A Postscript to Property & Justice: A Liberal Theory of Natural Rights

I am grateful to the Online Library of Liberty for hosting this discussion of my book, and of course the discussants, Aeon Skoble, Jacob Levy, and Sarah Skwire, for graciously reading and engaging with my work.

 In those reflections Jacob Levy raised two points of criticism I would like to address, or at least gesture to how I think they should be addressed.

My view demands that objects and space be brought into ostensible use by a person that is, at least in principle, legible to the moral community in order for that person to have any rights over these objects as their property. It is the content of these uses or projects within which objects are subsumed that determines the precise contours of the rights thereby acquired by the person, good against the whole world. Levy argues that while there is some practical and moral plausibility to this view, a serious shortcoming of it is that it seems to make the setting aside of natural resources for preservation impossible for anyone to ensure.

 Whilst there may just be some resources that nobody happens to use, and therefore are conserved, anything that is not implicated in someone or some group’s activities is necessarily open to use by anyone else at any given time. The duty not to use a resource can only ever be borne out of someone else making prior use of it. Another way to put this is that if someone decided they wanted to conserve a particular resource; to hold it back for future use, or to ensure its being left entirely virgin – for the sake of its beauty or natural wonderment, there is no way that could acquire a right to be the one who determines this. Preservation of natural resources is, as such, constituted by their non-use, and non-use is not a way of acquiring rights to things. In chapter 5 of the book I indicate how and why I think this is a virtue of the theory: it stops any given individual from over-appropriating resources in a way that would prejudice the freedom of others. I take this to be an important point in defence of typical liberal-egalitarian challenges to the idea of unilateral property acquisition. The vice of this commitment is that it appears to – at least incentivise, if not guarantee – the over-use of resources not by any particular individual but by persons in general. Since no individual can ever be justly empowered to exclude third parties from resources she herself is not actually using, such exclusion can never be said to be a protector of her liberty, and therefore cannot be justified. The only way resources can be guarded by individuals is if they bring them into use. It is plausible to think this will generate a highly inefficient use of the natural world. Virgin resources whose option values are bound up with their being left untouched, at least for now, will be over-exploited here and now, since that is the only way to own them and safeguard their having any future value whatsoever. It is both economically efficient, and morally attractive through a variety of other lenses, that we be able to (enforceably) set aside some natural resources as they are.

 This object is the same one that is often levelled against the theory of property supported by Henry George – that all natural resources be subject to a land value tax that is set by a shadow price assigned to the property by open auction. Under such a regime, if you cannot afford to pay a tax that the most efficient user of your property could afford to pay, you are de facto forced to sell. Although my view does not involve any tax mechanism or forced exchanges, the resulting regime would be similar in that nothing gets left virgin, but is rather subject to more intense usage than might be most socially beneficial or morally appropriate.

 The first thing to note is that my view does not require that resources be made economically useful in order for property claims to be justified by the user. One does not have to monetise a resource or use it to yield anything alienable on the market for one’s use to count as a personal project that must be protected from interference in order for one’s freedom to be protected. So, my view does not lead to a race to the top of economic activity in the way George’s view seems to. Nonetheless this criticism is a legitimate one.

 I think the first intuition is to lean on some sort of social coordination. A community could all agree to set aside some resource within their proximity such that they are each bound by covenant to not use it. This is all very well until a newcomer arrives who was not party to that contract, and they want to exclude her from using something they claim is somehow theirs, that they nonetheless do not use. Contracts only bind contractors. A global agreement could only bind the present generation, but would almost certainly set aside the wrong resources in the wrong quantities due the epistemic calamities that would no doubt befall centralising such a complex issue at the highest level of governance. This, therefore, is a non-starter. The real answer lies in the following.

I think that our uses of things, to be legible to the community, or “publicly ascertainable” as I say in the book, must be in some sense uses that others can imagine themselves making. (Each persons’ use does not need to be reflective of any thick shared values or cultural customs, but only sufficient in order for me to know that when you start to plough a field you are beginning a project known as farming, and therefore if I were to then appropriate the adjacent plot of land and build a tower that hung over your land without touching it so that all sunlight is blocked out, I am interfering in your use of the land. Though I don’t physically stop you from ploughing, I nonetheless interfere in the project I know you to be engaged in. Nay, the project I see you to be engaged in). Some minimal shared sense of overlapping understandings of what our activities with regard to the external world mean, what they do, what they are for, is necessary. I detail the role of constitutive conventions and shared understandings in the possibility of the acquisition of rights of justice in chapter 7 of the book. What this means is that how our rights cohere with our activities in a physicalistic sense is not a one-to-one relation, and the crucial intercessor is this thin cultural veneer that determines which behaviours constitute what kinds of activities. I think it is conceivable that constitutive conventions could emerge for what counts as using a resource as a nature reserve, and the like. In the same way that dragging a plough around a field acquires rights that others not block out the sun, not drain the water table, not poison the surrounding airspace, I think certain actions could come to constitute the initiation of an act of preserving virgin resources.

 The obvious worry is that this will come in the form of some sort of physical demarcation of the resource being conserved like fencing-in or the like. If this is a legitimate way to acquire resources for the sake of preservation, then why can someone not fence in an entire uninhabited continent they happen to be the first person to discover (if such a thing were possible). My only answer is to suggest that communities could in principle, either intentionally or spontaneously, come to some meaningful way to distinguish between appropriation for engrossment or speculation (which I most avowedly want to make impossible under this view) and acquisition for preservation.

 This is a real challenge for the idea of leaving some resources entirely beyond the reach of human activities.

However, something recognisable as conservation is readily available through my approach. For those resources which are going to be preserved relative to prevailing standards of exploitation but nonetheless do not need to be left entirely virgin, these minimal uses could be sufficient to acquire a claim to the entire resource. For example, setting up hiking trails through an area of natural beauty could be a way of acquiring an area and keeping it as a sort of national park. After all, if some newcomer came to chop down the trees, they would be interfering with the hiking, since this includes access to and views of all the untouched natural wonders found therein. If a community frequently used an area in this way, I believe they could justly exclude anyone from exploiting the surrounding resources, since they are actually using them in a way that is legible to us. If there was any risk of the site being overcrowded and thereby interfering with this use, they could exclude newcomers even from hiking along its trails, unless they pay a fee to support its upkeep.

I should finally note that this is an issue with regard to natural, virgin resources. Levy’s objection does not suggest that we might deplete resources simpliciter, since of course resource can be produced, and property systems are essential for the investment necessary for the reproduction of resources we need to live. The objection targets the issue of when specifically natural resources and ecosystem services have more option-values when left unused. This is a serious question from the perspective of both economic efficient and environmental ethics (ignore the conjunction if you don’t think there is a difference between the two).

A virtue of deontic liberal accounts of justice is that they are neutral with regard to cultural differences and substantive conceptions of the good life. It is not necessary for a claim to be submitted as one protected by justice that it be made in any particularly cultural way, or that it serve any particular conception of the good. What this means is that justice becomes legitimately neutral, impersonal, impartial. And in so doing, can truly safeguard freedom and equality. In being blind to all that makes individuals particular, liberalism promises to be able to treat individuals as abstract agents – that is, free and equal. It doesn’t matter what one wants to do with one’s freedom, we are all entitled to it equally. Levy is concerned that my formulation of the structure of rights threatens this neutrality.

 At the core of my theory of justice is a view of rights that says they are claims against interference in particular activities in conjunction with particular objects and space at particular times. I contrast this with Hillel Steiner’s account that omits any mention of activities; on his view our rights are rights to physical things simpliciter. I take the action-centred view for reasons of ontological coherence and parsimony (chapter 1). However it is also essential for the inclusion of all possible forms of property as potentially just ones under my view; such as the manifold varieties of common-pool systems of property. Levy is inclined to favour an approach to protect indigenous forms of property and Ostrom-style common-pool resources on the same basis as protecting fee-simple land ownership – that they all protect freedom. But he is nonetheless worried that the allure of liberal neutrality is lost when the content of rights demands some, however thin, cultural lens through which to interpret them. The activities mentioned in a specification of a person’s rights must be described as human activities, as ways of using means to achieve ends that are only intelligible to those are who at least vaguely familiar with the family of activities it might bear resemblance with. If we take Steiner’s view of rights as being rights to objects and spaces strictly physicallistically described, then all our rights can be described using Euclidean geometry, and you cannot get much more neutral than that! Bringing a cultural lens into the interpretation of rights re-introduces, even if in a diluted form, a kind of potential for partiality that liberal rights are supposed to transcend. Or, at least are most attractive when they transcend.

 I share this concern and can only really say I am also disappointed that liberal rights cannot turn out to be as perfectly transcendent to human culture as we might as liberals wish. However, I do think this is just a bullet that must be bitten. If we exclude the action-based element of rights, we end up with not only a system of rights where only the fee-simple, full liberal ownership, Blackstonian despotic dominion, model of property is one that can be considered a property right. But there is also no basis for these rights to be made mutually compatible when one person’s use of their owned objects seems to interfere with another person’s use of theirs. I think Judge Bramwell’s invocation of the culturally laden notion of “normal use” is indicative of this. We must invoke ideals of cultural prevalence at some point in the system. My approach just foresees this and builds it in at the outset rather than as an ad hoc correction later.

 I also want to press the fact that the kind of cultural convergence necessary to make rights intelligible and therefore morally binding is very thin indeed. It is the kind of cultural convergence that is necessary for two people to gesture to one another from two boats passing one another in international waters. We are able to understand the actions of people very different from us in ways that enable us to – if we want to – coordinate with one another. So, I don’t think this drastically changes the image of liberalism as just another cultural ideology. It can still do the impartial work that it is charged with; it’s just not quite as immaculately transcendent as perhaps we thought. But then, if I am right, nothing could be, nor do we need it to be.