How do you ever initiate property ownership without introducing injustice? This is a question that occupied much of my intellectual energy not too long ago. The answer I came to is that you can’t, at least not if you are trying to come up with some standalone justification for property ownership of the sort libertarians are fond of. Instead, property ownership (and property use in general) can only really be justified by its relationship to a larger overall system of resource distribution. It can’t be analyzed in a vacuum; it must be seen as one part of a larger set of distributive institutions, and only justified if the distributive scheme it sits in is also justified.
A variety of (mostly libertarian) authors have tried to tackle justifications for property in the siloed way that I believe to be ultimately incoherent and impossible. The most interesting attempt of this sort comes from Robert Nozick in his book Anarchy, State, and Utopia.
What’s interesting about Nozick’s attempt is that he, better than any other libertarian I read on this question, recognized and tried to contend with the Access Problem (my phrase). You see, at some initial point, all land is unowned. In its unowned state, libertarians are required to believe that anyone can access that land. After all, how can you come to own the land if you can’t even access it? So before it is owned, anyone can access the land: walk over it, play frisbee on it, have a picnic on it, and so on.
But libertarians, including Nozick, believe that an individual can unilaterally grab up unowned pieces of world and make them their own (sometimes called homesteading). The problem is that this homesteading action is outrageously un-libertarian. It involves a single actor unilaterally deciding to eliminate the previously existing access every other person had to some piece of the world, doing so without the consent of those dispossessed of their access, and through the use of violence (i.e. if you try to access the object they now claim to own, they physically push you off or worse).
Unlike most libertarians who never seem to see the problematic nature of the liberty-destroying, aggressive violence at the core of all initial property ownership, Nozick absolutely does see it. As mentioned in a prior post, Nozick writes:
It will be implausible to view improving an object as giving full ownership to it, if the stock of unowned objects that might be improved is limited. For an object’s coming under one persons’s ownership changes the situation of all others. Whereas previous they were at liberty (in Hohfeld’s sense) to use the object, they now no longer are.
Nozick gets around this problem by temporarily embracing paternalism under the guise of the Lockean Proviso. Nozick argues that, although stealing away people’s previously existing access to pieces of the world does (in a strict sense) immediately worsen their situation, private property ownership in general (and the capitalist system it will generate) leaves people thus harmed no worse off in the long-run. So it is ok to rob them of their access because capitalism is so great that they will be better off for having been robbed.
This solution leads to a whole host of problems, the most glaring of which is that it seems to undermine one of the key points of libertarianism. If you can violently destroy people’s liberty so long as you leave them better off, then surely a long variety of things that libertarians hate can be justified, e.g. banning large sodas. There is no reason welfare-improving paternalism should be limited just to the initial appropriation of property, though Nozick clearly would like it to be so limited.
Another serious problem is that Nozick’s baseline comparator for determining whether property appropriation leaves people worse off is unworkable. Basically Nozick observes that having a private ownership system would leave people better off than having no resource allocation system at all. But surely a long list of things leave people better off relative to the no-system baseline that are not Nozick-style laissez-faire capitalism. This is, after all, Hobbes’ whole point: anything is better than the endless welfare-sapping warring of the state of nature.
If all you need to do is show that your system of resource allocation is better than the no-system baseline, then many other systems also become justified, e.g. social democratic systems. At the initial point of appropriation, I could just unilaterally impose the institutions of social democracy and justify them in the same way Nozick justifies unilaterally imposing the institutions of laissez-faire private property systems. They both are improvements over the no-system baseline and therefore do not leave people worse off for having had their liberty to access the confiscated land taken from them.
But it’s worse than that for Nozick. A proper accounting of the costs of bootstrapping into Nozick’s libertarian system does not just compare that system against the no-system baseline (as Nozick does). When you move into Nozick’s libertarian system, you incur opportunity costs insofar as you could have moved into some other system instead. The real cost of Nozick-style initial appropriation is not that you give up the no-system alternative, but that you also give up the social democratic alternative, the socialist alternative, the liberal welfare state alternative, and so on.
Once the importance of these opportunity costs are fully understood, the question is not whether laissez-faire property appropriation leaves people better off than having no system at all, but whether it leaves them better off than any other system. If you’ve followed me so far, you should now be able to see how Rawls’ difference principle is what actually pops out of Nozick’s reasoning here.
Under Rawls’ difference principle, economic inequalities are only permitted insofar as they leave the worst off in society better off than they would otherwise be. Which is to say that, by default, things should be distributed evenly to everyone, and we are only permitted to deviate from that equal distribution if doing so works to the advantage of the worse off (see this flow chart I put together a while ago). When you drill it down, Rawls’ position is that a just economic system is one where the worst off are as well off as they can possibly be. What that system looks like (and whether there is just one such system) is a largely empirical matter.
So if you take Nozick’s call for a system of resource use that does not leave people worse off and you inject it with an appreciation of opportunity costs, only a system that follows Rawls’ difference principle actually satisfies Nozick’s non-worsening requirement. Any system that falls short of Rawls’ difference principle necessarily trades off with a system that does not fall short of the principle. That means that whatever system you are using is, relative to a system following Rawls’ difference principle, causing the least advantaged group of people to be worse off than they would otherwise be. The decision to opt into whatever non-Rawlsian system you are using therefore always runs afoul of Nozick’s non-worsening requirement.
Thus, there is a very strong Nozickian case to be made for Rawls’ difference principle. Because the reality of scarcity causes the use of resources to necessarily infringe upon the liberty of others, it makes sense to say (as Nozick does) that you should only be able to undertake such use if it does not worsen the position of others. And the only use that does not worsen the position of others (when you account for opportunity costs) is the one that follows Rawls’ difference principle.