Nozick and natural rights to property

by Chris Bertram on July 9, 2003

Brian’s post on Nozick (immediately below) prompted a certain kind of reaction in me. I felt rather like the boy in the class who wants to interrupt with “But sir…, but, but …” The reason I have this reaction is, I think, not because I believe Nozick to be right (I don’t) but because I’ve always found Anarchy State and Utopia to be a challenging and stimulating book, and not one to be too lightly dismissed.

Nozick was certainly a great writer among philosophers, but also one with an eye to the good thought experiment which could discomfit his complacent leftie readers by taking their intuitions and working with them to produce unwelcome conclusions. The Wilt Chamberlain parable is one good example of this as are the immediately following paragraphs on the socialist entrepreneur. His use of the public entertaiment system example to undermine the Hart-Rawls principle of fair play (ASU 90-95) is another. To be sure, Nozick rarely has the kind of knock-down argument for his premises that we might like. But in the dialectical context, he doesn’t need to have, since he’s appealing to intuitions we already share (for whatever reason).

One big question which looms in the responses to Brian’s post is that of rights (especially to property). Are these just the creatures of the state and positive law, or are their rights (including to property) which exist independently of the state and which the state ought to respect? Leftist arguments against such original property rights are often based on the fact that property is a complex matter and that without a full legal specification of the so-called ‘incidents’ of property, claims to ownership are going to be hopelessly indeterminate. Property rights are then said to depend, in some sense, on the state. But I’m unpersuaded by that line of attack. For we can surely point to many instances where people confer and recognise rights extra-legally, where it is clear that the state has moral (rather than simply pragmatic) reason to be constrained by those rights.

Chapter 5 of Hernan de Soto’s The Mystery of Capital is instructive here, both historically and for the way in which our sympathies are engaged. Squatters in the United States, operated extra- (indeed contra-) legally established systems of rights over land. The government, acting according to the law, frequently evicted them from the lands they had settled. The government eventually compromised and found ways to incorporate the settlers’ property system within the formal system. I submit, though, that if you feel in your gut (even in one instance) that settlers being evicted by government agents were being deprived of what was rightfully theirs, then you’ve conceded the anti-positivist case for (some) property rights. And if you’ve done that, then a Lockean view (such as Nozick’s) begins to look more plausible. The trick, from thereon in, from an egalitarian perspective, is to insist on much stronger limits on acquisition and transfer than Nozick (or Locke) would admit. But that’s a whole research programme.

(An essay which has something to say about conflicting reactions to Nozick is G.A. Cohen’s “Marxism and contemporary political philosophy, or: why Nozick exercistes some Marxists more than he does any egalitarian liberals”, chapter 6 of Cohen’s extended engagement with Nozick, Self-Ownership, Freedom and Equality.)



dan 07.09.03 at 2:57 pm

“I submit, though, that if you feel in your gut (even in one instance) that settlers being evicted by government agents were being deprived of what was rightfully theirs, then you’ve conceded the anti-positivist case for (some) property rights.”

But you’ve sidetepped the question, haven’t you? The claim advanced by Locke, for example, is that the right to property is part of natural law. Your reasoning here, though, is akin to a claim about “moral sentiments” (our gut feeling), in which it is very hard to tell whether our “sentiment” exists outside of custom and/or the socialization effects of positive laws regulating property. It may be true that many of us recognize extra-legal sources of title, but that does not accord the same stature to property rights most libertarians accord to them.

An alternative: maybe the reason why the initial treatment of the squatters offends us is that it appears inconsistent with the pragmatic or legal rationales we impute to positive regulations of property (and our “gut” reaction is based upon an intuitive immanent critique).


Chris Bertram 07.09.03 at 3:25 pm

I’m certainly appealing to our sentiments or intuitions (and you may think that an unrespectable thing to do). But I’m appealing to them as evidence for a belief in natural rights, where all that’s meant by “natural rights” are rights that we have on moral and not on legal grounds. The connection between the sentiment and the right is intended epistemically rather than foundationally.


dhn 07.09.03 at 3:43 pm

Fair enough. I have few problems with appealing to sentiments and institutions, as long as we do not conflate such appeals (as some members of the Scottish Enlightenment did, and some conservative scholars attempted to do in the early 1990s) with proofs of foundational claims about universal rights and duties. How would you (or would you) differentiate the kind of epistemic defense you posit here from a communitarian defense of property rights? Do you have something, for example, more neo-Kantian in mind?

I’m afriad my training in political theory never really got very far out of the sixteenth and seventeenth centuries :-).


John James 07.09.03 at 4:04 pm

I cannot accept your contention that the homesteading example lends weight to the Nozickean/Lockean state of nature ‘property right’ idea. The problem raised by you is largely a semantic one. I hope the following account explains what I mean:

(1)The first analytical step is to ask what do we mean by a right, and more particularly, a property right? The most simple conception of property is ‘as a right to exclude others from the use of a thing'(see J. Penner, The Idea of Property in Law (1996)). The recognition of an individual right immediately triggers the existence of a duty in other person(s) – the two being correlatives of eachother. The property owner(A) has a right to exclude non-owners (B) from the use of an object, who likewise owe a duty to A not to interfere with his exclusive enjoyment of the object. Thus, rights-recognition’s logical and necessary consequence is the imposition of a duty on others; without the concomitant recognition of a duty there is, definitionally, no right.

(2) Following from the above, the next question we must ask is whether, in the state of nature, all-living persons can possibly owe an identical duty to an individual right-holder (here a property owner). Let us assume that the population is pre-disposed to rights-recognition and duty owing. In order that they may all simultaneously owe the same duty, to the same person, in respect of the same thing, there must be a spontaneous, universally accepted mechanism whereby the entire duty-owing population can, without any guidance from a state-like authority, recognise the existence and extent of the property holder’s right. If a single person comes forward and claims (perhaps on false pretences) that he, rather than A, is the true right-holder, this state of affairs is immediately shattered. The duty-owing population must now adjudicate on the claims of each putative right-holder. Once an adjudicative institution is required we are no longer in the state of nature. However, neither do we have a foolproof means by which to specify what was a right in the state of nature.

(3) Universal and spontaneous duty-owing is, I believe, inconceiveable. I would contend therefore that the meaning of ‘a right’ embodies the existence of a state apparatus (at least a very minimal one). If someone speaks of a ‘natural right’, they are either (a) talking about something totally unrelated to the post-state of nature jural right that we are all famililar with, or (b) mistakenly transposing the post-state of nature jural conception of a right onto the state of nature society.

(4) Your homesteading example therefore does not lend much weight to Nozick’s thesis. It concerns a contest between the government and certain individuals over land-ownership rights. It is clear that we are talking about a country (the United States) in which a property system had been established prior to the Declaration of Independence and where homesteading was recognised within the law as a legitimate means for acquiring title. The reason I support the homesteader’s claim is simply because, set against the federal government’s claim, I believe it to be the more just. Their pre-1789 occupation of land was not a ‘state of nature’ property right in the sense meant by Nozick (i.e. where there is no poistivist rule of law whatsoever).


Brian Weatherson 07.09.03 at 4:14 pm

I think one can consistently hold Nozick is a great philosopher, and certainly that he has all the virtues Chris ascribes to him, and think there are fairly short, even dismissive, arguments against his conclusions.

By analogy to an area with which I’m more familiar, I think Lewis’s work on causation is the better that the subject has ever seen – insightful, thought-provoking, probably approximately true – yet practically every one of his positive theories was susceptible to a fairly short and fairly telling refutation. But you’d still want to read him first if you were going to try writing your own theory, because he shows you some of the considerations that a theory has to respect.

I think we might be justified in treating Nozick the same way. Even if the positive theory is easily refutable, still there could be lots to be gained by seeing how he got there.

I’m inclined to think Chris’s short argument for property rights here is rather telling, as long as we’re clear on what the conclusion of that argument is. Because it doesn’t even get us to Nozick’s conclusion, or even that close to it. (As I’m pretty sure Chris would agree.) All it gets (if I’ve read the case correctly) is that there’s something like a Lockean right to property that one has worked, and that some actions that violate this right are unjustified. In other words, property considerations are one of the considerations that should go in the mix when determining whether a particular action is justified. That doesn’t mean that they’re the only considerations, or even that they are particularly important considerations in the overall scheme of things. But they exist and should be respected. Nozick has some good lessons for us on just how much they should be respected, even if he neither quite got the analysis of property right nor got the relative importance of these considerations right.


Pathos 07.09.03 at 5:51 pm

Note that “adverse possession” is a real aspect of U.S. law. In most states, if I live next to your 40 acres, you don’t do anything with the back 10 acres, and I plant a garden there, after 21 years (varies by state), I own those 10 acres. No money need change hands, no title pass. I adversely possessed your land and therefore I own it, and have full property rights in it.

Chris’s example of the “feeling in your gut” puts me in mind of the famous scene from Huck Finn (chapter 31). Huck is trying to do the right thing and return a piece of lost property (in this case, a runaway slave named Jim). He sets out to right a letter telling where Jim is hiding, and immediately his conscience is assuaged. “I felt good and all washed clean of sin for the first time I had ever felt so in my life, and I knowed I could pray now.” But he can’t get himself to send the letter. Even though he understands in his gut the value of property rights, he cannot return the property. “All right, then, I’ll go to hell,” Huck says, and tears up the letter.


Chris Bertram 07.09.03 at 5:51 pm

Brian is quite right to say that my example doesn’t get us very far. It isn’t intended to get us any further than the claim that there are some constraints (that look like rights to me, and, indeed like property rights) on government action that are prior to and independent of positive law.

Dan asked about underlying theories of and justifications for rights. I could say some things of about my favourite metaethical theories I suppose. But I’m inclined to think the best way of proceeding in this domain is by appeal to what we think and say about particular cases and that the theory comes later and is usually a lot less certain than the data. So, for example, I’m a lot more confident in my judgement that you have a right not to be enslaved than I am in any of the competing explanations for your having that right.

John James’s points I find difficult to evaluate. Of course the claim that rights entail duties is correct. But that doesn’t seem to entail the further points about communities actually recognising the right and its duties nor the point about adjudication. My belief that the slaves of the ancient world had, as all humans have, the moral right not to be enslaved, seems to me to survive the non-recognition of that right (and its correlative duties) by everyone who happened to be around (including the slaves themselves). Problems of adjudication are, notoriously, one of the inconveniences of the Lockean state of nature but, in this case as in others, I don’t think we should jump from “it is difficult to decide whether phi” to “there’s no fact of the matter about phi”.

As for the facts about the homesteaders. It may be that I (following De Soto) have my historical facts about the legal case wrong. If so, since this is philosophy (!), we can just imagine that they were as I thought they were and run the thought experiment anyway.


John James 07.09.03 at 6:33 pm

“My belief that the slaves of the ancient world had, as all humans have, the moral right not to be enslaved, seems to me to survive the non-recognition of that right (and its correlative duties) by everyone who happened to be around (including the slaves themselves).”

Does my belief that I, being a very good and kind person, have a moral right to live forever also survive universal non-recognition and impossibility?

I am not a philosopher, but it seems to me that a moral right (or any other type of right) cannot have an independent ontological status distinct from duties and social context in which they are recognised (would I be right in saying that being and nothingness also have a similar relationship?) My point was therefore a semantic one – the statement: X has a property right in the state of nature, must mean, X: has a property right in the state of nature which embodies the notion that some central authority recognises it. A tautology, paradox, or whatever.
I probably haven’t made matters any clearer!


pathos 07.09.03 at 8:15 pm

Of course, recognizing the right to not be a slave requires putting some meat on the meaning of slave. Do I have the right to not be a “wage slave,” accepting only the jobs that are available in my place and time?

If I opt not to, do I have a right to 40 acres and a mule? “I’m all for inalienable property rights,” I might say. “So please give me some property so I can have inalienable rights to it.”

Fair rules require a fair conditions. A farmer can give up his land to do something else. If I don’t even have a farm (through no fault of my own), how I can be said to be making a free choice? And if the choice isn’t free, aren’t I a slave?


Micha Ghertner 07.10.03 at 5:13 am

A slave to whom? Circumstances? If nothing but bad luck has enslaved you, how can we say that others have violated their concomitant duty to refrain from enslaving you?


Jack 07.10.03 at 8:13 am

Doesn’t the De Soto example make a rather stronger objection to the notion of knowing what property is? Since the rights of the squatters were adopted by American law, property is different in just the situation where its naturalness or otherwise is important, in Britain and America. Indeed this is in what should be the simplest and most natural case, not something like digital goods that cannot be scarce for example.

Doesn’t that leave your example showing not a property rights, because you don’t know what property is and the fate of the original owners might make rights too strong a word, but instead something rather woolier?


Matt Weiner 07.10.03 at 2:42 pm

Perhaps the de Soto example shows that there is some duty to respect established customs. In the situation I’m envisioning, even though the squatters took the land in a contra-legal way, everyone around is respecting the squatters’ rights–treating them as the owner. The squatters then have property rights, not because of any natural right to Lockean-style acquisition, but because of an implicit social contract.

Here’s an analogy I’m thinking of (a philosopher-style thought experiment, since I know no facts):
A tribe of Lauritanians live next to an uninhabited plain. Nobody takes up residence on the plain–in fact, anyone who tries to take up residence or build anything will be driven off by the tribe. Instead, all the Lauritanians graze their tame cats on the plain. None of this is codified–in fact, the Lauritanians have no codified legal system.

I think it would be unjust for a colonizing power to come along and appropriate the plain. No Lauritanian has any property right to the plain; there is just an implicit social contract to leave the plain open for cat-grazing. And I think that this is the same injustice as kicking off squatters.


Chris Bertram 07.10.03 at 5:03 pm

A very enlightening thread for me. I’m clearly more promiscuous in my attribution of rights than some of you (I’d certainly say those Lauritians have them Matt). Time to think about a paper on “vague rights” maybe – or, following Jack wooly ones.


Matt Weiner 07.11.03 at 4:11 am

Well, I think it’s clear that no individual Lauritanian owns any part of the plain–that’s what I meant by the “property rights” comment. Perhaps the Lauritanians collectively do. I should probably have said that, arguably, any rights the Lauritanians have come from an implicit social contract. Same, by analogy, for the squatters.

So, even if I think the squatters were treated unfairly, I don’t have to concede the anti-positivist conception of rights; nor do I wind up heading in a Lockean direction.

(All this is expressed in a spirit of raising objections for their own sake. I’m not sure what I do think about property rights. I think the only anti-rights view I could conceivably endorse would be that property rights can only fail to exist under a properly constituted system of laws; if you don’t have democratic socialism, you’ve got property rights.)

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