The freedom to exclude:
Private property rights and their
compatibility with the Capability Approach
Name:
Marcel G. Gieles
Student number:
10700536
Word count:
18028
Supervisor:
dhr. dr. E. Rossi
Second assessor:
dhr. dr. R. van der Veen
Abstract:
This paper discusses four justificatory theories for private property (1) The Occupation Theory, (2) The Labor Theory, (3) The Personality Theory, and (4) The Economic Theory. After reviewing each of these theories briefly an attempt is made to see whether an absolute interpretation of their conceptions of the right to private property could be compatible with the Capability Approach. An absolute private property right is a right to exclude others unconditionally. Compatibility with the Capability Approach is measured by controlling for a minimum of resources for all (or the freedom to acquire it) along with significant freedom of action for all. I conclude that none of the theories are compatible with the Capability Approach when we interpret private property rights absolutely. The last section investigates whether the theories succeed in justifying the existence of private property rights and whether they could be applied conditionally. I conclude The Occupation Theory and The Personality Theory fail to justify private property. The Labor Theory and the Economic Theory, however, do manage to justify it, and their conception of private property seems to be compatible with the Capability Approach, so long as it is restricted appropriately.
Table of content
Introduction 3
A) Capabilities: Freedom and resources 4
B) The right to private property 6
---1) Justification 1: The Occupation Theory 7
1.1 The theory 7
1.2 What can become private property according to the Occupation Theory? 9 1.3 What is the contemporary relevance of this approach to private property? 10
---2) Justification 2: The Labor Theory 11
2.1 The theory 11
2.2 What can become private property according to the Labor Theory? 13 2.3 What is the contemporary relevance of this approach to private property? 14
---3) Justification 3: Property and Personality 16
3.1 The Theory 16
3.2 What can become private property according to the Personality Theory? 17 3.3 What is the contemporary relevance of this approach to private property? 18
---4) Justification 4: The Economic Theory 20
4.1 The Theory 20
5) Absolute property rights and the Capability Approach 23 5.1 The Occupation Theory and absolute private property 25 5.2 The Labor Theory and absolute private property 26 5.3 The Personality Theory and absolute private property 27
---6) Limited property rights and the Capability Approach 28 6.1 The Occupation Theory and limited private property 28 6.2 The Labor Theory and limited private property 29 6.3 The Personality Theory and limited private property 32
6.4 The Economic Theory and limited private property 33 ---Conclusion 37 ---Bibliography 40 ---Appendix 42
Introduction
Despite the struggle to define what it means for an individual to be called ‘free’, liberty is still at the heart of most of our ideals in the contemporary world. Along with vital rights such as the right to life and the right to security of person, the right to liberty is recorded as a basic human right in Article 3 of United Nations’ Universal Declaration of Human Rights. But just as a right to life does not prevent death, a right to liberty is no guarantee for a life free of coercion. The right to liberty merely
delegitimizes unnecessary coercion, be it by a government, or from other sources.
The value of the ideal of liberty stems from the fundamental belief that every human being - and some authors would also include every animal (i.e. Wright, 1993; Korsgaard, 2013) - should be treated as an end, not as a means. Choices made of free will have an inherent value for someone who is committed to the idea of people as their own ‘setters-of-ends’. Using force – even with the best of intentions - to prevent people from making the ‘wrong’ choices fails to give individuals the power to take responsibility for their own lives. Martha Nussbaum even takes this argument one step further, arguing that things can only have value if they have been chosen freely. She continues by proposing a list of capabilities that give life value (2011: 33-34). Amartya Sen (1999a: 32), on the other hand, takes a more neutral position and suggests a deliberative process in which citizens decide democratically what ‘good life’ should look like. Nevertheless, certain outcomes – most notably, undemocratic outcomes - should always be avoided. It is unclear what actions Sen would propose when free people choose to forfeit their freedom. He avoids this question by claiming that the enhancement of freedom is instrumental in enhancing other people’s freedom, ignoring the possibility that sometimes, enhancing freedom may be instrumental to the destruction of (other types of) freedom.
To clarify his position, Sen (1999a: 283) talks about responsibility. He suggests that responsibility presupposes the freedom of choice. A person forced into an action cannot reasonably be called responsible for the consequences thereof. Sen’s Capability Approach is an attempt to give individuals responsibility, and this can only be achieved by allowing them to make choices of their own free will. Whether this freedom of choice should also include the freedom to make ‘wrong’ choices is not entirely clear, however. A person can be completely free to choose between several ‘society-approved’ lifestyles, yet restricted from choosing a completely different lifestyle. “What capability theorists seem to lack is a reason for preferring more freedom to less freedom” (emphasis in original; Carter, 2014: 93). This statement might be true for Sen’s definition of the Capability Approach, but the same cannot be said for Nussbaum’s (2003: 46) version, who clearly only includes specific types of freedom in her list, while explicitly excluding freedoms such as: “[T]he freedom to rape one’s wife
without penalty, the freedom to hang out a sign saying ‘‘No Blacks here,’’ [and] the freedom of an employer to discriminate on grounds of race or sex or religion”. Whereas Sen proposes a fair democratic discussion about the values of these freedoms, Nussbaum would prefer to have them banned beforehand.
The freedom to choose without coercion or other external restrictions is not enough to guarantee real freedom, however. Such a purely negative conception of freedom would miss out on several other important factors that may influence real opportunities of an individual. As Saul Tobias points out:
[I]n the absence of the physical, economic and social well-being as a basis for effecting real change in one’s circumstances, the removal of external repression or constraint to free activity may amount to no more than a gesture of goodwill (2005: 80).
A government that treats all citizens as equals without unnecessary repression does not
automatically lead to fair or equal chances for everyone. Among others, an individual’s chances are also affected by path-dependency, economic and political inequalities, and their mental state. While negative freedom is a necessary condition for freedom, it does not suffice.
Sen (1999a: 10-40) acknowledges this and distinguishes five types of freedom that can be
instrumental in enhancing person’s capabilities: (1) political freedom, (2) economic facilities, (3) social opportunities, (4) transparency guarantees, and (5) protective security. Each of these freedoms has the potential to expand options, or in Sen’s words capabilities of individuals. However each of them, when lacking, also has the potential to limits a person’s capabilities. “Economic unfreedom can breed social unfreedom, just as social or political unfreedom can also foster economic unfreedom” (1999a: 8). Sen illustrates this with an anecdote about a person named Kader Mia who was killed because he chose to go out to find work during a riot. Although nobody physically forced him to go out to find a job, and although he knew he was risking his life by going outside, he still felt forced to do so, due to his poor economic situation. At the end, he was deprived of freedom before he was actually attacked, and despite no external coercion being involved in his decision to go outside during the riot.
A) Capabilities: Freedom and resources
‘Capabilities’ refer to the “the substantive freedoms … [a person] enjoys to lead the kind of life he or she has reason to value” (Sen, 1999a: 87). “A capability is thus a kind of freedom: the substantive freedom to achieve alternative functioning combinations (or, less formally put, the freedom to achieve various lifestyles)” (Sen, 1999a: 75). These capabilities, and not the actual outcomes, or in Sen’s words ‘functionings’, should be the focus of a debate on justice. To clarify with one of Sen’s
examples: If we compare a person who is fasting and therefore undernourished to a person who is undernourished because that person cannot get food, and if we only look at the functioning, we may conclude that both are in the same situation. Alternatively, if we look at the capabilities of both people we can conclude that the former chose to be in this situation whereas the latter had no choice. This distinction makes a difference if we value freedom of choice inherently and not just as an instrument to reach good outcomes.
It should be noted that capabilities are not just freedoms to choose, but are actually ‘substantive freedoms’, this means that they are not simply things you could choose theoretically, leading to functionings you could theoretically achieve, but are things that you can actually choose, leading to functionings that you can actually achieve. A person with no food could have the freedom to eat food, if we understand freedom in its purely negative sense; but that person could never have the substantive freedom to eat food, or in other words, the capability to eat food. Resources are a vital part of Sen’s Capability Approach.
Resources can refer to material goods, such as food, housing, furniture, but they may also include contracts, property rights, a safe domestic environment, a good social network, and political powers such as the right to vote or the right to be voted for, or simply good health. So far, resources appear to be rather useful, and few people would object to having them distributed in a fair manner, granted the associated costs are not too high. Nevertheless, not all resources should be available to everyone, or should even exist to start with. Discrimination of certain groups could be interpreted as a resource for some, and as a lack of resources for others. Let us take, for instance, the issue of ‘white privilege’, which is a beneficial resource for white people, and which causes, in relative terms, a reduction of resources for others. Capabilities require resources, but not all resources are equally valuable. The questions we should ask are: (1) Which resources should be distributed, and (2) How should they be distributed?
Sen’s easy answer would be that we should aim to distribute capabilities and not just resources, which was also the basis of his criticism towards Rawls’ proposal to distribute primary goods (Robeyns, 2005: 97). Resources are necessary for people to lead a good life, but an autocracy that would provide the citizens with all necessary primary goods, in turn coercing them to use these goods in the most efficient way, would not be a just society because it lacks the most fundamental resource that individuals need to be treated as setters of their own ends - freedom. Moreover, an equal distribution of primary goods would fail to take into account human diversity. A person in a wheelchair, for example, requires more resources to achieve mobility than a person without any handicaps in respect to mobility.
This brings us in a bit of a conundrum. On one hand, we need resources for our freedom to actually become substantive freedom (hereinafter referred to as ‘capabilities’); on the other hand, it is precisely the lack of capabilities that prevents us using resources effectively. So if Sen is right, and capabilities are the appropriate metric of justice, how do we go about distributing or expanding them? Should we opt for general utility, distributing resources to those who use them most
effectively and hope the effects will ‘trickle down’? Or should resources be distributed according to need, even though they might not be used in an optimal manner? That is assuming we can talk about distribution of resources at all, because in some cases it may be inappropriate to take away what rightfully belongs to an individual, regardless of what use they choose to put it to, or intend to. The right to life, or the right to vote come to mind here, although in extreme cases even those rights can sometimes be removed.
B) The right to private property
This paper will examine these questions with regard to the right to private property, which shares a clear connection with the ability to use one’s own resources effectively. While it is often considered a necessary condition for freedom, the associated justifications thereto differ greatly. For Kant, private property is one of the vital preconditions for an individual to become their own master, because otherwise all actions requiring external resources become conditional on others. He even considered private property a precondition for the existence of our current state system (Byrd & Hruschka, 2006). Libertarians go one step further, and argue “the only improper human activity is the initiation of threat or force against another or his property” (Block, 1998: 1887). The only two rights that need to be protected are the right to bodily integrity and the right to private property. Others have accepted a broader list of rights that ought to be protected, but still believe “it is clear that society cannot have secured civil rights without property rights” (Esposto & Zaleski, 1999: 188).
Researching to what extent private property rights are compatible with the Capability Theory is valuable because Nussbaum explicitly includes property rights in her list of central capabilities. Under the central capability ‘control over one’s environment’ she includes a political aspect and a material aspect, the material capability encompasses the following things:
Being able to hold property (both land and movable goods), and having property rights on an equal basis with others; having the right to seek employment on an equal basis with others; having the freedom from unwarranted search and seizure. In work, being able to work as a human being, exercising practical reason and entering into meaningful relationships of mutual recognition with other workers (2011: 34).
By including it in her list of the ten central capabilities, Nussbaum implicitly claims that property is something that no conception of the good life can do without. This claim is certainly not
unchallenged.
It is not coincidental that Marx argued that “the theory of the Communists may be summed up in the single sentence: Abolition of private property” (as quoted in; Brenkert, 1976: 498). Protecting an individual’s property rights implicitly means excluding everyone else from using that property without the owner’s consent, which may be problematic for several reasons: First of all, instead of enhancing it, it may actually limit the ability of individuals to set their own ends. Secondly, it may be unjust, because it alienates people from the fruits of their labor. Thirdly, it may protect or enhance
inequalities that cannot be justified based on the minimal requirements for a person to lead a decent life, and lastly, it may simply be inefficient.
In the next sections, four different justifications for private property will be discussed, each of them involving a different conception about what should or could legitimately be called private property, and how it should be distributed. The fifth section will deal with the question whether we can justify an absolute right to property using one of the aforementioned theories. Concluding that all four theories cannot hold on to absolute property rights if we also value people’s freedom and a social minimum. The sixth section will discuss to what extent the theories succeed in defending the existence of private property rights and will look at their compatibility with the Capability Approach. My conclusion is that the Occupation theory and the Personality theory both fail to provide an adequate justification for the existence of private property; the Labor Theory and the Economic Theory do provide acceptable justifications but need to be mindful of the boundaries of property rights to protect the capabilities of all. The last section will provide a brief summary of the argument.
1) Justification 1: The Occupation Theory
1.1 The theory
Ripstein (2009: 149-159) gives an excellent summary of Kant’s justification for property rights. Kant argues that independent purposiveness requires private property, which is necessary for individuals to set their own ends, Without it, any end requiring external means would become conditional on other individuals not using those same external means. An important implication of this position is that no individual can rightfully deny you the right to claim property, because that would, again, make your own ends conditional on someone else’s.
Kant does not ground property rights in a preconceived idea about human ownership of the world. Instead, he builds up the entire argument supporting private property rights from the ideal of freedom. An individual has the right to appropriate property because they have the right not to be interfered with. Any individual has the right to voice a claim to property that has not yet been appropriated by anyone else. To take ownership of a piece of land without an owner, the individual must follow three steps:
Firstly the individual must take possession of the land, so it becomes clear that the land is under their control. While this might be simple with small material objects, it is not quite as straightforward with (large) pieces of land, because it is not clear when a person has actually taken possession of it. Kant argues we need laws to clearly define the notion of taking something in possession, in contrast to merely using a piece of land or passing through (Ripstein, 2009: 158).
Secondly, the individual must give a sign that they wish to become the owner of the land, declaring that others are excluded from using the land in the future without prior consent of the owner. Again, the form of this declaration needs to be defined by the legislation to ensure that it is clear for everyone (Ripstein, 2009: 154).
And thirdly, which is also most important, the act of appropriation must be in conformity with the general will. Any individual has the political authority to place a claim on any piece of unowned land. But it is only through acceptance of the public body of which all individuals are a part that a unilateral political action such as an individual appropriating a piece of land can become omnilaterally binding (Ripstein, 2009: 157). This is vital because the act to appropriate a piece of land affects everyone. By claiming ownership over the piece of land, the individual is in effect excluding everyone else from their rights over that particular piece of land, and if a decision affects everyone, it can only be in accordance with the ideal of the individual as an end if everyone has been included in the decision-making process.
Within this theory, people have the right to take as private property anything that does not yet have an owner. It is important to note that Kant does not consider individuals to be the exclusive holders of the right to private property. Groups of individuals can also be holders of private property, with the most prominent example being the territory of the state.
The advantage of this theory is that its fundament is individual freedom. As such, it may be seen as one of the theories on private property that is most similar to Sen’s Capability Approach. The right to private property is based in the individual’s inherent right to set their own ends. To set these ends the
possession of private property is necessary, for without it all ends requiring external means become conditional on others not using those same external means.
1.2 What can become private property according to the Occupation Theory?
Although the theory supporting it sounds logical enough, the question is whether this conditionality is really such a big deal. For example, let us take oxygen. Our body requires a constant resupply of oxygen to be able to survive, making it one of the most vital resources necessary to stay alive, even more so than food and water. Oxygen inhaled by one person cannot simultaneously be inhaled by another. In a way, when a person breathes, they are making everything that requires oxygen for sustainment, conditional on their behavior. Nevertheless, few people would say that an individual’s breathing actually limits the freedom to set ends for others, and by extension, that we should make oxygen into a private property.
Although the thought of making oxygen a private property may sound rather ridiculous - it is
practically impossible to keep track of the amount of oxygen inhaled in total, not to mention there is enough oxygen for everyone even if some inhale significantly more than others -it makes it a rather interesting thought experiment. We could decide that oxygen is an extension of the land you own, and that oxygen on a particular piece of land is also property of the person who owns the land. Then, we could decide on an average number of inhalations per minute and charge people accordingly for the amount of time they spent on someone else’s property. This way, we could extend the realm of private property to oxygen. Although I do not necessarily agree with this endeavor, I do not see any immediate objections that can be made based on the occupation theory. As long as the appropriation is done in accordance with the general will, even oxygen can become private property.
This can be countered by saying that oxygen should not be made private because it exists in abundance, and my own use of the resource does in no way affect someone else’s ability to use it, which is why there is simply no need to turn it into private property. In response to this claim based on Occupational Theory’s reasoning, one could say there is also no valuable objection to giving someone the political authority over some of it. Why would you take away the individual’s inherent political authority to take property, to prevent them from taking something that exists in abundance? To prevent them from having possession over something that others will most likely not be using in either case? If freedom to set ends is our starting point, then we should not take away the individual’s inherent freedom to take property, especially not for something as omnipresent as oxygen.
Another objection could be that it is immoral to exclude people from resources that are vital for human sustainment. We have a right to life, and therefore nobody can exclude us from the things
that are necessary to sustain that life. To a limited degree, the Occupation Theory supports this, because private property can only exist if it is in conformity with the general will, which in turn can only be accepted by everyone if they are able to agree on its implications, which will most likely be if it provides at least a minimal level of subsistence for everyone (Ripstein, 2009: 283), unless some people are so altruistic that they would willingly give up their lives for the prosperity of others. However this objection is problematic because it does too much. Excluding people from resources they need to sustain their lives might be immoral, but this does not constitute an objection against making oxygen, food, water or land private property. It is only an objection against a wrongful distribution of private property in these vital resources. As long as everyone has enough, which should be the result of the general will, everyone will have access to their privately-owned share of vital resources they can use at will. This is not incompatible with a simultaneous exclusion from similar vital resources owned by others.
1.3 What is the contemporary relevance of this approach to private property?
The issue with the theory is that it appears to be rather outdated, as it relies primarily on the concept of unowned property. Especially in densely populated areas, this theory would allow very little chance for individuals in the 21st century to acquire new property. On the other hand, as shown in the
previous paragraph, it would also not allow individuals to not have any property at all. Firstly, because that would make the existence of these individuals conditional on cooperation with others, therefore making them unable to set their own ends; and secondly, because that would be incompatible with the general will.
A Western society with private property rights based purely on the Occupation Theory would be very hard to imagine. With its primary goal to protect the freedom of individuals to set their own ends, it would have to be very strict on the protection of private property, because a society telling people what to do with their property would not respect individuals as ends. Nonetheless, such a society would also constantly be distributing property towards the needy, because an individual who does not privately own at least a minimum of vital resources will also become dependent on the goodwill of others, again, leading to a situation where individuals are not able to set their own ends.
The protection of private property rights does not necessarily have to conflict with the necessity to provide all individuals with at least a minimum. Nevertheless, in a modern Western society, where every piece of land already has an owner, the provision of goods to the needy would in practice require distribution of goods that are privately owned. Such a conclusion is painful considering the basic ideal behind the Occupation Theory to make the individual free to set their own ends. This
conclusion suggests we have to make a choice between conditional ends without private property, leading us to a situation where we have to cooperate or compete with others over external means; or conditional ends with private property, in which we may risk losing some of our private property or have to make concessions over their use to satisfy the general will.
2) Justification 2: The Labor Theory
2.1 The theory
In this section I will deal with theory that sees the right to private property to be grounded in the labor of men and women. The most well-known version of this argument comes from John Locke. Locke´s argument starts from the assumption that “God gave the world to men in common” (Locke, 2008: 13). Therefore, everyone has an equal right to the land. This stands in contrast to Kant’s idea about property which does not presuppose any God-given right to the earth. What is important about this assumption is that it illegitimates unilateral property ownership claims on the basis of common ownership by all mankind. Locke’s state of nature starts with uncultivated, unowned lands, however, due to the starting assumption that all lands are given to men by God, no individual can rightfully claim ownership over any lands because all lands are already the common property of all men. Although this initial assumption that the world is given to mankind by God may have been more broadly accepted during Locke’s life than it is now, the thought that every human being has inherent rights simply by virtue of being human is not exclusive to religious belief. This belief can also be found in the United Nations: Universal Declaration of Human Rights, and more relevant to this paper, in Sen (2005: 154-155) and Nussbaum’s (i.e. 2003; 2006: 278) work, who speak of these rights as
entitlements.
So how do we go from a situation of shared, God-given ownership –or entitlements, if you will- to private ownership? Locke gives two arguments to support this transformation. First of all, he argues private property can be justified because of the physical nature of human labor. We may not have individual claims on the world, but all people are the owners of their own bodies. It is through our bodies, and the labor we perform with them, that we can acquire ownership over the external world. Labor, in this context, is understood as the mixing of what is ours (our bodies) with what is owned by all. By laboring, we remove something from the state of nature and gain an individual right to it. The second reason why Locke argues labor justifies private property is outcome-oriented. Because the productivity of cultivated lands is much higher than that of uncultivated lands, the individual who
chooses to exclude people from his or her private property to cultivate it may actually benefit others. Locke claims:
[H]e who encloses land, and gets more of the conveniences of life from ten [cultivated] acres than he could have had from a hundred left to nature, can truly be said to give ninety acres to mankind (Locke, 2008: 14).
For these two reasons Locke argues that individuals have a right to acquire as private property those things in the outside world that they have mixed with their labor.
Although labor undoubtedly increases value in many circumstances, it is not hard to think of
examples where it does not, or where it may even be harmful. Image a hunter who attempts to catch a deer but fails, a farmer who pollutes a river with pesticides or a fisherman who is damaging coral fields with heavy fishnets. How should we understand private property in these circumstances? What exactly does it mean to mix your labor with the external world? Should we reward those with private property who perform their labor, but fail to create extra positive value?
Locke defends the intrinsic value of labor. God has given the world to men to cultivate and improve it and therefore those who perform labor are performing God’s work (2008: 13). Labor is intrinsically valuable and should therefore always be rewarded with property rights, even if it is performed inefficiently. One exception is if someone is taking more property than he or she can use in ‘in a beneficial way’, someone who picks up many apples but ends up only eating a few and lets the others rot has wronged all others, for “[n]othing was made by God for man to spoil or destroy” (Locke, 2008: 12). These questions have led Thomas Paine to argue that ‘creation’ may be a better way to
understand rights to private property. Paine disagrees that labor inherently gives people a right to private property, instead, individuals only have a right to what they have created themselves. Unsurprisingly, a creation-based theory thus looks at the value that is created by labor.
Instead of giving exclusive ownership of the land to the person who cultivates it, a creation-based theory would look at the yield of the farmer, and would compare this to a hypothetical yield that could have been received without any cultivation on the same land. The difference between these two yields is the value that has been created by the farmer’s labor, it is something that did not exist and would not have existed before the farmer’s labor and this is the share that the creation approach would believe that the farmer is privately entitled to (Lamb, 2010: 504).
So how can we understand this theory of private property in relation to the securing of resources, or the expansion of capabilities? Would ownership of the fruits of your labor expand your capabilities, or would it make all your resources conditional on others not using them and subsequently gaining ownership over them? The Labor Theory focuses mainly on the state of nature and on how property may be acquired in such an environment. Although we clearly do not live in a state of nature
anymore, the Labor Theory may still hold value, even within a context where most land is already privately owned.
Because this theory is based on a hypothetical situation where people live in a state of nature, it is difficult to apply to circumstances where there is no unowned property to live from. Locke does nuance his statement that private property should always be provided to those who have mixed their labor with something from the state of nature, by adding: “[A]t least where there is enough, and as good, left in common for others” (2008: 11). This ‘social minimum’ follows from the very first assumption of the Labor Theory, an assumption that is shared by both Locke and Paine, that “God bequeathed the world to all individuals equally” (Lamb, 2010: 506). What is interesting is that these inherent rights to the earth and its fruits are not translated into private property rights. It seems to me that both authors are proposing a system where the majority of the land is commonly owned and uncultivated. This seems like an unlikely scenario for a contemporary Western society. Nevertheless, let us examine the implications of such an approach to private property.
Possibly the most important implication of Locke’s work for the contemporary world is with regard to inequality. The invention of money as a currency has allowed individuals to hoard more than they need; to acquire more than is useful to them. Instead of losing value when unused, the fruits of someone’s labor become institutionalized as a currency, and do not lose value when unused, unless perhaps through inflation. This gives individuals the opportunity to expand their labor to new lands and new places, even when they do not objectively need them for their own subsistence. In the old situation such an expansion would have been pointless as the individual would simply be wasting labor to acquire things that he or she could not use. Locke considers the invention of money to be a contingent historical event. He shortly summarizes the effects of the implementation of money on the life human life in The Second Treatise of Government:
Men came to want more than they needed, and this altered the intrinsic value of things: a thing’s value originally depended only on its usefulness to the life of man; but men came to agree that a little piece of yellow metal—which wouldn’t fade or rot or rust—should be worth a great lump of flesh or a whole heap of corn. Before all that happened, each man could appropriate by his labour as much of the things of nature as he could use, without detriment
to others, because an equal abundance was still left to those who would work as hard on it (Locke, 2008: 14).
After the implementation of money, things were no longer valued for their usefulness for people, but for their monetary value. This allowed for, and actually encouraged people to acquire more than they required for their own subsistence.
This in itself is not necessarily problematic, as long as ‘perishable’ things are traded before they spoil. If all people involved in the trade agree a piece of metal (money) is a fair price for something of actual use, then no harm has been done as long as the ‘perishable’ items do not go to waste. The value that people place on the money is not a godly given right to ownership, but a social construct. In short, Locke argues labor gives individuals an inherent right to property insofar as it is not spoiling any of the world’s resources. By trading perishable goods such as food for nonperishable currency such as money, people can expand their property to beyond what they require. By doing this, they avoid wasting any of the earth’s resources which would result in a loss of rightful property, and allow themselves to rightfully claim a larger property than what they could have claimed if they only used it for it for their own subsistence. Their reward for doing so consists of money, or in other words, little pieces of yellow metal; it hardly seems like a fair deal.
2.3 What is the contemporary relevance of this theory of private property?
It only becomes problematic when money starts to override people’s rights to their own labor. This is what we see happening in the contemporary Western world. Instead of having a right to what you have created, the rewards are wages; a standardized social representation of value. Marx therefore argued that the capitalist understanding of ownership is the complete antithesis of private property through labor (Brenkert, 1979: 127). Capitalism disconnects labor and its value from the individual, not only by separating any production process in as many simple steps as possible, leading to a situation where no one can claim to have single-handedly ‘made’ a product, but also by rewarding people not with the fruits of their labor, but with money, and by disconnecting the trading process from the production process. Instead of valuing labor, all these steps are attempts to alienate people from the inherent right to their labor (Marx & Engels: 1848: 42). They can be understood as
illegitimate intrusions on people’s private property. Private property as understood by the Labor Theory can refer to either the entire product that workers have mixed their labor with, or simply the value they have added. Workers are entitled to sell this product for money afterwards, but wages unrightfully presume monopolized ownership for capital owners over workers.
Marx thus blames the capitalist system for alienating the worker from its labor, but even without the capitalist standardized production processes, it would be hard to point to one individual who
objectively, and single-handedly added value or created something new. Say I am a farmer and do not allow others on my field, I would still rely on others for peace and protection, for agricultural tools to plow my fields, for knowledge that is passed on from generation to generation, for medical attention when I get sick and for countless other things that may not directly affect my yield, but that may have great or small effects indirectly. Everyone is always indebted to society in general –assuming that it provides peace and stability; and to some individuals in particular.
Nevertheless, we may brush this objection aside by claiming that just because it is difficult to measure who exactly created what, it does not automatically follow that we should abandon the project altogether. If labor is the appropriate ground for private property, then we should aim to discover as best as we can, who has contributed how much to each product, and reward them accordingly. If this is impossible then we ought to do it by approximation.
The real objection to this theory is not that is impossible to decide who owns what; the real objection is that labor may not be the best ground for a right to private ownership. Kant argues that you cannot gain a right to something just because you ‘wish’ it, wishing it in this case can be compared to labor, or ‘working for it’. You are free to set ends that are outside your reach, yet only ends that are within your own reach can be named internal rights. Someone who decides to work on a piece of property does not gain a right to the property or to the fruits of his or her labor, you only have that right if you already were the owner of the piece of property in the first place. Any individual is free to labor to achieve an end, yet you are only entitled to that end if you already owned the resources to achieve the end, or in other words, if you already owned the land you worked on. Otherwise you are simply dependent on the goodwill of the owners of the land to give you what you created or otherwise your hard work will simply be for nothing.
Another objection against labor as the foundation for private property is more humanitarian in nature; their argument: “[T]he first claim on property is by the man who needs it rather than the man who has created it” (Cohen, 1927: 17). Disregarding whether private property is the correct way to achieve ownership, I am unconvinced that anyone who is in dire need of a thing that I possess, also has a stronger property claim to it. I may have caught a fish today, but since there are people in the world who are starving, should I relinquish my ownership of the fish to one of those people? Although it would undoubtedly be a charitable thing to do, I am not convinced they have a stronger claim over this particular object than I do, even though they might need it more. We might,
does not automatically imply that we would lose ownership over what we have worked for. In the next section I will deal with this dilemma more extensively.
3) Justification 3: Property and Personality
3.1 The theory
Unlike Kant who starts his argument about the necessity of property rights from the ideal of the freedom to set ends, Hegel believed that the right to property precedes and is a necessary precondition for freedom (Stillman, 1989: 1035-1036). The free-will that every human being
possesses is internal and merely subjective without private property. People need private property to express their free-will in the external world. Without external representations of their personality in the form of privately owned things they are unable, and thus unfree to develop and to show their personality. To actualize this free-will, to make it into something that is real, not only in the individual’s mind, but also in the external world, the individual must be able to place his will unto external objects and make them his own. Any person therefore “has as his substantive end the right of putting his will into any and every thing and thereby making it his” (Hegel as quoted in; Stillman, 1989: 1034).
Similar to the Occupation Theory, this requires a sign to the outside world that a person wills an object. By giving a sign and clearly stating which ‘thing’ the person has placed his or her will on, others will be able to recognize the realization of the individual´s formerly internal will in the external world. In this way, the individual can claim ownership over any external item, as long as it is not another person.
At first glance you would expect such a justification for private property to lead to an untenable situation. What would stop individuals from willing everything? Why would they show constraint? The answer lies in the free-will and in its external representation of it, the personality of people. The free-will does not only claim to have a right to certain property to realize itself in the external world and thus to be recognized by other people; once it has achieved this physical minimum, the free-will also aims to actualize other ideals for human existence such as a family, a state and a moral
environment to live in. Free-will, the driving force of property rights, in its most accomplished form, then becomes its own reason for limiting those same property rights. Hegel argues the individual who only cares about his or her own right to private property, who only cares about his own desires, whilst disregarding other people’s interests is ‘defective’.
To have no interest except in one's formal right may be pure obstinacy, often a fitting accompaniment of a cold heart and restricted sympathies. It is uncultured people who insist most on their rights, while noble minds look on other aspects of the thing (Hegel as quoted in; Stillman, 1989: 1036).
So although the right to individual property is theoretically almost unlimited, if we follow this justification, in practice, we could expect developed societies to have a private property system that shows more regard to the common interest than to full unrestricted protection of ownership rights. Whereas the ‘uncultured’ man might think of taxes as theft, and this theory does not necessarily argue that this idea is wrong, the noble man might accept taxes, and might actually will this intrusion of private property to further realize his free-will on the world; an active government that can support the needy with citizens who live a moral life, instead of a life of self-interest.
3.2 What can become private property according to the Personality Theory?
Following this theory, almost anything can become private property. The only condition I can think of is that it must be possible to present it to the outside world as property. If it does not conform to this condition, it loses its ability to become an external actualization of the free-will. Although this may certainly complicate a few ownership announcements, I cannot think of a single object that would definitely be excluded through this ‘limitation’. The only things that are absolutely, categorically excluded from becoming private property are other individuals. For they too have the right to express their free-will, to develop their personality.
Despite the broad list of potential things that can become private property, the final list of what should actually become private property is a much more interesting topic of discussion. Followed by the question how strict we should interpret private property rights. Whereas Kant was clear about the importance of strict property rights to protect the individual’s freedom to set ends, Hegel seems to think that this strict interpretation is a sign of ignorance or narcissism (Stillman, 1989: 1036).
Although Locke and Hegel believe property to be grounded in completely different sources, both seem to agree that usefulness is an important ground for property. Locke believes that ideally, we would only have as much property as is useful to us (2008: 17). Although Hegel does not believe we need labor to gain a right to property, he would probably agree that it would be unjust to have ownership over more than what you require to express your personality in the world. Private property stands in service to the externalization of the free-will, personality. Once the individual has succeeded in building his or her personality into the actual world through property, hoarding even more property ceases to be a valuable goal. Instead, the individual should then focus on immaterial,
social or moral goals and would probably even accept a partial alienation from his or her private property in service of a strong public authority (Stillman, 1989: 1055).
On the other hand it shares with Kant’s Occupation Theory the idea about the common good. Whereas Kant grounds every right to property by conforming it with the general will, Hegel starts out with a general right owned by every individual to unilaterally claim property, without being restricted by the general will or other institutions. By satisfying basic material needs through rightful property ownership individuals start to expand their personality and start to aim for other goals than mere physical survival. As soon as enough individuals reach this stage where they do not just strive for survival or self-interest, but for, amongst other things, cooperation, morality and justice; societies will reflexively interpret the value of each property claim, possibly leading to distribution and changing the outcome to one that would have been in conformity with the general will.
3.3 What is the contemporary relevance of this theory of private property?
This theory is interesting because it combines two opposing thoughts in one argument. One is that unlimited freedom to use property is necessary for people to build their personalities, the other that this freedom may be counterproductive in the long run, limited ‘freedom’ may allow for better personality-building in a society. Kant seems to emphasize the former in the Occupation Theory, whereas Hegel seems to emphasize the latter. It is important to be able to distinguish between these two ´types of freedom´. Expanding the right -the freedom- to do with property whatever the owner wants to do with it may be valuable at first, because without this right you cannot achieve real freedom; nevertheless, this right becomes a burden once you strive for more than only physical actualization of the free-will into the external world. Goals such as cooperation, morality and justice and living in a family or a state may require people to sacrifice some of their rights –some of their freedoms.
This idea poses a challenge for Sen’s capabilities, because it would lead us to believe that restrictions on entitlements –such as restrictions on the freedom to do with property what you wish- may even be desirable to achieve important goals as individuals in a society. This stands in opposition to Sen’s argument that the expansion of freedom should be the main goal for those who want to achieve development; Sen (1999a: 4-5) argues individual freedom is instrumental in creating better
institutional arrangements and social development. The only reason people may fail to get what they are entitled to should not be a restriction of freedom performed by the government, but should be individual choice; because someone freely chooses to refrain from what he or she is entitled to (Sen, 2005). Hegel would not entirely disagree with this conclusion; he would simply look at it from a
is something that you have created, something you have willed; your own free-will is enacted upon through the external government. You are restricting yourself, which is not inconsistent with individual freedom (Berry, 1977: 691).
One of the major difficulties with this justification of private property is that it is hard to objectively argue whether individuals should be given more freedom to use and expand their right to private property, or less. Cohen (1927: 18) notes:
How, for example, can the principle of personality help us to decide to what extent there shall be private rather than public property in railroads, mines, gas-works, and other public necessities?
The theory clearly allows every individual property rights, enough to build their own personality in the external world, but once this is achieved, the legitimacy of any additional property claims, and the extent to which these property claims are absolute, is open for debate.
Consequently, we may end up in a situation similar to the hypothetical Rawlsian society where primary goods are distributed to all citizens equally or sufficiently, and where the use of these goods is regulated strictly to prevent waste, inequality or inefficiency. The primary goods allow people to build up their personality, and the governmental regulations are then interpreted as extensions of the individual free-will for an equal, just and sustainable society. As I have mentioned in the introduction of this paper, Sen would disagree that such a society could be a just society because it fails to treat citizens as ends, because the citizens in such a society are not free to do with their property -and therefore their life- as they wish. If a similar society would be considered just by proponents of the Personality Theory, then Sen would have reason to reject it for this exact same reason; because it is patronizing citizens. Disregarding for a moment that it would probably also fail to incorporate human diversity.
Now some might call this an unfair representation of Hegel’s justification for property. As Hegel clearly states that people ought to be free to take and use property without any external restrictions to build their personality. My response would be that this statement seems to be mostly theoretical, because whenever people actually try to use this absolute right to property, Hegel calls them ‘uncultured’, ‘cold-hearted’, ‘defective’ and in need of education (Stillman, 1989: 1036-1037). Hegel thus seems to have a clear ideal on what the human life should look like; and full-fledged protection of property rights does not seem to be an important part of it.
4) Justification 4: The Economic Theory
4.1 The theory
In ‘The Wealth of Nations’ Adam Smith (1977: 30) argues that, unlike animals, who become almost completely independent when they reach maturity, mankind is special because individuals almost constantly require the help of others to survive. Instead of individual self-sufficiency, an extensive division of labor is the natural state for mankind. This may make individuals dependent upon one another, yet it is profitable because it is in everybody’s best interest.
Smith argues that this division of labor makes it possible for even the ‘frugal peasant’ to enjoy a superior accommodation in comparison to higher ranked people in less ‘well-governed’ societies.
It is the great multiplication of the productions of all the different arts, in consequence of the division of labour, which occasions, in a well-governed society, that universal opulence which extends itself to the lowest ranks of the people (Smith, 1977: 25).
Although this could explain why individuals would prefer a division of labor over self-sufficiency, it does not automatically explain the need for private property. It is perfectly possible to have a division of labor in a society without private property. In the old ‘hunters and gatherers societies’ the hunter who had killed a deer would still be obliged to share it with the rest of the group, and the women who grew the crops would also not privately own their yields.
Smith (1977: 582) argues private property is necessary to encourage people to maximize the value of their labor. If everything is collectively owned, the person who does the least amount of work profits from the person who does the most, leading to the familiar ‘free-rider’ problem. Consequently, the incentive to produce as efficiently as possible disappears because individuals hardly profit from expanding their own production if others do not follow their lead. Private property encourages individuals to make the most of their abilities and capital; it uses self-interest as an instrument for the advancement of wealth within society.
This argument also explains why some people should have the right to own property, whereas others should simply borrow, use or create it. This inequality can be justified because some people are simply more effective in using what they own to create new things than others. We can think back to Locke’s statement about a farmer who cultivates ten acres of land and increases its productivity tenfold, this person can actually be said to give ninety acres to mankind (Locke, 2008: 14). The Economic Theory does not ground the property rights of this farmer on the labor that this person has performed on the ground, he might as well be an effective manager and leave most of the work to
others. It grounds the property rights in the fact that the institution is productive. If our farmer’s neighbor also cultivates the ground but only increases its production eightfold, then through economic processes it is likely that over time the property rights of both the lands will become property of the farmer and/or manager who is most productive. This leads to a situation where mankind uses its resources in the most economically efficient way.
Barbara Bender (1978) points out that increased productivity and increased production are related, but not necessarily the same thing. Once productivity is increased, it is possible to farm a piece of land for a smaller amount of time, or a smaller piece of land for the same amount of time; either way, more productivity does not necessarily lead to more production. Bender therefore argues a social perspective is required to explain why in some areas, people decided to use the increased
productivity, not only to produce what is necessary more efficiently, but to go beyond that and to increase production. If we want to understand why farmers chose to increase their production, we need to understand the social incentives that drove them to do so. In the Middle Ages one of these incentives may have been threats by feudal lords, or rewards for high productivity. In the present, the social institution private property is one of the most useful ways to understand what gives individuals the incentive to expand their production after the development of new technologies that have enabled an increase in productivity.
4.2 Why should things become private property according to the Economic Theory?
If we follow this argument, private property is valuable because it gives people an incentive to expand not only productivity, but also production. Smith argues even the lowest ranks of people in societies with an extensive division of labor and private property have access to items that most ‘African kings’ could merely dream of (Smith, 1977: 28). He gives a summary of items that could underscore such a bold statement.
[T]he coarse linen shirt which he wears next his skin, the shoes which cover his feet, the bed which he lies on, and all the different parts which compose it, (…) the glass window which lets in the heat and the light, and keeps out the wind and the rain, with all the knowledge and art requisite for preparing that beautiful and happy invention, without which these northern parts of the world could scarce have afforded a very comfortable habitation, together with the tools of all the different workmen employed in producing those different conveniences; if we examine, I say, all these things, and consider what a variety of labour is employed about each of them, we shall be sensible that, without the assistance and co-operation of many
thousands, the very meanest person in a civilised country could not be provided, even according to what we very falsely imagine the easy and simple manner in which he is
Although we may, or may not, agree with this conclusion. We cannot just assume that the worker in the ‘civilized’ world benefits from this situation, simply because he or she owns a glass window. It would be like saying that we can justify slavery by giving every slave a spaceship. Material prosperity and technical superiority is only a small part of human well-being –if at all. Nussbaum (2011: 33-34) illustrates this point with her list of things that are necessary for a minimal good life. Nine out of ten central capabilities are essentially non-material capabilities such as i.e. ‘health’, ‘senses, imagination and thought’ and ‘emotions’. Even though the right to hold property is among the central capabilities, it is not clear that it should be allowed the privilege to override other central capabilities.
People thus care about a lot of non-material things when it comes to the effects of private property rights. To name a few: Labor laws, leisure time, freedom to make your own choices, sustainable use of resources, treatment of animals, relative material prosperity, and so on. These may not
immediately look like property right issues, but in the Economic Theory, labor can be a property, so then labor laws are definitely restrictions of property rights. If we take these concerns into
consideration, questions about efficiency suddenly become much harder to answer. Let us take another look at the two neighbors who both cultivated their lands. If we have to consider labor laws, leisure time and other subjective values, we may well conclude that the farmer who increased his production eightfold was in fact more ‘efficient’ than the farmer who increased his production tenfold. By allowing his workers to have more free time, a better salary and safer working-conditions, the farmer not only contributed to the production of material goods, he also contributed to the production of other resources valuable for well-being; if the other farmer did not do these things, or only managed to do so to a lesser-extent, this may well disprove the assumption that the farmer who increased his yield tenfold is the most efficient, for we cannot –or should not- talk about efficiency of production without also taking into account non-material added value.
It is therefore not surprising that some scholars have argued, in contrast to Smith, that the current market is not benefiting everybody. Even during Smith’s lifetime, there were already people who were being skeptical of the functionings of the market. Thomas Paine argued “[t]he life of an Indian is a continual holiday, compared with the poor of Europe” (as quoted in: Lamb, 2010: 489). According to Paine, the main reason for the abysmal position of the poor in Europe can be found in the emergence of private property laws that prevented people from freely making use of land, land that was now privately owned. As we know, he believed private property should be based on the value that workers created.
The Economic Theory restricts ownership of private property to things that can be used efficiently. I say restricts, but the restriction allows for an immense amount of things to fall within the sphere of
private property. To the regret of Kant, Marx, Locke and Paine, even human activities may fall within these boundaries. Once commodified, human activities, or in other words, labor, becomes
marketable and is competed over by people (the bourgeoisie) who aim to use it most efficiently. This ´race to the bottom´ is considered an important reason why contemporary capitalist societies often have high inequality with a bottom-class that, at least relatively speaking, has a miserable condition of life (Rada & Kiefer: 2015).
Ironically, increased efficiency of production could actually lead to a reduction in well-being if it is achieved at the expense of other things that individuals value in life. Social values mediate between the functioning of the economy and the well-being experienced by people participating in it. These values differ between societies as well as individuals. There is no objective way to choose between working one hour longer per week to gain a limited amount of extra material prosperity or having one hour extra leisure time each week.
The main critiques I have discussed so far in response to the Economic Theory criticize it for having a mistaken idea of efficiency. Although valuable as constructive criticism, these criticisms do not necessarily conflict with a consequentialist justification for private property. Their contribution basically comes down to: “You should also add this (subjective) value to the equation for efficiency”. Would an economic justification for private property be okay if it had successfully solved the puzzle of efficiency? If the ones who held property not only benefited us materially, but also maximized our chances for a healthy life, contributed to our emotional satisfaction, created a safe working environment, and generally improved both material as well as non-material conditions for all individuals?
The answer to this question would only be negative if there is something inherently wrong with private property, or if a right to private property is based in something other than just the general well-being. In the previous sections I have discussed three alternative justifications for private property. Kant grounds a right to private property in the right of each individual to set their own ends; Paine and Locke argue labor is the rightful basis for private property rights and Hegel believed individuals had a right to acquire property to build their personalities in the external world.
Grounding the right to private property in the efficient use it would be unacceptable for all of them.
5) Absolute property rights and the Capability Approach
12); when I am talking about absolute property rights I am referring to the situation where you are allowed to exclude everyone, all the time, unconditionally from what is rightfully yours, your private property. Private property is not a right you have over a ‘thing’, that would imply that your absolute ownership of a rock would give you rights in relation to the rock. You might ask the rock to jump, because you would have an absolute right over it. Unsurprisingly, the rock would not do anything. Property rights are rights between the owner and other individuals in reference to things, not rights over things (Cohen, 1927: 12). Your rights are not harmed if you cannot achieve what you want with your property; your rights are harmed if others interfere with your property without your consent. Let me illustrate this point with another example. Say I want to grow strawberries in my privately owned garden. As long as I have the required seeds for the plants in my property, nobody can rightfully deny me this end. However, I am a terrible gardener and I forget to water the plants and they die. Nobody has harmed me, even though I had the right to grow the strawberries, and I had the right to do with my property what I wanted. But –despite its name- this private property right does not give me any rights over my property; it only gives me the right to exclude others from my property. Only when others have interfered in my garden can I claim to be harmed. And even here, there are a lot of gray areas to discuss. Imagine if someone builds a fence next to my property that blocks the sunlight; Kant would say I still cannot claim to be unrightfully harmed (Ripstein, 2009: 39). Another matter that deserves clarification is when something could be deemed as compatible with the Capability Approach. For this I have two conditions: Firstly, private property must allow people a significant amount of freedom to do what they want with their private property. We cannot accept an outcome where people are forced to behave in a certain kind of way or where some are free, and some are not. Everyone must have a significant amount of freedom to choose their own path. Secondly, all individuals must be free to acquire at least a minimum of resources necessary for their subsistence. This does not necessarily have to be in the form of private property, a state of nature in which individuals are unrestricted to acquire food, yet choose not to, would still be compatible with this condition. Capabilities require both freedom and (the freedom to acquire) resources,
justifications for private property that satisfy both of these conditions are considered compatible with the Capability Approach.
My first goal is to see whether absolute private property rights could be compatible with the Capability Approach. A positive answer to this question would simplify a lot of political dilemmas. What should be the boundaries of private property? When should we prioritize other rights over the right to property? If a justification of private property could rightfully argue for full exclusion of others, without conditions, and this would still allow for a society where people have freedom and a
minimum of resources; then this could be a very convincing argument for the founding of such a society. However, to justify absolute private property rights is a rather ambitious project. Therefore it is not surprising that almost all justifications fail to justify (some do not even try) absolute property rights. The only theory that actually comes close is the theory of creation by Paine, but even he admits that the founding of such a society is probably impossible in the contemporary world. To clarify some of the concepts and their relations, see Figure 1 in the appendix. All concepts are represented as complete circles, except the concept of ‘capabilities’ which can be recognized as the ‘American- football-shaped’ place in the middle where resources and freedom meet. Some
individuals might have full freedom, yet no resources (a single malnourished, dehydrated man in the desert), some might have full access to resources but no freedom (think of Rawl’s primary goods distribution in an autocracy). The place where these two vital necessities meet, is where people have capabilities. The final two circles refer to the justificatory theories considering private property. Some theories might justify absolute private property rights, but only in the space where they leave people without freedom, some might justify private property rights and still leave people with full freedom to choose, yet they cannot guarantee a minimum of resources. The aim of this paper, is to find the place where private property rights are justified (limited or absolute), and still compatible with capabilities.
5.1 The Occupation Theory and absolute private property
Kant desperately tries to create a theory that allows for absolute private property. Any compromises or exceptions that allow others to have a say over your property, even in the most minor way, endanger the ideal of freedom, the ideal of the individual as the setter of his or her own ends. Therefore, the most likely starting point to find a justification for absolute private property is without a doubt Kant.
The most important aspect of Kant’s justification for private property is the general will. Without the general will, any man could simply take anything. The unilateral political authority of the individual to take property without being interfered with would probably lead to a race to get as much as possible, as quickly as possible. Through the general will, unilateral property claims are judged and confirmed or denied. I would say this already makes the individual dependent on external factors for its end- setting, but for the sake of the argument. Let us assume that the general will indeed is an objectively good body which consists of all the people and functions to protect everybody’s best interest. A reasonable assumption is that the general will would provide us with a fair amount of property to maintain our subsistence. However, unless there is enough land for us to simply pick up our food,
which is a conclusion that is inconceivable nowadays, a fair minimum may imply that we will have to cultivate some of our land to actually survive. Again, problematic, if we care about the freedom to set ends, I will explain why. Imagine I am stubborn –or simply lazy- and do not want to be forced to cultivate my land, I will end up having too little resources to survive. This is an impossible conclusion for the general will, because if the general will does not serve the interest of one, it cannot be the general will, for the general will, by definition, serves the interest of everyone.
One solution could be that, is that in cases like this, the needy may be supported by those who are actually productive and cultivate their land. Although this sounds like a small gesture, it actually means that the general will becomes a force for distribution. Leading to a situation where property rights cannot be unconditionally protected any longer. Or, alternatively, the general will could just, in the words of Rousseau, ‘force me to be free’, and demand that I cultivate the land that I own. In any case, absolute property rights are either impossible, or would require great sacrifices of freedom, in which case it loses its compatibility with the Capability Approach.
5.2 The Labor Theory and absolute private property
The next theory to consider is the Labor Theory. Out of the two versions I have discussed, Paine’s version is probably the most likely to be suitable for such an ambitious endeavor because it has a narrower vision of what private property should be. We will soon run out of lands to work on if we consider mixing one’s labor with the external objects enough to gain full ownership over them. Therefore, Paine’s version seems to be more appropriate, because it excludes the state of nature from private property rights and only grants rights over the things that are actually created through men’s labor.
Additionally, it has the advantage of not limiting others from taking property in the future. Locke, Hegel and Kant all struggle to solve the problem how to deal with private property once we have left the state of nature and once the world has been ‘divided’. Newcomers will likely be forced to take property from others, leading to problematic intrusions on property rights. This is not such a problem in Paine’s justification of private property. Because Paine shares Locke’s starting assumption that the world is property of all men in common, he believes that no individual can claim ownership over the land. The only thing that people can claim ownership over is the extra value that they have created. If we, for the sake of the argument, assume that we know exactly how much value each person has created; can we then reward each individual with absolute property rights over the extra value they have created without negatively influencing the freedom and resources of others?
