The institution of private property is fundamental to economics and indeed, to civilization itself, as we know it. Classical liberal and libertarian theorists have constructed rational arguments to describe and defend the nature of private property, and an overview of these arguments will follow. After this, the Reecean proviso to private property rights will be introduced, elaborated upon, and defended from likely objections.
We begin with Thomas Hobbes, who writes,
“Therefore, whatever results from a time of war, when every man is enemy to every man, also results from a time when men live with no other security but what their own strength and ingenuity provides them with. In such conditions…the life of man solitary, poor, nasty, brutish, and short.
A further fact about the state of war of every man against every man: in it there is no such thing as ownership, no legal control, no distinction between mine and thine. Rather, anything that a man can get is his for as long as he can keep it.
In other words, one effectively owns whatever one can take and defend, no more and no less. Hobbes theorized that people needed to enter into a social contract and live under a nearly absolute monarch in order to escape this condition. He believed that private property rights would return us to the state of nature if not for the ability of the state to take and use any and all individual property for the collective good.
The fundamental error of Hobbes is that the state of nature he describes is inescapable. Regardless of which theories of just property ownership are developed and put into practice, what one effectively owns is still whatever one can take and defend. The state simply transforms the war of all against all into a war of some against others, and is the result of one person or group managing to dominate the war. The extent to which life is not “solitary, poor, nasty, brutish, and short” is possible not because of the state, but because of the private property that Hobbes condemns. His social contract theory is also faulty; a contract is invalid unless all parties voluntarily agree to its terms. The state will initiate the use of force against people who do not wish to enter into the social contract, meaning that any such consent must be under duress and therefore invalid.
The intellectual foundation for a libertarian theory of property rights begins with John Locke. Locke writes,
“Though the earth and all inferior creatures be common to all men, yet every man has a property in his own person; this no body has any right to but himself. The labor of his body and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided and left it in, he hath mixed his labor with, and joined to it something that is his own, and thereby makes it his property. It being by him removed from the common state nature hath placed it in, it hath by this labor something annexed to it, that excludes the common right of other men. For this labor being the unquestionable property of the laborer, no man but he can have a right to what that is once joined to, at least where there is enough and as good left in common for others.”
The idea that “every man has a property in his own person; this no body has any right to but himself” is called self-ownership, and its validity was proven by Murray Rothbard in a straight-forward manner:
“Now, any person participating in any sort of discussion, including one on values, is, by virtue of so participating, alive and affirming life. For if he were really opposed to life, he would have no business continuing to be alive. Hence, the supposed opponent of life is really affirming it in the very process of discussion, and hence the preservation and furtherance of one’s life takes on the stature of an incontestable axiom.”
What Rothbard points out is a performative contradiction contained in all arguments against self-ownership, and the presence of one of these within an argument falsifies the argument. By the law of excluded middle, if all arguments against an idea must be false, then the idea must be true.
The last part of the above quote from Locke, that people may establish private property unless doing so causes there not to be “enough and as good left in common for others,” was termed the Lockean proviso by Robert Nozick. Interestingly, Locke moves on to the next section of his work without even bothering to explain why such a limit should be in place. The Lockean proviso does not withstand scrutiny; as Tibor Machan explains,
“[S]ome have argued that in terms of it the right to private property can have various exceptions and it may not even be unjust to redistribute wealth that is privately owned. I argue that this cannot be right because it would imply that one’s right to life could also have various exceptions, so anyone’s life (and labor) could be subject to conscription if some would need it badly enough. Since this could amount to enslavement and involuntary servitude, it would be morally and legally unacceptable.”
The Reecean Proviso
It is possible, however, to construct another proviso from first principles that limits absolute private property rights to a far lesser extent. To my knowledge, this has not been done elsewhere, so I will call this the Reecean proviso. We begin with self-ownership, that each sentient being has property in one’s own physical body through exclusive direct control over it. This direct appropriation necessarily precedes any indirect appropriation, as the only way that one can create private property through labor upon unowned natural resources is by directly controlling one’s physical body in order to control such resources indirectly. Thus, private property rights over external objects are dependent upon the property right over one’s physical body. That which is dependent cannot overrule that upon which it is dependent. Therefore, self-ownership stands above private property rights in external objects.
Next, let us note that all sentient beings are equal in their self-ownership, in that all sentient beings have property in their own physical bodies through exclusive direct control over them. Although the nature of their bodies (and minds) may result in different beings appropriating different quantities of external resources and in different beings having more or less capability to defend those resources from challengers in practice, the theoretical strength of a particular property right over an external object by one sentient being is equivalent to the strength of another particular property right over another external object by another sentient being. Applying this standard to the fact that self-ownership stands above private property in external objects, we get the result that the self-ownership of one sentient being stands above the private property rights in external objects of another sentient being. This is the Reecean proviso.
At first, this result may appear to be sufficiently broad as to collapse the whole idea of private property into a Hobbesian nightmare, or at least a socialist dystopia. But in order for this result to apply, the self-ownership of one sentient being must be in conflict with the private property rights in external objects of another sentient being. The possible scope of such a conflict is quite narrow, as it requires a person’s life to be in jeopardy with no other possibility for survival but to use another person’s private property. But even this is not narrow enough, as restricting the scope no further would allow for several absurdities. Let us see just how narrow this scope is.
First, the person’s life must be in jeopardy due to the aggressions of another person and not due to the person’s own action or inaction. Otherwise, a person could make a series of poor choices so as to engineer a situation in which the person is reduced to a stark choice between using another person’s private property or dying and then take advantage of this situation to take private property from another person by underhanded means. Because one inherently consents to what one does to oneself, one cannot commit acts of aggression against oneself. Thus, the threat to one’s life that would allow the Reecean proviso to be used cannot be of one’s own making. Second, the person must not knowingly endanger the life of the property owner. If this were to occur, then we would no longer be weighing one person’s self-ownership against another person’s private property rights in external objects, but one person’s self-ownership against another person’s self-ownership. In such a case, the property owner gets to decide whether to use force to defend against the newcomer’s aggression. Third, the person must not appropriate any more privately owned resources than are required for survival in the moment. Going above and beyond the bare minimum is an act of theft, as it is not required for survival in the moment. Even taking some extra “for the road” is not allowed, as it cannot be proven that doing so will be the only possible method for survival. Fourth, a person may only travel through territory in which the person is unwelcome if survival requires that one do so. Doing so when there is another path available, or when survival is not in jeopardy, constitutes trespassing. Fifth, a person who is traveling through territory in which the person is unwelcome must traverse the territory as quickly as possible. Taking more time than is reasonably required constitutes loitering and trespassing. Sixth, a person who deprives a property owner of value in order to survive must make restitution for that value if and when this becomes possible. To take and keep the value when one could make restitution constitutes theft.
With the Reecean proviso properly limited, let us address some likely objections. The first is that using this proviso may appear to be an act of aggression. The non-aggression principle is not an axiom, but a logical corollary of self-ownership. If each person owns one’s physical body, and all instances of self-ownership have equal theoretical strength, then it is wrong to exercise one’s self-ownership to interfere with another sentient being’s self-ownership. As such, it makes more sense to call this the non-aggression theorem. The Reecean proviso does not permit interference with anyone’s self-ownership; only with another corollary thereof, that of private property rights in external objects.
The second likely objection comes from Walter Block’s theory of negative homesteading. This comes into play when discussing the problem of innocent shields, and leads to the conclusion that an innocent shield may be harmed in the course of subduing an aggressor if there is no way to subdue the aggressor without harming the innocent shield. But the innocent shield problem, as well as the lightning transfer problem that Block discusses, weighs one self-ownership against another, not self-ownership versus private property rights in external objects. As such, this objection is also of no help to the critic of the Reecean proviso.
Third, one may, in spite of the above limitations, try to equate the Reecean proviso with a form of socialism or forced redistribution. But if there is to be forced redistribution, then there must be someone who will do the forcing. Such a person would be acting as the jeopardized person’s agent, and would therefore be subject to the same restrictions on conduct that apply to the jeopardized person. The result of applying these restrictions is that all the property owner need do is to defend the property in such a way that it cannot be taken without threatening the property owner’s life. It must also be noted that if one is able to get someone to forcibly redistribute wealth to keep one alive, then one will have other, less aggressive options available, such as arranging survival aid and evacuation from the desperate scenario to be carried out by the person who would act to forcibly redistribute wealth.
Fourth, one may object that it will be difficult to determine when the Reecean proviso applies versus when a desperate person has committed aggression by taking more than what is required. For the proviso to apply in a dispute resolution arbitration, it must be true and provable that a desperate person abided by the proviso. Proving that one did not bring the situation upon oneself, endanger the property owner, take more resources than needed, go onto private lands without cause, stay on such lands longer than necessary, or fail to make required restitution will be all but impossible. This is a fair point. With the preceding point in mind, the most plausible objection to the Reecean proviso is that it is so limited in scope that it may become a triviality, being in the libertarian philosophical tradition but never finding a practical use. We can only hope that this is true; that no non-aggressive person should ever be forced into a situation where the only available options are to commandeer a small amount of another person’s resources or to perish of hunger, thirst, and exposure.
Finally, let us consider an example. A classic problem in libertarian theory is the issue of encirclement. Nozick writes,
“The possibility of surrounding an individual person presents a difficulty for a libertarian theory that contemplates private ownership of all roads and streets, with no public ways of access. A person might trap another by purchasing the land around him, leaving no way to leave without trespass. It won’t do to say that an individual shouldn’t go to or be in a place without having acquired from adjacent owners the right to pass through and exit. Even if we leave aside questions about the desirability of a system that allows someone who has neglected to purchase exit rights to be trapped in a single place, though he has done no punishable wrong, by a malicious and wealthy enemy (perhaps the president of the corporation that owns all of the local regular thoroughfares), there remains the question of ‘exit to where?’ Whatever provisions he has made, anyone can be surrounded by enemies who cast their nets widely enough.”
“One example of Nozick’s sanctioning aggression against property rights is his concern with the private landowner who is surrounded by enemy landholders who won’t let him leave. To the libertarian reply that any rational landowner would have first purchased access rights from surrounding owners, Nozick brings up the problem of being surrounded by such a set of numerous enemies that he still would not be able to go anywhere. But the point is that this is not simply a problem of landownership. Not only in the free society, but even now, suppose that one man is so hated by the whole world that no one will trade with him or allow him on their property. Well, then, the only reply is that this is his own proper assumption of risk. Any attempt to break that voluntary boycott by physical coercion is illegitimate aggression against the boycotters’ rights. This fellow had better find some friends, or at least purchase allies, as quickly as possible.”
The Reecean proviso amends Rothbard’s response to say that the encirclers may not keep the encircled in a situation where survival is impossible. If the encircled can survive where they are, then they must either stay put or devise a method for flying over or burrowing under the private property in which they are unwelcome. But if survival is impossible, then the Reecean proviso says that their self-ownership trumps private property rights in external objects. This allows them to leave the place where survival is impossible. But does it allow them to return? Not through the encirclement, because returning to the position where survival is impossible constitutes both an engineering of the situation and traveling through territory where one is unwelcome without having to do so. The encircled, if they choose to leave, can only return if the encirclement ceases or they find a way to access the encircled area without infringing upon property rights.
- Hobbes, Thomas (1651). Leviathan. p. 58-59
- Locke, John (1689). Second Treatise of Government. p. 11
- Rothbard, Murray (1982). The Ethics of Liberty. p. 32
- Nozick, Robert (1971). Anarchy, State, and Utopia. p. 175-76
- Self-ownership and non-culpable proviso violations Politics, Philosophy & Economics February 1, 2015 14: p. 67-83
- Nozick, Robert (1971). Anarchy, State, and Utopia. p. 55
- Rothbard, Murray (1982). The Ethics of Liberty. p. 240