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.

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!!!

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”?

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.

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.

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.

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.

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 rights—thus 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.