The Retributive Theory of Property

Private property Property rights are collections of rights. In the first place: for something to be your property you must have the right to use or enjoy that thing. In the second place, you must have rights of control: rights that others not use or enjoy that thing in certain ways, except by your permission. Thirdly, though perhaps not necessarily, you must have the right to transfer the former two rights to someone else (as when you give your property to someone else) and fourthly the right to some form of compensation should someone infringe the preceding rights. Each of these rights, moreover, might be divided and limited in various ways. You may have the right that others not walk on your property, but not that others refrain from burrowing underneath it or flying over it. You may have a right to cultivate your own garden, but not to grow opium therein.

And so on. Acknowledging all this complexity, let us set it aside for now and focus on clear cases of the least complicated sort. I have an apple in my hand. I may eat if I choose, use it to make a pie or cider or let it rot. I may give it to someone else. You may not eat my apple without my permission. If you do so, you will have done something wrong and you will owe me compensation. All this because the apple is mine.

What are property rights? Where do they come from?

According to Retributive Ethics, moral rights are merely warrants for violence. All rights are Retributive rights: rights to harm other people. So when a Retributivist hears a right asserted he asks only who is claiming a moral permission to hurt whom, by how much and when.

In the case of property rights the question has clear answers: property rights at least include rights to defend your property: that is, to do harm to those who attempt to deprive you of its use and the right to forcibly interfere with others if they should attempt to use it without your permission. You may interfere with them by building fences or locking doors or by putting your body in their path. Should push come to shove, you may push and shove or, if society recognizes your property claim, you may call on the cops, who will do the pushing and shoving and, if need be, shooting on your behalf.

You are in short, entitled to enforce your property rights. “Force” being the operative word.

Now, academics are apt to grow faint at the first mention of violence so let me quickly offer some palliating remarks for tenured readers. Note first of all that acknowledging a right to defend property does not require you to think property rights warrant absolutely any degree of violence in the defense of absolutely any property. You may not think it permissible to shoot a burglar if you do not have much worth stealing or even if you do. You may yourself be so passive or pacifist that you would not lift a finger to protect your belongings. You may be so empathetic to the plight of those driven by circumstance to theft that you wouldn’t even call the cops. Never mind. What matters is that you agree that having property makes it sometimes morally permissible (however personally repugnant) to forcibly interfere with others in some ways that would not be permissible if you had none. To deny this– to say that it is always morally impermissible to lock a door, build a fence, or lift a finger (even to dial ‘911’)… to defend one’s property seems to me to simply deny that there is any moral right to property.


Note too that acknowledging the right to enforce your property claims does not presuppose that property rights, or any other rights, are in any sense “natural”. Even if you think that the rules that govern property acquisition and ownership are as arbitrary a social artifact as the rules of NFL Football, you must nevertheless recognize that our adoption of those rules makes certain kinds of violence permissible. Neither the lineman who tackles the quarterback nor the cop who tackles the purse thief is doing something morally wrong. So even if you think “the possession of property under the law” is as inherently amoral a notion as “possession of the ball in football”, you must have some account of how the violence of the lineman and the cop come to be morally permissible.

If we agree that property rights at least include some kinds of permissions to use force the next question is whether they include anything more.


Try the thought experiment yourself: First, inventory the kind and degrees of forceful interference with others that you think ownership of property entitles you to. Imagine you own a modest plot of land. What may you do to prevent others from entering? What measures may you take to evict those who trespass? And if a trespasser damages your land what measures may you take, or have others take on your behalf, to force him to somehow compensate you for damage done?

Now imagine another piece of land, different from the first, but for which you have exactly these moral permissions whatever they might be. So that it is as permissible for you to take the same measures to exclude or remove anyone from the second piece of land as the first, and permissible in the same ways to force compensation on any who damage it. Finally– as this was implicit with the first– imagine that you have the ability to transfer these permissions with respect to the second piece of land to anyone you choose.

The question is, what else would you have add to make this second piece of land your property? What more is there to the property right, than this collection of retributive rights?

It might be objected that the thought experiment fails because it is impossible to imagine your having all these particular rights with respect to the second piece of land unless we have already assumed that you had some broader right to property to it. But this doesn’t seem to be so. Suppose that all of us pick some arbitrary plot of un-owned land and collectively promise that i) none of us ever enter it without your permission but will never interfere with your occupancy of it; ii) that should any of us break this oath, the rest of us will all act to forcibly remove the intruder and forcibly extract compensation from them for whatever damage the intrusion may have caused; iii) that each of us gives you and everyone else permission to use these sorts of force against him or her, should he or she be the intruder ; and iv) that we also agree that we will extend or transfer all these privileges to anyone you may choose. Note that none of these promises is transfer of property to you– ex hypothesi, before the promises were made, the land was no one’s property– and yet, having been given all these retributive rights what more would you need before the land was your property?


Here, it might be objected that there is no such thing as un-owned land– only common property that is owned by all before it is somehow given by the collective to the individual. Very well, but then the question becomes: having been granted by the collective, through these promises, these retributive rights to this piece of the commons, hasn’t the collective done all it can do to make it yours and yours alone?

I take these experiments to show that that property rights are nothing but an aggregate of retributive rights. Note that this is reductive claim. The thesis is not that property rights excuse, or justify or explain why it is morally permissible to forcibly defend your property. Any of that would require that a property right be something over and above the permissibility of the relevant actions and that is what retributivism denies. The retributive view is that the fact that it is morally permissible for you forcibly protect a particular object in certain ways is what it is for that object to be your property.

This explains several things about property rights. For starters it explains why almost everyone who has thought about property, even those skeptical about the morality of property generally, have agreed that it is possible for us to have property rights in our own bodies. The idea of a person is property is as old as the idea of slavery, which is, alas, a very old idea indeed. Locke thought that our bodies were the property with which we first begin in a state of nature and even Judith Jarvis Thomson, who thinks ownership of everything else a social artifact, thinks our ownership of ourselves is not.

It is easy to see why. If we agree that each of us has right to self-defense: that it is morally permissible for us to forcefully defend against those who attempt to harm us or forcibly bend us to their will; and if we agree that we are owed (and hence have the moral permission to compel) compensation when we are the victims of the force or coercion; then we have agreed that we have precisely the retributive rights in our own bodies that, according to the Retributivist, constitute ownership of property.

Notice this claim too is reductive: it is not to say that we have a right to self-defense because our bodies are our property or that the right to self-defense creates a property right. The retributive claim is that these property rights are nothing over and above rights to self-defense. Which is to say that, on the Retributive account, our bodies are literally our property.

 

I stress the “literally” because, notwithstanding the general agreement that self-ownership is like our owning of other sorts of things, philosophers are apt to talk of “owning” one’s body in sneer quotes. As if there was only an analogy with, say, owning a piece of land. Not so for the Retributivist. Force is force, and force is the coin in which the Retributivist cashes out moral claims. If I may punch you in the nose for standing on my land as readily as I may for standing on my foot, there is no retributive difference in the rights I have in both.

That, of course, brings us to the great mystery of property. How is property acquired? Even if we agree that we own ourselves, how do we come to own anything else?

Historically, philosophical answers to this question are both thin on the ground and very thin.

One is First Possession: the person who first comes across an un-owned thing may claim it as his own. The objections are obvious. What is magical about first possession? Why not second or third? And how does one lay claim? Could the first man who saw the moon from earth have claimed it for his own? And, if so, could he have claimed the far side as well? Or do you have to step on land to own it? But even then how much can you claim? Could Neil Armstrong have claimed the moon for himself? The whole moon or just the Sea of Tranquility? Absent a coherent basis for answering such questions, the first possession story is incoherent.

Locke began with idea that we own our own bodies and argued that by using them to “mix our labor” with un-owned things we somehow infuse these property rights into them. This was a kind of first possession theory– you get nothing for being the second guy to mix your labor with a thing. Locke’s only advance was to augment rituals of claiming with the metaphor of “mixing ones labor”. But the metaphor doesn’t take one very far. Did Galileo mix his labor with Mare Tranquillitatis when he squinted to see it through his telescope? Was Neil Armstrong mixing his labor with the lunar soil when he skipped lightly across it? Or would he have had to plant crops? Locke

And Locke had no sooner announced the “mixing labor” metaphor than he reneged. He said that mixing your labor with something only gave you ownership provided that you “left enough and as good” for everyone else. Which concedes that the trick of mixing your labor only works so long as no one else wants a piece. Of course, if there really is enough pie for everyone, there is no point to disputing anyone’s ownership of this slice or that. But, in those circumstances it is also pointless to claim any particular piece as one’s own. It is precisely in conditions of scarcity– when there isn’t enough– that property rights become important. In that event, when you are clutching that last slice of pie, Locke says it is yours only if you can provide anyone who wants it with something “as good”. Which is short hand for saying that you must somehow find a way to pay them to go away and leave you and your pie alone.

All of this will seem especially thin when viewed from a Retributive point of view: that is, when we remember that the man who claims property is not just proclaiming yeoman’s pride in the fruits of his labor; he is claiming the moral right to use violence against others. Why should mixing your labor with anything make it okay to punch other people in the nose if they want to mix in theirs?

It is after surveying the wreck of “first acquisition” theories that Judith Jarvis Thomson concludes that our property rights in things other than ourselves are “social rights”, they are the products of laws, conventions, and promises and not to be had in a state of nature. She says,

“[Some] think people have, or anyway can acquire, pure natural rights to property. Locke himself thought that people can acquire property rights in the state of nature. That, I suggest, is a mistake. Property rights are less deep than these ideas presuppose.”

Thomson is speaking here of what she calls “second property”, of owning things other than one’s self (our “first property”). She thinks we do own ourselves in the state of nature — that such ownership is bound up with our rights that others not “trespass” against our persons– but she can see no way, absent laws and social conventions, that we could come to own anything else.

Thomson

I think this is wrong. I think rights to property run very deep, as deep as the right to self-defense, that both can be had in the state of nature and indeed that we cannot have one without the other.

So here we are in a state of nature. We are bound by no laws, conventions, or prior promises. And yet the apple I hold in my hand is my property. How did I acquire it?

Easily. I picked it up and held it firmly in my hand.

You may covet this apple, but if I do not wish for you to have it, then, as long as I hold on to it, the only way you can get it is by force or the threat of force.

If you use force I will be entitled — it will be morally permissible for me– to use force to thwart your attempt. Of course, my right to self-defense only makes it permissible for me to defend my body against trespass and manipulation; to forcefully resist, say, your bending my fingers in ways I would rather they not be bent. But, in these circumstances it happens that the only way you can get this apple is by bending my fingers thus and so. The circumstances make my right of self-defense, a right to apple-defense.

Of course, you may not have to use force. Perhaps, just the threat of violence will do the trick. Tell me to let go the apple or you’ll shoot me, and I’ll likely drop it. But then I will be owed compensation from you. Not– at least not in the first place– for the loss of the apple, but at least as much compensation as might be due to anyone coerced to move their fingers in ways they would rather not– whether it made them drop an apple or a lump of coal. But then how much compensation I am owed will surely depend upon the costs to me of my coerced action. In which case, how much compensation it would be permissible for me to (forcibly) extract from you will depend very much upon how I might have benefited from that particular apple. Thus, in these circumstances, I will be owed compensation somehow proportional to the value, to me, of that apple.

All of which is what makes it, in these circumstances, my apple. The circumstance is I that am holding it firmly in my hand.

The circumstances could easily change. I could let it go. The moment I release my grip it is no longer permissible for me to interfere with your picking it up it and I have no basis to claim compensation from you if you do. It is no longer my apple. And when you pick it up and hold it in your hand, a fortiori, it will become your property. No matter how many others may have possessed it before you and no matter how much labor they may have invested in it.

In the state of nature possession is property.

You “possess” something– you make it your possession — in this not very technical sense, if you make it impossible for someone one to acquire it, without your permission, without harming you.

Possessions are easy to come by. Even here, in the state of nature, we each of us possess a bit of land: the small bit of real estate underneath our feet. It’s only a few square inches, but you can walk over the land on which I now stand only by treading on my feet. In which case you may expect a punch in the nose. That much violence, if required, would be my right, which makes these few square inches, mine. Until I move on.

What is possessed and how is a highly contingent matter. Suppose I set my apple down in a cave and then stand squarely athwart its entrance. Now, so long as I stand here, everything in the cave including the apple is my possession since the only way for others to get to it is by way of assaulting me. On the other hand, if you find another un-blockaded entrance to the cave, my rights to its contents disappear.

Some philosophers, enamored of the abstract, will find it risible that property rights should thus MoonFootprint depend upon matters of such mundane detail. Let me be the first to note that, according to this theory, in the state of nature, the bigger your feet the more land you own and that you own more land lying down than standing up. I am unembarrassed by such upshots. They seem to me to speak only to the theory’s clarity. A clarity that will, for example, allow anyone who has read so far to calculate– according to the theory — exactly how much of the moon Neil Armstrong owned and when and for how long. I do not think precision is a demerit in a philosophical theory.

And let me repeat once more– for I expect to be willfully misunderstood– that it is no part of this account that one must be willing to or capable of defending oneself. The issue is what it would be morally permissible for you to do– or have others do for you on your behalf– if attacked.

But now, still in a state of nature, what of scarcity? What if the apple I hold is the last apple. What if it is the only available food? What if you are starving and if you do not eat this apple you will die?

Now things are different. Assuming I won’t give you the apple voluntarily, it remains the case that you can get it only by using force. What’s new in this case is that by retaining my grip on the apple I am causing your death: I am standing between you and the only available meal. You have a right to self-defense as much as I, and I am killing you. You have a right to do what you have to do to prevent me from causing your death. It is thus permissible for you to try to try to take it away from me by force.

In this circumstance we can ask: is it morally permissible for me to fight back? And we can ask: in this circumstance, is the apple I hold still my property? For the Retributivist, those are the same question. And the answer is, “it depends”.

You are starving. But what about me? Suppose I am not starving. In that case it doesn’t seem permissible for me to forcibly resist you. Self-defense, as we shall see in later posts, is a complicated business but it seems clear that self-defense is the right of a defender. Having thrown the first impermissible punch the attacker’s subsequent blows aren’t morally permissible self-defense even if the attacker is at that point defending himself. Here I am causing your death by keeping this apple from you. If you try to stop me from doing that, I cannot forcibly resist and plead self-defense. I started it, when I picked up the apple.

Since it is not permissible for me to use violence against you vis a vis this apple, this apple is not my property.

This, I submit, captures and explains the kernel of truth in the “The Lockean Proviso”. It shows how, Nozick in the state of Nature, scarcity can void property rights. On the other hand it also demonstrates why that is not always so. There are many standards by which I may not have left “enough or as good” but still hold the apple as my property. If you are not starving, but attack me because you prefer my apple over your orange; or because I am sitting on larger pile of apples than you, you cannot plead self-defense.

Then again, you have a right to defend yourself against lesser harms than death. What if you will not starve without the apple I am holding, but will certainly lose your teeth to scurvy? I am standing between you and keeping your teeth. May you defend yourself? If so how much violence is permitted?  May you kill me for your molars? May you knock my teeth out to keep yours? As I said, the right to self-defense is complex and — in this setting– all those complexities apply to my property right in the apple because– in this setting– they are one and the same right.

Note that all this has assumed that I am fat and healthy. But now what if I am starving too? Then it seems that if you attempt to take the apple from me, I may defend myself and my possession, as matter of self-defense. At the same time, it still seems morally permissible for you to try to take it. My current possession of the apple does not give my claims to life any moral priority. Indeed it is by possessing the apple that I threaten your death. Assuming that morality does not demand that both of us die in this circumstance, it must be morally permissible for one of us to cause the death of the other. For that is what will be the case, whoever gets the apple.

It is thus morally permissible for both of us to defend our possession of the apple and to forcibly attempt to possess it. Since both of us now have these retributive rights with respect to the apple, the fact of scarcity has turned the apple I possess into our common property. Note that if some non-starving third party happened on the scene, he would not have the right to take the apple from either of us while both of us could, in self-defense, forcibly resist him.

As co-owners of the apple, neither of us can assert property rights over the other. Of course, Retributivism does not require that we fight over the apple, though, in the state of nature, there aren’t many alternatives. One of us could gracefully concede the apple– and his life– to the other. But, again, such grace cannot be morally required if morality is to permit either of us to survive; otherwise both of us will starve to death muttering “After you, Alphonse.”

If the notion of “fairness” had any foundational place in moral theory– if, as Thomson might put it, if fairness were a morally deep notion– then we might expect it to get some purchase just here. But there is no obvious room for it. If we fight over the apple does morality require it be a “fair” fight? It’s not clear what that might mean, but if it entails that we are required to restrain ourselves in some way, it seems implausible. You are trying to kill me, why should I do less than everything I can to stay alive?

On the other hand, if you and I were to negotiate an agreement about how the issue between us might be decided, considerations of fairness might play some role in our choice of decision procedure, but as soon as we complete such a negotiation we remove ourselves from the state of nature.

Scarcity aside, there are good reasons for wanting to escape that state. Individual property rights in the state of nature are fragile. You lose your possessions as soon as you lose possession. To gain durable property rights in absent things clearly requires extending those rights by common agreement. We have already surveyed the kind of promises we must make to one another create such rights– in our example– in a piece of un-owned land. These rights may be called “conventional” or the product of a social contract, but we should remember that what have been contracted for are Retributive rights: they are promises to employ force against trespassers and permissions that force be used against us should we trespass.

And now remember the Retributive account of promising.

On that account, to promise to do something is to give someone permission to use force against you in certain circumstances. You give them permission to use as much force as might be required to force you to do that thing. You give them that permission to get them to rely on your doing what you said you would do. For the same reason, in promising, you also give the promisee permission to use force against you to recover compensation from you should your failure to do what you promised cause him harm.

Thus to give a promise is to relinquish, conditionally, some portion of your right to self-defense. We typically make promises for something in return, if only amity. They are a barter we strike, and what we tender is a bit of ownership in ourselves.

If his is correct then all property rights in other things–however much they involve custom, law and convention–  rest wholly on our ownership of ourselves. All second property is mortgaged with first property as collateral.