legal theory: philosophy | |
Robert Nozick: Anarchy, State and Utopia |
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pp. 178-182 (1974) |
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.