerations? Though it requires compensation for the disadvantages imposed by those seeking security from risks, it is not a patterned principle. For it seeks to remove only those disadvantages which prohibitions inflict on those who might present risks to others, not all disadvatages. It specifies an obligation on those who impose the prohibition, which stems from their own particular acts.