More on the Possibility of Legitimate Government

August 9th, 2009 - by Quincy

Last month I wrote a short post about reconciling natural law property rights and government. After receiving a couple of emails from friends about the post being dense and unreadable, I have decided to attempt to clarify my argument.

Natural rights adherents usually ground their property rights theories in John Locke’s philosophy. Locke argued that every individual exclusively owned his own body and the that labor he performed with his body. Lock used labor as the foundation for property rights: specifically that property rights originated in the mixing of labor with unclaimed natural resources. Speaking of things appropriated from a state of nature, he wrote, labour put a distinction between them and common: that added something to them more than nature, the common mother of all, had done; and so they became his private right.” John Locke, Two Treatises of Government 217 (Thomas Hollis ed. 6th ed. 1764).

One consequence of a Lockean theory of property rights is that there is no justification for taking the property of an individual unless that individual violated the rights of another or consented to the taking. This means that unless an individual consents to be taxed, there is no justification for taxation—even for the purpose of supporting a police force, a court system, or a defensive military. Murray Rothbard, one of the intellectual lights of the libertarian movement, passionately argued this point:

[T]he State obtains its revenue by coercion, by threatening dire penalties should the income not be forthcoming. That coercion is known as ‘taxation,’ although in less regularized epochs it was often known as ‘tribute.’ Taxation is theft, purely and simply even though it is theft on a grand and colossal scale which no acknowledged criminals could hope to match. It is a compulsory seizure of the property of the State’s inhabitants, or subjects.

Thus, the State is a coercive criminal organization that subsists by a regularized large-scale system of taxation-theft, and which gets away with it by engineering the support of the majority (not, again, of everyone) through securing an alliance with a group of opinion-moulding intellectuals whom it rewards with a share in its power and pelf.

Murray N. Rothbard, The Ethics of Liberty 162, 172 (1982).

This is a compelling argument. What justifies taxation? How can an individual who believes in principled government and robust individual property rights escape the conclusion that any government that relies on compelled taxation is simply “a coercive criminal organization”? I believe the key lies in recognizing a questionable assumption in Locke’s philosophy of property rights.

Locke assumes that the first person to mix labor with a piece of property acquires an absolute right to that property. He makes this assumption even though he believes that before an individual appropriates a resource by mixing labor with it, “the earth, and all inferior creatures, be common to all men”. Locke, supra, at 216. Locke’s equation doesn’t work. Adding labor, which is the sole property of the claimant, to a resource that is owned in common by all mankind doesn’t clearly grant the claimant absolute ownership over the resource. How did the claimant’s labor extinguish the claims of others who potentially could have claimed the resource through labor? Labor certainly gives the claimant a far stronger right to the resource than any other individual, but that doesn’t make the right absolute.

But if the claimant’s right is not absolute, then what residual rights remain to those others who could have claimed the resource?

I have not yet worked out all the details of these residual rights, but I am convinced of the following principles. These residual rights must not impose a burden on the claimant that is greater than the burden that the claimant causes by his claim. That would violate the principle of proportionality. Furthermore, these residual rights could only be applied for the equal benefit of all potential claimants. Since all potential claimants are burdened by the diminution of available resources, all of them must benefit from the exercise of the resulting residual right.

Thus these residual rights may properly take the form of minimal taxation in support of a limited representative government. It is not my purpose in this post to work through all of the details of such a government. That is not necessary to show that Lockean property rights and government are compatible. However, this limited government could certainly include a court system and a police force to protect against local threats and a military to protect against foreign threats. Notice that these services protect the rights of every member of the society equally and guard against the conflict often caused by scarcity of resources.

Finally, it is important to add that a government that imposes a burden on individuals beyond what is justified by these residual rights becomes precisely the coercive criminal organization that Rothbard warned about.

16 Responses to “More on the Possibility of Legitimate Government”

  1. Sean says:

    I’m not sure an inquiry into residual rights is necessary to justify taxation. I don’t know anything about philosophy, so perhaps I am assuming something incorrect in my simplistic understanding of the labor branch of the natural rights philosophy. As I understand the idea, essentially work naturally creates ownership rights in the result of that work.

    If true, can taxation be viewed as a government “taking their cut?” Surely everyone concedes the government does some things which contribute to one’s ability to earn income or create goods – even if the only benefit is enforcement of property rights (with exceptions of course). If so, then perhaps taxes could be justified as the portion of which your income is enabled by government rule/enforcements/actions/etc. Of course the portion of income enabled by the government is up for debate, as well as the portion which should be taken as taxes, and whether those two should be the same proportion or not. But some portion could be considered the result of “government labor,” so to speak.

    Now certainly every government does many things which make it harder to earn income or produce goods. However, I’d argue that contribution is still a net positive, in that we’d be worse off without a government doing the things which contribute to the ability to earn income or produce goods. Being more of a utilitarian fellow myself, I’d suggest perhaps we should try to maximize the positive contribution, subject to a number of constraints, but that is a different subject.

    As a side note, if you view the government’s contributions as necessary but insufficient conditions for a functioning economy – in that without a government, my income would be practically zero – then we run into problems with the model. If true, wouldn’t this fact entitle the government to virtually everything? That is, everything you wouldn’t be able to earn/make without government help. What about other necessary but insufficient contributions? How do you give 100% to two or more entities? As you point out in the section about extinguishing other’s rights, proportional allocation always seems to be a mess under natural rights philosophies.

    Anyhow, interesting post, thanks!

  2. Quincy says:

    A key element of the labor mixing theory is that to establish property rights the labor must be mixed with something that is in the state of nature–unowned. Government taxation is by definition taking what already belongs to someone, so no matter how hard government works, since it is always working with and on another’s property it can never establish property rights. Hence, without the idea of residual rights, government is simply a thief.

  3. Sean says:

    As I understand the argument, when you own the raw materials and your own labor, you own the result in full. However, it still seems like virtually all products are enabled or also the product of the unowned labor by many others. Maybe that’s inconsistent with the philosophy, but it seems more consistent with reality.

    If more than one person/entity facilitate creation of something, shouldn’t they both get a piece of the result? Taxation may be taking that piece afterward it is fully controlled by the earner, but only because it is impractical to split result at the time of its creation.

  4. Quincy says:


    If I understand your last comment correctly, you are proposing that government should have the right to tax because the taxed individual benefits from the unowned labor of many others to produce goods or services. I am a bit unsure what you mean by “unowned labor.” Do you mean knowledge that resulted from others’ experiences and that the taxed individual used to labor more efficiently? Do you mean the societal and market structures that facilitate production? Unless I misunderstand you, however, I disagree with your proposition for a number of reasons.

    The existence of unowned labor is doubtful, since labor must be done by a laborer who would naturally have ownership rights over it. If the labor was purchased by someone else, it would belong to the purchaser. However, if there is such a thing as unowned labor, then it would be subject to the same laws as the unowned natural resources in Locke’s philosophy: it would become the property of the individual who mixed his own labor with it. If it is truly unowned then the laborer who mixed his labor with it would owe no greater debt to society than would arise if he mixed his labor with unowned natural resources.

    If by unowned labor you mean the knowledge garnered from the experience of others, then those others have already been compensated for their labor. Indeed that was the reason that they experimented, labored, and produced in their own time. This compensation need not have been monetary in nature, the gratification of a desire to help others is compensation as well. If they had wished to withhold their knowledge from others, they had a right to do so. If instead they gave their knowledge away, then they have no just basis to compel payment later on.

    If by unowned labor you mean societal structures that facilitate production, for example, trade routes, markets, a monetary system, etc., then there is even less of a basis for taxation. These structures are the result of individuals trading their labor. Each member of the structure providing goods and services voluntarily to benefit himself/herself, so no individual can turn on the rest and demand extra compensation for his/her participation in the system. If an individual believes he/she is the indispensable lynchpin that makes the system work then he/she is free to charge more or withhold service, but compelling extra payment after the fact is unjustified.

    Finally, even if my previous two points were incorrect, your proposition would still fail to justify government taxation, because the right to compel payment would belong to the individuals who produced the knowledge or facilitated the structure, not some government. Your proposition creates a Hobson’s choice for modern workers: either labor and be taxed or don’t labor at all. Virtually every trade, discipline, and profession has benefitted from the knowledge of others and the structures of society, so this right of taxation would yoke everyone to the government’s plow. Government does not own the collective experience/knowledge of mankind, and government does not own the market structure. So individuals incur no liability to the government by using this knowledge and structure to facilitate their labor.

  5. William Wallace says:

    Quince Quince Quince,

    I expected from you a more compelling defense of the state (no pun intended). I take issue with your attempted refutation on a number of points (as you no doubt anticipated). As it is all too easy to criticize yet not attempt a feat oneself, I will briefly articulate the best justifications I have considered at the end of my comment.*

    *[Note: Eventually I’ll write out my position more fully and post it on the other (proper role of government) blog.]

    You have truly conjectured a framework that would please statists of all persuasions. While the prominent statist/socialist philosophers would be enthused to have found that you came up with this theory independently, I’m afraid your concept of “residual rights” ventures dangerously close to what are commonly referred to as “collective,” or “group rights.” You may dispute this, but if you examine how you described and used the concept (“…a resource that is owned in common by all mankind…”; “Since all potential claimants are burdened by the diminution of available resources, all of them must benefit from the exercise of the resulting residual right”; “That would violate the principle of proportionality. Furthermore, these residual rights could only be applied for the equal benefit of all potential claimants,” et al. [ital. added]), you will find that the similarities are abundant. While there are differences between the two theories, the effect of both would be essentially the same. But while the effect of such doctrine is disastrous (collective rights destroy individual rights), it can firstly be criticized on its philosophical basis.

    I see how you have arrived at your conclusion regarding “residual rights” from Locke, and his statement that initially, “the earth, and all inferior creatures, be common to all men.” It is true that the earth was given to man, and in the beginning the opportunity to possess it was given to all men in common. However, note that the opportunity to possess the earth does not equate to equal ownership or even ownership at all. Locke’s narrative aside, the framework of bestowal may be more accurately depicted with slight modifications: rather than viewing God’s bestowal of the earth as first to men collectively, and then only by extension to individuals, consider instead that God directly gives stewardship to the individual over that property he comes in possession of (or mingles labor with, if you prefer Locke’s description). Locke would have been better served to avoid wording which might imply that the earth was once owned by all men collectively. This was not the case.

    Though the Creator gave the earth for the use of mankind, and though the opportunity to claim it was “common to all men,” it does not follow that a right to make claim upon a part of it remains once a claim has been made (as though it were offered anew). In other words, no claim upon property remains once rightful ownership has been asserted. Such claims to others’ property would only be justified if God stipulated that all he gave be divided equally, or that the earth was “common to all men.” On the contrary, Natural Law establishes the right to individual ownership and private property.

    In short, there is no basis for “residual rights” in Natural Law—or Locke’s source for Natural Law, scripture. Conversely, private property is a central tenet of Natural Law. Private property is not subject to any types of “residual rights” (unless of course they are contractually agreed to in the exchange of property).

    You mentioned in your previous post that, “This relationship derives from the burden that each individual imposes by merely existing: occupying space, consuming resources, diminishing others’ expectations of privacy, polluting, etc.” As I have already commented on the issue of property/resources, the remaining assertions of a “burden” are expectations of privacy and pollution. Regarding the perceived burden of diminished privacy by another’s mere existence, let me note that man does not have such a right to privacy. While the right to privacy on his own property exists, it does not follow that man has the right to be free of real or perceived infringements of privacy simply by another’s existence. Just as man does not have the right to be safe from any calamity of nature, nor does he have the right to be “free” from others’ existence, or other elements of nature.

    With regards to pollution, this can indeed be a real infringement upon rights. However, as with all infringements upon rights, such an infringement is not a given merely by another’s existence, and the potential it will arise does not provide just rationale for coercion, denial of rights, or forced inclusion into one’s government. If infringement on property takes place, certain options for recourse are justified in accordance with natural law. Note, however, that for such an infringement to take place, it must be committed against another’s private property.

    John Adams wisely wrote, “[t]he moment that idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence. Property must be sacred or liberty cannot exist.” Similarly, Thomas Jefferson wrote, “Nothing is ours, which another may deprive us of.” In a letter to James Maury, he further illustrated the importance of the right to private property: “The first foundations of the social compact would be broken up were we definitely to refuse to its members the protection of their persons and property while in their lawful pursuits” (anarchist’s emphasis: note members). The purpose of the social compact is to secure the right to private property. As Revolutionary War patriot Ethan Allen noted, “Laws and society, compacts, were made to protect and secure the subjects in their peaceable possessions and properties, and not to subvert them. No person or community of persons can be supposed to be under any particular compact of law, except it presupposeth that the law will protect such person or community of persons in his or their properties.”

    While Blackstone ascertained this principle more from logic than from Natural Law, he nevertheless expressed its importance and necessity:

    But when mankind increased in number, craft, and ambition, it became necessary to entertain conceptions of more permanent dominion; and to appropriate to individuals not the immediate use only, but the very substance of the thing to be used. Otherwise innumerable tumults must have arisen, and the good order of the world have been continually broken and disturbed, while a variety of persons were striving to get the first occupation of the same thing, or disputing which of them had actually gained it. As human life also grew more and more refined, abundance of conveniences were devised to render it more easy, commodious, and agreeable; as, habitations for shelter and safety, and raiment for warmth and decency. But no man would be at the trouble to provide either, so long as he had only an usufructuary property in them, which was to cease the instant that he quitted possession; if, as soon as he walked out of his tent, or pulled off his garment, the next stranger who came by would have a right to inhabit the one, and to wear the other

    (Commentaries on the Laws of England, ital. added).
    This is not to say I believe you would try to don one’s garment the moment it was pulled off, or that your “residual rights” theory would justify such, but such a theory undermines the true principle of property rights. The theory of “residual rights” is similar to that espoused by environmentalists of every persuasion, which maintains that creatures in the possession of other countries (especially those species which are few in number), are actually theirs as well, and that those existing in unclaimed habitats (such as oceans) cannot be seized by any due to “common possession.” Admittedly, the issue becomes sticky in some respects, and while a morally upright individual would likely consider others when claiming various resources, natural law still does not allow the seizure of others’ acquired property.

    As your assertions of justifications for superseding/infringing individual rights have been shown to be fallacious, it can be easily demonstrated that anarcho-capitalism is merely the honest, consistent, full application of the principles of liberty; in short, the most moral form of societal order, or the only truly free society. This may strike some as an alarming proposition: would such an order not result in continual tumults and conflict? Those who react in such a way are usually those who have been unable to unfetter their mind from ingrained statist biases, or those who have not yet taken occasion to consider the matter objectively and logically. The fears are often those of an alarmed mind refusing to rationally consider the true implications of such a society. For of course this does not mean that no social compact will be agreed upon, or that the functions a state traditionally is charged with providing will not be provided. In fact, government-like agencies can still exist, but only to a freedom-respecting degree. It will still be considered important in nearly any moral society to create protections against infringements on rights and liberty—not only for those with the means to support it, but those without (such a goal is already apparent in the creation of most democratically formed governments)—and rational citizens will still find it important to form police forces, militias, etc. for the purpose of protecting rights and property. Moreover, it would also still be possible they would resolve to hire trusted representatives to legislate and consult on complex matters of law and courts, and perhaps provisions for emergency command structures according to agreed upon guidelines. Additionally, communities finding unanimous consent for certain covenants to be attached to their deeds of property would also likely exist. The central difference between such a society and “government” as described by Rothbard would be the principle of unanimous consent for such contracts. In essence, such a society would exist when enough of the people in a society recognized that it is wrong to steal or commit acts of aggression—even when done through democratic means. The legalized plunder which pervades our society today would not be accepted, nor would laws which restrict human behavior that does not infringe upon the rights of another.

    A common criticism of anarcho-capitalism is that without the rule of law, upheaval and disorder would result. How can order be maintained without a monolithic governing body enforcing the people to behave? How can order exist without a central force enforcing the rule of law? However, these complaints ignore the fact that by definition (as described above), anarcho-capitalism incorporates the rule of law—natural law: the only truly valid law. Even in the U.S. today, despite that enormous growth of the state, it still remains true that order exists only to the extent that people accept it. Though the creation of a leviathan is well underway, the federal government is still too weak to crush a widespread revolt, and without the respect of the people for natural law, it would be impossible for order to be maintained. This is, of course, how it ought to be, for it is a necessary condition of a free society. No limited government advocate would ever favor the idea of giving government such authority so as to be able to squelch any resistance to it. Freedom can only be maintained if the government can be destroyed by the people.

    It may be important to point out that initially, and on the state level, the formation of the U.S. Constitutional Republic in essence incorporated these principles. For example, the social compact of the Constitution respected the principle of unanimous consent, as it only applied to those states which accepted it—not affecting those that abstained (such as Rhode Island initially). Moreover, it was originally understood by many voting in favor of it that the powers designated therein were limited to those delegated, and the states’ remaining undelegated rights were to be respected. Additionally, only taxes as had been agreed to in the required proportions could be enforced. As to whether or not the various state legislatures had been given the authority from their citizenry to approve the articles is a separate matter, and is between the citizens of each state and their respective governments (the situation varied in each).

    Unfortunately, nearly all the fears of the anti-federalists have been verified, as the form of the compact proved to be insufficient to limit the immoral, unjust growth of the state—much as a result of the perverse acceptance of immoral coercion of non-consenting individuals under the false pretext of greater collective welfare. This is not to imply, however, that a perfect document ever can permanently limit such immoral growth of the state, as it always depends upon the people to apply it. As the old Whig tradition recognized, a Constitution was only as good as the moral resolve of the people to respect and adhere to it.

    But recognizing the slight weaknesses in the text of the Constitution to clearly restrict the power of the national government to the authority that many of its ratifiers assumed, does this mean that it would have been better for some states to hold out, not having been able to achieve the ideal, and abstain from ratification in favor of the explicitly limited Articles of Confederation, or another more perfect compact? Considering the exigencies of the geopolitical scenario at the time, and the threats from predatory foreign nations, I do not believe it necessarily follows. The rational conclusion in some cases may be to choose the course which is expected to maximize freedom and preservation of rights to the greatest extent possible, though imperfect it may be. With this in mind, can it be wrong in some instances, to reject a less than perfect social compact in pursuit of an unobtainable purer ideal after all efforts of to achieve it have been expended? Perhaps—maximizing freedom may at times be the purist ideal* (note that the objective is not to maximize utility,** or economic welfare, though it can be demonstrated that one leads to the other as a general rule). If so, the effort to achieve a free society still should never be given up, and the ideal should remain the goal. Unfortunately, this argument is often twisted to say that as a general rule, freedom must be given up for security. While dubious even as an exception, the rule is actually the opposite: only with freedom can there be security.***

    *[NOTE: More on this when I write out my position on the other blog]

    **[NOTE: Some criterion stipulating that the services provided by government must impart direct benefit to all and be enjoyed equally, though at times a helpful, moral standard, is grossly insufficient to limit government to a proper role. For how can socialized, coerced defense be justified and not, say, mandated inoculations in the face of a dangerous epidemic? What exactly happens to be a “direct benefit” becomes subjective to one’s perception of the threat.]

    ***[NOTE: For perhaps the greatest speech ever written on this subject, go to this link]

    Meanwhile, having no remaining justifications for infringement upon rights, we are left with the question, “Is government at all justified?” What justification can exist for coercing the innocent and stealing from the bystander? Defining government as Rothbard did—where it “obtains its revenue by coercion, by threatening dire penalties should the income not be forthcoming”—it becomes clear that without some sort of external justification, it is immoral. In most cases, the only justified exceptions to adhering to natural law, or God’s law, is when there is divine intervention or inspiration to achieve God’s purposes—which, in a way, temporarily redefines God’s law for a specific instance. Such seems to be the only remaining possible justification for when government as defined above can be imposed.

    In sum, the bogeyman of a non-coercive, stateless society should be eliminated from people’s minds. Yes, the likely result would be much greater decentralization, as unanimous consent is difficult to achieve. Small communities, and possibly states, would likely form the basis of most compacts, while provisions for collaboration against a large enemy would more likely be strictly limited to utmost necessity. While the possibility of regional and inter-state conflicts would probably remain greater, such a possibility is necessary for the existence of liberty—the alternative is a Leviathan which cannot be opposed. Moreover, the existing degree of tyranny and infringement upon rights by the national government is made possible to the extent the central state is unchallengeable (one of the worst consequences of the Civil War).

    Additionally, the likelihood of such a society participating in enormous, unjust and immoral wars (e.g., WWI, Cold War proxy conflicts, the many secret CIA wars and operations,* Iraq, etc.) and massive massacres (Hiroshima & Nagasaki, Dresden, prolonged carpet bombing of Vietnam and Cambodia, Iraq [consider especially those motivated by domestic politics], etc.) that result in staggering loss of life is greatly reduced if not eliminated. The entire military industrial complex and welfare-warfare state would not be enabled, and the probability of its development on any similar scale would be near zero. Consider the astronomical numbers of needless wartime deaths including those of all who have been killed—civilians, soldiers on both sides, etc.—for the crimes of corrupt and inept leaders at the head of monstrous national security establishments since the rise of the military-industrial complex. The psychotic megalomaniacs that have dictated U.S. foreign policy for the past 70+ years upon an unsuspecting, naïve, gullible populace through lies, propaganda, and manufactured jingoism would have had no such power. Any similar bastardization of the principles of “freedom” and “democracy” to justify an imperial crusader state could likely only mobilize the means for such ventures on a small scale. Moreover, the wide-scale corruption and infiltration of the U.S. government at the hands ofallies” (who are frequently equally or more barbaric than our “enemies”)—despite Washington’s warnings—would have far less drastic ramifications. If the pattern of powerful officials sacrificing U.S. citizens’ interests was limited to the realm of foreign policy alone, the historical argument against a powerful central state would be much weaker than it is. Sadly, once corrupted, many such U.S. officials have gone beyond merely selling their souls to foreign influences at the expense of U.S. interests to actively participating in undermining the safety and well-being of their own people at home. If such has continually taken place in the country thought by many to be the greatest embodiment of the principles of freedom and limited government, improvements are easily within reach to an alternative, more perfect system. Of course, no system could ever hope to prevent all the evil machinations that come into the minds of men, but as the greatest evils that afflict mankind are committed or enabled by the power of the state, many could be reduced or eliminated.

    [*NOTE: Resulting in an estimated 6 million deaths]

    Moreover, the economic benefits of the free society are truly staggering, and they provide yet additional arguments in favor of it. As economist Walter Bloch has postulated, the development and trajectory of today’s technological advances and modern day conveniences would pale in the face of what could (or most likely would) have been in absence of the untold destruction of wealth and utility by the state. To think that the state is responsible or necessary for any wealth creation is utterly backwards and an assault on reason itself (this idea often rests upon the fallacy that only the state can protect property—ignoring the [far more effective] power of individuals or consenting groups to do so). Wealth creation takes place in spite of the state—not because of it. All operations and possessions of the state are had at the expense and destruction of the wealth of its subjects, and inefficiency and dead weight loss always* take place in the course of the transfer/theft. The gains of specialization through trade would also potentially increase enormously under an anarchic order, as tariffs and state belligerence would not prohibit the enormous amount of trade that would otherwise occur. For one to assume that trade only will take place once an over-arching governing body has provided for rules of enforcement is ignorant of both history (see Lex mercatoria) and the present. Sadly, both intentionally and unintentionally, enormous amounts of resources are also devoted to the perpetuation of destructive statist fallacies that run counter to self-evident truths under which moral individuals would otherwise be inclined to operate under, resulting in a destructive, self-perpetuating cycle.

    *[NOTE: There are some rare theoretical exceptions to dead weight loss caused by taxation {completely inelastic goods}, but there still always exists bureaucratic costs]

    Given our ingrained statist biases, anarcho-capitalism can at first seem a threatening prospect, and even the most (otherwise) freedom-loving individuals tend to lash out at it in knee-jerk reactions. However, when evaluated rationally and objectively, it is easily seen that anarcho-capitalism is merely the honest, full application of the principles of liberty for which the revolution was fought, and the basis for a truly free society. I invite all advocates of liberty, limited government, natural law, morality, and true constitutionalism to cast off the shackles of statist fallacies from their minds and fully embrace the principles of the free society.


    P.S. Some may take exception to my assertion of slight weaknesses in the original document of the Constitution. However, let me clarify that this does not mean I believe the weakness was not possibly part of a greater plan which would result in historical benefit for a people unworthy of a perfect document. Specifically, the perhaps less than explicit restriction of the national government’s powers to those which many supporters of the Constitution assumed its functions were nonetheless restricted to provided a possibly essential resilience to the document which served a higher historical purpose. For example, if the Constitution made it undeniably clear that it did not allow any powers not explicitly stated therein, would economic and wartime crises (e.g., the Great Depression, Civil War, etc.) have caused such sweeping changes (either through amendment, constitutional convention, or throwing it out all together) to the document that it would be entirely unrecognizable today, without any of the protections it still provides with regard to limiting government and protecting freedom? The net loss of life and liberty either as a result of the substitute or infighting to determine what the substitute would be could conceivably have been greater than the Civil War. Of course, this ventures into the realm of counterfactual history, and is merely speculation. For on the other hand, it could also be that the people were merely not ready or worthy of a more superior form of societal organization, and that the colonists’ leaders were inspired only to the extent that they and the people were ready and capable of accepting.

  6. Quincy says:

    Your first assertion—that my residual rights theory bears some similarity in form and effect to collective rights theory—does not trouble me. This assertion has no merit for two reasons. First, collectivism invests the collective with total control over property (in other words it abolishes private property) while residual rights theory strictly limits the control of the collective. As I explained in my post, “residual rights must not impose a burden on the claimant that is greater than the burden that the claimant causes by his claim.” Other linguistic similarities between collectivism and residual rights are irrelevant in light of this glaring difference. Second, unless you adopt utilitarianism (which is totally incompatible with natural rights), your concern about the effects of recognizing residual rights can never pose a legitimate challenge. Whether a non-utilitarian theory of property that strictly limits the state’s control would, as you put it, “please statists of all persuasions” is unknowable yet very doubtful.

    Your second assertion—that there remain no residual rights after the investment of labor in un-owned property—lacks a foundation. Simplified, my argument for residual rights is as follows. Prior to the investment of labor by a claimant, un-owned property is equally available for a claim by all individuals. This potential to claim un-owned property is a meaningful right. When a particular piece of un-owned property is claimed by an individual, this meaningful right can no longer be exercised by any other individual. Thus, when an individual mixes labor with un-owned property and claims it as his/her own, everyone else suffers the loss of a meaningful right. It would not be just for the claimant to obtain the benefit of property ownership at the expense of everyone else without the claimant becoming obligated in some way toward those who suffered the loss. I have called this obligation “residual rights.” Now, you argue that to recognize residual rights one must adopt a premise that I have neither adopted nor discussed “that God gave all people all of the earth—or all an equal portion.” On the contrary, residual rights derive from the recognition that the “opportunity to possess” —to use your term—is a meaningful right that deserves protection and recognition just like any other. To successfully challenge the existence of residual rights you must articulate a reason why the opportunity to establish ownership of property is not a recognizable right or why such a meaningful right should not be protected. Unsubstantiated claims about what God gave and to whom He gave it will not suffice.

    The quotes you offer about the importance/sacredness of property rights (John Adams, Thomas Jefferson, and Ethan Allan) and the distinction between the right to ownership of substance and the right to use (Blackstone) are interesting but irrelevant to the present discussion. The issue at hand is how private property rights come into being and how far those rights should extend, not whether those rights should be protected.

    Since I am not satisfied with your attempt to refute the existence of residual rights, I don’t think it would be useful to discuss the portion of your post devoted to advocating anarcho-capitalism.

  7. William Wallace says:

    “Your first assertion—that my residual rights theory bears some similarity in form and effect to collective rights theory—does not trouble me. This
    assertion has no merit…”

    Were it merely “linguistic similarities” that drew them together, there
    would be no cause for alarm.
    Unfortunately, the very logic behind “residual rights” is a direct assault on property rights as understood in the (classic) liberal tradition* and as established by Natural Law.  As such, the effect is painfully similar to statist and collectivist doctrines of every kind which draw upon baseless, illegitimate pretexts to justify the abuse of man’s natural rights.  This will be expounded on below.

    *[NOTE: To illustrate/emphasize this tradition was the purpose of the quotes I cited.]

    “Second, unless you adopt utilitarianism (which is totally incompatible with
    natural rights), your concern about the effects of recognizing residual rights can never pose a legitimate challenge.”

    It seems odd that you limit the “effects” to the realm of utility.  Let me remind you that the most alarming and significant effects—which I specifically mentioned—are the infringements upon rights. Moreover, my references to the lives lost and wealth confiscated due to the nature of the state—and the tendencies of a people which accepts its immoral and illegitimate acts—directly concerns the rights of individuals at home and abroad.  The drastic effects upon the utility and potential utility for society are merely footnotes to this issue.

    “Your second assertion—that there remain no residual rights after the
    investment of labor in un-owned property—lacks a foundation.”

    Let me try to more clearly demonstrate the nature of my rebuttal.  As your premise for “residual rights” rested upon the statement by Locke, that “all things were in common to all men,” all that was needed to show the futility of the “residual rights” theory was to demonstrate the falsehood of the quote—or at least that interpretation of it (which may have been the intended one). 

    However, as you have not drawn upon Locke in your reiteration of your “residual rights” theory, but specifically the “opportunity” and “potential to claim un-owned property,” there is yet further to address. Indeed, you correctly recognized the crux of the issue: the nature of the right to “establish ownership of property.” This brings up one of the fundamentally important questions with regards to the discussion of right and wrong in relation to governance and human interaction. What determines what is and what is not an individual’s natural right?

    Without taking pains to articulate the entire canon of Natural Law—as we no doubt are in agreement with regards to the fundamentals—let me urge its closer examination and point out the heart of the incongruity.  The fundamental confusion comes from conflating the opportunity or right to make efforts to acquire something and property rights to that thing.  The right to make effort to obtain, make, or possess something does not equate to (ownership) rights to it (or any degree of ownership rights to it).  This is certain.  Indeed, one could identify a right to attempt to acquire property as an extension of the right of liberty, but such sub-rights to the right of freedom of action are myriad and can be identified endlessly, and such a right does not establish any ownership rights.  Herein lies the logical disconnect in your argument.  While it is partially true that “[the] potential to claim un-owned property is a meaningful right,” it does not follow that “when an individual mixes labor with un-owned property and claims it as his/her own, everyone else suffers the loss of a meaningful right.”  How so, you ask?

    Firstly, I stated partially true because of the slightly erroneous articulation of the right I assume you were referring to.  Individuals do not have a right to the “potential to claim un-owned property,” nor do they have the right to “the opportunity to possess” as I phrased it.  Precisely speaking, individuals have the right to attempt to acquire property through some form of labor.  The former statements would imply that one has a right to whatever ability or means are necessary for successful attainment of property, and the right to some specific allotment of property—both of which are false.  One’s “potential” to obtain ownership of property can be dependent upon the faculties with which one is born or other variables unrelated to rights.

    Secondly, on a related note, remember that the opportunity or right to attempt to acquire property does not necessitate the ability to do so.  Consider the instance where despite the opportunity to make efforts to acquire property, an individual lacks the labor or capacity through any means to acquire it.  For example, the acquisition of property—say gold, oil, etc.—by one individual, may be entirely impossible to another due to his inability (including lack of means, knowledge, etc.) to extract it from the ground.  Consequently, this attainment of property by one individual clearly did not affect or limit in any way the other’s opportunities.  In other words, the opportunity to attempt to acquire property does not equate to the possibility of acquiring it, and consequently, the attainment of property does not necessitate the limitation of another’s possibilities, let alone rightsthus it would be wrong to assume that “when an individual mixes labor with un-owned property and claims it as his/her own, everyone else suffers the loss of a meaningful right.”  Moreover, from this it also becomes clear that it is wrong to assume that all have some sort of residual property rights to all other property, under your pretext for them.  Does this mean, under your theory of “residual rights,” that only those capable of acquiring property have “residual rights” to that property?  This creates more issues for the theory of “residual rights,” and the hope of reasonably finding a just solution to which is all but lost, as it becomes subjective ad absurdum (though this is irrelevant to the fundamental problems).

    Thirdly, this right to make effort to obtain ownership of property does not end once the property is already owned.  This right still remains.  Just as labor is the ingredient necessary in acquiring property rights, labor, or things of value acquired by labor (e.g. money, etc.), can be exchanged for already owned property at whatever price satisfies the owner’s estimation of value.  (Today, as most valued property has been claimed, this is the primary recourse for obtaining property rights/ownership—challenging the legitimacy of one’s ownership is another but is usually taken at risk of conflict).  Note also that there is no natural right to obtain or attempt to obtain un-owned property. Thus, no one “suffers the loss of a meaningful right” when others mix labor with and obtain rights to property.

    Fourthly, property rights only come into existence once property has been acquired, or once labor has been expended—not before. Just because the opportunity at one point in time exists for an individual to perform whatever labor is necessary to obtain ownership of a specific property, it does not follow that residual property rights to it ever existed, or remain once rightful ownership has been obtained by another.  Again, such an assertion would have to rely upon the idea that “all things were in common”—or the interpretation of this statement that some form of ownership at one point existed previous to any effort or labor. Though the right to obtain, or rather, the right to make effort to obtain ownership of property exists for all, pre-existing property rights attached to it do not.   

    Unfortunately, many have similar misunderstandings have arisen regarding Jefferson’s statements on property rights.  Though he emphasized one’s right to property, he was not, as many wrongfully assume, arguing that one had a right to some property in some abstract amount or form—rather he was merely speaking of the fundamental natural right of an individual to his own property, or that which he is already in possession of.  Similarly, this fallacy often arises when Jefferson’s articulation of man’s right to “the pursuit of happiness” is misinterpreted and misconstrued as the right to happiness. Just as man’s right or opportunity to undertake efforts to satisfy himself, or achieve happiness, does not grant him the right to happiness—or the right to whatever property or means he deems necessary to give him happiness—nor does the right or opportunity to make efforts to acquire property equate to an inalienable right to acquire property, or a right to any specific or general allotment of property.

    Consider a man who comes upon a vast unclaimed territory which is abundant in a valuable resource, say gold.  However, the gold can only be obtained through a significant expenditure of labor—either in mining or panning.   Having expended the labor necessary to obtain a portion of the gold, do others have the right to take from him any of it—merely because the opportunity was theirs as well?  The answer is obvious.  Do they have the right to labor to acquire the resource at whatever value it is given through their own means?  Yes.  Unfortunately, the former is justified (to some degree) according to your “residual rights” theory, and is a blatant breach of natural law and property rights.  Moreover, consider those born years later, once all the gold has been acquired—does this mean they are due a certain portion of the gold from whoever has taken pains to acquire it due to some “residual right” to any portion of it?  Again the answer is self-evident.  If the standard of mutual capability to acquire the property were adopted in determining who possessed these “residual rights,” the theory would have no relevance today, now that essentially all those who had had an opportunity to obtain formerly unclaimed property have since died, and essentially all valued property has been claimed in today’s world.  Obviously, there are numerous issues to the theory.  As you admitted, there were still elements to be worked out with regards to the theory, but as demonstrated, this becomes a futile effort, as it is based on false premises at the outset.

    It is also important to note that technically, though we have blurred the
    two at times in the interest of conciseness, claiming property and obtaining the property rights to it are not necessarily the same thing.  For instance, the gold miner clearly would not have acquired property rights to the entire supply of gold or property of the continent merely by saying so, or by merely expending labor upon a small portion of it.  The issue of what constitutes rightful attainment of property rights or ownership is, I believe, a difficult issue, despite some individuals’ best efforts to lay down a framework based upon natural law (Locke, along with Jefferson, speaking of land ownership, theorized the principle of use; others have asserted the principle of setting apart or sectioning off with physical barriers, etc.).  However, one self- evident general rule can be recognized: ownership must involve some labor or effort, as Locke correctly noted.  No property rights exist prior to its expenditure.  Of course, this principle does not resolve specific cases of dispute by itself—how much is necessary, multiple expenditures/claims, the effects of time, etc., all present difficult issues in determining rightful ownership.  When ownership of property is rightfully obtained has been the matter of historical debate, and the source of much conflict throughout all history, and hope for a just determination can probably be only had on a case by case basis.  Perhaps the notion of remedying false claims of property rights is what subconsciously gives theory of “residual rights” the most appeal.  However, when property rights are properly and justly acquired, the rights of no one are infringed upon.

    In sum, the theory of “residual rights” is not only far from justified by Natural Law, but in direct opposition to it.  Any defense of the state will have to stand upon other arguments.

  8. Jordan says:

    William Wallace seems to have thoroughly eviscerated the statist apologia set forth by Quincy. His arguments against the coercive institution of government outstrip the logically shallow contrivances for the state proposed by Quincy.

    However, I detect a faulty assumption in William Wallace’s paragraph where he deliberates if the founders should have waited for the “ideal” government when geo political exigencies pressed upon them (other governments were circling like sharks). Perhaps by just going ahead and signing it they did what was best to preserve the most liberty. Waiting for an “ideal” constitution would have put liberty in harm’s way.

    Two objections:
    1. The idea of an ideal social contract doesn’t exist. (Ideal meaning completely consensual). At the moment when a contract becomes ideal–i.e. when everyone consents–is the very moment it becomes a private contract, not a social one. But Wallace’s scenario of the founders determining the liberty of their people doesn’t mesh with what he’s previously told us about natural rights. Namely that one’s rights precede the state; they exist in the absence of an effort to take them away. Liberty isn’t something that can be imposed from above, created by the correct constitutional verbiage. If those at the constitutional convention were really looking to preserve the most liberty, they would have walked away. Indeed, all they could do at that convention was take away freedom that existed independent of them.

    2. Wallace suggests that the colonies would have been less secure without signing the constitution. In signing the constitution and providing for the national defense, they were mercifully defending the helpless colonials from dangerous France and Spain. But how does a country wage war against a stateless society? War is most useful when a malevolent nation can come in, depose the powers that be, and assume the controls over the people that existed prior to their arrival: taxation, etc. When these controls don’t exist, the visiting army is forced to collect its booty like the ancient Assyrians: going town to town, door to door with a sword demanding it. Only when the use of violenced is monopolized by unitary governments is war a lucrative, profitable endeavor. It’s like the latest Gadianton robber who slays the chief judge suddenly controls the whole world. If there’s no government, it’s just a solitary murder. Once again, if the founders at that convention wanted to protect the colonies, they would have left power as decentralized as possible.

  9. Jordan says:

    One more criticism of William Wallace. He states that in the stateless society, “the possibility of regional and inter-state conflicts would probably remain greater,” but “such a possibility is necessary for the existence of liberty.”

    I have one question: why would government monopolized police services protect individuals better than private agencies? When someone is murdered on the streets by a marauding gang, the local police loses no money. If the police is inefficient and irrational, we can’t put them out of business by choosing another police agency. Consider the crime in, say, prisons where men are locked up in cages and guarded by police night and day–still violent crime is rampant–and contrast it to the crime at the Gateway mall, which is staffed by private police. Too often anarchism is typified by “wild west” type lawlessness. Consider, however, Celebration, Florida, an entirely private town owned by Disney. It’s home to some 20,000 people, and entirely staffed by private police, it’s an opitome of order–clean streets, nicely kept yards, no crime. Just google it and see.

    In short, there’s no precedent for the statement that a truly free society would be blighted by warring mob lords. Liberty is the mother, not the daughter of order. Government, on the other hand is the mother of choas and disorder, a true distortion to the natural order of things.

  10. Quincy says:


    As I explained in my previous comment, your quotations about the importance of property rights in the classical liberal system are irrelevant without some evidence that the property rights those authors were writing about were the kind of absolute rights you favor. But this is a side issue.

    The present question is whether individual property rights are absolute or not. To answer this question we have been discussing one theory of property rights: Locke’s labor-mixing theory. I have argued that the labor-mixing theory cannot justify absolute property rights because it fails to explain how something that is “common to all men” becomes absolutely owned by an individual who mixes labor with it. The equation doesn’t add up:

    labor (absolutely owned by the laborer) + unowned property (“common to all men”) = private property (absolutely owned by the laborer)

    What happened to the “common to all men” portion of the second addend? Locke’s equation doesn’t account for it and your arguments have not helped.

    You first argue that Locke did not mean that in the state of nature the earth was owned in common by all men or that if he did mean that then he was incorrect. To rest your mind about what Locke meant, read sections 26 and 27 here. But even without knowing what Locke really meant, the important point is that unowned property is “common to all men.” In other words, no person has a greater claim to unowned property than any other person. This rests upon an assumption—which I hope we share—of individual equality. This means that personal attributes such as age, race, gender, size, intelligence, strength, ancestry, etc. do not increase or decrease an individual’s claim to unowned property. It is “common to all men” irrespective of these things. If you disagree with me about this fundamental assumption, then I see little hope of resolving our disagreement about the more complex residual rights question.

    You next claim that my argument for residual rights is fundamentally confused because it conflates “the opportunity or right to make efforts to acquire something and property rights to that thing.” Are you asserting that there is a special category of right called “property rights” that is different in kind from the right to unowned property that is “common to all men”? If so, please recognize that such an assertion makes your argument completely circular. If this is your claim then you are effectively saying that individual property rights are absolute because they are property rights which are absolute. It is precisely this false distinction between property rights and other less important rights that I argued against in my previous comment. If a right exists then it must be recognized and protected whether or not it fits your preconceptions of property rights. This doesn’t mean that the individual who has mixed his labor with unowned property does not have a stronger right to that property than others, only that he doesn’t have an absolute right.

    Next you elaborate a four-part argument asserting that there is no loss of a meaningful right when an individual lays claim to previously unowned property.

    Your first two paragraphs are a quibble about my use of the word “potential,” and the practical considerations that that word may imply. Perhaps this was an inept word choice; allow me to clarify. An individual’s ability or desire to exercise a right does not lessen its force. For example, the fact that a person is dying of disease does not mean you can kill him without violating his right to life. Similarly, a person’s right to lay claim to unowned property by mixing labor with it is not conditioned upon his practical ability to do so.

    The next portion of your argument revolves around the strength of an individual’s right to attempt to labor for property. Interesting, but it does not answer the challenge of residual rights. You assert that “the opportunity to attempt to acquire property does not equate to the possibility of acquiring it, and consequently, the attainment of property does not necessitate the limitation of another’s possibilities.” As a general statement this is correct, but it does not avoid the simple fact that when an individual acquires part of a finite quantity of unowned resources, everyone else’s opportunities are decreased. This is particularly evident in the case of real property which—unlike most other types of property—is not fungible. In Locke’s hypothetical state of nature, every time an individual mixes labor with and takes ownership of unowned property, there is a decrease in the amount of unowned property remaining. This decrease eliminates opportunities to acquire real property for every other individual. There is no room for argument here; it is basic arithmetic. Consider the following simple example that illustrates this point.

    Jill bakes a pie and offers it to Jackie, Janet, and Jane. Jane eats half of the pie. Is there less pie available for Janet and Jackie? Clearly yes! It isn’t responsive to the question to say that Jane has not removed from Janet and Jackie their ability to eat. Or that Janet and Jackie can still eat cookies. Some of the pie is gone!

    In your gold miner example you assert (again without any logical justification) that residual rights cause “a blatant breach of natural law and property rights,” and that this is “obvious” and “self evident.” But this is simply another circular argument that boils down to the following: the gold miner has absolute property rights to the gold because if he didn’t it would be a breach of his absolute property rights. Not compelling. It is important to remember, however, in the context of your gold miner example that in my original rough articulation of the rules governing residual rights I wrote that “These residual rights must not impose a burden on the claimant that is greater than the burden that the claimant causes by his claim.” In the gold miner example, the burden that the gold miner imposes is very small because the supply of unclaimed gold is “abundant” and it requires “a significant expenditure of labor” to extract. Thus the residual rights of all others to the gold are small.

    The only portion of your post that addresses residual rights is a bald assertion in the third part of your argument where you write, “Note also that there is no natural right to obtain or attempt to obtain un-owned property. Thus, no one ‘suffers the loss of a meaningful right’ when others mix labor with and obtain rights to property.” I “note” no such thing. What else but a natural right do you call it, a happy circumstance of fate?

    As I wrote before, to successfully challenge the existence of residual rights you must articulate a reason why the opportunity to establish ownership of property is not a recognizable right or why such a meaningful right should not be protected. After your most recent post I guess I should add that to be persuasive, your reason cannot rest upon a circular argument that assumes absolute property rights.

  11. William Wallace says:

    I apologize that this response may seem repetitive, as I respond to your arguments with a few basic points, but hopefully that will aid in conveying what I wish to articulate. 
    Let me start at what I view as the fundamental problem.  You wrote, “the important point is that unowned property is ‘common to all men.’”
    Try thinking about the meaning of the words you wrote: ‘unowned property…‘common to all men.’”  It would be helpful to deconstruct this oft-repeated phrase, “common to all men,” and consider what you mean to say by this.  As you have earlier revealed, to you this is synonymous with “owned in common by all mankind.”  Let us substitute your earlier definition to illuminate the statement for what it is: unowned property [that] is owned in common by all mankind.  Here is an equation which definitely cannot work.  You’re trying to say that property is both owned and unowned at the same time.  This is the fundamental problem with your argument.  Property cannot be both owned and unowned at the same time.  It is either owned, and therefore is accompanied by property rights, or is unowned and therefore has no accompanying property rights.
     Moreover, it is from this inherent contradiction (unowned but owned) that the implication that all must be owned equally arises—for if it is owned by all, none is entitled to a greater or lesser amount than another, and all have equal claim to it—even if one happens to invest some portion of it with labor (I couldn’t expect my labor on another’s property to give me rights to that property; it merely would be my loss).  In responding to/preempting this implication you have tended to allude to a sort of spectrum of ownership rights*—where one’s ownership of a good is greater than another’s—which, though clever, is completely unsubstantiated in terms of Natural Law.  It also ignores complications of collective rights, were they to exist (e.g., given that “no person has a greater claim to unowned property than any other person,” from what basis do you assert one can acquire any of it for himself at all, especially without permission of the rest—would this not violate Natural Law?  What determines how it is dealt with?  Democracy?  If so, on what grounds?  I know you have mentioned you haven’t worked out all the details yet, but these seem to be fundamental issues that must be resolved.).  Again, property is either owned or it is not, and it is not owned merely by virtue of being unowned (I use such verbiage to try to illustrate the level of illogic in the argument), or by virtue of existing, or due to the fact that one may at some point come to own it. 
    *[You wrote: “This doesn’t mean that the individual who has mixed his labor with unowned property does not have a stronger right to that property than others, only that he doesn’t have an absolute right.”]
    This leads us to another fundamental issue that arises in your theory.  In responding to this implication of equal ownership and other collective rights queries you also stated the following: “On the contrary, residual rights derive from the recognition that the “opportunity to possess” —to use your term—is a meaningful right that deserves protection and recognition just like any other.”  Despite the fact that the phrase “owned by all mankind” would seem to imply ownership rights, you have moved to another basis (separate from common ownership) for these alleged rights: “opportunity.”  Your reasoning was as follows: “Prior to the investment of labor by a claimant, un-owned property is equally available for a claim by all individuals. This potential to claim un-owned property is a meaningful right. When a particular piece of un-owned property is claimed by an individual, this meaningful right can no longer be exercised by any other individual. Thus, when an individual mixes labor with un-owned property and claims it as his/her own, everyone else suffers the loss of a meaningful right.”  If I understand you correctly, you derive these alleged rights from the fact that when one person acquires property, everyone else is now limited in their realm of possibility.  That you responded to my questions about veracity of that assertion in all situations given all the various factors that influenced potential possibilities (means, knowledge, location, time of birth—determining what remains unowned when one is born, etc.) with a platitude about rights being independent of race, gender, age, strength, etc., wasn’t entirely responsive.  (Other rights have a foundation irrelevant of opportunity; however, this was one of the bases you gave for these alleged rights).  However, as you gave another basis for them, (the “owned in common” explanation), I will focus on other issues surrounding the assertion of “opportunity to possess” or “potential to claim” as a basis for rights.
    Perhaps this example will help illustrate the inherent fallacy of equating opportunity with right, or using opportunity as a basis for right, in the way you seem to have done.  Consider the man that discovers the cure for cancer, and because of his discovery, acquires untold wealth as all the cancer patients purchase his remedy from him.  The former cancer patients having cured themselves by means of their economic exchange with the scientist, this prospect for wealth no longer remains for everyone else who previously had this opportunity available to them.  While the prospect of discovering the cure themselves still remains (the freedom of action), other would-be discoverers are now deprived of an opportunity that was once theirs to gain great wealth, as the vast numbers who had cancer have already been cured.  Now, is it logical (according to Natural Law) to say that all the other researchers (or everyone, to fit your further articulation) are due a portion of the profits of the one scientist?  After all, they once had the opportunity, even the “right,” to earn those profits, yet no longer do!  Haven’t they suffered the loss of a meaningful right?  I admit such logic seems absurd.  Why?  Because it contradicts fundamental tenets of Natural Law—including that of a man having a right to the fruit of his labors (whereas the non-laborer does not).  But, you may counter, this is different, as all the other scientists still have the right to earn profits in other ways.  Consider, however, the fact that due to the one scientist’s acquisition of those enormous profits (or property in real terms), they no longer have access to them as they once did (given an earlier discovery of the same object of exchange), and are thus limited in opportunity.  We may also postulate that if the first’s acquisition of wealth is so large that such an amount is unattainable elsewhere (due to limited resources), given that the others are unable to present an object or medium of exchange favorable to him, they are undeniably more limited in opportunity.  But does this mean “they have suffered the loss of a meaningful right”?  Clearly not, according to Natural Law.  Again, freedom of action or opportunity to acquire or achieve something does not equate to a right to that thing. 
    Similar examples could be made in a multitude of such instances. Consider the firm owner who has the good fortune or expertise to contract the most skilled workers in his industry to work for him.  It soon becomes apparent to the rest of the firms that they are the best, but the first firm has placed them under contract for a number of years.  Would you assert that a portion of the resulting windfall profits that he earns ought to be paid to the other firms who could have hired the same people before he did?  After all, they clearly are deprived of that opportunity that was once theirs—they no longer have the opportunity to hire them.  Again, such an argument is ludicrous.  Yet under your reasoning it could be argued that as the other firms once had the possibility of hiring those individuals, and the freedom (or right of action) to do so, they had a right to a portion of the fortunate firm owner’s profits (that were due to the hiring of the skilled workers), and though they clearly don’t have as strong a right to the profits as he does, they do have a claim on a portion of them.  Broadening it further, it’s actually irrelevant that some people are firm owners in the same industry, or that some people weren’t even alive at the time the profits were made, because as you have argued, right is not conditioned upon ability, race, or gender. 
    [Note: As you will likely take exception with this example as there are no inherent rights to the labors of another, unlike in your argument (where you asserted inherent rights based on original common ownership), note that I am presently only responding to the argument that opportunity or possibility equates to right.]
    Hopefully my redundancy nevertheless helps get my point across.  Just as the firms did not have an inherent right to hire those who came under contract—though they did have the right of action to do so—nor does an individual have a right to property which he does not own, yet has the right of action to acquire. 
    Upon my assertion that one does not have an inherent right to unowned property, you wrote, “I ‘note’ no such thing. What else but a natural right do you call it, a happy circumstance of fate?”
    I urge you to reconsider your understanding of natural rights and Natural Law.  Call it fate,* fortune, or whatever you wish, but indeed it is no natural right.  Similarly, others fail note that one does not have the right to food, shelter, health care, education, etc., but they are still far from able to demonstrate this based upon Natural Law.  Rights cannot be pulled out of a hat merely because they feel good or seem logical.  As I have asserted that no such right to acquire unowned property exists according to Natural Law, the burden is upon you to illustrate from where it originates.  I am glad, however, that you did recognize the importance of this point, as it is one of the key assertions that must be true for your argument to hold water.  Unfortunately, just as with other assertions, this is, according to natural law, entirely unfounded. 
    *[Note: While you facetiously characterized one’s access to unowned property as “a happy circumstance of fate,” it could easily be argued that on the contrary, being born at a time sufch as now when essentially all valuable property is claimed is an infinitely happier circumstance of fate, as the amount of labor required to obtain wealth (let alone mere subsistence or leisure) is now much smaller thanks to enormous advances in the development of human and physical capital.  However, this is all moot as one’s good or bad fortune is irrelevant to one’s rights.  There is no law of equality or justice that stipulates that all are entitled to one’s good (or bad) “fate” or fortune.  Is one farmer entitled to a portion of the rain that falls only on the other farmer’s fields?  After all, it was unowned before the other used it (and completely unclaimed in the clouds).  I think we can agree such a proposition is absurd and unjustified by Natural Law.]  
    You offered the following analogy: “Jill bakes a pie and offers it to Jackie, Janet, and Jane. Jane eats half of the pie…” 
    Despite your intention, your analogy fails to rebut the points I made about the nature of your assertions as it does not accurately represent what you and I are discussing.  When property rights are acquired to some sort of property, it is not the case that it no longer can remain an object of pursuit as per your food example.  This is particularly the case when speaking of “real property,” which is what I had in mind.  While it depends upon the owner as to whether or not the efforts/means to acquire it are worthy of exchange, the only right ever had in relation to it—the right to make efforts to acquire it—still remains.  (Recall my statements on accurately wording the rights one possesses under Natural Law—that one has the right to make effort to acquire property, rather than a right to property or a right to acquire property. [This is important—more than just a quibble.])  Once again, your argument rests upon the assertion that one has property rights to property which he does not own, or rights to something one merely has the right (of action) to make efforts toward acquiring.
    You wrote, “What happened to the ‘common to all men’ portion of the second addend?  Locke’s equation doesn’t account for it and your arguments have not helped.”  
    I have contended that the equation you constructed from Locke’s assertions is inaccurate to start out with.  Again, from the start, I have asserted that the belief that the earth was commonly owned by all men was false.  This was why I provided an alternate view of the bestowal of the earth to mankind (to that of Locke’s,* which was based on the foundation of a certain interpretation of the statement he takes from Psalms that “God has given the earth to the children of men”), which I provided in my first response (the concept of property—or stewardship over it—being given directly to individuals, rather than the interpretation that it was “owned in common”).  Hopefully this will clear up the confusion over why this was included.  As for being “unsubstantiated,” I considered the concept of men as stewards to be well-known in our mutual canon for natural law—scripture—so I’m surprised you describe it thus.  Nonetheless, here is an answer to that objection.  It is true that Locke did not successfully go from point A to B in his argument about property rights.  However, it was his premises that were incorrect, not his conclusion. 
    *[Note: You wrote, “You first argue that Locke did not mean that in the state of nature the earth was owned in common by all.”  However, if you go back and reread my first comment, you’ll find that I never made such an argument.  That’s why I said “Locke’s narrative aside, the framework of bestowal may be more accurately depicted…”  (Not an especially important point in the debate, but a mischaracterization nonetheless).]
    “You next claim that my argument for residual rights is fundamentally confused because it conflates ‘the opportunity or right to make efforts to acquire something and property rights to that thing.’ Are you asserting that there is a special category of right called ‘property rights’ that is different in kind from the right to unowned property that is ‘common to all men’?” 
    I’m asserting that you can’t have property rights until you have property.  (Also refer back to my point about the impossibility of property being unowned and owned at the same time).  I’m arguing that there is no inherent right (nor property rights) whatsoever to unowned property, nor is it ‘common to all men.’  As I previously argued, while there is a right of action to pursue ownership of property (both owned and unowned) there is no natural right to obtain or attempt to obtain un-owned property.  When unowned property happens to exist for an individual to attempt to obtain, he may make effort to do so; however, this happenstance does not mean all have an inherent right to such property.  Similarly, while one has a right to use his means and intellect to pursue opportunities of wealth or prestige, he has no right to those opportunities—or the wealth resulting from them—that may no longer be available to him due to another’s more timely exploitation of them.
    In conclusion, in order to successfully establish the existence of “residual rights,” the onus is on you to demonstrate where Natural Law establishes ownership rights to unowned property. 

  12. Quincy says:

    Your first objection is based on a logical fallacy called equivocation. Equivocation is to deliberately use a definition different from the one used previously in the argument. You fruitlessly argue that my argument fails logically because I have labeled property that is owned in common by all as unowned property. I believe it was perfectly clear from my original post and my succeeding comments that when I used the term “unowned” to describe property that was common to all, I meant that there was no single individual or entity that could be identified as the owner of all of the rights associated with the property. In other words, no one individual had greater right to the property than any other. Equivocation doesn’t promote meaningful discourse.

    You next cast aspersions on the idea of a spectrum of ownership rights. This suggests to me that you spend too much time in the binary world and not enough time in the real one. Determining who owns property is a messy business. For hundreds of years judges have struggled to find a good system. Consider the following scenario. A hunter is pursuing a stag in an unowned forest. He tracks and chases the stag for several hours, tiring it, and cornering it. As he is about to shoot the stag, however, another hunter sees the stag, shoots it, and kills it. Suppose also that the first two hunters are delayed in reaching the now dead stag by a deep intervening ravine. While the first two hunters are finding their way around, a third hunter finds the dead stag. Since he sees no one around to claim the stag, he butchers it, packs it in ice, and takes it home. Clearly each of the three hunters invested labor and/or resources. Who owns the stag? Why? The point of this scenario is to show that, in the real world, it is not always clear when or how property rights adhere and that different individuals pursuing the same piece of property will have differing degrees of rights to that property. If you need more examples, I am happy to provide them.

    Next you argue that if property is owned in common by all, then no one could ever lay claim to it because that would violate the natural rights of everyone else. Once again your narrow, one-size-fits-all assumptions about property rights mislead you. The plain truth is that there are many different kinds of property rights: the right to exclude others, the right to possess, the right to sell or lease, the right to inherit, the right to the profits generated by the property, the right to extract minerals, and many others. You have assumed that if property is owned in common by all, then the rights inherent in that ownership must include the right to exclude others from possessing that property. This is a false assumption. It would be nonsense to claim that property is owned by everyone in common but that each individual—as part owner—has the absolute right to exclude all others from using the property. I don’t think Locke’s theory of property is nonsense. The right that an individual has over unowned property (aka property owned in common by all) is the right to mix labor with a portion of that property and to create with that labor stronger property rights over that portion. It is this and only this right that residual rights theory seeks to protect.

    Your next objection—taking the form of two supposed counterexamples—is an example of the logical fallacy called false analogy. You first analogized the discovery of cancer to the claiming of natural resources; you next analogized the hiring of workers to the claiming of natural resources. Both of these analogies fail because neither the discovery of cancer nor the hiring of workers involves claiming unowned natural resources. By discovering the cure for cancer, your scientist didn’t appropriate any unowned natural resource. Even less so the firm that hired the top workers, since people are clearly not natural resources that can be owned or claimed. In other words, there was never a common right to possess a natural resource called “the cure for cancer” or a natural resource called “the top workers.” Neither of these are part of the property owned in common by all.

    The remainder of your comment—if I understand it correctly—argues that liberty interests (which you also call freedom of action) are different from property rights and that the right to claim unowned property by mixing labor is a general liberty interest that is not violated when others decrease the pool of unowned property by claiming it. Although you are right to distinguish between general liberty interests and property rights, your categorization of residual rights as a general liberty interest is incorrect. As I thought was clear from the previous discussion (particularly the pie example), residual rights do not originate in the general liberty interest of individuals to be free to claim unclaimed property. Residual rights originate in the right to claim—through the mixing of labor—a specific body of property—unowned property. In other words, residual rights derive from the decrease in the body of property owned in common by all rather than from a restraint on individual liberty. So, while it is true that “one’s right to life does not equate to a right to some other life form, but refers to one’s own life,” this analogy is irrelevant because residual rights do not derive from a general liberty interest such as the right to labor; they derive from the right to claim—through the mixing of labor—part of the supply of unowned property.

    Finally, lest you misunderstand the purpose of this and other related posts, this discussion of residual rights is not meant to eliminate private property rights. It is meant to show that private property rights are not absolute. I don’t know what precisely you believe property rights include, but I expect that if you examine your beliefs you will discover that they include some assumed limitations.

  13. Quincy says:

    I have discovered that my criticism of Locke’s theory of property rights has been voiced before:

    One strength of this labor theory of value is that it posits that all individuals own their own labor; otherwise, how could they be entitled to mix it with some unowned thing? But the labor theory of value runs into difficulties even if that point is accepted. Thus, one recurrent criticism of Locke is that his theory at best accounts for why the first possessor or occupier should have a lien for his labor expended, but not receive outright ownership of the land or thing in question. Locke tried to duck this difficulty by choosing an example that almost made the problem disappear—ownership of the uncleared and rocky fields of his day—answering that 99 percent of the value in the land was attributable to the labor added to it. … Locke’s own example did not allow him to bridge rigorously the small, but theoretically significant gap that remains. Ninety-nine percent is not 100 percent: What should be done with the unearned increment, however small, that nature has supplied? The gap between 100 percent and 99 percent keeps its importance because it separates the universe of determinate solutions from that of probabilistic calculation. Lodged against an intuitive natural rights theory, these objections have conclusive force …

    Richard A. Epstein, Principles for a Free Society 26-27 (1998) (citations omitted).

    At this point which quip is more appropriate, “so much for originality” or “great minds think alike”?

  14. William Wallace says:

    I believe that at this point in our discussion we are close to being able to clearly identify and agree on our points of disagreement.  However, it appears that you still misunderstand a number of my arguments.

    Once again, in your haste to identify that which you could label as a logical fallacy, you missed my main points, mistaking what I wrote for a different meaning.

    Firstly, in your allegation of equivocation you misunderstood my main purpose in pointing out the semantic incongruity.  The issue is much greater than apparent semantic contradiction.  Be assured that my concern was not so juvenile as to say you had inadvertently used contradicting terms and therefore erred on logical grounds.  Indeed, it was, “perfectly clear” what you meant, and yes, you treated both the terms (“unowned” and “owned in common”) consistently the same, yet that is what I take issue with.  It goes back to our central point of disagreement.  You accept the premise that the earth is owned in common, which Locke infers from his reading of a couple passages in the Bible, while I reject that view in favor of the one I articulated, finding it more in accordance with Natural Law (why you left this point unaddressed I do not know, as your argument rests upon establishing a basis for this doctrine of common ownership rights) per my cited references.  You believe that “unowned” property is always (to some degree) owned by the collective, while I maintain that unowned property is truly unowned—having (as previously mentioned) “no accompanying property rights.”  You favor a philosophy akin to fee simple—justifying the state and taxation—while I maintain the possibility of allodial ownership.

     Nor do I reject the “bundle of rights” concept, as you inferred.  It is true that mineral rights, water rights, clean air rights, etc. are commonly traded separately in the marketplace, according to voluntary contracts and Natural Law.  It is also true that determining rights can be a very difficult, complex issue, as I have already noted earlier (see my first post), and as you have illustrated per your stag/hunters example.  I do, however, reject the contrasting theory of a spectrum or “continuum of rights” a la Dan Bromley*, which is essentially what you describe.  His theory is also based on the idea of public ownership rights always residing in all property.  The theory holds that rather than having to be given financial concessions to use their property in “socially desired ways” (as the public would like) as is the case under existing property regimes, property owners would rather have to pay to use their property in new ways under the alternative “continuum of rights” view.  I have no doubt that you would reject where he draws the line between public versus private ownership on his spectrum or continuum of ownership rights, and therefore the conclusions that he comes to, yet his justification is the same as yours: public or collective/common ownership (or “residual”) rights always residing in all property.  To me this is not only unsubstantiated by Natural Law, but it is dangerous because it establishes a justification for undermining property rights.

    *[Note: While previously I spoke of your residual rights theory as one which would be pleasing to statists due to its similarities to collectivism, unbeknownst to me at the time, such doctrine is actually held and advocated by collectivists.  See Bromley’s: “Private Property Rights and Presumptive Policy Entitlements: Reconsidering the Premises of Rural Policy”]

    In sum, while I recognize that various rights to one allotment of property can be owned separately, as per the “bundle of rights” theory, I reject entirely the notion that the collective always possesses “common ownership,” or what you have termed “residual rights” in property, according to the “continuum of rights” theory.  Moreover, while property ownership disputes can be difficult to resolve in real world instances, I do not know of any Natural Law framework that can be referred to for resolving the property ownership questions that are inherent in or arise from your theory.

    Your desire to find logical fallacies also seemed to cause you to miss the purpose of my two examples.  If you recall (as it was specifically stated), the only purpose of each was to refute your assertion of “opportunity” as a basis for a right, and the corresponding argument that the limitation of opportunity resulting from one’s exploitation of a limited resource constitutes an infringement upon the rights of another to whom the opportunity is no longer available.  I addressed the other bases you gave for residual rights elsewhere.

     Aside from this opportunity basis, and the above mentioned “common ownership” basis, there is one more related basis to which you allude in attempting to establish the existence of residual ownership rights (it seems the terms “residual ownership” or “residual property” rights would more effectively describe what you are arguing for).  You stated, “residual rights do not derive from a general liberty interest such as the right to labor; they derive from the right to claim—through the mixing of labor—part of the supply of unowned property.”  As I said previously, while one has the right (through freedom of action) to make effort or attempt to acquire property, the idea that one has a right to property (whether conditional upon performing certain actions, or merely due to one’s existence) is a false positive rights claim, entirely unsubstantiated by Natural Law.  Moreover, as I also noted previously, the alleged right to claim “part of the supply of unowned property” is meaningless once all the property has been claimed.  My challenge to your assertion that all have a right to claim unowned property also remains unanswered (an assertion which would require that some property be returned to “the commons” at the birth of every child, once all property is claimed).

    In conclusion, there is one more argument which unquestionably puts the nail in the coffin of residual ownership rights as a justification for the state.  Supposing for a moment that there was a Natural Law justification for pre-existing “common ownership” of property that irrevocably resided therein, such a reality would in no way justify aggression by one party against another to form a state.  No more would it provide a justification for forcing one individual to pay for another’s food or shelter than it would his defense or legal system.  Why?  Because no one has a pre-existing right to any of these things.  A common fallacy held by conservatives and liberals and liberals alike is that an individual has a right to such public goods as a national defense, a court system, or roads.  However, one has no more right to a road or an army than a library, food, school, or health care.  All of these items are but goods or services to be attained through labor.  Use of coercion or aggression to provide any of them is immoral and runs counter to Natural Law.  In other words, were they to exist, “residual rights” would not provide a justification for aggression to provide any such items, nor the forced inclusion into any state.

    Consider the following scenario.  Looking across his farm to that of neighboring Farmer B, Farmer A concludes that by virtue of his residing ownership in Farmer B’s property he can coerce him to contribute to pay for a security guard for the both of them.  Arriving at the neighboring farm, Farmer A tells Farmer B that he must pay the just amount (assuming for a moment that there is such an amount, and that it can be ascertained from the “common ownership” doctrine) of money for the purpose of hiring a security guard, assuring him also that due to mutual common ownership in each other’s property Farmer A would also pay the same.  Farmer B for whatever reason declines (perhaps he distrusts Farmer A, perhaps he has the money he needs for his own security guard, perhaps he disagrees that there is a need for a security guard, or perhaps he’s just a cranky farmer who doesn’t want to participate).  Farmer A informs him that he must provide the money or he will cage him, steal from him, or cause damage to his life or limb.  Would Farmer A be acting within his rights in such an instance?  Of course not.  Natural Law prohibits it.  Indeed, such behavior would violate Farmer B’s Natural Rights.  Would this change if Farmer A had the support of the majority of the surrounding farmers?  Every surrounding farmer?  The entire world?  Obviously not.  It would still be wrong—in violation of Natural Law.  The doctrine of “common ownership” would in no way establish a basis for forceful democratic rule.  At most it could be required that individuals pay some amount to one another based upon residing ownership, with no basis specifying to what payments should be directed (this would also have a rather circular outcome, unless some doctrine of proportionality according to land ownership were imposed).  In other words, it in no way refutes the non-aggression principle.

    The story need not continue further, but unfortunately it has often concluded with the largest group that accepts such immoral, coercive actions forcing the less powerful to meet their demands.  In more positive cases, it happens that the dominant segment recognizes Natural Law and limits themselves to actions allowed by it, using force only to prevent the crimes committed by the likes of Farmer A.  While there is nothing wrong with a group accepting a self-limiting social compact or constitution, it must be done voluntarily (such agreements then become merely private contracts, as Jordan notes) for it to be in accordance with Natural Law (as with the states accepting the Constitution, coercing none to ratify it).  While the merits of self-binding contracts are debated among anarcho-capitalists, as long as they are made without force, they do not violate Natural Law.

    The conclusion is clear.  Though strangely difficult at first to grasp and accept, there is but one choice for a consistent adherent to Natural Law to make: freedom.  It is the singular, unavoidable conclusion to be made given an unflinching acceptance of the timeless, unchanging principles of Natural Law.  In the words of the great William Wallace, FREEDOM!!!

  15. Quincy says:

    If I understand your position correctly, you believe that absolute property rights can be justified as follows:

    Premise 1: Every person owns himself absolutely.

    Premise 2: Absolute self ownership necessarily implies that a person owns his labor absolutely.

    Premise 3: Natural resources in a state of nature are unowned.

    Premise 4: No person has a right of any kind to unowned natural resources.

    Premise 5: Mixing something that is unowned with something that is absolutely owned results in the whole mixture being absolutely owned.

    Conclusion: Therefore, when the laborer mixes his labor with unowned natural resources, those resources become the absolute property of the laborer.

    Our discussion so far has revealed that at the very least we disagree about premises four and five.

    Concerning premise four, our disagreement seems to stem from differing conceptions of what equality demands. I believe that a scheme of rights that treats individuals differently due to an accident of birth—specifically order—violates the principle of equality and is therefore unjust. The essential injustice is that two individuals, between whom the only significant difference is date of birth, possess different rights.

    In an effort to justify this result, you argue that appropriating unowned natural resources is an opportunity rather than a right, that there is a meaningful difference between an opportunity and a right, and that mere inequality of opportunity is not problematic in the way that inequality of rights would be. Trying to illustrate this, you presented two examples: the opportunity to discover cancer cures and the opportunity to hire top workers. But an unowned natural resource—particularly unowned land—is different from cancer cures, top workers, etc. It isn’t just another opportunity.

    It is difficult to pin down the essential quality of natural resources that makes them different. Maybe it is because their value does not depend upon the actions of another person. Maybe it is because they are a prerequisite for human survival. In the case of land, maybe it is because land is defined by location, so claiming ownership of land involves claiming space. I’m not sure what the essential factor is, but I am convinced that natural resources are different. They are never purely unowned in the sense that you propose. Consequently, I don’t find your examples and arguments persuasive. I believe that there are rights involved.

    Perhaps another example will illustrate my position.

    Suppose a person in a state of nature began wantonly destroying unowned natural resources: poisoning water sources, scorching forests and grasslands, slaughtering animals, demolishing mountains and hills, dispersing mineral deposits, burning oil reserves, and so on. May he rightfully be stopped from wreaking such pointless destruction? I think so. Just because the resources are not formally owned by anyone does not mean that they may be freely seized or freely destroyed. This is evidence of some kind of right—call it common ownership if you like—but a right of some kind.

    But perhaps our intuition about these things is simply different.

    Concerning premise five—that mixing something that is unowned with something that is absolutely owned results in the whole mixture being absolutely owned—this seems like a rather fantastic claim to me. It simply isn’t reasonable. The idea of mixing labor with unowned resources is obviously an analogy: labor is not a tangible thing that can be mixed; it is human action over time. But even adopting the analogy, think of what happens when you mix two substances together—sugar and water for example. The resulting mixture is neither pure sugar nor pure water. It is sugar-water. If we apply a mixing analogy to justify property ownership, then it seems an abuse of reason to then distort the analogy and claim that by mixing owned with unowned the result is purely owned. Refer to Professor Epstein’s quote that I included in my previous comment for another good argument.

    As for your parade of horribles—similarities with collectivism and possible majority tyranny—they are irrelevant to principled argument. Like I said before, “similarities to collectivism” are not in themselves a reason to abandon principle in favor of consequentialist compromises. Perhaps if we were discussing realpolitik such similarities would concern me. But where first principles are the issue, pedigree and consequence are irrelevant. Furthermore, your example of farmer A and farmer B, and your insistence that residual rights would require a constantly replenished pool of unowned property, is a simply a mistaken application of residual rights.

    Several times you referred to residual rights as “residing rights.” Perhaps this caused your mistake. The term “residing” does not imply a limit in quantity. A “residing” right could very well include the full value of the resource. Happily, the term “residual” does imply a limit. From the OED: “Remaining; still left; left over; (also) of or relating to a residue.” From Webster’s “residual”: “of, relating to, or constituting a residue.” And from Webster’s “residue”: something that remains after a part is taken, separated or designated.” In other words, residual rights are those rights which to which the claimant is not entitled even after mixing his labor. The strength of these residual rights depends upon the labor that the claimant invests in comparison to the value of the resource. Factors that may be relevant in determining the resource’s value are its scarcity and its size. So a claimant who simply fences a piece of land wouldn’t have as strong a right as one who builds a home.

    As I wrote in the post that gave rise to this discussion: “These residual rights must not impose a burden on the claimant that is greater than the burden that the claimant causes by his claim. That would violate the principle of proportionality.” Of course calculating the burden would be a nightmare, but again that is a practical consideration rather than a principled argument.

    I expect that you still won’t be persuaded to abandon your “allodial ownership” theory, and perhaps there is an argument somewhere that would satisfy my concerns. But I haven’t seen it yet, so for now I can’t accept absolute ownership based on a labor mixing as anything other than a fiction devised to serve a political purpose.

  16. […] reasons I explained in a previous post (and my lengthy explanatory/rebuttal comments), I don’t accept the idea of absolute private property rights as proposed by Rothbard. This […]

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