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Natural Property Rights: Where They Fail

Published online by Cambridge University Press:  13 January 2009

Robert Ehman
Robert Ehman
Affiliation:
Philosophy, Vanderbilt University
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Extract

For classical liberals, natural property rights are the moral foundation of the market and of individual freedom. They determine the initial position from which persons legitimately make contracts and assess the validity of collective action. Since they establish the initial conditions of legitimate agreements, they cannot be dependent upon agreements. Persons possess these rights apart from social institutions. Natural rights typically not only prohibit interference with a person's body and mind but also forbid interference with a person's appropriation of unowned natural resources and with his freedom to do as he chooses with the products that he makes from them, so long as he does not infringe upon the equal rights of others. These rights prescribe, as Locke put it, that persons be free “to order their Actions, and dispose of their Possessions, and Persons as they think fit … without asking leave, or depending upon the Will of any other Man”.

Type
Research Article
Information
Social Philosophy and Policy , Volume 15 , Issue 2 , Summer 1998 , pp. 283 - 302
Copyright
Copyright © Social Philosophy and Policy Foundation 1998

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References

1 Locke, John, Second TreatiseGoogle Scholar, in Locke, , Two Treatises of Government [1690], ed. Laslett, Peter (Cambridge: Cambridge University Press, 1960), ch. 2, section 4.Google Scholar

2 Waldron, Jeremy, The Right to Private Property (Oxford: Clarendon Press, 1988), pp. 210–18.Google Scholar

3 Tully, James, A Discourse on Property (Cambridge: Cambridge University Press, 1980), p. 146.CrossRefGoogle Scholar

4 Simmons, A. John, The Lockean Theory of Rights (Princeton: Princeton University Press, 1992), pp. 297–98.Google Scholar

5 Sreenivasan, Gopal, The Limits of Lockean Rights in Property (New York: Oxford University Press, 1995), pp. 100–102.Google Scholar

6 Coase, Ronald, “The Problem of Social Cost,” Journal of Law and Economics, vol. 3 (1960), p. 1.CrossRefGoogle Scholar The problem that I am raising with respect to social costs is not the problem with which Coase is concerned. Coase raises the problem of efficiently allocating social costs. He rightly recognizes that unless there are no transaction costs, the decision as to whether or not to shift these costs affects the overall level of social cost. He proposes to decide on the liability for these costs by reference to cost-minimization and economic efficiency. In this essay, unlike Coase, I assume initial natural rights and am concerned with social costs only when they arise from conflicting exercises of these rights and interfere with the exercise of them.

7 Ellickson, Robert, Order without Law (Cambridge: Harvard University Press, 1991); see especially ch. 3.Google Scholar

8 Locke, , Second Treatise, ch. 8, section 96.Google Scholar

9 Nozick, Robert, Anarchy, State, and Utopia (New York: Basic Books, 1974), p. 178.Google Scholar

10 Ibid., p. 180.

11 Ibid., p. 177.

12 In my article “Nozick's Proviso,” Journal of Value Inquiry, vol. 20 (1986), pp. 51–56Google Scholar, I criticize Nozick's proviso for being incompatible with natural rights to property, on the ground that these rights can no more be limited by their impact on the welfare of others than our right to our bodies or our lives can be so limited. I do not deal with the issue raised in this essay of the conflict of rights that results when one person's exercise of rights imposes a social cost that infringes on another's exercise of rights.

13 Nozick, , Anarchy, State, and Utopia, p. 180.Google Scholar

14 Ibid., p. 63.

15 Protective and judicial services are not themselves public goods. However, having a single agency to handle all disputes and avoid the costs of adjudicating the conflicts among diverse independent protective and judicial agencies is a public good. The monopoly of these services results in positive externalities that cannot be attained apart from the monopoly; and Nozick in effect appeals to these benefits when he argues for the monopoly of enforcement on the part of the minimal state.

16 Gauthier, David, Morals by Agreement (Oxford: Clarendon Press, 1986), p. 203.Google Scholar

17 Ibid., p. 221.

18 Ibid., p. 213.

19 Ibid., p. 128.

20 Edgeworth, F. Y., Mathematical Psychics (London, 1888), pp. 52–56Google Scholar; Harsanyi, J. C., “Cardinal Utility in Welfare Economics and in the Theory of Risk Taking,” Journal of Political Economy, vol. 61 (1953).CrossRefGoogle Scholar

For Edgeworth and Harsanyi, the principle of average utility is not a principle to adjudicate rights conflicts or decide on public goods but a principle to decide all rights. But it can be used in this more limited manner.

21 See Rawls, John, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971).Google Scholar

22 The principle of equal prospective gain must not be mistaken for the principle of fair equality of opportunity. The principle of fair equality of opportunity prescribes that those who are disadvantaged be subsidized by others so that they receive educational and employment opportunities equal to the opportunities of those with similar talents and abilities—so that their overall prospects are not diminished by their social and economic disadvantages. This might or might not be a policy that arises from an impartial procedure, but it is not in itself a procedure for settling conflicts, and it is not in actual fact impartial. For it subsidizes those who are talented but less advantaged economically at the expense of those who are more advantaged economically, and it does nothing for the less talented poor. For a further discussion of the bias of substantive principles and the need to appeal to procedural principles to settle rights disputes, see my article “Constitutional Contractarianism,” Constitutional Political Economy, vol. 8, no. 3 (1997), pp. 179–88.Google Scholar