APPROPRIATION THEORY

Like Hobbes, Locke wanted to justify the enormous economic inequal-ity that existed in England in the seventeenth century, but he went about it in nearly the opposite way. Hobbes justifi ed inequality by arguing that property rights are a product of the state. Like all other rights, they are doled out arbitrarily by the sovereign, and unless it asks for input, anybody who complains about it violates the social contract (Hobbes 1962 [1651]: 186; 1998: xv). No matter how poor or rich you are, the same government that created arbitrary inequality saved you from that awful state of nature, and so you accept it.

Locke rejected absolutism, but he wanted to limit potential redistri-bution of property by the legislature, and so he did not want to portray private property rights as a creation of the state. He proposed instead an “appropriation theory” that pushes the creation of property rights back into the state of nature.

In Locke’s state of nature land and other resources initially “belong to Mankind in common” (§25–§27). Apparently, that is, the land is a “commons,” which is not quite the same as joint, public, or state ownership. In those forms of ownership, some central authority capa-ble of making decisions for the group has full ownership rights over the resource, and they can build on it, alter it, divide it up, sell it, and so forth. A commons is closer to collective non-ownership than to

public ownership. In an open commons, anyone can use the resource but no one can take (or at least no one has taken) ownership of it.

In a closed commons, the members of a group treat it as a commons among themselves, but assert exclusive rights over it against outsid-ers. The atmosphere and the oceans remain, to a great extent, an open commons. Although a road system is usually offi cially owned by a government, it tends to be treated as a closed commons in the sense that everyone with the legal right to be in the government’s jurisdic-tion can use it. Justifi cajurisdic-tions of private property nearly always justify it against the starting point of common ownership rather than one of full public ownership.

Locke’s framing of the question in this way made his claims about the state of nature more obviously empirical than Hobbes’s claims about it. For Hobbesian theory, it does not matter whether the state of nature preceded the establishment of sovereign governments, only that it is the natural alternative. For propertarian theory, the order in which things happen is important. Locke’s appropriation theory recognized the rights of property owners against non-owners based on their prior, historical claim to their land, but he was aware that the land was a commons before any private owner established historical claims. The historical nature of Locke’s theory led him to the need to justify holdings against the property institutions (or lack thereof) that prevailed before private landownership. It also justifi ed property rights against the natural alternative in the sense that a commons is what would exist if neither government nor landlords asserted any authority over the resource in question.

As Chapters 9 and 10 argue, the historical claim that some form of commons came fi rst is more or less accurate. At some social scale and likely with some constructs of territoriality, all nomadic hunter-gath-erers treated the lands as a commons. Sometimes they likely did so as an open commons, sometimes as a partly closed commons, rarely or never as a fully closed commons. Some settled hunter-gathers treat land more like private, public, or royal property, but nomadic hunter-gatherers preceded settled peoples (including settled hunter-hunter-gatherers) to almost all of the earth’s land area.

In Locke’s theory, and in most propertarian theory, a commons is naturally available for appropriation (§26–32, §36, §48). How appropriators establish property rights and what gives them the moral authority to do so remains controversial even among propertarians

(Nozick 1974: 174–82; Narveson 1988: ch. 7; Waldron 1988: 161–2, 168–74; Kirzner 1989: 18–19, 98–100; Epstein 1995: 60; Sreenivasan 1995: 28–9; Otsuka 2003: 21). These aspects of the theory are inconse-quential for the discussion here. But it is important that once property is established, it is a natural right that owners can trade, bequeath, or give to others. In propertarian theory, property titles are not mere legal creations as they are in Hobbesian theory. They are natural rights that exist prior to the state in time and/or in moral authority. Unless current property holders have violated some tenet of the theory, their property titles put ethical limits on the government’s power to tax, regulate, and redistribute property. The extent of these limits varies greatly from theorist to theorist, but for the issue at hand, it matters only that the proviso plays a part in justifying those limits—whatever they might be.

In Hobbesian contractarianism, everyone is protected by the proviso and only the proviso. The government could deny freedom of speech or any other basic right, but as long as, all things considered, you were bet-ter off without those rights in a state than with those rights in the state of nature, the government was still justifi ed by consent. In Lockean theory, everyone is protected by both the proviso and by a somewhat vague list of basic rights. If any of those are violated, people are presumed not to consent even if, all things considered, they are better off in state soci-ety. The most clearly specifi ed right on Locke’s list is the right to prop-erty. This right is not to a specifi c share in the ownership of the earth’s resources; it is the right of people who already own property to keep it.

In Hobbesian theory, the only thing that protects anyone’s mate-rial wellbeing is the proviso. In Lockean theory the only thing that protects a propertyless person’s material wellbeing is still the proviso, but property owners have both the proviso and their natural right to property to protect their wellbeing. This difference is substantial.

The propertyless are allowed to compare their position only to an equally propertyless position in a (presumably poverty-ridden) state of natu re. The propertyless may not imagine entering some other social contract that secured higher wellbeing for them by granting them a greater share of the ownership of the earth’s resources because they have no natural right to those resources beyond the very minimum amount secured by the proviso.

Property owners, by contrast, are allowed to make two or more comparisons to protect their wellbeing. They can consider not only life as a propertyless person in the state of nature; they can imagine

holding their property in the state of nature. And perhaps, if they think that taxation, regulation, or redistribution is excessive, they are allowed to imagine entering some other social contract that had greater respect for their natural right to the property they have acquired. This comparison follows from the view of property as a natural right. Even if the property owners’ material wellbeing in state society far exceeds what they could expect to secure from their property in the state of nature, they have a natural right to exercise that property as they see fi t in state society as long as the proviso is fulfi lled and they are within whatever limits to property the theory affords.

In Hobbesian theory, everyone enters the contract as an equal, but the state is allowed to create arbitrary inequality. If the rich think that taxation, regulation, or redistribution is excessive, they have to imagine giving up all their property and going back to a (presumably horrible) state of nature where they are just as badly off as anyone else in the state of nature.

In Lockean theory, people do not enter the social contract as equals.

At least some material differences between people are non-arbitrary, fl owing from the difference in their natural rights that are thought of as existing prior to the contract. This conception of property rights creates the possibility that the state could be too generous to the disadvantaged if doing so requires excessive taxation, regulation, or redistribution.

This book does not question either theory; it only examines how the Lockean proviso and the Hobbesian hypothesis play similar roles in both theories.