Locke, Nozick, and Volokh
    on the natural right to property in land

Is landownership a natural right? I doubt it.

Eugene Volokh demonstrates that the positive rights/negative rights distinction can’t really do the work libertarians want it to do.

Eugene observes that private property always constitutes a restriction on negative liberty, because it consists of the right to exclude others from the use of that property. In particular, he points out that private property in land restricts the liberty that others would otherwise naturally enjoy to walk on that land.

But he goes on to describe that negative liberty claim as “morally untenable.” That’s the part I can’t fully follow. That I should be prevented by law from taking your personal property — e.g., apples from a tree you have planted and tended — makes good Lockean sense. You produce the apples; therefore they’re your apples.

But how does it come about, morally, that it’s your land? As Nozick points out in Anarchy, State, and Utopia Locke’s account of “mixing one’s labor with the soil” is more or less incoherent, and the Lockean condition of leaving “as much and as good land” unclaimed unravels backwards once there’s no unclaimed land left. (Whoever took the last bit of unclaimed land didn’t leave “as much, and as good” for the next claimant, so he can’t properly take it. But then whoever took the next-to-last bit didn’t leave “as much, and as good” either, and so backwards until the very first appropriation is shown to be unjust.)

From a practical point of view, private property in land has huge advantages. But since land (setting Holland aside for the moment) can’t be made but only appropriated by denying others the right to use it, I find it hard to understand how anyone could have a natural, rather than a prescriptive, right to landownership.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

One thought on “Locke, Nozick, and Volokh
    on the natural right to property in land”

  1. Is Land Special?

    In response to that same post by Eugene Volokh described below, Mark Kleiman writes that land is a different type of property than are apples. From a practical point of view, private property in land has huge advantages. But since…

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