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A Minimalist Theory of Appropriation

Abstract

This paper offers a conditional defence of a minimalist theory of appropriation. The conclusion of its main argument is that, if people do enjoy a natural right to appropriate unappropriated resources, then that right is best understood as a derivative right that stems from a more fundamental natural right to self-preservation. If this conclusion is correct, then insofar as people have a natural right to appropriation, it is much more limited than it is usually assumed, as the minimalist theory places very stringent restrictions on both the amount of unappropriated resources each person has a right to appropriate and the use they can make of those appropriated resources. The conclusion of my argument can be either used as a premise in a modus tollens argument to be used against natural-right theories of property rights or as a premise in a modus ponens argument in favour of a broadly left-libertarian theory.

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Notes

  1. All quotations from The Second Treatise of Government in this paper are drawn from (Locke 1988).

  2. One way to deny it is to argue that Gareth appropriates the berry by eating it. However, if this is the case, then the acorn argument is unsound.

  3. Of course, Gareth did not have to consume that specific berry to survive and, in fact, he didn’t even have to consume a berry (he could have eaten an apple instead), but, given that this is the berry that Gareth did eat in order to survive, the fact that he had a right to self-preservation gave him a retrospective right on whatever source of nutrition he would use to exercise that right. Analogously, if I have a natural right to free speech, I have a certain latitude as to how or even whether I exercise that right on any given occasion, but, whatever I decide to say, the specific utterance I make is protected by that right.

  4. Tellingly, Locke opens Chapter V of the Second Treatise, ‘Of Property,’ with the claim that ‘[…] natural Reason, […] tells us, that Men, being once born, have a right to their Preservation, and consequently to Meat and Drink, and such other things, as Nature affords for their Subsistence’ (II, 25). Although that claim is mostly meant as a refutation of the patriarchal theory of property rights defended by Robert Filmer, in my view, it contributes to supporting an interpretation of Locke’s views in which the right to self-preservation plays a more central role than contemporary analytic philosophers usually attribute to it.

  5. In addition, the minimalist theory should be able to determine how many resources can people appropriate for future consumption. I am inclined to think that they should be not be entitled to appropriating more than they can reasonably expect to be sufficient for their own needs and those of their dependants. However, I cannot defend that view in detail here.

  6. For a review of sufficientarianism, see (Shields 2020). I should note that, while sufficientarianism as a theory of distributive justice raises a number of philosophical problems, the sufficientarian version of the minimalist theory does not share most of those problems.

  7. For example, Locke writes: ‘And thus considering the plenty of natural Provisions there was a long time in the World, and the few spenders, and to how small a part of that provision the industry of one Man could extend it self, and ingross it to the prejudice of others; especially keeping within the bounds, set by reason of what might serve for his use’ (II, 31) While it is not clear that Locke takes this to be a universal proviso on legitimate appropriation (along the lines of his much discussed “enough-and-as-good” proviso), adding the use proviso to Locke’s theory would result in a theory of appropriation that is close to being coextensive with the minimalist theory.

  8. The only limit the theory places on legitimate appropriation seems to be practical, as there is only that much labor that each individual can perform in their lifetime. However, since Locke believes that one can appropriate by proxy (i.e., by paying other people to mix their own labor with unappropriated resources on their behalf), even this practical limit is essentially irrelevant.

  9. See, in particular, Nozick’s famous zip-back argument (Nozick 1974, 175–176). One way to avoid this conclusion would be for the appropriator to pay the competitive rental value of the illegitimately appropriated resource. However, discussing all of the options available is beyond the scope of this paper.

  10. For example, Locke writes.

  11. See, e.g., (Feser 2005).

  12. Supporters of the right to self-ownership might object that a similar argument could be made against an unlimited right to self-preservation. After all, most governments forbid people from stealing from other people, which, in some cases, would seem to violate an unlimited right to self-preservation. While I cannot discuss this claim extensively here, I should note that, first, a ban on organ sales is a violation of an alleged right to self-ownership in every case to which it applies while the illegality of theft violates the right to self-preservation only in some cases and, second, if all cases of theft were cases in which people steal in order to survive, there would be widespread opposition to laws that make theft illegal.

  13. David Hume, for one, takes issue with this premise of Locke’s argument as he writes: “We cannot be said to join our labour in any thing but in a figurative sense. Properly speaking we only make an alteration on it by our labour” (Hume 1969, 557).

  14. In fact, even weaker interpretations of Nozick’s proviso are possible. For example, Nozick might be claiming that others must be made no worse off than they would have been if everything had remained in the commons.

  15. While Nozick is sometimes interpreted as being committed to a right to self-ownership (see, e.g., (Cohen 1995)), I tend to agree with those who believe this interpretation of Nozick’s version of libertarianism to be incorrect (see, e.g., (van der Vossen 2019)). Whatever the correct interpretation of Nozick’s general views, it is undeniable that Nozick does not explicitly appeal to a natural right to self-ownership anywhere in his discussion of appropriation.

  16. Nozick’s non-worseness proviso might be motivated by a more general worry about an unlimited right to appropriation interfering with other people’s freedom. However, this worry would clearly include the freedom of other people to secure the resources required for their subsistence, as, minimally, one needs to be alive to be able to exercise one’s freedom.

  17. Similar considerations apply to various theories of appropriation in which the notion of staking a claim plays a central role (see, .e.g, (Moller 2019)). Due to lack of space, however, I cannot discuss these theories.

  18. For an informative review of this literature, see (Korman 2020).

  19. Admittedly, there are other options that I cannot discuss here. For example, entitlement theorists could maintain that historic injustices are eventually superseded. Nozick himself seems to have toyed with this idea from time to time (see, e.g., (Nozick 1974, 158–159)).

  20. One might ask, as an anonymous reviewer for this journal did, ‘Why not just tax income from natural resource capital, since that is what was unjustly taken possession of?’ While a full answer to this question is beyond the scope of this paper, the short answer is that the appropriation of natural resources is the original form of accumulation of all capital and that, if natural resource capital has been unjustly taken possession of, then the capital that has been accumulated as a result of that original unjust act, is also unjustly possessed.

  21. Locke himself clearly thought this to be the case (see, e.g., (II, 40)). For a particularly extreme version of this view, see (Kirzner 1978).

  22. See, e.g., (Cohen 1995, Chap. 3).

  23. I would like to thank an anonymous reviewer for this journal for this point.

  24. See, e.g., (Steiner 1994, Chap. 8)

  25. See (Cohen 1995, Chap. 4) for a classic discussion of the first of these options and (Otsuka 1998) for a prominent example of the second option.

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Acknowledgements

I would like to thank an anonymous referee for this journal for their helpful comments. This paper draws on research supported by the Social Sciences and Humanities Research Council.

Funding

Social Science and Humanities Research Council of Canada Insight Development Grant (311412).

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Correspondence to Gabriele Contessa.

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Contessa, G. A Minimalist Theory of Appropriation. J Ethics 26, 319–335 (2022). https://doi.org/10.1007/s10892-022-09397-3

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Keywords

  • Property Rights
  • Original appropriation
  • Self-preservation
  • Self-ownership