The Widespread Historical Fraud Objection to the Locke/Nozick Account of Original Appropriation

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.





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6 Responses to The Widespread Historical Fraud Objection to the Locke/Nozick Account of Original Appropriation

  1. Simon says:

    I think your analysis is essentially correct here. The beauty of the American situation is that the land was often acquired via homesteading and the time period in question is not too far back in the dim and distant past. This means that claims for unjust acquisition seem possible and, where proven, rectification can be entertained.

    In these respects, the situation in Europe and other older countries is different and this approach may not be feasible. Titles may go far too far back in the past and may not be subject to verification. In addition, the title may not inhere n the original developer or his/her successors via inheritance or sale. It would appear that a different approach will therefore be needed. One possibility is the thought that the ownership rights of previous owners will have decayed over long periods of time, such that none of their original investment remains. I mention this only as a possibility. It requires a lot more work and the results will be a lot messier than the more clear cut position of homesteading in the relatively recent past.

    • Mark Friedman says:

      Hi Simon,
      Good to hear from you again, and thanks for the thoughtful comment. I agree that the situations with respect to the rectification of past injustices may differ in the New World and the Old, due to the factors you cite. As I am sure you are aware, the entire problem of rectification is a difficult one, and no single theory has gained widespread acceptance. My own view is that when we start talking about social transformatiuons, rather than individual cases, the difficulty of counterfactuals begins to make rectification problematic after a few generations.

      For example, suppose that the European colonists never arrived in the New World. This might be seen as the imaginary baseline against which the actual injustices done to the indigenous peeoples might be measured. Is their current condition better or worse than it would have been under the baseline? What do we mean by “better” and how can we determine this? I confess that I don’t really now how to resolve these questions, and thus am somewhat skeptical that social rectification on this scale can be justified, but this is a very tentative opinion.

  2. Simon says:

    Mark – yes, the counterfactual analysis is difficult at any time, but the problem becomes worse the further one is displaced timewise from the original event. I imagine that the baseline could be relatively easily defined: presumably, something like the situation that might have obtained, had contacts between colonists and the indigenous population been purely voluntary. But comparing that counterfactual with the present position is well nigh impossible.

    I think you are right that any wrongs done do not call into question the right of private property generally, nor that some rectification has taken place. But this still leaves open the thought the the rectification is not enough or not properly focused. (Equally, in many cases, it is quite likely to have been too much.) This seems to leave the argument in a position of stalemate. So the argument is not fatally flawed, as some would have it, but neither can it be used to justify present distributions.

    Nozick seemed to see this problem and thus base his case on the Lockean Proviso being satisfied by the free enterprise system. He probably didn’t see what he said in this regard in ASU as more than a starting point of the argument, but it would seem to have been subject to a number of quite potent objections. Personally, I think the initial acquisition case is sound under certain assumptions and the proviso, except in a quite limited sense (Jan Narveson has written on one narrow interpretation), unjustified.

    • Mark Friedman says:

      I think you and I are pretty much on the same page here. I agree that Nozick’s adaptation of the Lockean proviso is a starting point or a framework for the defense of original appropriation, rather than a complete answer. In my book I try to show that the key element in his justification of initial acquisition in ASU is the notion of desert, which he alludes to without much elaboration. If a person invests his/her time and labor in significantly improving a natural resource and in the process harms no one else then they have earned full capitalist property rights. The idea that the claimant must develop the property in order to establish ownership rights cuts-off (I believe) arguments by G.A. Cohen and the left-libertarians that someone could claim all of North America merely by suggesting a new business model that represented no real improvement over the status quo but makes nobody worse off. Nozick certainly understood that the “no worse off” requirement was a necessary but not sufficient condition for just original appropriation.

  3. Vilhelmo De Okcidento says:

    You guys are arguing for feudalism not capitalism.
    Capitalism was to reward work whereas Fuedalism rewarded privilege.
    Distinguishiing from “earned income” (derived from work) & “unearned income” (derived from privilege) they ssed the LTV to isolate Economic Rent, minimizing it where possible, taxing & regulating where not with the goal of bringing prices down to reflect the technologically necessary costs of production to increase national competitiveness.

    • Mark Friedman says:

      Hi Vilhelmo,
      Thanks for the comment, but I disagree. At the apex of the feudal pyrimid the kings and nobles took the land by force. I argue for the justice of Lockean appropriation, under which rights to land must be earned by the investment of time and labor. Quite a different thing, I suggest.

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