This Land Is Your Land. Or Is It?
Justin P. McBrayer is an associate professor of philosophy at Fort Lewis College in Durango, Colo. He works in ethics and philosophy of religion.
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Since last weekend, armed men have been in control of the Malheur National Wildlife Refuge in Oregon.
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This Land Is Your Land. Or Is It?
By Justin P. McBrayer January 5, 2016 8:35 pm
Since last weekend, armed men have been in control of the Malheur National Wildlife Refuge in Oregon. Incensed by the sentencing of local ranchers to jail time for burning public lands, the protesters want the federal government out of the land business. Their stated goal is to return the refuge to the locals so that "people can reclaim their resources." But this raises an important question: Why does justice demand that the land and resources belong to the locals instead of the commons? What makes property private?
Despite its appeal to conservatives, the idea that history alone explains private property is hard to justify.
This is not a question germane only to a standoff in Oregon. It's a question that applies to each and every one of us. If you're reading this, you probably own a smartphone. You think you justly own your phone and that it's wrong for the government or anyone else to take it from you. But why is your phone your private property? You might say that you are entitled to it because the law says that you are entitled to it. But that's a bad answer.
There are lots of cases where legal ownership and just ownership come apart. You know full well that slave ownership was once legal, but you probably don't think it was just. And if the law changed tomorrow to outlaw smartphones, you probably don't think that your entitlement to your phone would vanish. You'd think the government had made a mistake and that it would be O.K. to resist. So what explains why some property is your private property?
An idea common among conservatives — and surely an assumption of the protesters in Oregon — is that the past fully explains private property. For example, perhaps you paid for your phone or were given it as a gift. That's why you are entitled to it. So in general we might say that if you paid for something or were given something, then you are entitled to it.
But is that true? Suppose I steal your car and sell it to my friend Dugald. Is Dugald entitled to the car because he paid for it? You probably want to say "no." Buying something doesn't give you entitlement unless the seller was entitled to the thing first. So a transfer of property from one person to another is rendered illegitimate if the seller got the property through unjust means.
But now think back to your smartphone. What are the chances that the money you used to buy your phone can be traced backward through your employer, your employer's customers, and so on back through history without passing through the hands of a serious injustice? Slim to none. The same can be said for the seller's side of the transaction. Chances are excellent that your phone arrived in your hand only after the exploitation of workers, abuse of the environment, theft, fraud, human trafficking, or any number of deal-breaking injustices.
And, as the situation in Oregon makes clear, deciphering the boundaries of private property for real estate is even more troubled. Eastern Oregon was once populated by the Northern Paiute tribe. Like the history of your smartphone, the shift of property from the Paiutes to the white settlers is surely marred with various injustices. And if injustices render a transfer of private property illegitimate, then the protesters in Oregon have little to complain about.
So far we've only entertained an historical explanation of how private property gets transferred from one person to another. But this raises a deeper question: if history explains private property, how does anyone come to be entitled to previously unowned stuff in the first place?
This is a very hard question to answer. We probably don't want to say that the first person to see or find something is thereby entitled to it. That's the finders-keepers model of private property. The United States certainly didn't want to say this a few years ago when a Russian submarine planted a flag on the Arctic seafloor and declared the oil reserves therein the property of the Russian government. And, again, the protesters in Oregon should be handing the refuge over to the descendants of the first humans to find that land (probably not members of the Northern Paiute tribe but some earlier group).
John Locke — one of the main philosophers to set out a theory of property entitlement — agrees that the finders-keepers rule is too loose. However, he claims that if a person finds an unowned resource, mixes his labor with that resource, and leaves enough and "as good" ("as good" meaning enough of the same quality) of the resource for others, then the person is entitled to that resource. Locke's theory informs much of the property law here in the United States. Take, for instance, water rights in the western part of the country. The laws currently allocate water rights to people according to historical first-use. If a rancher pumped a certain amount of water out of the river back in 1875, made good use of it, and left enough water in the river for downstream users at the time, then he gained a right to that same amount of water year after year.
But does allocating rights to resources in this way make sense? Locke's historical theory of initial ownership seems to raise more questions than it answers. What does it mean to say that someone "mixes his labor" with something? When I find an unowned field and fence it in, did I mix my labor with it? That's how most of the land in the West was carved up. And do I just get rights to the surface pasture or the mineral rights deep within the ground, too? Or suppose I find a beach and build a house on it. Did I mix my labor with the land? How much of it? Just what is under the house? And why is it that mixing my labor is a way of gaining property instead of simply losing my labor?
Consider Locke's second requirement on initial acquisition, namely that the appropriator leave enough and "as good" of that resource for others who want it. The intuitive idea is something like this: You can't take something out of the commons for your own private use unless you leave everyone else the same opportunity to appropriate a similar amount and quality of the resources for their own private use. This is a sensible requirement but difficult to meet. Which others should count? When British settlers first landed on North American shores, did they leave enough for everyone else in Europe?
So despite its appeal to conservatives, the idea that history alone explains private property is hard to make good on. On this theory, the mere fact that we were given things or paid for things won't determine whether we are entitled to those things. At worst the historical theory implies that no one is entitled to any private property. And if our property isn't legitimately private, it's hard to see how it's unjust for the government or anyone else to take it from us.
This is not to say that liberal views of private property don't face their own share of challenges. They do. But we should be honest about the intellectual bankruptcy of a prominent explanation for private property. We need a theory of private property that makes sense if we are to make any progress on answering fundamental political questions about the disparity of wealth, taxation and the government control of land. It takes more than a gun to make property private.
address: The New York Times
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