Here’s a thought for Labor Day: name the common denominator of these five articles, all from The New York Times.
(1) This one, from 2009, describes the gradual legalization of rainwater-ownership in Colorado.
(2) This one, from a few weeks ago, reviews the film “Dinosaur 13,” about the theft of dinosaur bones from federal land in South Dakota.
(3) This one, a column by Timothy Egan, extols the virtues of federal land policy in the American West.
(4) This one, from today’s international pages, describes the Israeli government’s declaration of a thousand acres of land around Bethleham as “state land” off limits to development by Palestinians.
(5) This one, from today’s national pages, describes California’s attempts to curb private drilling of sub-surface water tables in that state during a drought.
As a bonus, let me add a post I wrote last year on a (still-ongoing) controversy over the ownership of sightlines in New Jersey.
The common denominator of the five or six cases–in case you’re still laboring to figure it out–is the widely-accepted, but essentially unargued assumption that state ownership of natural resources is self-evidently legitimate, and self-evidently trumps claims of private ownership of the same resources.
In (1), Colorado seems to be assuming that it owns rainwater and the sky itself.
In (2), the federal government seems to be assuming that it owns whatever dinosaur bones exist underground, regardless of who exercises the labor to discover and unearth them.
In (3), Egan seems to be assuming that the federal government should have free rein to manage Western lands as it sees fit, regardless of claims of private ownership. A valley can “belong to you and me” even if neither of us have been there, and neither of us have lifted a finger to labor on it. Further, its “belonging to you and me” supersedes the would-be rights of those who have been there (who live and work there), and have labored over it and improved it. Going yet further: a valley can “belong to you and me,” and yet it can still be the case that neither of us has the right to exercise rights of ownership over it. (If that sounds convoluted, that’s because the idea it’s describing is convoluted.)
In (4), the Israeli government seems to making the same claim about the West Bank–a claim it’s made about a lot of the West Bank for a long time.
In (5), California is assuming that sub-surface water is the property of the state, not of those who drill for it. (This case, incidentally, seems to me the most plausible of the examples of state intervention I discuss here, in part because it involves government management rather than outright ownership of aquifer water, and in part because it’s far from obvious that farmers own sub-surface aquifers, especially if the aquifer extends beyond the farmer’s surface property line. But plausible or not, what needs a justification is how California comes to have the authority to control sub-surface water supplies simply because they’re there.)
I think of the cluster of assumptions at work here as “the non-labor theory of initial appropriation”: non-labor confers strong claims of ownership, but only by the state.
If you read the philosophical literature on initial appropriation of unowned resources by private individuals, you’ll discover that ownership is a deeply fraught activity even for those who expend the ingenuity and labor to own previously unowned things. According to this literature, private individuals cannot claim strong rights of world ownership even when a given individual uniquely labors over unowned resources in novel and circumscribed ways. Such laborers labor under a heavy burden of proof before they can demonstrate bona fide ownership over the valuable items that their labor has brought into the world. Even so, they are always at the mercy of collective claims of “need” to their would-be property, no matter how obvious it is that they’re the ones to have created the relevant value, whereas the collective has not.
The classic account of this, to my mind, is A.M. Honore’s brilliant fish-hook thought-experiment in “Property, Title, and Redistribution.” For many people, the upshot of the thought-experiment is that you don’t own a fish-hook even if you’re the one who (without anyone else’s help) invented the fish-hook and has created the only fish-hook in a given village. Others have a right to your fish-hook because their access to it would (in material terms) improve their condition, even if your having it and having created it doesn’t harm theirs. In a literature littered with pointless and extravagant thought-experiments, this one is an exception: it clarifies all the essential issues in all the right ways.
To the best of my knowledge, there is no comparable literature on initial appropriation of unowned resources by states. The assumption seems to be that states are just entitled to show up, survey all of the resources within their domain, and, by fiat, declare those resources to be the property of the state. Woody Allen said somewhere that showing up is half of life. As far as the state is concerned, showing up is all of ownership: showing up and saying “ours” is all the state needs to do to own (literally) anything on Earth (surface, sub-surface, water, or air) or even beyond it (i.e., outer space). If ever you’re tempted to accept the claim that libertarians and their ilk fetishize private property, consider the sorts of claims made by the champions and practitioners of state ownership. According to them, by doing nothing, you come to own everything.
The fact of the matter is that initial appropriation is a fraught and difficult subject whether the appropriation is made by private or public agents. It isn’t obvious or clear how it is that we come to own the bits of the world we own, whether “we” are private citizens or agents of the state. The real lesson of Labor Day is not what we “owe” the labor movement. (I generally like the labor movement, but for reasons I can explain some other time, I’m inclined to think that it owes me more than I owe it.) The real lesson is that we need to clarify our thoughts about the relationship between labor, non-labor, and ownership. We can’t owe the labor movement anything if none of us owns anything. And we can’t own anything if the state owns everything, including us. That last clause may seem implausible, but if the state doesn’t have to do anything to own something, it doesn’t have to do much to own us. In the Wizard of Oz, the Wicked Witch’s guards chant, “All we own, we owe her.” It kind of seems like a joke. But it kind of isn’t one.