Libertarian political philosophers agree about many issues of justice. We pretty much all concur with Nozick’s “principle of transfer” – the principle that governs how goods can go from being owned by one person to being owned by a different person. Theft is unjust, while mutually-consensual agreements are not.
But libertarians infrequently discuss the two other components of an entitlement theory of justice: the principle of initial acquisition, detailing how objects can come to be owned, and the principle of rectification, explaining how to correct for past injustice. In this piece, I wish to examine the debate over these neglected issues.
Locke’s theory of initial acquisition has been dominant in libertarian circles. Both Locke and Nozick argued that the world was initally unowned and that people came to acquire objects by mixing their labor with them. Both put restrictions on how much any individual could appropriate from the unowned pot (see Anarchy, State, and Utopia, p. 174), though Roger Pilon in his dissertation did not.
But the Lockean theory has been rightly challenged by many. Will Kymlicka points out that neither Locke nor Nozick gives much reason to favor their interpretation of the initial state (see his book, Contemporary Political Philosophy, pp. 113-121). Instead of seeing the world as unowned and ready to be appropriated by the first in line, Kymlicka argues, we should view the world as equally owned by all.
As I argue in my senior honors thesis (email me for a copy), Kymlicka’s interpretation better fits with libertarianism’s premise that all have equal rights. People are born with equal entitlements to the world that is up for grabs. It would be unjust if someone could take something that everyone has a share in.
So, how do you divide up the world such that each atom has only one owner? One cannot simply give each person a specified amount, say 1000 acres, of arbitrarily-assigned land. It is not just for one person to get 1000 acres of forest while another gets 1000 acres of tundra. So, we want a way to ensure that each person gets equal land, of value to her.
Ronald Dworkin posits a solution to these problems. (For a detailed description, see Kymlicka, p. 75.) He envisions an auction whereby each person gets equal bargaining power (say, 100 clamshells) and can bid on bundles of land. At the end of the Walrasian auction, each person will prefer her bundle to everyone else’s bundle. All will be equal, but each will prefer hers.
The trouble is that this auction was never run. Instead, much injustice has occurred, with people appropriating things out of the common pot and stealing things from others. Does this invalidate present individuals’ titles to their goods? Kymlicka and Nozick both worry that it might and that an end-state distributional theory may be the solution. Geolibertarians hold a different view: that since the earth should have been initially divided equally amongst all, we should ensure that the proceeds of the earth get divided equally amongst all. They propose a Land Value Tax that would tax people for the value of unimproved land in their property (so, the land’s value without labor added). The proceeds of the tax should be distributed equally to all.
The geolibertarian solution is attractive, but ultimately unjust. To make their case, geolibertarians rely on a false assumption, an assumption about the principle of rectification. Kymlicka and the geolibertarians assume that we must correct all the injustices that have occurred in the past. They assume what I in my thesis call the “tainted title” theory – the notion that injustice follows the object that was stolen. This theory is historical all the way back, since any prior injustice will taint an object and make it unownable forever in the future. The tainted title theory looks to the object‘s history.
I propose a different theory, what I call the “unjust agent theory,” which holds that the taint of injustice follows the thief. The thief owes the victim compensation. But, as I say, “someone who has only acquired what she has through mutually consensual transactions has not violated any rights and her property cannot justly be taken from her. The legitimacy of her title to the object is established by the way in which she acquired it. If she acquired it without her using force, it was a legitimate transaction.”
The unjust agent theory makes more sense. The tainted title theory asks about the moral status of the object, while the unjust agent theory asks about the moral status of the agent. Under the unjust agent theory, ownership is not a property of the object; it comes from the owner’s actions. As I say, “the unjust agent theory is concerned not with labeling particular pieces of matter ‘good title’ or ‘bad title,’ but with punishing those people who have committed injustice,” and therefore it fits better with “libertarianism’s status as a theory of just and unjust actions, not of end-states.” And, finally, the unjust agent theory fits better with Stephan Kinsella’s analysis of the principle of rectification, which makes the particular object in question irrelevant to the question of whether an injustice has been corrected for – just compensation is all that is owed.
Since my unjust agent theory of historial injustice upholds the most fundamental tenet of libertarianism – that the innocent should never be punished – it better fits with a libertarian concept of justice. Since a person’s actions – not the actions of anyone else – determine whether she may or may not legitimately have force used upon her, we cannot punish present-day owners of property for crimes that they did not commit. Anyone who has violated another’s rights must be punished, but anyone who has not must not be.