Robert Nozick, on Locke’s theory of acquisition, in 1974:
Why does mixing one’s labor with something make one the owner of it? Perhaps because one owns own’s labor, and so one comes to own a previously unowned thing that becomes permeated with what one owns. Ownership seeps into the rest. But why isn’t mixing what I own with what I don’t own a way of losing what I own rather than a way of gaining what I don’t?…Perhaps the idea, instead, is that laboring on something improves it and makes it more valuable; and anyone is untitled to own a thing whose value he has created….Ignore the fact that laboring on something may make it less valuable (spraying pink enamel paint on a piece of driftwood you have found). Why should one’s entitlement extend to the whole object rather than just to the added value one’s labor has produced? (Anarchy, State, and Utopia, pp. 174-75).
From an article in The New York Times on the judgment in the 5Pointz graffiti case a few days ago:
Ruling that graffiti — a typically transient form of art — was of sufficient stature to be protected by the law, a federal judge in Brooklyn awarded a judgment of $6.7 million on Monday to 21 graffiti artists whose works were destroyed in 2013 at the 5Pointz complex in Long Island City, Queens.
In November, a landmark trial came to a close in Federal District Court in Brooklyn when a civil jury decided that Jerry Wolkoff, a real estate developer who owned 5Pointz, broke the law when he whitewashed dozens of swirling murals at the complex, obliterating what a lawyer for the artists had called “the world’s largest open-air aerosol museum.”
Though Mr. Wolkoff’s lawyers had argued that the buildings were his to treat as he pleased, the jury found he violated the Visual Artists Rights Act, or V.A.R.A., which has been used to protect public art of “recognized stature” created on someone’s else property.
So whatever the added value of pink enamel paint, the added value of multicolored enamel paint turns out to have a pretty specific dollar amount.
The case illustrates something that has always seemed obvious to me, but apparently isn’t obvious to everyone else: it’s either difficult or impossible to espouse a Lockean form of liberalism while insisting on neutrality about moral and aesthetic value; meanwhile, it’s relatively easy to combine a Lockean-liberal politics with a commitment either to perfectionism about the good and the aesthetic, or to a rather judgment-positive (i.e., willing-to-make-and-rely-on-judgments) form of objectivism about both ethics and aesthetics. In other words, non-neutralist objectivism/perfectionism coheres with Lockean liberalism more easily than so-called “liberal neutrality.”
I take a commitment to Lockean liberalism to entail a commitment to a Lockean theory of property, but as I see it, the latter commitment entails that the rightful boundaries of individuals’ property holdings are determined, in part, by objectivist-type judgments about the moral and aesthetic value of the things (persons, objects, actions, etc.) protected by the right. You can’t get a “value added” scheme of the sort to which Nozick alludes without an objectivist account of value, and you can’t give determinate content to the Lockean proviso (“appropriation of resource R is legitimate just in case it leaves enough and as good for others”) without being committed to something similar.
Nozick assumed that graffiti-like additions to a surface subtracted from the prior value of the relevant surface; apparently, when it came to the walls in the 5Pointz case, the federal judge disagreed. The larger point is that adjudication of such cases turns on judgments about what counts as an addition or subtraction of value in the first place (along with whether such mathematical metaphors are the right way of putting things). As far as I can see, liberal neutralism constitutes an obstacle to the relevant task of adjudication, rather than a feasible means of resolution. If I’m right about that, one option is to give up on Lockean politics; another is to give up on liberal neutralism. Both commitments have their pros and cons, but personally, I’d opt for the first over the second.
Thought-provoking case (not necessarily because it is a hard or borderline case, though maybe it is depending on details that I don’t know about, but because it highlights essential things). One thought I have is that it may be as much or more the objective value (or obligation) of respecting the creations of others as the objective value of the creation that matters.
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The distinction between “obligation to respect the creations of others” and “objective value of the creation” is one that needs some working through. There’s a tension within the liberal tradition (I think) between a perfectionist impulse to promote genuinely welfare-promoting or perfection-promoting ends, and a neutralist impulse not to favor any one sort of end over another. You can see it in Locke, but I think it re-surfaces in more contemporary debates about liberal neutrality versus liberal perfectionism, or between thin versus thick theories of the good (or thin versus thick versions of liberalism or libertarianism).
In one sense, “obligation to respect someone’s creation” and the “objective value of creation” have to be connected, somehow: there can only be an obligation to respect the creations of others when those creations satisfy minimal conditions for being genuine creations. You might have to respect graffiti art (whether you’re a fan of it or not), but you don’t have to respect the crap left by someone’s dog, or for that matter, the dump that someone takes in an open field. Graffiti art rises to the level of a bona fide creation; refuse does not.
(This is trickier than I’m making it. Some art makes essential use of refuse, and someone might, after all, appropriate a certain stretch of unappropriated ground as a latrine. But my point is: there’s an intelligible rationale to awarding $6.7 million dollars to the graffiti artist to compensate for losing the creation in the picture above; there’d be no comparable rationale if all he did was take a dump on the ground, and then demand to be compensated for his “creation” after it was cleaned up.)
On the other hand, the connection between “obligation to respect someone’s creation” and “objective value of the creation” can’t be so tight that the set of things worthy of protection or respect ends up being restricted to the things that can conclusively be demonstrated to promote welfare on an optimizing account, or conclusively demonstrated to perfect human nature on a perfectionist account. If that was the case, we’d need a worked-out theory of aesthetics in order to protect any art, and the only art that would qualify for protection would be the “best” art ever made.
Locke himself tends (in a problematic way) toward the perfectionist side of the spectrum. Explicitly, initial appropriations from nature have to meet a non-waste criterion, and an “enough and as good” criterion. Implicitly, they have to satisfy a teleological criterion: they have to aim at some genuinely welfare-promoting end (that’s implicit, I think, in the non-waste condition). So if I’m appropriating x from an unowned state of nature, x can’t involve the “waste” of a resource, and I have to leave enough and as good of the appropriated resource for others.
Spelled out, I think Locke really means that if I appropriate x for welfare-promoting purpose P, the criterion for “waste” is supplied by P, and I have to leave enough and as good of the resource so that others can also appropriate it for P. The paradigm is appropriating land for agriculture: if I appropriate a parcel of land to grow olives on it, I have to appropriate a parcel on which I can successfully grow (and harvest, etc.) olives, leaving enough and as good resources for others to grow olives. (Olives are my example, not Locke’s.)
The problem is that Locke is so wedded to this agricultural conception that he simply assumes that any non-agricultural use of land (e.g., a nomadic use) involves waste as well as a failure to satisfy the “enough and as good” criterion–therefore fails to satisfy relevant conditions on appropriation, and isn’t worth respecting as property. The problematic consequences become obvious when agricultural settlers come into conflict with nomads (as in the settling of North America).
The funny thing is that given that Locke’s example is tobacco, you could argue that his paradigm example of appropriation fails his criterion for appropriation: if tobacco is harmful, land devoted to its cultivation is arguably a waste; if so, all land appropriated for the cultivation of tobacco violates his non-waste criterion, so that none of it is property worthy of the name.
A more modern example (or set of them).
1. I appropriate 88.3 MHz on the FM airwaves, and broadcast nothing but noise on it: the sound of rabbits being slaughtered, or kittens being tortured.
2. I appropriate 88.3 MHz on the FM airwaves, and broadcast nothing but noise music on it:
3. I appropriate 88.3 MHz on the FM airwaves, and broadcast nothing but Schoenberg on it:
4. I appropriate 88.3 MHz on the FM airwaves, and broadcast nothing but super-heavy death metal on it.
5. I appropriate 88.3 MhZ on the FM airwaves, and invite Leonard Peikoff to do a radio show on it.
Perfectionist interpretation: (1)-(5) is all noise unworthy of respect, hence violates the non-waste criterion, hence isn’t a legitimate appropriation, hence deserves seizure and redistribution.
Neutralist interpretation: politically speaking, (1)-(5) are all equally worthy of respect.
Compromise interpretation: the airwaves can only be appropriated for welfare-promoting purpose; hence appropriations (demonstrably) have to promote some genuine public interest, satisfied by (say), (3), (4), and (5), but not (1) and (2).
The perfectionist interpretation has an intelligible rationale (in perfectionism), but is problematically paternalistic. The neutralist interpretation has an intelligible anti-paternalist rationale, but seems to let too much in. The compromise interpretation seems ad hoc. The right interpretation has to skate between these options.
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I like your analysis (and think there is a real and important question here), but tend to think of the respect-grounding property more in terms of what counts as a rational-enough way of realizing, or perhaps even just attempting to realize, an objectively-important value – not just in terms of measure on an objective scale of value. This mixed approach (generalized objective and important-enough value, enough rationality in particular realization) might get the best of both the “respect all reasonable-enough F’s” (where pretty much anything that makes any kind of sense or is not patently malevolent might count as ‘reasonable enough’, thus approaching or a version of liberal neutrality) and “respect all valuable-enough F’s” approaches. (Obviously, this sort of approach generalizes to lots of other things, including the shape of the rationale for liberalism itself.)
Put that way I can’t disagree, but the Devil’s going to be in the details. The notion of a “valuable-enough F” still seems to presuppose a paradigm of a valuable F simpliciter, where “enough” denotes degrees of approximation or similarity to the paradigm. But reliance on some such paradigm is going to sit in tension with any full-fledged version of liberal neutrality. The question then becomes whether you regard that reliance as a feature or a bug. It strikes me as a feature.
Incidentally, it seems to me that a similar version of this issue affects discussions about gun control. The pro-gun side wants to treat ownership of weapons as the normative deal-clincher on its own: if I own x, so long as I don’t use x in a rights-violative way, I have a full-fledged right of use and disposal over x, and prior legal constraints on that right violate my rights; it’s illegitimate to demand an account of the telos that my possession of x (or right to x) serves. My right to x clinches the deal all by itself. So hands off!
Hence the somewhat dogmatic, deontic flavor of some of the things that pro-gun people say, as though asking about the purpose served by a right to own a specific weapon would gut all rights and lead us into totalitarianism (a la Wayne LaPierre at CPAC).
The gun control side of the debate wants to ensure that the right to x serves some defensible telos–ultimately, human survival and flourishing. So they’re willing either to eliminate the right to x (if it doesn’t seem consistently to serve that telos), or to circumscribe it precisely so that it only serves that telos, and never does the contrary. “You can only have a gun if your having the gun would never lead to the wrong person being shot.”
Hence the somewhat ad hoc character of the things these people say, as though you could design a set of legal norms or policies tailored to abolishing a specific sort of adverse outcome, like “mass shootings produced by mentally disturbed people.” Forgotten (or discarded) is the fact that if we applied this logic more consistently, we’d have to discard or gut a huge number of reforms enacted by liberals, e.g., the exclusionary rule in criminal procedure, and the strict standards for involuntary commitment of the mentally ill. We’d also have to discard such ubiquitous mantras as our ban on “stigmatizing the mentally ill.” Its hard to think of anything more “stigmatizing” than the claim that a person lacks the mental faculties to be trusted with the rights that other people can be trusted to have.
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