Is Non-Lockean “Justice in Acquisition” Possible?

Even while acknowledging the prevalence of great historical wrongs that may cloud existing land titles, libertarian theorists have nevertheless felt compelled to provide an account of how natural resources, particularly land, may be justly acquired in the first instance. See my earlier discussion here: // The absence of a plausible theory of just initial appropriation would invite the claim by egalitarians that since natural assets could not, even theoretically, have been acquired in a morally legitimate fashion, the value they represent should be redistributed in the name of social justice. The classic libertarian justification for original appropriation follows Locke in holding that land may be converted from common use to individual ownership by transforming it through labor, typically by homesteading. See ASU, 174-82.

To my knowledge, there has been relatively little attention paid to the question of whether the improvement of natural resources constitutes the exclusive means of acquiring initial ownership of raw land or other natural resources in a morally innocent manner. Some so-called “left libertarians” do make this claim, which if true it implies that vast quantities of privately held raw land in this country (particularly the West) is in fact not owned at all. In other words, even though the current legal owners of such land paid cash for their real estate in voluntary transactions, the sellers could not transfer a morally clean title because they did not fulfill the development condition. This conclusion would follow even though the chain of title might go back over 150 years, starting (for example) with a land grant from the federal government to a railroad, that subsequently sold parcels to private parties to fund its construction projects.

There is a second interesting consequence of the left-libertarian claim, if true: that is, it renders it impossible, so far as I can tell, to maintain land permanently in a pristine state, i.e. as a nature preserve or the like. In other words, since land can only come to be owned by means of development, no one can claim ownership of  virgin land even long enough to donate  it to an entity like the Nature Conservancy. All land, however aesthetically pleasing or environmentally sensitive, is subject to development.

Fortunately, I contend that there is a good argument against the claim that homesteading or the like is the sole means of justly claiming initial ownership of land. My argument rests on the commonsense moral principle that persons should not suffer serious harm as a consequence of actions that they take in good faith, reliying on existing laws. Our jurisprudence has institutionalized this principle in various ways. For example, the law recognizes the good title of a “bona fide purchaser for value,” i.e. a person who purchases (stolen) personal property without actual or constructive knowledge of the theft, against all but the true owner.   

A second example is the legal principle of “promissory estoppel.” Under this doctrine a person can collect damages if he reasonably relies to his detriment upon a promise that is subsequently withdrawn. So, if uncle Joe promises his nephew Bob that he will reimburse him for the cost of purchasing a used car, and then Joe reneges after Bob (relying on his promise) buys one,  Joe is liable for the purchase price (even though his promise was entirely gratuitous).

The obvious application of the above-cited moral principle to original land appropriation is that even if the state suddenly disappeared (perhaps as a result of an anarcho-capitalist political revolution) it would be unjust to divest innocent purchasers who have relied on the state’s enforcement of property rights in raw land over many generations. On this view, even if the state acted unjustly in claiming undeveloped land and then in parceling it out to its cronies, it did not steal this land since, by hypothesis, raw land is not owned in the moral sense. Accordingly, there is no “true” owner who could claim a superior title against the most recent purchaser.

Moreover, the argument that the state’s original sin was not so grave or notorious as to nullify the “bona fide purchaser” analogy is supported by the fact that the state’s role in selling raw land may be necessary if some land is to be shielded from development. In other words, once a society leaves a state of nature by adopting politics and government, the range of our moral concerns moves beyond original acquisition to include also the preservation of intangible assets such as unspoiled natural beauty.

All of the above is quite tentative and not fully thought through, so comments are (as always) welcome.

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