Freedom, Markets, and Well-being Fall 2017

Gibbard on Locke


Allan Gibbard’s question is whether what he calls “hard libertarianism” or Locke’s, non-hard, libertarianism support “widespread unencumbered ownership.” His answer is no.

We spent most of our time on hard libertarianism. Prof. Brown also had us list the ways in which property rights as we know them are encumbered.

Hard Libertarianism vs. Locke’s Libertarianism

Hard libertarianism is the view that a person’s moral rights can only be altered by that person’s consent. No one can just take away your rights.

Locke is not a hard libertarian when it comes to property rights. He thinks that everyone starts off with the right to use all of the earth’s resources. More precisely, he thinks that everyone has what lawyers call the liberty to use the earth’s resources, where a liberty consists in the absence of contrary obligations. When Locke says that everyone has the right to use the earth’s resources, he means no one would do anything wrong by using them.

Locke’s theory is that this right can be lost when other people labor on some part of the world. I can lose my right to pick up acorns in a field if Jesal has done the work to plow the field. Note that this can happen even if I did not agree to give up my rights. He did the work, he gets the property right. Since his property right to the field is incompatible with my liberty right to use the field, I lost my right because of something he did and not through my own consent. So Locke isn’t a hard libertarian about property rights.

However, Locke is a hard libertarian when it comes to political authority. He thinks that the state gets the power to make and enforce laws only over those who consent to obey it. That’s a little curious. Why is hard libertarianism correct for political authority but not for property?

Hard Libertarianism and Bargaining

A fair amount of our discussion swirled around the unreality of some of the bargaining that Gibbard describes.

One of Gibbard’s points is that hard libertarianism leads to surprising conclusions: those who are not productive, such as the lazy or the disabled, can claim a substantial share of what others produce. This is because they have to give their consent before more productive people can gain property rights to resources. Without their consent, a productive chap like Jesal could plow his field and they could come along and take his crops without doing anything wrong. In order to gain rights to his crops, Jesal needs them to surrender their rights but they won’t do that unless they get a cut of whatever it is that he grows.

Matthew objected that it didn’t actually happen this way. I believe that he takes seriously the idea of natural property rights. Outside the state, these will not be respected and the genteel bargaining that Gibbard describes won’t happen. So people institute the state to guarantee their natural property rights.

Others, such as maybe Blake, Etelle, and me, are more inclined to think that that the unreality of Gibbard’s story shows there are no natural property rights and that those rights emerge only along with the state and its laws.

We did not really have time to hash this out, but I did want to note one problem that Blake, Etelle, and I face. This is that our arguments seem to knock out all natural rights and not just natural property rights. That sticks us with some unappealing conclusions about how the law could deprive people of any rights. At least, I’m bothered by this. Blake and Etelle each thought they had a way out.

Anyway, we did not really go into enough detail on this to know what anyone thinks or to work out the problems with our respective views. I just wanted to map that part of the discussion out because it was a bit compressed in class.

Encumbered Rights

Prof. Brown led the part of our discussion about the ways in which property rights are limited. She started Gibbard’s idea that Locke’s theory might lead to time-limited property rights, that is, property rights that last only until there is not “as much and as good” left over for others. Then she asked about the other ways that the property rights we know of are limited.

One thing I want to add to that discussion is that these are not necessarily best thought of as limitations on your rights. In many cases, they represent opportunities. For instance, the fact that I can own a property without being permitted to use it makes it possible for me to rent it to you. You wouldn’t want to rent an apartment in my building if I could barge in, after all. Since the legal system allows me to limit my rights to enter my own property, it makes it possible for us to come to an agreement on renting the property.

Similarly, Etelle’s family may not have property rights to the ground below their house. This limits their ability to put in a basement, well, or bomb shelter. (Although I assume it isn’t too difficult to get permission.) But it also means that if the water main bursts, one neighbor can’t hold the whole street for ransom before the city is allowed to come in to dig up the pipes and fix the problem. This is not only convenient for them but it increases the value of their property to a potential buyer.


Gibbard, Allan. 1976. “Natural Property Rights.” Noûs 10 (1): 77–86.