Man, Economy, and Liberty

18

Historical Entitlement and the
Right to Natural Resources

Jeffrey Paul

One of the most vexing problems in political philosophy is how to appropriately distribute non-human objects among a given population of persons. The problem has been addressed in a variety of ingenious ways over the centuries. However, recently it has been argued that only one principle of distributive justice, the historical entitlement principle, is consistent with liberty1 (Robert Nozick) and provides a coherent assignment of rights2 (Hillel Steiner). For both theorists, if the normative priority of either liberty or rights is assumed, then the historical entitlement principle follows. This principle holds, in Nozick’s words, “… that past circumstances or actions of people can create differential entitlements or deserts to things.”3 Both theorists believe themselves to be unequivocal in their endorsement of this principle in determining the rightful distribution of objects which have already been extracted from their virginal condition in nature and assigned to a first owner. According to them, ownership, subsequent to this primordial ownership, ought to be determined by the history of successive transfers of that initial entitlement. The conformity or nonconformity of those transfers to the appropriate historical principle will determine the legitimacy or illegitimacy of any subsequent distribution of goods.

The appropriate historical principle according to Nozick and Steiner is the principle of the voluntary transfer of legitimately held goods. The problem for both is to propose a principle of distribution by which an initial assignment of property titles to unowned goods can be justifiably made. While both are attracted to a historical principle of just entitlement according to which assignments of previously unowned virginal objects will be made strictly according to whether the assignee historically produced the object by his efforts; both have difficulty devising a defense of this exclusively historical basis for initial property assignments. Thus, while both claim that a historical principle of entitlement can be applied unconditionally so as to yield subsequent distributions of owned objects, they deny that such a principle can be so applied in the case of unowned non-human natural resources. This denial is significant in two respects. First, both theorists, but especially Nozick, are viewed as uncompromising defenders of historical entitlement on questions of distributive justice. Second, both imagine that this rejection of historical entitlement at the virginal level is compatible with its adoption at the level of transfer.

In this paper, it will be argued: (1) that while both theorists accept the principle of historical entitlement in regard to the transfer of already owned property, they abandon it in their accounts of how property is legitimately acquired from an unowned state, (2) that this abandonment introduces an inconsistency in their theories, and (3) that this inconsistency is not endemic to historical entitlement of distributive justice. In Part I of the paper I will contend, first, that while Nozick intends to be a historical entitlement theorist on matters of initial acquisition, his introduction of the Lockean proviso constitutes a critical breach of the entitlement principle. Next, I will demonstrate that Steiner, in contrast to Nozick, explicitly argues against the entitlement theory as applied to the original acquisition of natural resources. Part II will be devoted primarily to an analysis of why their reasons for abandoning the historical entitlement thesis in regard to original acquisition are erroneous, and why it is inconsistent of them to accept the principle at the transfer level and, yet, reject it at the stage of initial acquisition. In conclusion, it will be argued that a fully consistent historical entitlement view of distributive justice is defensible.

I

In contrast to what they conceive to be their unqualified commitment to a purely historical criterion in deciding what constitutes the legitimate title to and transfer of an owned object, Nozick4 and Steiner both at least partially embrace an end-state standard of distributive justice when the problem of how to assign ownership to unowned objects arises. In order to explicate the basis of their asymmetric treatment of these two issues, we will examine separately their respective positions.

A

Nozick favors a historical approach to issues of income and asset distribution primarily because all teleological standards of economic allocation require, in his view, continual interferences with individual liberty. This historical standard of justice in allocation is applied by him in the determination of the distributive shares of owned objects for a given population in two separate cases.

The first case is that of the voluntary transfer of owned objects. Here, he reasons that if individuals have exclusive title to their physical persons by right, and if certain non-human objects are owned by them, then subsequent rights over the latter are to be determined in the following way. A voluntary transfer of title to an object from A to B occurs and is valid just in case A has done something that was permissible, namely given to B that to which he justifiably had title. The justice of the consequent transfer depends upon the legitimacy of the history of what was done, not some end result sought by either the parties to the transfer or anyone else. The past title legitimately acquired justifies the present act of its conveyance to another.

But, how are legitimate titles created according to Nozick? This brings us to his second and more fundamental application of the historical principle. If someone, A, legitimately owns objects O1 and O2 and by his labor combines them into some new object, O3, then he, according to Nozick, must own O3 as it was created exclusively from the use of things to which he previously had legitimate title, his person, Ot and O2. Thus, a legitimate title to some new object, O3, is created by virtue of the history of its creation, not by virtue of some end result realized by the assignment of title. The history of the O3’s creation reveals that all of the elements whose synthesis gave rise to O3 were legitimately owned by A who, therefore, owns their synthetic product, O3. To summarize the principle involved, if anything, Ox, is created from objects, O1 … On belonging to someone, A, with A’s labor, then Ox belongs to A in virtue of O1 … On and A belonging antecedently to A.

Now we have seen how distributive justice is achieved with respect to two categories of objects, “old” objects already legitimately owned, whose transfer is being presently contemplated, and “new” objects whose production has been achieved through the use of legitimately owned “old” objects. Now, clearly the lacuna exists with respect to a third category of non-human objects, unowned virginal resources. (We have, for purposes of brevity, not questioned Nozick’s assumption that all adult persons are self-owned and that therefore, no fourth category emerges.) While the role that the historical principle plays in assigning ownership to previously owned objects or new ones created from such objects is easily discernible, the part that history might play in unambiguously establishing title to natural, unused resources is not so apparent. This lack of perspicuity in resolving history’s role in establishing title to previously unowned objects is readily understood when we consider that the “new” object issues from the synthesis of that which is owned by someone, his efforts (i.e., the use by him of his body), with that which is not owned, a natural resource. The resultant synthetic object thus has an ambiguous lineage. One aspect of its heritage is encumbered with the vestiges of ownership, another is not. To whom, then, does the newly created object rightfully belong? Its material component was the contribution of “nature,” while the new arrangement or location of that component was the product of someone’s self-owned labor. Thus, the historical principle that Nozick employs in order to affix legitimate titles to previously owned objects and objects newly emergent from previously owned ones does not seem to establish title in the case of the unowned natural resources with which one has combined one’s labor. For how does the unowned portion get transferred to the “laborer”? Who is there to transfer it, given that it is unowned in the first place?

In Locke, of course, this problem does not arise in this form. God, having produced all resources ex nihilo, is their initial owner, and so transfers His rightful title to them to mankind. The problem for Locke, then, is how to transmit elements of what is the collectively held property of humanity to the individual members of that collectivity. It is important to distinguish Locke’s formulation from Nozick’s, as the latter poses far greater difficulties for the construction of a theory of the just acquisition of previously unowned resources. In Locke’s account virginal resources are never unencumbered with ownership and, therefore, his problem is amenable to a historical solution strictly analogous to Nozick’s principle of justice in transfer. That is, given that everything is initially produced by someone, God, and is therefore owned by Him we have only to trace the history of the voluntary transfer of objects, by their original Divine Owner, to determine whether the present human holders of property are the legitimate owners of it. (God, in Locke’s scheme, voluntarily transfers the whole of his creation to mankind collectively, under the proviso that it be apportioned individually by a labor admixture formula qualified by spoliation and fairness constraints.) But, for Nozick, there are no original owners of natural resources because there are no original producers of them and, hence, natural resources that have been transformed by someone are not incontestably that person’s or anyone else’s. How to make them so is Nozick’s problem.

Nozick, first, considers the possibility of developing one type of purely historical basis upon which to assign initial property titles, a possibility which he quickly rejects:

Why does mixing one’s labor with something make one the owner of it? Perhaps because one owns one’s labor, and so one comes to own a previously unowned thing that becomes permeated with what one owns. Ownership seeps over into the rest. But why isn’t mixing what I own with what I don’t a way of losing what I own rather than a way of gaining what I don’t?5

He considers another historical account which he also finds defective:

Perhaps the idea … is that laboring on something improves it and makes it more valuable; and anyone is entitled to own a thing whose value he has created.… Why should one’s entitlement extend to the whole object rather than just to the added value one’s labor has produced?6

Since the whole of an object’s value is not attributable to individual effort, Nozick reasons that ownership of the whole object cannot be justified on the basis that labor has improved it. He supplements this argument against full ownership of the improved object with another against the unconditional ownership of that object:

It will be implausible to view improving an object as giving full ownership to it, if the stock of unowned objects that might be improved is limited. For an object’s coming under one person’s ownership changes the situation of all others. Whereas previously they were at liberty (in Hohfeld’s sense) to use the object, they now no longer are.7

In view of those considerations he concludes that:

A process normally giving rise to a permanent bequeathable property right in a previously unowned thing will not do so if the position of others no longer at liberty to use the thing is thereby worsened.8

Having rejected a purely historical basis for distributing unowned resources, Nozick adopts a quasi-end-state, quasi-historical principle of justice in acquisition. According to this principle any person, A, can appropriate an object, O, if, and only if, his act of appropriation (1) improves the value of O to A and (2) does not worsen the condition of all (or any?) other persons by depriving them of the liberty of using O.9 Further, any person, A, can appropriate O subsequent to his improving O even though he thereby worsened the situation of others, provided he compensates them adequately.10 Thus, Nozick combines in his principle of acquisition two criteria of just ownership, one historical, the other teleological; that is, one referring to what people have done, the other pertaining to their present and/or future welfare. Nozick denies that in introducing this welfare criterion he has thereby abandoned a purely historical treatment of justice in acquisition.11 He argues that the welfare principle he calls “… the Lockean proviso is not an end-state principle; it focuses on a particular way that appropriate actions affect others, and not on the structure of the situation that results.”12 But on Nozick’s own account a social end-state is not merely limited to those of a patterned variety and, therefore, is not to be exclusively identified with such patterned end-states. Any present or future goal which takes precedence over the historical record in determining a just distribution of holdings constitutes a non-historical competing principle of distributive justice. Nozick’s “Lockean proviso” is just such a principle and so, Nozick’s protests notwithstanding, the theory of just acquisition in Nozick represents a departure from the purely historical theory of distributive justice that he believes ought to govern transfers of ownerships. An historical principle may supply a necessary condition of ownership, according to Nozick, but not a sufficient one.

B

While Nozick’s theory of justice in acquisition combines elements of history and teleology, Steiner’s theory involves, in contrast, a wholesale departure from the exclusively historical principle that he invokes for either the transfer of previously owned objects or the manufacture of new objects from previously owned objects. And this is because Steiner considers any historical definition of appropriative rights to be erroneous in two ways. First, it is inconceivable, as it presupposes gross contradictions and second, it generates what, according to Steiner’s criteria, constitutes an incoherent set of rights. Let us consider these indictments in the above order.

Steiner correctly delineates the historical entitlement theory as affixing ownership rights in produced things as a result of their creation by someone from things owned by him. The newly synthesized object, then, is the product of the use made by the producer of entities to which he alone had title. Hence, this synthetic product is his, as well. He deserves this synthetic product because its constituent elements were his initially. And how did he become the rightful owner of these elements according to the historical entitlement view? Well, either he was voluntarily given them by their previous rightful owners or he was the owner of their parts and the catalytic agent that combined them into new wholes. Steiner’s justification of current manufactured entitlements is always in terms of previous ownership and productive agency. However, this leaves unsettled the process by which entitlements to unowned objects can arise, for such objects are undeserved by anyone since no one had antecedently owned them. This suggests that Steiner at least implicitly endorses a principle of desert founded in prior ownership. Obviously such a principle cannot generate entitlements to unowned natural resources. To suggest that it can is to propose a blatant contradiction.

He does, however, seem to recommend another variant of the desert principle which equates “that which is deserved” with “that which is the exclusive result of one’s past actions.” But, this interpretation fares no better as a principle generative of appropriative rights, since the natural resources which are the subject of acquisitive interest are not the result (exclusive or otherwise) of anyone’s past actions. Hence, no one can obtain, on this basis, initial title to them, and so they cannot be used. To imply that they can be so obtained is to subscribe to the thesis that what is unproduced is the result of production, another contradiction. It would seem, then, that entitlement theory cannot be applied to initial appropriation but extends only to the activities of manufacture and transfer. Thus, Steiner concurs with Nozick’s implicit conception of entitlement theory as intrinsically restricted in its unqualified scope to the allocation of previously acquired goods.

Steiner has a second reason for collaborating in this indictment of entitlement theory. It is not related to the previous criticism of entitlement theory’s inability to make use of a desert principle to provide the same foundational support to the problem of initial acquisition that Steiner believes it supplies to the question of subsequent ownership. Rather, it derives from the formal criterion of coherence that Steiner believes ought to apply to any theory of natural rights. Any set of natural rights, Steiner claims, must be universal to all beings with a shared human nature.13 This property according to Steiner, implies another, coherence. Coherence, for Steiner, is exhibited by a set of rights only if the exercise of any individual’s rights within that set cannot prevent the exercise of another’s rights within that set.14 That is, the universality characteristic of natural rights requires that any set of purportedly natural rights be compossibly and contemporaneously exercisable. An incoherent set is one in which there is the possibility that some individual might be constrained in the exercise of his rights by the exercise of someone else’s rights. Such a set, therefore, would not permit the universal exercise of rights by persons and would imply, according to Steiner, the non-universality of such rights. Coherence is achievable only when the objects over which rights are assigned are allocated such that no rightful action can employ an object belonging to another. Such an allocation is one in which there is no ambiguity of ownership:

A rule or set of rules assigning the possession or exclusive use of a particular physical object to a particular individual will, if universally adhered to exclude the possibility of any individual’s actions interfering with those of another in respect of that object. A rule or set of rules assigning the possession or exclusive use of each particular physical object to particular individuals will, if universally adhered to, exclude the possibility of any individual’s actions interfering with those of another in any respect.15

Having already jettisoned any historical grounds, i.e., production or prior ownership, for the determination of appropriative rights,16 Steiner considers what sort of distributive principle would, at least, conform to the formal constraint of coherence that any set of natural rights must embody. Coherence, as manifested in a set of appropriative rights, would require that no acquisition of some unowned object, OU, by person A, would simultaneously exclude the possible exercise of a similar acquisitive right by some other person, B. When does the exercise of A’s right of acquisition constitute a violation of B’s equal right according to Steiner? Only when, he argues, A’s appropriative activity strips B of the opportunity to acquire a “quantitatively and qualitatively similar bundle of natural objects.”17 And why is B entitled to the opportunity to acquire an equivalent collection of natural materials, according to Steiner? Given Steiner’s claim, that no one has manufactured such materials implies that no one deserves them, he believes there is no logically possible standard of assignment that can be universally applied to all human beings other than equal distribution. To deprive persons of equivalent appropriative opportunities (i.e., opportunities to appropriate qualitatively and quantitatively equivalent bundles of goods) would imply a baseless inequality of desert in the determination of the rights to unproduced objects. To prevent some person, A, from access to a bundle of virginal goods equivalent to those to which all other persons B … N have access is, according to Steiner, to deny equal appropriative rights to all and, therefore, to advocate a non-universal set of appropriative rights. And, therefore, according to Steiner, the class of such rights would constitute an incoherent set of natural or human rights because the rights of those with access to more would deny the exercise of equivalent rights by others. Thus, the only set of appropriative rights which conforms to the standard of coherence is one which distributes to each individual “an equal share of the basic non-human means of production.”18 Such a set obviously contravenes the historical conception of distributive justice, and implies an end-state, egalitarian principle. Steiner argues that a historical conception can only be meaningfully realized once an initial distribution embodying this teleological, egalitarian standard has been made. Therefore, he concludes, the Nozickian historical entitlement theory cannot be coherently extrapolated to all spheres of human activity. Only where the issue of initial ownership has been resolved by the application of an egalitarian distributive principle will the subsequent application of historical criteria “preserve the justice” incorporated within that original allocation. For Steiner, historical standards can never coherently determine an initial division of virginal resources.

Thus, both Nozick and Steiner reject the exclusive application of historical principles in the determination of how initial shares of natural resources are to be allocated to a given population. This rejection (which is only partial in Nozick’s case), stands in sharp contrast to their enthusiastic adoption of the historical principle of voluntary transfer to identify the present legitimate division of previously allocated objects. In the next part I will analyze the reasons given by each philosopher in defense of his antithetical treatment of these two areas of distributive concern.

II

In contrast to Nozick and Steiner I believe that the conceptual barriers alleged by them to preclude the unqualified extension of historical standards of distribution to the sphere of initial acquisition of natural non-human objects are weak. Consequently, I will maintain that the removal of those barriers suggests that historical principle of distributive justice can, without qualification, be extended to the sphere of appropriative rights. I will not argue that the historical entitlement view can be supplied with suitable foundations. I will only maintain that if it can, then it may be comprehensively applied to all issues affecting distributive justice.

In order to grasp why the Nozick-Steiner historical view has a more extensive scope than has been claimed for it by its two proponents, the defects in their arguments against its application to the appropriative arena must be delineated.

A

As mentioned, Nozick rejects the use of historical criteria to determine initial ownership for two reasons. The first is that virginal resources are, ex hypothesi, no one’s and so, the principle of title transfer which is properly employed to determine the legitimate owner of present holdings cannot be applied here. The mere mixture of one’s efforts with a virginal resource does not imply that the resultant object is the exclusive product of one’s labor. Nozick argues that, at best, one has only added value to that which already has an intrinsic natural value. Hence, if it is maintained that in matters of initial appropriation one ought to own only that which is the exclusive product of one’s labors, then it would follow that one is entitled only to the value added to the formerly virginal resource. The virginal component of the labor-modified-resource cannot, on historical grounds, be assigned to anyone. Labor, then, cannot entitle one to comprehensive property rights in objects.

A second reason for the rejection of a purely historical principle of distributive justice is that the appropriation of previously unowned objects may worsen the condition of others by depriving them of their opportunity to utilize those objects.

Let us examine his first argument. Nozick seems to be saying that either (1) we are entitled to something because a legitimate title to it had been previously transferred to us, or (2) because it was the exclusive product of our efforts, or (3) because it was the exclusive outcome of an admixture of our effort and objects to which we had title. Since labor-modified-formerly-virginal-objects fit none of these categories they either cannot be owned at all—which would imply that there can never be legitimate forms of ownership, as all objects have a virginal component—or ownership in them must be obtained, at least in part, according to some other principle. But, this other principle, identified by Nozick as the Lockean proviso, cannot, once applied, be restricted in its application to virginal resources, for all manufactured objects are in part virginal. All of them are merely modified natural objects. Therefore, all of them are, in part, not the exclusive product of human effort. If title cannot be assigned, in the first instance, only on the basis of “what was done by someone,” why should it be assigned in successive instances only on the basis of “what was done by someone”? If the initial application of labor to a natural resource is insufficient to secure title to it, in spite of the “improved” condition of the modified resource, then subsequent inputs of labor to that resource are likewise insufficient to convey ownership. For neither the initial nor subsequent applications of labor to the resource make the resultant product the exclusive result of human effort. And so, if history (i.e., labor) must be abandoned as the sole criterion of ownership in the case of appropriation, due to the virginal trace that remains in the extracted resource, then it must be abandoned in all other cases as well because that trace can never be expunged from manufactured objects.

Moreover, if, as Nozick maintains in his second argument, “human welfare” (as defined by Nozick’s Lockean proviso) must be added as a supplementary teleological principle of distribution to the historical one of “labor admixture” (in part because of the absence of a “purely produced object” at the level of appropriation), then the same supplementation is warranted at subsequent stages of production and transfer. Nozick’s abandonment of history as a sufficient condition for initial acquisition implies that he must reject its sufficiency for the same reason in all matters affecting the subsequent distribution of objects.

Is Nozick, then logically required to reject altogether the historical theory of distributive justice? No. He is left with this unfortunate consequence only if he persists in defending the spurious theory of value (i.e., utility, not price) which underlies his explicit rejection of a purely historical theory at the appropriative level. That theory of value implies that the “value” (i.e., utility or usefulness) of manufactured objects can be bifurcated into natural and created components. The underlying normative principle which Nozick uses to determine initial ownership is one ought to own that, and only that, which one produces. It then follows that one is entitled only to the created value component of the object, not to its whole value. In opposition to Nozick, I would maintain that the whole of a good’s value or utility (but not its price, or exchange value) is due to the efforts of the producer. For while any fossil fuel, for example, is of use to someone who desires to obtain its benefits once it has been (1) discovered, (2) extracted from the earth, and (3) processed for employment, the same material has no use value whatever so long as it remains undiscovered, unextracted, and unprocessed. While discovered resources may be of value to miners and a mined resource may be of value to producers of energy and a refined resource may be of value to consumers of energy, any resource which lies undiscovered at time t has no value (is of no use) to anyone at time t. Its subsequent utility, its accessibility to miners, derives from its discovery and that discovery is the product of human efforts, not of natural circumstance. Similarly its utility to refiners derives from its having been mined. Only a once virginal object already transformed in some way to meet some human desire has value to the “désirer.” Bereft of such a transformation it is, at that time, without any utility. Hence, the transformer has produced the whole of its value by modifying it so that it can fulfill some human purpose. Therefore, we can argue, that, given a set of human wants, only human labor makes an object useful (able to satisfy those wants) and so, invests it with whatever utility it has. Original titles, are, then, in Nozick’s own “improvement” criterion, completely and uniquely ascribable to human labor, to what has been done, and can therefore, be assigned according to historical principles. But if initial ownership is legitimized on the basis of productive effort, and only on such a basis, then the legitimacy of subsequent transfers of ownership can be determined only after an examination of the legitimacy of the previous titles extending backward in time to the moment of initial acquisition. Thus, historical entitlement principles are appropriately used without the supplementation of teleological ones to determine the justice of transfers, if and only if, they may be used to analyze the justice of initial acquisitions as indicated by the productive contribution of the acquirer without the supplementation of teleological ones. The historical entitlement principle, then, is both the necessary and sufficient determinant of all questions of distributive justice or of none of them. Nozick’s attempt to make such principles necessary and sufficient at the level of transfer, but necessary only at the point of original acquisition is manifestly inconsistent.

Nozick could counter-argue that while labor is the only element that makes a thing useful (prepares an object for human use), labor cannot create the virginal material of which it is comprised and hence, while the whole utility of the thing is attributable to labor, its matter is not. But, what sort of conclusion could be drawn from this analysis? He might wish to conclude that the entire value of the manufactured object as well as the manufactured aspect of the object, ought to belong to the producer of it, while the object’s virginal matter should be the collective possession of all mankind. However if this virginal component has been produced by no one and if things ought to belong only to those who have produced them, then on what basis should the unproduced aspect of objects be mankind’s communal property? Mankind, after all, never produced this virginal component and, therefore, would be as unentitled to this component collectively as it is individually. Moreover, how can the created and uncreated aspects of an object be physically separated so that their separate owners can simultaneously exercise rights of use and disposition over them? The difficulties of physically transporting the Venus de Milo’s form without contemporaneously moving her marble matter are obvious. Moreover, similar problems would arise for any attempt to separate the ownership of a thing’s utility from the ownership of the thing itself.

B

Steiner’s departure from historical principle at the acquisitive level stems from reasons which are similar to Nozick’s in some respects but differ in others. Steiner argues that one is not entitled to use an object without prior ownership of it (or without the owner’s consent) or without having produced it. In the case of virginal objects these criteria would seem to effectively exclude any initial use whatever and, therefore, to preclude the very possibility of legitimate appropriation. But, this, Steiner implies, is absurd and, therefore, he concludes that the previous ownership and production criteria are applicable only at the level of manufacture and transfer, not at the level or original acquisition. At the initial level another principle which incorporates the coherence requirement embodied in all rights claims must be found. Steiner claims to have discovered it and finds that it is teleological and egalitarian in nature. Thus, he substitutes equality for Nozick’s Lockean proviso at the appropriation level.

In this section I will criticize Steiner’s threefold argument against a historical basis for determining the initial ownership of unowned objects, that is, against making an historical condition like labor either a necessary or sufficient ground for ownership. First, in subsection (1), I will show that his contention that ownership must precede usage is false. Second, in section (2) I will contest his claim that if an object is not the product of human effort its ownership must not be determined by historical criteria (labor, first possession, etc.), but by the prior application of some distributive rule. I will dispute this claim partially by showing that, in this view, the right of self-ownership cannot be the self-evident moral axiom that Steiner believes it to be. Finally, I will oppose Steiner’s claim that the rejection of historical grounds for initial acquisition requires the adoption of an egalitarian distribution of virginal resources, if that distribution is to result in a coherent assignment of property rights.19

1. Of the two grounds, ownership or production, the former is more fundamental according to Steiner, since an object produced by you is only yours if the constituents from which it was made were yours. If we can refute the claim, then, that ownership must precede use, Steiner’s rejection of historical entitlement will have been made less plausible. To refute it we must first explain its basis in Steiner’s philosophy.

Steiner derives the “ownership-determines-rights-of-use” criterion from the formal property of coherence that, he insists, all sets of human rights must embody. If a set of rights is so constituted that its members cannot be compossibly and, therefore, contemporaneously exercised,20 then that set cannot be universally enjoyed. But a set of rights which cannot be enjoyed by all persons, is not a set of human rights. It is rather, a collection of privileges. As rights define classes of permissible actions and as actions are always uses of objects, then a set of rights which can be compossibly exercised will consist of assignments of the members of a set of mutually exclusive objects to the constituents of a set of mutually exclusive users of objects. Ambiguities of ownership might entitle several people to take the same action with respect to the same object at the same time, an existential impossibility. The exercise by one of these people of his right will simultaneously constitute the illegitimate prevention of another’s exercise of his rights within that same set. To avoid such a conflict all human rights must be compossibly and contemporaneously exercisable and, therefore, must include mutually exclusive assignments of property titles. Once such titles have been allocated the coherence or compossibility of the set is preserved only by observing historical principles in the matters of object modification and title transfer. That is, prior ownership must be the exclusive determinant of primary rights of use. But, prior ownership cannot be used to determine initial ownership and, therefore, argues Steiner, it must be abandoned as a distributive principle at the appropriative level.

This argument ignores a rather important distinction. It is true that if persons, x, and, y, have an equal right or title to some object O, then the set, SR, of rights, xRO and yRO, is not what Steiner would call a logically compossible set. But if neither x nor y nor anyone else have a right to O, then x’s use of O is not a violation of any right of y’s, nor is y’s use of O a violation of x’s right. Now, having the use of an object is distinguishable from having title to it. If anyone may use O and no one, as yet, has title to it, then no one’s use of O constitutes an intrusion upon someone else’s rights. Therefore, any human being may be permitted the use of any elements within some set of unowned objects, SOU, without giving rise to violations of human or natural rights. This, of course, does not preclude the non-compossibility of the set of use opportunities. That is, the exercise by someone, x, of a use opportunity over objects OUn at ti will exclude the exercise of an equal opportunity by others over such OUn at ti. However, Steiner cannot argue that a set of use opportunities must be compossibly exercisable in the same way that rights must be, because of the following. Opportunities of use do not require an individual entitlement to some thing or bundle of things. That is, while having title requires an exclusivity of use rights over some set of things by someone, the use of a thing does not necessarily require having a title to it (i.e., an unhindered opportunity to use is a necessary condition of entitlement, but entitlement is not—for example, in the case of a usufruct—a necessary condition of use, etc.). Permissible use requires only that no one else have some prior entitlement to it (or that, if the object is owned, the owner has given his consent to its employment by another). Hence, opportunities to use some class of objects do not have to be simultaneously exercisable by all persons as do rights or entitlements to objects. No other person’s title to something is violated by the exercise of an opportunity to use it, when that object is unowned. Therefore, while ownership does provide one sort of justification for use opportunities it does not provide the only justification for use, as in the case of unowned entities. While Steiner believes that titles of ownership must be assigned as a precondition of use, we have shown this not to be so. Rather the exercise of use opportunities can form the basis for a subsequent exclusive title to objects. And so, exclusive title can have a historical basis.

2. Steiner’s other reason for rejecting a historical foundation for the initial acquisition of that which is unowned is that the justification for the ownership and hence, use of manufactured objects is production. But virginal resources are unproduced and, therefore, unowned. Hence, no one can be entitled to use some set of virginal resources, since all such sets have not been produced by anyone. And so some formula fairly distributing the titles to such objects must be found in order to enable human beings to use them.

Now, this other argument by Steiner proves too much. For if production is a necessary and sufficient normative condition for the initial ownership and, hence, subsequent use of objects, then it follows that nothing at all ought to be owned by anyone including one’s own body. And Steiner considers the right to one’s own body to be normatively uncontroversial.21 In the first place, as no one has produced his own body, no one ought to have a title to it. Against this conclusion it may be argued that since your parents produced and so have rightful title to you, they can transfer to you the ownership of yourself. However, two considerations prevail against this counter argument. First, your parents may transfer their title to you only if such title was originally theirs. But, it could be theirs only if the means by which they produced you were originally owned by them, i.e., only if their parents have made them self-owners. And this, in turn, is only possible if their parents were self-owners. Clearly the problem here is infinitely regressive unless a process of legitimate self-ownership has been generated by an unprocreated self-owner like Locke’s God. Steiner’s own conception of an inalienable right of self-ownership, then, collapses under the weight of the argument that he wields against a production based initial distribution of natural resources.

Moreover, if we apply the conclusion of that argument, according to which those things that are neither legitimately owned nor self-produced ought to be equally divided among persons, then it would follow that entitlement to people and their characteristics ought to be allocated similarly.22 And as these are not in fact equally distributed, some means must be found of doing so. In the case of persons, if I and all my fellows are to have an equal right to one another, then this must mean that each of us must have title to an equal portion of every other human being, and this implies that each person must secure the consent of all titleholders in order to employ himself in ways preferred by him. However, if the egalitarian distribution is to be made with regard to human characteristics rather than to entire human beings, the means by which those characteristics are to be equally distributed are inscrutable. If I haven’t the mean I.Q. of the world’s population, it would seem that I should have, à la Steiner, a right to employ the intelligence of those who do. But suppose there are not enough average intellects to go around? And what of those persons whose intellects exceed the mean? How are we to divide and distribute their cognitive capacities? Of course, most bodily features cannot be transmitted to another’s control and, hence, Steiner’s implied personal egalitarianism cannot, even through dismemberment and transplantation, be realized.

3. This brings us to the denouement of Steiner’s argument, his egalitarian analysis of appropriative rights to non-human objects. Appropriative rights, Steiner suggests,23 must conform to the principle of coherence. Now, the principle of coherence states that a set of rights must be compossibly exercisable. This means that the actions that they legitimatize must be compossible, i.e., it must be impossible for a legitimate action Ax to ever contemporaneously interfere with any other legitimate action, Ay. But such a rights set will be coherent, if and only if, the objects which rights-bearers may legitimately employ in any of their acts are not, contemporaneously, the exclusive property of two different persons. Hence, internally coherent rights sets must be comprised of titles representing mutually exclusive linkages of owners and objects. It is this mutual exclusivity which preserves the logical compossibility i.e., the coherence of the set. At the appropriative level this requirement can be preserved by taking the set of all individuals, dividing all natural resources into separate bundles, and giving each person exclusive title to each of these bundles, making certain that no two persons or corporate bodies of persons are given exclusive title to the same object or group of objects. But, Steiner mysteriously insists that the bundles of objects must be qualitatively and quantitatively similar when what we have shown is that coherence is determined not by these two but rather by (1) the distinctness of the bundles and (2) the exclusivity of their ownership, which factors together are necessary and sufficient to achieve compossibility. Contra Steiner, the bundles do not have to be qualitatively or quantitatively similar in order to preserve the coherence of the set of rights thereby generated. Furthermore, it is not even the case that every person has to be granted an entitlement to at least one object or bundle order to maintain the coherence of the set. For it is the mutual exclusivity of ownership which prevents contemporaneous use rights from being assigned over the same object, not universality of property allocation.

The coherence requirement, then, does not by itself imply Steiner’s egalitarianism. Rather, the basis for this egalitarianism is merely a Lockean vestige. But the theistic justification for its introduction in the Second Treatise in the form of Locke’s “enough and as good” criterion is wholly missing in Steiner’s account and, therefore, Steiner has no independent basis for its advocacy. Moreover, if the coherency requirement did entail an egalitarianism of goods at the level of initial appropriation then subsequent rights of ownership should also have to conform to the egalitarian principle in order to be coherently exercised. Egalitarianism could not be restricted to initial acquisition but would have to extend to successive transfers of ownership. Thus, Steiner would have to abandon the historical entitlement theory altogether.

If the unequal distribution of natural resources is consistent with Steiner’s coherency standard for rights and if a general opportunity to use unowned objects does not have to embody the compossibility requirement, then a historically based appropriative principle can be utilized to establish initial titles to virginal resources. X’s original productive use of unowned object OU1 prevents no other person, y, from using either unowned objects OUn or objects, On, to which y had previously acquired legitimate title.

Conclusion

Nozick and Steiner have both suggested that while the historical entitlement principle of distributive justice can appropriately govern the allocation of owned goods, there are conceptual impediments to its application to the realm of unowned natural resources. We have responded to this allegation first by showing that those impediments are illusory and second, by pointing out that if historical bases of distributive justice are inapplicable to the allocation of previously unowned objects, they fail as well to provide sufficient criteria for the distribution of owned objects.

Finally, if, as I have suggested, historical principles can be extended to the arena of appropriative activity the historical-entitlement thesis is comprehensively applicable to matters of distributive justice in a way not envisioned by either of its contemporary proponents. Whether this thesis can be justified as a principle of distributive justice by its spokesmen so as to exclude its teleological competitors is another matter altogether, a matter, one senses, the difficulties of which are far greater than the “second-order” issues analyzed in this paper.

Notes

1. Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1975).

2. Hillel Steiner, “The Natural Right to the Means of Production,” Philosophical Quarterly 27 (1977): pp. 41-49; idem, “The Structure of a Set of Compossible Rights” 74 (1977): 767-75.

3. Nozick, Anarchy, State, and Utopia, p. 155.

4. Nozick’s commitment to a purely historical theory of justice in transfer, is not quite as undiluted as Steiner’s. Nozick, as will be explained, holds that if the appropriation of previously unowned, natural objects should worsen the condition of others some compensation is due the adversely affected parties from the appropriator. Hence, if such natural (i.e., uncreated) objects are so amassed by transfer as to worsen the condition of others, that transfer can only be effected if compensation is paid to those others. But this dilution of a purely historical principle of justice in transfer with a competing “welfare” criterion is limited to cases where in the welfare of others is worsened by a diminution of their potential liberty in the use of objects. Nozick denies that his “proviso” represents a departure from a consistently historical treatment of distributive justice, ibid. pp. 177, 181, 345. However, his defense of this seems rather thin, ibid., 174-82.

5. Ibid., pp. 174-75.

6. Ibid., p. 175.

7. Ibid., p. 175.

8. Ibid., p. 178.

9. Ibid., pp. 175-78.

10. Ibid., p. 178.

11. Ibid., pp. 177, 181,345.

12. Ibid., p. 181.

13. Steiner, “The Natural Right to the Means of Production,” p. 42.

14. Ibid.

15. Ibid.

16. Ibid., p. 44.

17. Ibid., p. 43.

18. Ibid., p. 49.

19. I will not pursue Steiner’s subsequent modification of his egalitarianism in “Liberty and Equality,” Political Studies 29 (1981). For an excellent discussion of Steiner’s subsequent “contractarianism” see Eric Mack, “Distributive Justice and the Tensions of Lockeanism” in Social Philosophy and Policy 1 (1983).

20. See Steiner, “The Structure of a Set of Compossible Rights,” pp. 767-75.

21. Ibid., p. 44.

22. A similar point is made by Fred D. Miller, Jr., in “The Natural Right to Private Property,” in The Libertarian Reader, Tibor R. Machan, ed. (Totowa, N.J.: Rowman & Littlefield), pp. 284-85.

23. Steiner, “The Structure of a Set of Compossible Rights,” p. 47.