Self ownership thesis and global resource usage rights

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Does the self-ownership thesis support global usage rights to natural resources required for subsistence?

Student Number: 200825673Date: September 02, 2015

Introduction

The central question that I will be addressing in this dissertation is; Based on the rights defended by John Locke’s self-ownership thesis (SOT) and Robert Nozick’s Entitlement Theory - what form of usage rights are morally defensible with respect to our global life supporting natural resources - such as fresh air and water.

In the first section of Chapter one I will present a summary and discussion of John Locke’s Self-ownership Thesis (SOT). I will discuss that the SOT suggests that a definition of ownership is rational, and of the three ownership alternatives - un-owned, self-owned or owned by another - the only morally defensible option is self-ownership. I will argue that self-ownership is a valid moral premise from which two basic human rights are derived; exclusive usage rights to oneself and the right to appropriate resources necessary for one’s subsistence. I will discuss two common counter arguments to the SOT; the first of which is the argument reasoned by John Rawls. Rawls argued that because self-ownership must include ownership of one’s innate talents and abilities, which are granted (or not granted) to us based on the luck of the natural lottery, which could lead to unjust initial distributions of advantage and benefits (Rawls, A Theory of Justice, 1971, pp. 12-15).. The other counter argument is argued by Carole Patemen. Patemen argues that because the SOT establishes individuals as self-owned property, with unalienable self-property rights, a technical conflict arises with how, in the economic market, how such property is transferred or sold – as one cannot sell something that is unalienable – such as the right to self. I will demonstrate that neither of these arguments is sufficient to successfully negate the SOT as a just moral premise for defending the moral human premise of self-ownership and the rights of self-usage and resource appropriation for subsistence.

In the second section I will provide a brief summary of Locke’s argument for the derivation of property rights through just appropriation and the mixing of one’s labour with natural resources1. I will then discuss Locke’s moral justification for how one can transform the natural resources they appropriated for subsistence - into private property – or the fruits of one’s labour (FOL). I will argue that the FOL are a derived extension of the self by way of the right of self-ownership - and as such have ownership rights - such as exclusive usage right and the right to transfer and sell. In the third section I will discuss how in addition to the property rights derived from the SOT we also have at least two derived obligations; the negative obligation of non-interference of just appropriation (NO1), and the positive obligation to, under certain circumstances, constrain certain resource appropriation activities that are not required for subsistence (PO1). I will further posit that there is arguably an additional positive obligation to promote sustainment of certain inimitable natural resources that are always required for subsistence (PO2).

In the fourth section I will differentiate a beyond subsistence usage motive, which is resource appropriation and usage for beyond subsistence interests such as usage for surplus benefits or profits (UFP). I will argue that Locke’s SOT and the derived rights for resource appropriation for subsistence, which provide a moral premise for UFS, cannot always defend UFP, as to do so can, under certain circumstances, conflict with individual rights to appropriate resources for UFS.

1 Second Treatise. Chapter V (Locke, Ch. V Sec. 25-51)

In the fifth and final section of Chapter 1, I will argue that certain resource attributes and attribute arrangements make certain resources vulnerable to over exploitation. I will discuss three natural resource attributes, excludability, subtractability, and rivalry, and argue that certain arrangements of these attributes categorize a resource as special as they are inimitable, necessary for subsistence, and vulnerable to over-exploitation. I will argue that certain usage motives (UFP) can effectively transform a natural resource, which initially may have been invulnerable (to over exploitation) – into vulnerable. I will further argue that without proper attribute categorization, these inimitable resources are misappropriated and this creates moral and empirical bad(s).

In section one of Chapter 2 I will provide an overview of Robert Nozick’s entitlement theory (ET)2 nd argue that the principles of ET are a defensible moral premise with which to defend some constraints on UFP - beyond subsistence usage of resources. By appeal to the principles of Nozick’s ET, I will expand my earlier discussion of circumstantial UFP constraints and argue that these principles provide the moral premise necessary for determining the circumstances that UFP morally requires usage constraints.

In section two I will first provide an illustrative scenario to illuminate the moral challenges that can result from unconstrained UFP of natural resources. I will then provide an analysis, leveraging Nozick’s ET and Locke’s SOT, of how UFP violates NO1 and PO1, and fails to achieve the circumstances necessary, according to Nozick’s principles, for just appropriation and usage.

In section three I will discuss a property rights regime that contrast with the regulated open-access regime I have argued for – the universal privatization model of resource management. I will discuss the central criterion of this model, including its inherent assumptions and the key claims of efficiency and improved fairness and quality of life. By appeal to Nozick’s ET principles, I will challenge these criterion, claims and assumptions, and argue that implementing a privatization model would involve serious injustices, such as expropriation, cost-prohibitive governance, access inequalities, as well as further injustice with no inherent mechanism to compensate for the appropriation injustices that the redistribution to a privatized resource regime would require.

In the fourth section I will further argue that the assumptions upon which private property regimes are based are both technically unrealistic and unachievable, and morally ungrounded in what SOT and ET require. I will further argue that through failed assumptions the privatization model does not achieve what is required for a just and balanced property regime. I will argue that given our current market dynamics, the privatization regime would continually generate a decrease in distribution fairness as well as perpetual and foreseeable conflicts with what is thorough conflicts with what is required for the SOT, NO1, and PO1, as well as the circumstances for just appropriation and ownership that Nozick’s ET principles defend.

Chapter 1: The Self-ownership Thesis, Resource Appropriation, Property Rights, Derived Moral Obligations, and Resource Attribute Arrangements

John Locke believed that the earth and its resources could be considered the property of all people “in common”. He argued that all individuals had a right to self-preservation, and in

2 From (Nozick, Anarchy, State, and Utopia, 1974, p. 151)

pursing this they had a natural claim to use the resources of the earth -Locke referred to this as a natural primitive right or a natural right of acquisition and appropriation. Without such a right, to acquire and make use of what appears in nature, survival would a constant challenge as there would be no certain methods of acquiring what needed – the constant clashing would create a prohibitively inefficient world. Locke argued that natural resources, as they lay in nature, had no initial exclusivity rights to them – these resources are initially property of the people in common and any given individual has a right to use them in the pursuit of one's subsistence – which is one’s responsibility. Locke argued that by mixing one's labour one could transform these resources into property to which they had exclusive rights and ownership. (Locke, Ch. V Sec. 25-51)

1.1 The Self-ownership Thesis

John Locke said that every man owns himself as well as the product of himself. Locke’s argument for self-ownership started with his premise that God owns himself and all makers own what they have made. Locke thought that God gave land and all inferior creatures to man – and hence man was a co-owner of these creations - with God. Locke argued that God made man like himself in a key way, where like God, man was also a maker, and as a maker man was full owner of what he made. Hence - everything that exists is either owned by God or by man - or un-owned by God and man. From this Locke derived that a freeman is un-owned and only under the power of the natural law - free from the dominion of other men and their laws. To enslave or be enslaved, would require that one transfer ownership of one’s self – wrongly – as such as transfer would transfer a part ownership (man is co-owned by self and God) to an exclusive ownership to the enslaver - which is beyond what a man has the power to do (Day, 1992). Locke argued that if man is under the power of any law - it is only with his own consent Slavery then is a state of war between the conqueror and the conquered as being owned by someone else, other than God, is always unjust – hence no one can morally be owned by someone else.3 Locke argued that like God, man who was un-owned by any other and was hence self-owned (Day, 1992, p. 1) (Locke, Ch. V Sec. 25-51). To commit suicide, not pursue subsistence – one’s responsibility - would be a moral wrong and sin, as man - in killing himself - was also destroying God’s property.4 From this Locke also derived that subsistence was man’s responsibility.

Locke’s self-ownership thesis (SOT) claims that I own myself and I am I hence self-directed and alone determine the way in which I pursue living. If I own myself then I also own my abilities and talents and hence the product of those talents and abilities when I exercise them. Although Locke’s justification for self-ownership rests significantly on theology, his argument suggests a strong rational justification as well. That is that either; humans are 1. Owned by someone else 2. Owned by one’s self or 3. Owned by no one. (Kuznicki, 2012)5. 1 equates to slavery, and 3 Although Locke does argue that there are legitimate forms of slavery – where there are agreed to terms – slavery is always illegitimate where it is just accomplished through brute force. Locke argues that due to the joint nature of ownership (man and God own man) man would be acting outside the bounds of his entitled powers to transfer ownership of self to another – which would result in a move from part owner to exclusive ownership of the enslaved by the enslaver. 4 Suicide could either be through a direct means, such as hanging oneself, or through other means – such failure to appropriate and use life dependant resources – so a hunger strike would in some circumstances be considered suicide – and a moral wrong5 Although this is only a blog reference I couldn’t actually find an academic source that suggested this exact (and effective) form of thinking about self-ownership – that is that either we are unowned, owned by another or owned by

slavery, as argued by Locke, to an undeserving man - is always unjust (Locke, Ch. IV Sec. 22-35). 3 poses some potential obstacles that conflict with having any rights at all - if you are un-owned how can any rights be assigned to you (property designation is necessary for rights of property to be assigned) – this would essentially mean that any action you take is un-rightful as you would have no exclusive right to direct yourself (Kuznicki, 2012). Since we have no choice but to use our bodies, and being completely un-owned would prevent defining usage rights (there is no one from which to obtain use permission), this rationally, cannot be the true state of us. This leaves 2 - self-ownership as the only rational option, and the only option that can defend usage rights – such as the right to exclusively use my own body.

A counter argument to self-ownership is that not all usage rights require identification of an owner, and hence we may have use rights over ourselves without having to ascribe any ownership to us. This cannot be the case though, as in reality we do have usage rights to ourselves – in fact we can’t help but use our bodies and minds – and there is no well-known controversy or successful counter intuition to this claim. Locke also argues that it is a natural law that men should be able to appropriate resources, as appropriation is necessary in order to make use of them. Since appropriation of something requires a right to do so, self-ownership is defensible as it affords the necessary rights to do so (Locke, Ch. V Sec. 25-51). Self-ownership then conveys a right of usage, of one’s self, as well as the right to appropriate what is necessary to support one’s subsistence.

There are several counter arguments to this thesis of self-ownership. One is the fairness objection by Rawls – Rawls was concerned that to support the SOT would mean that as part of self-ownership one was owner of one’s attributes and talents – and that this could be unfair as some are born with advantages in these areas that how well we fair in life could then be a matter of luck6. If I am born strong and able (good luck) and you are born without legs or sight (bad luck), the fruits of my labour provide me an advantage (and you a disadvantage) that neither of us deserve as it is unearned. Rawls believed that one’s fate should not be determined by morally irrelevant factors - such as the luck of a social or genetic lottery, and as self-ownership permits the full ownership of one’s talents – self-ownership could lead to unfair distributions of advantage (Rawls, A Theory of Justice, 1971, pp. 12-15). The question this illuminates is does a theory of ownership have to fully address luck in the lottery of nature or can we accept self-ownership without detailing a compensation model for it?

G. A. Cohen provides a counter argument to Rawls, which is that fate is determined by one’s choices and efforts –and not our initial talents and abilities (Cohen G. , 77-96)7. Cohen’s argument that choice and efforts are central, align with empirically and intuitively what we often see play out in reality. I may be born beautiful but not pursue a career that being beautiful is an

oneself. In developing my argument for self-ownership I wanted to present this form as a way of thinking about oneself and Kuznicki is the only support I could find.6 (Rawls, A Theory of Justice, 1971, pp. 12-15)

7 Cohen writes that “anyone who thinks that initial advantage and inherent capacity are unjust distributors thinks so because he believes that they make a person's fate depend too much on sheer luck” and “the fundamental distinction for an egalitarian is between choice and luck in the shaping of people's fates” (Cohen 2011, 4).

advantage – rather I might pursue a career in philosophy. I may be born blind but my choices can compensate for this in a way that may not hinder my ability to survive and thrive. That is that some blind at birth individuals will make choices and invest efforts that benefit them more than other choices and invested efforts would. Cohen also argues that what is required then, is not a distributive pattern that compensates for the inequalities of the natural lottery, rather it is just that we all treat each other, regardless of the outcome of the natural lottery, as equals (Cohen G. , 77-96). This requirement of equality is a moral obligation as part of our recognition that we are all the same. Locke argues that as part of membership to the human species – it is requirement that each of us is aware that the others of us are the same as us – not to be treated as an animal and by nature - entitled to the same rights8. Rawls concern can be overcome by this, and hence does not undermine the moral argument of self-ownership. It does however, illuminate the need for consideration of fairness with respect to undeserved advantages as well development of moral obligations we have to one another as part of the same species – which I will discuss further in this chapter, as these derived obligations can offer a resolution to balancing the greatest of any unfair advantages that are bestowed by either the natural or social lotteries.

An additional common objection to the argument for self-ownership is that the rights based nature of this thesis, where these rights are inalienable rights, which cannot be revoked, waived, transferred or forfeited - grants the right holder (self) an entitlement which can’t be undone (Patemen, 2002). This introduces challenge in in how we use property – which can be sold, rented, or transferred at the discretion of the owner (alienable rights) in the marketplace. For, as Patemen argues, an inalienable right cannot be extinguished or separated from its holder – and hence cannot be traded in the marketplace. One counter argument to this, is that although we recognize inalienable rights to the self, they are arguably, alienable to the fruits of one’s labour. This means that I cannot depart the rights of myself (my mind) but I might be able to trade the fruits of my minds labour – such as my poetry. This is essentially what the market is made up of, all production is arguably traceable to the fruits of someone’s labour. This would require though, that in addition to usage rights and appropriation rights of self and for self, we also require the right to delegate some usage rights – to the fruits of our labour for example. Locke argued that one had the right to delegate such usage as it was within the bounds of one’s own power, as the FOL were exclusviely owned (not jointly owned with God). So although slavery would requrie a transfer that was out of those bounds, as it would transfer the inalienable right of self-ownership, other transfers might be defensible – such as the right to delegate (through sale or transfer) the usage of the fruits of my labour - without conflicting with the SOT.

1.2 The SOT & Property Rights

Although instituting property rights has empirical value, the value is more significant than just a convention for sorting out technical details. The original property right, self-property, ensures a way of securing further rights of usage to what we have appropriated, and require, for self-subsistence. Self-ownership prescribes the right of self-sovereignty and autonomy, which is a moral right of a person to their own mind and bodily integrity- and as the exclusive controller of self. As argued in the previous section the moral right to appropriate resources to support

8 (Locke, Ch. V Sec. 25-51)

subsistence is a derived right from the SOT, as is the right of self-use. As self-owner, with the right of self-use, it intuitively and rationally follows that the results of self-use, my actions, will be self-directed. This intuition suggests that the actions of self-use and self-direction, at minimum in the appropriation of resources required for subsistence, are further derived rights as they are an extension of self-ownership. Locke argued that our actions were a rightful extension of self, and this extension is what permits us to, rightfully, carry out the living of life – or subsist9. Locke argued that in addition to a right of appropriation, mixing oneself with the resources in nature, labour mixing, was morally defensible on the grounds of self-ownership10. This suggests that the product of our labour, on natural resources, is a positive right – an extended right of the right of self. As certain resources are necessary to support the actions of the self that permit living (eating for example). It also suggests that exists a further morally justified right to what is derived from resource appropriation and one’s activity of using what is appropriated – that is the external product [property] of self-directed, self-use – the fruits of labour. This right does differ from the rights defended by SOT in that it is a right to an external thing (external property to “self-property”), but it is just ownership - as it is derived through the just right of appropriation of what is needed for subsistence, the right of self-use, and the right of self-direction. Simply put, an external natural resource acquired for subsistence, mixed with one’s labour (FOL) is transformed into one’s exclusive use property.

This argument, for rights to external property that is derived from the mixing of one’s labour with a natural resource appropriated for subsistence, also distinguishes the rights we have to natural resources from the rights we have to the product of our labour – the FOL which is thus rightfully our exclusive use property. This argument is premised on the fact that although I have usage rights to take what is needed from nature, through the SOT, I am not an owner of natural resources – It is a usage right to use what is needed for subsistence, but arguably – no further moral claim – certainly not one of ownership. To FOL property however, which I have transformed from a natural resource, I have a bundle of rights, including the rights of exclusive use, transfer, and sale. In addition to these rights however, I also have some derived moral obligations. Locke argued that individuals are able to see that they are of one species, that they are of the same kind11 – and therefore they cannot morally treat others like animals- as animals had, what was argued - instrumental use only. Locke argued that because of this, all individuals are entitled to “the same advantages of nature”, and that this in turn imposes on us all the “obligation to mutual love” as well as the obligations of justice and charity (Locke, Ch. V Sec. 25-51) (Lazarski, 2013, p. 51)

9 Locke writes; “every man has a property in his own person: this no body has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property. It being by him removed from the common state nature hath placed it in, it hath by this labour something annexed to it, that excludes the common right of other men: for this labour being the unquestionable property of the labourer, no man but he can have a right to what that is once joined to, at least where there is enough, and as good, left in common for others. Second Treatise – Ch. V Sec. 25-32 (Lazarski, 2013)

10 Second Treatise – Ch. V Sec. 25-32

11 Second Treatise – Ch. II Sec. 4

1.3 SOT and Derived Moral Obligations

As introduced in the previous section, with the SOT rights there are at least three morally derived obligations. These derived obligations are a result of what Locke argued was our ability to recognize the sameness we have to each other – and hence we are initiated [born] with the same natural rights. Alexander Kant, Robert Nozick, and Jeremey Bentham all argued for a version of property rights that is fundamental to not being treated as merely a means. In its simplest form this obligation is to not treat each other as merely a means but as an end onto each of ourselves12 - and is now arguably so established that it is a first principle – meaning a moral argument that is so uncontroversial that it is a given premise - an established moral baseline from which other works are furthered.

If we all have a natural right to make use of the resources of this earth, and we recognize ourselves as the same, it intuitively follows that we must also recognize the universality of this right – that is that all humans have this right and the derived obligations. The first of these obligations is a negative obligation (NO1) of non -interference (direct or indirect) of the morally just appropriation of subsistence resources that all man has. NO1 is derived from the SOT as the rights of self-ownership and subsistence appropriation for all – that is that if one man has the right to self-ownership then all men do – any unjust interference would dissolve this for someone – and this would require us to expand beyond the power imbued with self-ownership as it would dissolve an inalienable right of self-direction, self-use, and the rights of self-ownership – effectively enslaving another to another’s will – which is unjust.

In addition to this NO1 of non-interference, there are further positive obligations that are also derived obligations of the SOT, which is the positive obligation (PO1) to constrain appropriation activities that are not pursuant of subsistence, if not doing so would either directly or indirectly interfere with others ability to access the resources necessary for subsistence. PO1 is a positive obligation in that it may require, in certain circumstances, us to impose usage constraints on our resource appropriation when not doing so would violate NO1. This obligation is derived from my right to appropriate what is needed for subsistence, as to take more than I require while you have insufficient to what is required, violates your same right of appropriation. I may not, morally, take all the water in the world as my own (assuming one could). Although it is morally just to appropriate water for my subsistence, to appropriate all of it is beyond what I need and directly interferes with the right of other men to appropriate it for their needs. Not appropriating all the water would not interfere with my ability to subsist, I could take a smaller amount without any impact to my subsistence. If however, there is only enough water for one person, I may take it as part of my right to take what is needed for subsistence. It would not be morally required of me to sacrifice myself so as to not interfere with your right to subsist – and let you take the water. This might actually violate a natural law moral responsibility, which Locke acknowledged as the responsibility to act to live and not commit suicide.

NO1 and PO1 are our minimum obligations as part of SOT. Arguably however, we also have an additional positive PO2 - to prolong global subsistence access and choose and institute sustainability conservations for certain inimitable resources that are always necessary for subsistence. P02 differs from PO1 in that it requires universal social action to promote methods of a sustained repository of what is globally required for subsistence. This obligation is marginal 12

in that it applies most to those who have contributed to their depletion by way of UFP without constraint. To achieve all of these obligations, or at minimum NO1 and PO1, what is required is a morally appropriate governance regime that is consistent with our rights (derived from the SOT) as well as these moral obligations. As the demand for certain life supporting resources, by all humans, is perpetual - PO2 is also a shared moral, global, social responsibility, as long as these resources are finite in supply. The following summarizes the moral argument for the circumstances PO2 might be required;

a. In summary then, PO2 is sometimes morally defensible because; if self-ownership is a moral right - and appropriation of resources for subsistence is necessary for the exercise of self-ownership, then appropriation of what is needed for subsistence is morally just.

b. If a natural resource A is a finite and inimitable resource necessary for subsistence, then usage of A is a derived right and necessary for self-ownership.

c. As our natural resource A is always needed for subsistence (inimitable) then a sustained supply of A is a moral good.

d. For an individual (or organization of individuals) to not conduct PO2 (institute sustainability measures) and to conduct unconstrained UFP (exploit inimitable resources) will eventually interfere with UFS, as A is finite and demand for A is perpetual and universal.

1.4 Usage Rights beyond Subsistence (UFP)

Our current natural resource and property appropriation conventions are heavily based in capitalism and free enterprise. The capitalist economic model promote a continuous and ever increasing production and profit growth model. This growth model not only requires natural resource acquisition and usage that is way beyond what is needed for subsistence. The current free market model is based on a prime directive to achieve a continual and consistently increasing in private profits, for a select group of owners (share/stake holders), through the production and sale of goods. This goal obtains its best outcome, according to the model, when there are outcomes of sustained exponential profit growth rates. Any force that acts to constrain the base objective of capitalism (such as constraining for profit usage of production input resources, acts in such a way as to compromise the maximum profit potential that the capitalist model pursues. Put another way, any regulations that seek to constrain UFP, even to protect our common subsistence appropriation rights to these resources, acts to constrain and undermine the goal of the capitalist free market. The ideal conditions for capitalism and free markets, is to be left unconstrained and practically unregulated. Only then can this model truly achieve its optimal outcome –ever increasing profit. (Carpenter, 1998)

Locke did acknowledge the place for surplus benefits and profits - but it was second in priority to what was required for subsistence. Locke argued that one could acquire and use resources, as needed, but only within the reasonable bounds of the law of subsistence-- that is that people do not have the right to take more than they can use (Notes, 2015). Although Locke supported the idea of surplus, as one having the right to the benefit of one's efforts, he also argued that such surplus would also have to serve the common good and serve also to the benefit of those in justifiable need. Locke acknowledged that the evolution of money could provide a ground for acquiring and stockpiling surplus (as the goods were effectively abstracted and not subject to spoilage and waste), he did not live in a time such as ours with such extreme usage and appropriations, and at a time where critical inimitable natural resources are on such a rapid decline. Regardless though, his SOT requires that the surplus should serve the common good

and benefit those in justifiable need.13

An intuitive follow on question is does this moral claim remain when usage is not for subsistence – but for other interests? One intuitive rational answer to this question would be yes, usage for excess benefit doesn’t seem in itself a moral wrong, at least not as long as it does not interfere with NO1 or PO1. If for instance fresh water and fresh air were infinite in supply it would be hard to justify usage constraints as – no matter how much I use of these resources it will never interfere with your ability to use them – due to the infinite supply. This is not the circumstance with which we are currently faced, in fact it has become painfully clear that these resources are not infinite in supply, they can be reduced through over exploitation. Given this circumstance – and empirical truth – that these resources are not infinite - and the moral rights derived from SOT, NO1 and PO1, it is a rational deduction that any morally defensible usage motives – such as UFP – could only be justified when there is no interfere with resource appropriation for subsistence – or any interference is compensated14 Since SOT, NO1 and PO1 are universal, in that they apply to all humans, UFP can only be morally justified when it does not interfere with any humans right to SOT, NO1 and PO1, or again – the interference is either morally counterbalance or compensated. This suggests that usage regimes that conflict with this requirement interfere with the basic, global, human rights defended by SOT.

My argument is based on an assumption, that these life giving resources are finite – which is empirically sometimes challenging to believe given their seemingly ubiquitous global distribution. Our global common resources are ubiquitous, and as I have argued by appeal to Locke’s natural law, initially un-owned. They are natural resources such as our wilderness, the oceans, the atmosphere, and space, all of which form a special category of resources due to a number of attributes and attribute arrangements. They are inimitable, all necessary for life, and all ubiquitous. Many scholars (Buck, 1998) (Ostrom, 1990) (Clark C. Gibson, 2000) define these common pool resources as subtractable resources that are managed under a property regime in which a legally defined user pool cannot be efficiently excluded from the resource domain within which the resource resides (Buck, 1998, p. 12). This means that although ubiquitous, they are un-excludable and reducible (finite) – putting them at the mercy of whichever social arrangement is regulating their use. If the arrangement values UFP over global UFS serious global moral transgressions are likely to result – such as the violations of NO1, PO1 and PO2.

1.5 Attribute Arrangements: Inimitable Natural Resources

Natural resource usage and management has been, historically, very complex and I think it is uncontroversial to say, in many instances inappropriate15. Many of the complexities and inappropriate management regimes center on a lack of clarity about the true nature of these resources, as well as a just concept of what access and entitlements we should have to them, both of which help is regulate how, how much, and for what purpose we make use of them. I

13 Locke would not have supported an undeserved benefit, meaning that if I choose not to help myself and pursue subsistence it is not the obligation of others to do it for me.

14 I will discuss this with Nozick’s Entitlement Theory in Chapter 2.

15 A few eexamples are the historical over hunting of buffalo, to the over fishing of Atlantic cod populations of the 70s, to the depletion of the ozone in the 90s.

argued earlier for property rights through labour mixing – which can result in privately owned property with exclusive usage - FOL. There are other forms of property, - public property for example. This might be the bridge that connects the island to the mainland, or it could be our national defense force. This category of property might mean that there are exclusive usage rights for a group or community, where the property is the groups labour combined – such as a community built bridge16. Additionally, there is common pool property – this could be a smelt swimming in the Pacific Ocean right now, to which no one currently has ownership- but it is still a resource, as once captured - it has human value. Some property rights, such as private property gained through subsistence appropriation and labour mixing are fairly easy to defend in terms of rights – which I argued the SOT clarifies. Others forms, such as those resources that are beyond this usage right (UFS), which are still in common but remain un-held are more ambiguous and historically controversial to assess in terms of appropriate usage.

Susan Buck defines property as something of an institution of managing resource rights, where these rights are not fixed or absolute – they are subjective bundles based on certain key attributes of the resource in question. The bundle of rights theory argues that there is no single property right that manages how we access and use a given resource; rather it is a bundle of rights, such as; the right of exclusion, access, extraction, sale17, or the right to transfer ownership (Buck, 1998, p. 12), and these rights are subjectively applied based on resource attributes. The first right, exclusion, is also an important resource attribute, and the first of the three that I will discuss. Excludability is measured by the feasibility of being able to successfully exclude others from usage of the resources, where high excludability means that it is quite easy to exclude others from access. Contrastingly low excludability means it is very difficult or impossible [cost prohibitive] to do so. The right of exclusion allows the property owner to have absolute governance over whom may or may not use or access a given resource. If a given resource has a low excludability, such as the air, then a right of exclusion will be very costly or impossible to enforce (Buck, 1998, p. 11) (FAO: Clark Gibson, Margaret A. McKean, and Elinor Ostrom, 2000). I might have a vegetable garden that I grow for my exclusive use, I can restrict your access to my garden by locking it behind a fence. The vegetable garden in this case is a private resource upon which I can exercise a given bundling of rights, the first of which is to exclude you. In the process of tending my garden however, I make use of several other resources, water from the lake, and air from the atmosphere. Although it is very easy for me to exclude my garden, it would be very difficult for anyone to exclude me from using the air around my garden or the water table under it. These latter resources are essentially open access resources with low excludability. In Chapter 1 I briefly argued that the SOT, and our derived rights and obligations, also distinguish natural resources as different from FOL property. This difference centers on my rights to them, as although I may have usage rights, in pursuit of my subsistence, to natural resources – I do not own them. This means that these ubiquitous resources, with low excludability, I may use under certain circumstances - but I do not own them and hence have only a limited say over them – a say over what I appropriate, mix my labour with, in pursuit of

16 Arguably a village community living in a territory across the world does not have a moral claim or any ownership rights to this community bridge.

17 These circumstances that define an arrangement for a bundle or rights will be further discussed in Chapter two as part of the discussion of Nozick’s Entitlement Theory.

my subsistence. Beyond this usage, I have only a very limited say to what beyond this subsistence need, lay in nature as a surplus common stock. Although I do not own them, I do however have obligations that pertain to them – that is NO1, PO1, and possibly PO2.

The second key is termed subtractability18 which reflects how much or little a given resource diminishes as I make use of it (Buck, 1998, p. 11) (Ostrom, Governing the Commons. The Evolution of Institutions for Collective Action, 1990). As I make use of the vegetables in my vegetable garden the supply of vegetables continually decreases until there are no more vegetables, and this is empirically easy to validate. If I make use of the stream that passes by my driveway, for fishing and boat transportation, UFS, the stream resource does not really deplete the supply of the stream resource for use by others. This is somewhat empirically validate-able. The stream has an initial [natural] subtractability value of low, and this value generally persists with a usage model of UFS (forgoing other impacts by nature). Hence I easily achieve both NO1 and PO1 – as my usage does not interfere with your ability to use this resource. If however, I was to use the stream for other means, such as UFP, I might use big net to retrieve all the fish, use large transport boats to carry the fish – both of which eventually deplete and contaminated the stream. I effectively have transformed this resource – through my usage motive - into a high subtractability resource. The more I use the less there is for you to use – potentially until there is no fish and only a polluted stream left.19 Likewise if I misuse the stream for any other reason, perhaps I drain my sewage into the stream, I also contribute to an increase in its subtractability – which potentially violates NO1 and PO1. Unlike my garden and the vegetable depletion through use, which is immediately empirically observable, the impacts of this stream over use is usually not immediately observable – it is cumulative and somewhat time delayed.

So far we have considered two resource attributes, exclusivity and subtractability. There is a third key attribute that is helpful in categorizing resources - rivalry. Rivalry means that the more I use of something, that has value to us both, the less there is of it for you to use. Although this sounds very similar to subtractability it is relevant to distinguish a distinguishing feature. There may be resources that have a high subtractability but to which no one cares – as their value as a resource is not commonly recognized. Rivalry on the hand, means that we have a shared need for these resources – and in fact may effectively have to compete for it. This means that as the resource depletes the rivalry increases, as resource scarcity increases.

In the stream example above, with over-exploitation UFP I effectively transformed an initially low subtractability low rivalry resource into a high subtractability high rivalry resource. With such open-access resources, where it is literally cost prohibitive to limit access, and natural resources are not “owned” a tragedy often plays out. A thesis for this tragedy, the tragedy of the commons, was argued by Garret Hardin. Hardin argued that common natural resources that are owned by anyone tend to be over exploited (Hardin, 1968). It is a central posit of this dissertation that although this may be a historical truth, and it is also true that we do institute

18 Subtractability has roots in both Locke and Nozick moral theory, both made reference to this with enough and as good left in common.

19 I will argue in chapter two that free market objectives have historically had insufficient mechanisms to counteract this.

usage rules to certain resources, clearer usage rights and some UFP constraints could have a, potentially, significant impact on avoiding this tragedy.

Common pool resources such as the atmosphere have several other important and unique characteristics. One such characteristic is that “the outcomes of utilization are collective, not individual”, where everyone that utilizes common pool resources is inherently dependent on everyone else’s proper usage of the pooled resource (Clark C. Gibson, 2000). In our vegetable garden we saw that as I use my vegetable garden and consume the vegetables nobody else is impacted – these resources were mine alone and I alone benefit from them or am disadvantaged by them (perhaps a blight ruined them all, which impacts my cost of living). In the stream example, in the starting position, my usage of the stream had negligible impact on others ability to use it. In the second position however (UFP), my usage of the stream and your usage of the stream (assuming we both exploit it) has a cumulative effect and a significant impact on others who would use the stream. Clean fresh air, fresh water, the protective character of the ozone, the C02 absorption ability of the atmosphere – these all have a dependency on proper usage as the outcome of exploitation are collective. This means that those who over or improperly exploit them, increase their subtractability which effectively can transform an initially plentiful resource into a scarce or high rivalry resource. As I argued with PO2, our common pool resources hence have ad dependency on how and how much other people use them, which results in a further derived obligation for us not to do either overuse or misuse them.

A “common-property regime” refers to particular property-rights arrangement in which a group of resource users share rights and duties toward a resource (such as NO1 and PO1)20. Proper identification of the types of goods involved with a given resource is an important pre-requisite to the development of proper property rights arrangements (regimes). Gibson Clark argues that not achieving this proper classification and arrangement can result in grievous depletion rather than' sustainable use. (FAO: Clark Gibson, Margaret A. McKean, and Elinor Ostrom, 2000). Given the classification I provided above (high rivalry, low excludability) it seems that any mis-management of common pool resources, even as a form of public good such as welfare-ism, could lead to an unwanted outcome in their depletion. Clark argues that the way we bundle property rights to resources result in sets of mutually recognized claims and decision-making powers over those resources. Property rights are those that are clearly specified (not vague), secure (not subject to whimsical confiscation), and exclusive to the owner of the rights (FAO: Clark Gibson, Margaret A. McKean, and Elinor Ostrom, 2000, pp. 4-5). Appropriate property right arrangements encourage protection and investment in the goods to which they attach (P02). The mis-use and over-use, that UFP can, in certain circumstances, generates unjust interference with UFS for the global many.

20 The privatization school of property rights challenges this claim that there are rules (duties) to open-access resource. Although I have argued otherwise, with PO1, and I will provide a further argument in Chapter 2, I have insufficient space in this paper to discuss the implementation and form this might actually take.

Chapter 2: Entitlement Theory, Usage Constraints, and Private Property Regimes

Robert Nozick’s Entitlement Theory (ET) has three main principles that have that fairness requires in how one comes to own resources. Nozick argued that an individual has rightful ownership to a given resource they have in possession - only when they acquired the given resource through one of the three principles. These principles then, can provide the framework necessary to define the circumstances under which certain subsistence dependent inimitable resource, may have just usage constraints against UFP.

2.1 An Overview of Nozick’s Entitlement Theory

1. Original “just” acquisition – as specified by principle 1, or2. Just transfer – as specified by principle 2, or3. As compensation for a previous injustice - as specified by the third principle

Nozick believed that as long as the three principals were achieved, the resulting distributions would be just. Nozick’s principles are summarized as follows;

1. Original “just” acquisition – a. By “mixing one’s labour” with itb. By leaving “enough and as good” for others21 (Philpropsophy, 2009)c. By not making others worse off through one’s act of appropriation

2. Just transfer – a. A transfer of resources that is willingly consented to by the original just ownerb. A transfer involving force or fraud is unjust because such a transfer violates a

person’s ownership of himself and his goods, insofar as he no longer decides what he will do, or what will happen to his goods

3. As compensation for a previous injustice - as specified by the third principlea. Applies to cases of unjust original acquisitions and cases of unjust transfers b. Asks what would have happened if the unjust acquisition/transfer had not

occurred c. Calls for measures (e.g., restitution, compensation) that return the victim to the

condition in which he or she would have been if the injustice had not occurred d. But does not allow compensatory measures that would violate rights of

unconnected third-parties(MIT, 2012) (Nozick, Anarcy, State, and Utopia, 1974, 2013)

Principle 1 (P1) - Just Appropriation

21 Locke’s proviso that an appropriation must leave ‘enough and as good left in common for others can seem too demanding as it might suggest that all appropriations are disallowed under Locke’s proviso once a single person’s situation were worsened by an appropriation. Nozick interjects that this argument actually depends on how stringently the proviso is interpreted.

Nozick, through appeal to the Lockean Proviso22,23, argued that every individual has a right not to be excluded from use of the common stock as part of like and natural law. It is not that the earth belongs to all men, rather it belongs to no one and each man has the right to obtain exclusive use rights by being paid his due, mixing labour with the earth – and this is what I have argued in Chapter 1. Nozick further argued that a given distribution was just if everyone is entitled to the resources they possess under the distribution. Nozick’s First principle specifies how un-owned things can come to be owned justly. Just acquisition means that one can come to own previously un-owned resources if principle 1 is true. Although I may take what resources are freely available in nature - and required for subsistence (1a) anything I take from nature - beyond what is needed for subsistence - must abide by 1b and 1c. This means that beyond subsistence, just mixing my labour with a natural resource, does not necessarily create the same entitlement, absolute ownership that UFS does. In this scenario, effectively UFP, 1b and 1c must also be true. I may take a piece of land but I cannot morally take all the land, as 1b and 1c effectively institute constraints on what I may morally appropriate and justly use.

In Chapter 1 I discussed a. as a derived property right of SOT - where the labourer has exclusive usage rights over the resulting labour mixed resource which is transformed to his property. What if the resource has already been acquired and is being expropriated – the expropriation that would be required for something like a universal privatization model for example – what is required for this to be a just transfer? In this circumstance the resource is acquired by a new owner, not through discovery and labour mixing, but through a statue run initiative of redistribution24 that was defined to improve efficiencies of usage and improve the quality of the life for all. The two additional principles of Nozick’s Entitlement Theory address this scenario with respect to what would constitute just transfer or expropriation and re-appropriation.

Principle 2 (P2) - Just Transfer

An owned resource (property) may be transferred to another owner if the original just owner willingly and un-coerced, and is hence fully complicit in the transfer. This principle assumes that principle 1 is also true and that ownership, whether for subsistence usage or other interests, does not violate any of the axioms of principle 1. Redistribution, through re-appropriation and expropriation, of owned resources would require that the original just owners were in agreement to the transfer. Nozick’s argument here suggests that man has the right to that which is needed for his own subsistence - this falls within natural law and the SOT. Beyond this

22 The Lockean Proviso argues that Natural resources, such as land, come to be rightfully owned by the first person to appropriate it, as long as she left "enough and as good" for others

23 The Lockean proviso is often thought to be too difficult to meet, if it is interpreted as how any act of appropriation could leave as much and as good for others when natural resources are finite? Locke did acknowledge this demanding requirement and argued that the conversion of resources from the common stock to private property doesn’t, by definition, cause a set back of the subsistence interests of other humans, but could actually advance them (Zwolinski, 2013). Locke argued that “He who appropriates land to himself by his labour, does not lessen, but increase the common stock of mankind: for the provisions serving to the support of human life, produced by one acre of inclosed and cultivated land, are (to speak much within compass) ten times more than those which are yielded by an acre of land of an equal richness lying waste in common…for his labour now supplies him with provisions out of ten acres, which were but the product of an hundred lying in common…” (Locke, Ch. IV Sec. 22-35; Locke, Ch. V Sec. 25-51)

24 In a subsequent section I will argue that privatization, which claims to improve quality of life for all through production efficiencies, violates the just transfer of resources as the efficiency claims the property regime claims are unachievable.

subsistence requirement Nozick provides justification for just ownership through 1b and 1c, hence for this, beyond basic subsistence, condition 1b and 1c must hold true. This means that if the state were to implement a redistribution of resources, something that would be required for a universal private property regime, this regime must either not violate P1 in how the property is re-appropriated, or if it does violate P1, that P2 or P3 is achieved.

Principle 3 (P3) – As Compensation for a Previous Injustice

Nozick’s third principle provides a mechanism to undo past injustices, in the case of unjust original acquisitions and cases of unjust transfers. An unjust transfer could be the result of a redistribution initiate where original owners are expropriated. This principle requires restitution that return the victim to the condition in which he or she would have been if the injustice had not occurred. This principle does not however, permit these restitution measures to violate any additional rights, nor the rights of any other, unconnected, third-parties. If the state implemented a universal privatization model and expropriated owners from a resource, compensated them, but in the process of compensating them, say through a taxation imposed on the general public, imposed unfair appropriations (taxes) on other third parties – this would be an unjust restitution and it made unconnected parties – worse off. To further illuminate the moral soundness of these principles let’s consider an illustrative scenario;

2.2 (A) An Illustration of Unjust Resource Appropriation and Usage

Let’s imagine that I am a potato farmer within the town of Plenty. I have access to land, I work the land, I plant, harvest, eat, and sell my potatoes – the profits enable my continued subsistence. I use the ground water, the atmosphere, and the minerals in the soil – all necessary inputs to growing potatoes. I enjoy other interests that the benefits of my potatoes afford me, the labour of my fellow towns people; music from Albert who sells his labour as a musician (and who also buys my potatoes), Jenny who has a cow farm and sells her milk, cheese, and meat (and also buys my potatoes). I am able to secure the minimums I need for subsistence just through my own labour and trading for the labour of others like Jenny. A newcomer comes to town, a traveler that moves from town to town. This traveler, Mr. Profit, very much values the benefits of money, which is his definition of the good life – as much money as can be had. Mr. Profit sets up a small temporary show, he has mastered the ability to make a very efficient fuel by using ground water, fresh air, and minerals from the soil. Mr. Profit also has a selection of tools that use the fuel he makes, and these tools, fueled, automate a lot of tasks that have been manual up till now. Using these tools decreases the effort for a lot of the townspeople, freeing up time to pursue other interests. At first everyone in town is supportive, these tools are helpful and the free time is addictive. Demand for the fuel keeps increasing, the resources going into producing it also keeps increasing, and the piles of demineralized, deoxygenated, dehydrated soil keep piling up, as do Mr. Profits proceeds. Overtime my own crops seem to suffer as there is less water in the ground, less oxygen in the air, less minerals in the soil. My potato plants stop thriving, they wilt and it becomes ever more difficult for me to reap a decent haul of potatoes. As I travel through town I notice that a lot of the other farmers are impacted. Jenny doesn’t buy my potatoes, I don’t buy her meat or cheese – there just isn’t enough to go around. Folks start working for Mr. Profit – producing fuel so they can at least profit from their labour and subsist. This process continues, un-interfered with, and cycle after cycle of fuel production (Mr. Profit is now exporting the fuel as no-one in town can buy it) the land gets a little drier, a little less rich –

until its just depleted of all its natural resource value. As the resources in the area are consumed Mr. Profit closes down his shop, takes his profits, and travels on to the next town, where the cycle begins again.

2.2(B) Nozick’s ET - A Further Defence for Prioritization of UFS over UFP

There are at least two moral issues with the above scenario when we consider what is required by Nozick’s principles;

1. The first issue with this illustration is that there was interference of self-ownership rights by one - on many. Mr. Profit’s resource appropriation and usage was unconstrained by what is required for all (UFS), his usage was beyond subsistence, UFP, to such extreme that it resulted in an interference of self-ownership rights for many, as discussed in Chapter 1 with SOT, NO1, PO1, and again with Nozick’s principle 1 of ET. In this scenario there was no mitigating circumstances to justify this interference – so it was arguably an unjust over exploitation of the common stock for certain inimitable resources.

2. Second, there was no recompense for the interference that Mr. Profit committed. The many others living in the town were left significantly worse off, not having sufficient resources for subsistence and no compensation with which to appropriate them from another source.

The illustrative scenario above, if it actually occurred, would violate all three principles of Nozick’s ET, unjust appropriation, unjust transfer, and no recompense for either of these two injustices. It also would violate the rights of SOT, including NO1, PO1 – as Mr. Profit has evidentially interfered with the UFS rights of the town people.

Jan Narveson et al argue that that there are no fair share constraints on use or appropriation of natural resources. Agents may appropriate, use, or even destroy whatever natural resources they want - as long as they violate no one's self-ownership (Vallentyne, 2014)25. On their view, natural resources are initially not merely unprotected by a property rule (i.e., permissible use does not require anyone else's permission); they are also unprotected by a Nozickian compensation liability rule.26 I have argued that natural resources are initially un-owned – so the main objection to this position is that as no human agent created natural resources, there is no moral justification that the person who first claims rights over a natural resource - should gain an unfairly large share of the profits or welfare that the resource can provide (as Mr. Profit does). As Nozick’s 1b posits, ““enough and as good” for others is what is required. Any alternate, such as with Mr. Profit, would result in appropriation without restrictions which makes it possible that one person could own the entire world. This would effectively result in everyone else being property-less persons – and in the difficult condition of requiring the owner's permission to do anything27. In addition to these challenges (Hardin, 1968) there are

25 From Rothbard (1978, 1982), Narveson (1988: ch. 7; 1999), and Feser (2005)

26 Arguably they also contest the Nozickian constraints on property usage – that ownership does not entitle one do to just anything (such as destroy) with one’s property

27 I will discuss the moral challenge of monopolies further on in this chapter

other empirical issues if individuals are morally permitted to ruin natural resources as they please. A moral defense of for waste usage or for my interests to destroy usage seems intuitively unlikely to be widely uncontroversial. What is consistent with what is required for just ownership and usage is a fair share condition or usage constraints that restrict use and appropriation - where fair share prioritizes usage and appropriation for subsistence first, and other interests and benefits second.

2.3 The Universal Private Property Regime Alternative

Privatization is part of a neoliberal economic philosophy that the most efficient economic growth can only be achieved by privatization28. The frame of reference this philosophy seems to leverage is somewhat oversimplified and based on G. Hardin’s theory of the tragedy of the commons – and what man tends to do with common resources (Platteau, 1994, p. 3). Prior to presenting the key criterion of the privatization model, it would be helpful to understand the tragedy of the commons thesis as well as some historical perceptions which neoliberalism and privatization philosophy draws.

Supporters of this philosophy cite pre industrial man as a more efficient and more conservative exploiter of resources. They argue that technological advancements, facilitated by the industrial revolution, made the appropriation and acquisition of resources much easier, and cheaper – and this resulted in less conservatism, more waste, as resources once limited now seemed plentiful (Demsetz, 1967) (Smith, 1981) (Platteau, 1994) (Smith, 1981). The industrial revolution does actually mark a particularly significant era of development in acquisition efficiencies – the advance of the steam engine alone replaced man labour hours in both production and distribution. All of a sudden large quantities of goods could be mass produced and delivered across vast regions – effectively reducing the cost of acquisition. R. J. Smith argues that whenever there have been motives to over-harvest it has [always] taken place, primate or modern man alike. Smith argues that “In all of these cases, it is clear that the problem of over-exploitation or over-harvesting is a result of the resource’s being under public rather than private ownership (Smith, 1981). Supporters of privatization of the global commons argue that the tragedy of the commons is the result of an inappropriate property regime, such as an open-access un-owned regime. Smith argues that if we are to resolve the over-exploitation and misuse of the commons - a private property regime is necessary, as open-access regimes are always subject to what Garret Hardin argued was the tragedy of the commons.

The Tragedy of the Commons

The tragedy of the commons is a theory that simply described states that we will always opt for an immediate benefit at the expense of less tangible values such as the availability of a resource to future generations. Hardin argues that when property rights are not well defined, individuals (and organizations) will tend to overuse those resources in an unbridled fashion. Hardin argues;

“The rational herdsman concludes that the only sensible course for him to pursue is to add another animal to his herd. And another; and another.... But this is the conclusion reached by

28 Ikos Astroulakis’s analysis of neoliberalist privatization concludes that; “At the level of normative ethics, neoliberal capitalism proposes economic growth by the use of the private market mechanism, not concerned by social solidarity, equal distribution of wealth and diminishing of inhuman situations for people and societies”. (Astroulakis, 2014, p. 105)

each and every rational herdsman sharing a commons. Therein is the tragedy. Each man is locked into a system that compels him to increase his herd without limit--in a world that is limited. Ruin is the destination toward which all men rush, each pursuing his own best interest in a society that believes in the freedom of the commons. Freedom in a commons brings ruin to all” (Hardin, 1968, p. 1245)

Private property regime advocates often argue that this regime is necessary for economic development – which, granted, is a primary goal of the state. Economic development is usually coined as a collective moral good – to improve the quality of life for all through this increased productivity and continued growth in development. Privatization advocates argue that a private property regime will avert Hardin’s’ tragedy of the commons, they believe that the more members of a community that have looser connections to property - the more free loading [tragedy of the commons] there is likely to occur (Ostrom, Private and Common Property Rights,2000, p. 335)29. Richard Posner argues; "The proper incentives [for economic efficiency] are created by the parceling out among the members of society of mutually exclusive rights to the exclusive use of particular resources. If every piece of land is owned by someone, in the sense that there is always an individual who can exclude all others from access to any given area, then individuals will endeavor by cultivation or other improvements to maximize the value of land...” (Posner, 1977). Common property regimes are argued to be inefficient for three main reasons;

1. Rent dissipationRent dissipation is an inefficiency that is the result of the resource being initially un-owned, as seen in open-access property scenarios. The thesis posits that if everyone has a right of access without any rules constraining their behaviour – rents that would have been generated by an efficient use of the resource are completely dissipated. The rent dissipation argument here is based on the circumstance where the products of a resource, the wild mushrooms of the forest for example, generate no proceeds and since there are no rules or costs, everyone would always be engaging in an unproductive race to capture these un-owned products before others do. Essentially, whether they need it or not – they are inefficiently motivated – as they are incentivized to grab it first. (Platteau, 1994)

2. High transaction and enforcement costsThese are the speculated costs predicted by privatization economists if common owners were to try to devise rules to reduce the externalities of their mutual overuse (Demsetz, 1967). Supports argue that overuse could be a runaway problem as each common user, unconstrained in their usage, have a cumulative effect of common over-use. There is no rents achieved through open-access regimes, and hence no way to govern and resolve the impacts of their over use. They argue that governance costs are highly expensive, and with privatization there will be no cost of implementation and governance. They claim that the cost efficiencies introduced by privatization are fairer, as any system that maximizes production also maximizes the common good – through improvements in quality of life. Privatization, they argue, ensure incentives to maximize productivity and internalize externalities (Demsetz, 1967, p. 348). Since externalities are inherently unfair in their transference of cost, they further argue that privatization is morally better as it also leads to

29 Ostrom also argues that although there is empirically a tighter connection between labour efforts and benefits with privately owned property, and with common property the connection is looser, but working for another company is also looser (Ostrom, Private and Common Property Rights, 2000)

a fairer outcome by minimizing externalities.

3. Low productivitySupporters theorize that low productivity will always result because no one has an incentive to work hard in order to increase their private returns (North, 1990; Yang, 1987)” (Ostrom, Private and Common Property Rights, 2000)This argument suggests that without delegated ownership, nobody actually has a vested interest in how productive the land is – as any effort made to increase productivity is diluted by the fact that they have no exclusive use rights to benefit from their productivity measures. Privatization is claimed to be superior to open access and common property in that it secures increased productivity and management efficiency, as owners are motivated to maximize the productivity of their resources as well as being motivated not to over-exploit their resource in such a way as described by the unregulated common property regime noted earlier (too many cows on a pasture) (Platteau, 1994). Posner argues that all resources should be owned to ensure that these proper motivations are facilitated, and that regimes that protect exclusivity, and transferability (to shift from less to more productive states) are necessary if resource management is to be brought into balance (Posner, 1977) (Platteau, 1994). Posner’s argument is based on the premise that higher productivity will result in a higher quality of life for all, that is that increased private production benefit everyone equally.

Posner claims that his proposed model of private property management will overcome all of the challenges raised above, and that there are three essential criterion of an efficient system of property rights regime [privatization] (Posner, 1977: 10-3, as quoted in Bromley, 1989: 13) (Platteau, 1994) (Posner, 1977);

1. Universality – For this model to work, all resources should be owned or own-able by someone(s), except resources so plentiful that everybody can consume as much of them as he wants without reducing consumption by everyone else.

2. Exclusivity – As discussed in Chapter 1, exclusivity is the ability to feasibly control access to a given resource (air for example has a low exclusivity while my vegetable garden has a high exclusivity). If a resource cannot be controlled there is no way of commoditizing it as universal privatization requires. Criterion 1 provides a bit of a loophole for this criterion, as resources such as the air might be argued to be so plentiful that it need not be divided up for management.

3. Transferability – Unlike Nozick & Locke’s right of transfer, transferability here is a technical mechanism for maximizing productivity of resources, not a moral right. If a property right cannot be transferred, there is no feasible way of shifting a resource from a less productive to a more productive use through voluntary exchange.30.

2.4. Moral & Empirical Impediments to the Private Property Regime

There are significant obstructions to what privatization claims to be able to achieve, each with respect to its moral claim – an improved quality of life for all, its efficiency claims that I discussed in the previous section, and the criterion it needs to satisfy (1-3 above). These claims and criterion are based in three intrinsic assumptions;

30

1. Universal privatization implementation and enforcement costs would be nil2. Private property rights are very well defined and governed3. Markets are equal, complete, and competitive.

(Platteau, 1994, p. 5)(Acheson, 1987, p. 61)

1. Universal privatization implementation and enforcement costs would be nilThis efficiency claim of privatization posits that resource management as a whole has no real cost to the state (Posner, 1977) (Platteau, 1994, p. 5), and in fact would have a positive influx of cash through rents (state secured incomes on private property territories). This efficiency is argued to result in a net benefit to all – a moral good - as it would replace the costly open-access model – which (as argued above) they claim requires an expensive governance model that would seemingly unfairly burden the common population as unconnected third parties.

A first necessary step in appropriating resources for privatization however, is evidently having some method of dividing these resources up into resource territories. As discussed earlier excludability of certain inimitable necessary resources is very difficult. The costs for attempting to define and defend plots of ocean seems intuitively impossible and infinite in costs. Even in a minimal state this impossible task would fall to the state - who is responsible for securing property rights. Posner's argues that only those resources that are in limited quantity need be managed under a property regime (Platteau, 1994, p. 4) (Posner, 1977), but there are plentiful examples of how this has not succeeded – such as what India tried with to privatize their irrigation system31. Serious externalities resulted from unplanned pollution of groundwater and the common population was unable to pay for the clean-up – effectively resulting in a violation the rights of self-ownership and just property rights that I have argued based on the moral premise of both Locke, SOT, NO1, PO1, and Nozick’s ET (P1-P3). I cannot appropriate fresh water if there isn’t any because someone polluted it all – this amounts to unfair interference with UFS. Since intuitively there is never any just reason to pollute a common resource, this outcome is never just.

One of the main reasons a private property regime is proposed to be superior to open access and common property regimes is that supporters claim it has a low or zero cost transaction to enforce, making it a more efficient solution than open-access. If this assumption were true, it would also be consistent with a requirement of Nozick’s ET – that in the redistribution of resources (which privatization does) not only is just compensation required but no impact should be received by other unconnected third parties. So, a tax for example, that was instituted to pay for compensation of expropriation to a private property regime – would be arguably unfair to the general public bearing the tax expense. If this was not a sufficient moral

31 Baland & Platteau cite an example of how the privatization of an irrigation system in India led to the over exploitation through pollution of ground water to the doom of the actual irrigation system (Baland & Platteau, 1994, pp. 12). The externality created here was to ground water, which as a common pool resource. Essentially the privatization of irrigation led to an unintended outcome of polluting a resource that was not privatized – the ground water. As the ground water was a common open-access resource there was no mechanism to enforce any compensation and the burden fell to the general population who were not equipped to resolve the pollution caused by the privatization of irrigation. This was an example of the impacts of imperfect implementation and incomplete

privatization, and as Posner argues, the reason privatization must be universal (Posner, 1977).

transgression, there is the historical reality that, throughout antiquity, a lot of private use entitlements have been accomplished not through one’s own labour mixing with the resources appropriated for subsistence (SOT), it was delegated and implemented through expropriation and violence (Platteau, 1994, p. 9). Expropriation, in many cases, means that entitlement have been confiscated from its morally just owner whom initially appropriated it justly [with regard to SOT]. A universal conversion to a privatization model of property management would require a lot of expropriation – creating a fleet of former owners (users) to whom a moral wrong has been committed, that is interference with the right to appropriate what is needed for subsistence in the exercise of self-ownership. The cost of policing under these circumstances would both intuitively and empirically reasoned to be very high. A relevant modern example of this is the current privatization that is happening in the Amazon in Brazil where this privatization movement is being carried out by armed conflict and the genocide of natives. The costs of privatization and enforcing exclusivity is not nil, violence is likely and usually without compensation to the previous and in many cases, morally just, owners.

2. Property rights are well defined The second assumption privatization suggests is the privatization process must be perfect in eliminating externalities, internalizing the good externalities, and enforcing the exclusive usage property rights (Platteau, 1994, p. 10) This would require very clear property ownership and usage rights, on the whole-resource32 as well as an efficient governance means, which the model claims to not require.33

As Jean-Phillippe Baland and Jean-Marie Platteau argue, the elimination of all externalities is then critical to the success of privatization, as if said externalities are not internalized, cost such as those required by the un-owned open-access model – are generated. This would effectively violate a key assumption of the low or nil cost of managing the privatized resource. The result if costs are generated is that they are unplanned costs – which would most likely fall to the state to address – likely through a taxation or diversion of funds – either of which would have an impact on unconnected parties – a potential violation of Nozick’s P3 that requires just compensation for injustices such as unjust transfers in ownership. Baland & Platteau draw a negative relationship between – the impacts of an increase in productivity of privatized resources – and the other resources that are required for the increase in production but not part of the actual privately held resource. This is a central and serious issue of privatization if it is not implemented universally. By only partially privatizing resources (such as the irrigation system in India) unplanned impact of the non-privatized resource (water in this case) is inevitable. Private property rights over some resources (such as ground water) are too hard to define and will always remain to at least some degree unregulated. As these resources are typically needed inputs and dependencies into maximizing the productivity of other resource (during production)

32 By whole-resource Baland & Platteau mean that for a given ocean plot that is privatized, exclusive rights would have to be to all that is contained there and within.

33 Platteau and Baland argue that “exclusive rights have to be defined on the whole resource. Otherwise, perverse effects are bound to develop and to lead to a worsening of the situation. For example, Gilles and Jamtgaard report that "the decline of the English commons may have resulted from the exclusion of animals from agricultural lands. In the English open field system, animals grazed on the commons during the summer months and fed on stubble and hay during the rest of the year. As fields became privately owned, animals had to spend longer periods on the commons. The result was over-grazing." [Gilles and Jamtgaard,1981 : 138].

- it seems that because there is an empirical lack of ability to fully (universally) partition and privatize all resources, there will always be new externalities created.

3. Markets are complete and competitive

The third assumption Posner makes is that markets are complete and competitive. This means that no participants are powerful enough to have the ability to dictate and set the price of a given commodity and hence it is only fair competition that regulates commodity price. Baland & Platteau argue that markets are inherently imperfect for a number of reasons; Information flow and constraints, power dynamics, and political positioning are all empirically and intuitively genuine issues with markets and equity trading face. Posner’s privatization model is weighted in perfect markets, however, not all markets are equal and even if they were access to such markets is not a universal guarantee - credit to enter the market usually requires collateral for which many individuals can never have (Carpenter, 1998). Baland & Platteau argue that implementing a system based on this assumption is not realistic as privatization can easily result in the creation of local monopolies (Baland & Platteau, 1994, p. 13). Monopolies are a classic case of inefficiency to which privatization models are highly vulnerable. Baland & Platteau cite an example from Bromley, Switzerland, and the summer pastures. In this example if all summer pastures were owned it would be very possible for one of the fortunately located owners to prevent all other owners’ access to fresh water – as there is literally no dimension of privatization that would provide a mechanism to object to this – or force this owner to provide access (Platteau, 1994, p. 9).34 The monopoly that results would cause a worsening of conditions and welfare of an entire community group. Additionally, in cases where monopolies do develop, the parties that are generally most impacted are those who were expropriated from the resource, thereby further increasing the disadvantage of those already worse off (Platteau, 1994, p. 13). Referring back Locke and Nozick’s ET, this outcome is a moral violation of Locke’s requirement for surplus usage - surplus, as one having the right to the benefit of one's efforts, he also argued that such surplus would also have to serve the common good and serve also to the benefit of those in justifiable need as well as Nozick’s second principles of property ownership (P2) as the creation of a monopoly is neither complicit with UFP that leaves “enough and as good for others”. Rather this seems like it would generate a scenario where surrounding farmers would be at the mercy of the will of the monopoly holder, which is arguably [Locke] unjust enslavement. In addition to challenges such as these, Baland & Platteau argue that if ideal market dynamics, are not in place, which is likely in 2nd and 3rd world countries, privatization models can lead to an increase in inefficiencies and over exploitation of resources. What Baland & Platteau are arguing is that privatization has a dependency on perfect and globally equal market dynamics – a dependency that can never play out equitably across the planet. This suggests, strongly, that certain parties would benefit more than others – intuitively this suggests that those countries and individuals who benefit most from markets now – will benefit the most. As Nozick argues, there is nothing about one man that makes him more entitled to benefit more than another. As Alan Goldman notes this is a “recognition of the moral equality of others generates a presumption of equality of conditions”, which would not hold if one were permitted to own “disproportionate shares of the world” (Goldman, 1976, p. 73) For privatization to work, especially against exhaustible resources such as the inimitable resources I discussed in Chapter 1, we would require an infinite supply and market for those

34 The wrong incurred by such a monopoly on fresh water would not even require that the fortunate owner be extortive and charge for access, he could merely not allow access at all - and still benefit from his locations competitive advantage of having water.

resource, since a perfect market has a clear objective of constant and consistent growth35. This means that the resource management regime must be able to support a constantly growing demand – for even resources that are limited in supply and exhaustible - otherwise the market will eventually break down (Carpenter, 1998). This arrangement of requirements will have to essentially lead to resource exhaustion over some eventual timeline. This also means that without perfect market dynamics prices for these resources will tend to either be too high or too low, which will encourage a too slow or too fast exhaustion of the resource – neither of which is the perfect market required for this regime. Baland & Platteau argue that markets, especially alone, are an insufficient and unstable method to manage some of the very important roles that environmental resources play (Platteau, 1994, p. 16) – not the least of which is UFS! There are technical and moral flaws with privatization – such as the critical dependency on ideal or perfect markets, as the market is not a moral system with mechanisms to ensure P1, P2, P3, or any of the NO1, PO1 required by self-ownership. Left to their own dynamics the market will favour which resources to value – which as we have observed with resources such as the atmosphere, not a market traded resource, has led to a damaging view of what resources are of most value. Markets are argued to create opportunity, or at minimum the circumstances for opportunity. Empirically and intuitively however, these opportunities are not subject to distributive justice. As discussed in Chapter 1 - Rawls fairness concern, undeserved advantage often results in only a small fraction of individuals who can make use of the circumstances of opportunities. If I inherit money or position, it is far more feasible that I can scoop up resources offered privately than the past-owner who was expropriated and uncompensated. This doesn’t result in a greater good for all, as privatization claims it will. It effectively leads to a widening of the gap between the poor and rich in terms of owners and labourers. Baland & Platteau argues that countries who struggle to obtain international credit (developing countries) fall vulnerable to the temptation to sell national resources to wealthy industrialized countries (Baland & Platteau, 1994, p. 17). The result of such transactions can be serious on two fronts; Desperation may promote accepting lower than fair prices, and second, because these resources are positioned on off-shore territories, there is incentive for the resource owning corporations to over-exploit literally just because they can. Many off-shore territories just don’t have the infrastructure to monitor the impacts of the rich multi-national corporations that they sell resources to (Baland & Platteau, 1994, p. 17). The combination of the profit and growth motives of these corporations with the lack of governance and monitoring infrastructure leads to some very serious externalities that, like the general population in India who suffered ground water pollution, are just not equipped to deal with. They are left with the resources exploited and other resources polluted – much like the illustrative scenario that I opened this chapter with. Although it is generally true that there is a positive correlation between resource exploitation and an increase in social welfare – a moral good the privatization thesis lays claim to, we must recognize that the current rate of resource exploitation is extremely high and this creates circumstances to differentiate and prioritize usage motives in order to regard our joint rights and morally just claims to necessary inimitable resources. Privatization offers a model of commoditization of common pool resources36, and it requires the systematic division of these

35 I will discuss this further in section 2.5, but here, by growth I mean that this is the *ideal* market dynamic for any

good manufactured and sold, the continual increase in production and shareholder/stakeholder profits.

36 Although I have not cited a specific source for the notion of privatization as a commodification of common pool resources this seems to be a fairly broad characterization – and as such is not an original idea I am suggesting claim to.

resources into privately held productive units. Production and resource usage are effectively abstracted from the usage motive (UFS, UFP), treating usage motives for subsistence and for profit as the same (UFS = UFP) - resulting in a form of conflation between self-ownership rights and exploitation in securing one’s further - beyond subsistence –interests, which I have argued must morally be secondary to the higher moral good and right to UFS.

Conclusion

In this dissertation I have argued that common pool resources are more justly managed under a collective use property management regime that has some circumstantial usage constraints, where the common property (“the commons”) are effectively un-owned, and usage motives are differentiated as usage for subsistence (UFS) and usage for surplus profit (UFP). I have also argued that to achieve subsistence from the usage of natural resources certain property rights are necessary. I have argued that although UFP motives are not innately immoral, they are morally inferior in priority to global subsistence usage. My defence of both of these central arguments was initially based on John Locke's SOT, which I argued was a just premise to derive further rights and obligations (NO1, PO1), including exclusive use property rights derived through labour mixing, in so far and as much as needed to secure one’s subsistence. I then argued that Robert Nozick’s Entitlement Theory principles were a moral premise with which to define circumstances where usage constrain is morally just – such as when UFP interferes with UFS – without just recompense. I have argued that the objective of any resource management regime should be to establish a realistic and just balance [prioritization of universal UFS with circumstantial usage constraints on UFP] between public good [UFS] and private beyond subsistence interests [UFP

Nozick argued that inequality in appropriation and property in itself is not unjust - assuming that the acquisitions of said resources has always happened in a just way. Just acquisition can be subjective to certain realities of circumstance, such as interference with basic human rights or the risk of depletion of inimitable life supporting natural resources. The fundamental categories of property are use rights (UFS) and income rights (UFP). Use rights are constitutive to individual human identity, but unrestrained income rights have no natural basis, nor can they be justified by reference to market requirements, liberty, social utility, or just deserts (Krueckeberg, 1995, p.306)37.

37 From (Christman, 1994)

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Index of Abbreviations

BM – Basic minimum

ET – Entitlement Theory

FOL – Fruits of Labour

N01 – Negative obligation one

PO1 – Positive obligation one

PO2 – Positive obligation two

SOT – Self-ownership Thesis

UFS – Usage for subsistence

UFP – Usage for profit