We discussed Gibbard’s article comparing what he called “hard libertarianism” with Locke’s version of libertarianism.
We ended with a quick rundown of the variety of property rights.
Hard libertarianism is the view that no one’s rights can be limited without their consent.
If you begin, as Locke did, with the assumption that we all own the earth in common, hard libertarianism has some surprising results. It gives the unproductive members of society something to bargain with: they can refuse to give up their rights to the earth’s resources without getting a share of what the others produce. Thus it can form the basis for a sort of guaranteed income.
Gibbard believes that hard libertarianism runs into trouble with generations. The older generation’s incentives to produce are limited by the fact that the younger generations will come up and demand a cut of whatever they make as the price for the older generation’s use of the younger generations’ rights to the earth’s resources. He thinks the only way to solve this sort of problem would be by using hypothetical contracts between the living generations and those yet unborn. But hypothetical contracts are antithetical to the idea behind hard libertarianism: that rights can only be surrendered by consent.
Some of our members did not see why bargaining among generations posed any more of a problem than bargaining among contemporaries. When the younger generation comes up, it strikes a deal with the older generation; it’s no more or less complicated than striking a deal among contemporaries. I’m not sure that we ever satisfactorily addressed that point. At least, I’m not clear on what the crisp answer to it is.
Locke was not a hard libertarian. He held that the fact that one person labors on a part of the earth’s natural resources is enough to terminate everyone else’s rights to use it even without their consent. This is so because labor generates property rights, according to Locke, and property rights are rights to exclude others from what one owns. Since Locke held that the earth was originally owned in common, the beginning of private property rights meant the termination of the rights of the common owners.
But how does laboring on something terminate someone else’s rights to that thing? This is a central question for Locke’s theory.
Gibbard maintains that Locke’s position makes sense only if the following moral principle is true: “the acts of each person [should] benefit or harm only himself, except as he himself chooses to confer or exchange the benefits of his acts” (Gibbard, 84). If this were true, then I could claim the full benefit of my acts of laboring on a piece of land to the exclusion of everyone else.
Sally and Marissa offered similar defenses of Locke. Sally said that she thought Locke’s position was (or should have been) that people have the right to some resources, not all resources. Marissa suggested something more specific: we have a right to the resources we need to sustain our lives. In either case, the problem of terminating rights would not necessarily arise. For example, Patrick could acquire farmland as his property by laboring on it without terminating anyone else’s rights provided there was enough land to sustain everyone else.
One thing I like about these suggestions is that they make a lot of sense of Locke’s remarks about improving the productivity of resources. On their own, they don’t make a lot of sense: the fact that I could make more productive use of your property than you can doesn’t mean that I get to take it away from you and call it my own. But if Locke never held that people have rights to everything in the first place, but rather only that they had rights to what they need to sustain themselves, those points make sense. If the appropriation of private property increases the resources available to everyone, then no one is deprived of what they need to sustain themselves by that appropriation. On the contrary, everyone’s ability to sustain themselves is improved!
I am not sure that this is what Locke, in fact, held. I still think he was trying to solve the seventeenth century problem of explaining why private property is compatible with God’s having given the earth to everyone in common. But I also think that Marissa and Sally have a good case for thinking that he might well have moved beyond this problem without having been fully aware of doing so. And they might add that anyone who wished to update Locke’s views for our time could take their suggestion and dispense with the common ownership idea. Well done!
Nozick makes the point that an inventor does not make anyone worse off than they would have been without the invention. So, he concludes, inventors are permitted to withhold their inventions from others.
I said that I thought this was an illustration of Gibbard’s principle. Sally didn’t see it and she was right to say that I didn’t explain what I had in mind very well. So I’m going to take another crack at it.
What I had in mind was something that I think libertarians often assume without argument: that society is obliged to provide protection for property rights. The inventor has a property right to her invention, so the rest of society is obliged to enforce that property right by, for example, punishing those who copy it, enforcing whatever contracts the inventor makes, and so on. This is a big deal. Without state intervention, inventors cannot maintain a monopoly on their inventions and the value of those inventions would, obviously, fall considerably.
Why is society obliged to enforce a monopoly on an invention? It would be obliged if something like Gibbard’s principle were true. If we were obliged to ensure that everyone’s actions benefit only themselves, then we would be obliged to create a system of patent, property, and contract law that would ensure the inventor reaps the full benefit of her invention. That was my idea. (Sally was right to say that Nozick himself did not say this.)
But creating this system of law is expensive and I don’t think it’s obvious that society is obliged to create it. Instead, I think that society is entitled to bargain with inventors and other owners: we’ll pay for the protection of your property rights provided you meet our terms. I agree with Patrick that inventors have rights over what they invent. But I don’t think it follows that society has obligations to help them defend those rights.