The question of whether external resources, including land, can be justly acquired in the first instance remains a highly controversial subject in political philosophy. The reason for this is that the possibility of appropriating natural assets in a morally unobjectionable fashion is an essential part of the larger narrative that justifies the institution of private property for those who follow in the tradition of Locke, including most particularly Robert Nozick. On this account, a just claim to natural resources is established when an individual invests his/her time and labor improving the asset in some substantial way, and other persons are not disadvantaged in the process, either because there remain other equally good resources available for appropriation or because of the general benefits gained from the institution of private property.
Assuming that land can be acquired in a morally innocent way to start with, it can then be transferred in a series of sales, gifts or bequests down to its current owners. If these transfers are themselves unobjectionable, the current owners can then justly claim full capitalist rights to their property.
The purpose of this post is to explore the force of one of the most commonly heard objections to Lockean appropriation. That is, whatever the theoretical potential for just initial acquisition, in actual fact most of the land currently constituting the United States was stolen from its rightful owners, the indigenous peoples, and therefore most current claims of land ownership are fatally flawed from the moral perspective. Accordingly, it would not violate the moral rights of the current owners were the state to tax the value of their property in order to promote “social justice.” For the reasons outlined below, I think this argument is far less powerful that it seems at first blush.
My reservation is based on the fact that injustices committed against Native Americans by the colonists of this nation do not cast into doubt the justice of private property generally, but give rise at most to a right of rectification held by the aggrieved party. In other words, in the case of wrongs done to the indigenous peoples only they, and not other people or the state, have a claim against current landowners. This follows from the fact that, by hypothesis, the settlers fulfilled the conditions for just appropriation relative to all other members of society. Moreover, for a variety of reasons the claim for rectification may fail, leaving the current owners with a morally clean title.
First, the tribe victimized by illegitimate force or fraud may no longer exist and it may not be possible to trace any of its descendants. In this scenario, there is simply no party available to assert the rectification claim. Second, even if we are able to identify a tribe or the descendents of the original tribe members that suffered the past injustice, the passage of time may render rectification no longer appropriate. For one thing, many generations after the original fraud or unjust taking, there may simply be no way to determine whether the claimants are any worse off now than if the wrong had never occurred. This is the inherent difficulty of counterfactuals.
Finally, rectification may already have occurred as a result of federal payments and benefit programs, and grants of special privilege (i.e. casino gambling). Accordingly, foes of private property cannot simply rely on the existence of widespread injustices committed against the native peoples to justify policies of redistribution because (i) only the aggrieved parties have “standing” to assert such claims and (ii) even if they are asserted by the appropriate parties, these claims may in any case no longer be viable.
As with many prior posts, I do not claim to have thought this idea all the way through, and I certainly do not claim that it is a “bullet-proof” argument. Accordingly, I welcome all comments on this topic.