While we have yet to settle on any such picture, other intuitions can present us with a different picture. Israel Kirzner’s article, “Entrepreneurship, Entitlement, and Economic Justice” (1978) provides us with an excellent intuition as to how else these entitlements could come about, through appeal to the idea of value: the chief reason why we gain our entitlements to property is because we have created an economic value in it.

A theory based on this intuition is, at least, superficially consistent with some libertarian theories or at least some of their parts. In examining the views of those called “libertarians” (even those with an egalitarian bent), we could (albeit crudely) characterize two kinds of entitlements in those views: what we will call “directly earned” entitlements and “unearned” entitlements. The former refers to those entitlements dealing with the class of thing that the individual brings about through his own freely chosen actions, and, from the point he acquires it until the end of his life, may keep without others ever possibly holding a right to it against him (such as the product of his labor). The latter refers to entitlements dealing with everything else—those things which may justifiably be redistributed from the individual, whether it is the value of their natural talents, their natural resource holdings, etc.

The question, then, is what kinds of consequences accepting the intuition that value creation generates entitlements will have on these different kinds of entitlements. In the conclusion of Kirzner’s piece, we get a sense of his goal, which in some way will be similar to mine:

[There] does seem to be a certain plausibility in the notion of ownership through creativity. It is this plausibility which may help explain how so many observers of the market appear to find it consistent with economic justice in the face of the denunciations of the moralist critics of capitalism. This paper has explored the sources of this apparent plausibility, and has scrutinized its ability to serve as possible support for the morality of the market.[1]

My goal here is to demonstrate how value creation (or “creativity” as Kirzner calls it) can form a basis for destroying the distinction in entitlements to which I alluded, presumably in favor of the “directly earned” kind, or, at the very least, for forcing a commitment to one kind of entitlement in its fullness over the other. Failing that, creativity can at least form a stronger basis for whatever “directly earned” entitlements may exist at all in a given theory (such as a Steinerian one). For a variety of reasons, including Kirzner’s revised acceptance of the Nozickean proviso which introduces a host of new complexities, I will not attempt to “repair” Kirzner’s theory where it fails. Instead, I will only show how some of the intuitions he offers ought to be seriously considered and integrated into any theory of acquisition that prizes self-ownership (e.g., in the form of ownership of the products of one’s labor). Whether we accept some sort of “equal share” hypothesis or not should not, ultimately, affect whether the considerations about value creation put forth in this paper make a difference. On one hand, the considerations might provide some intuition in favor of “world ownership”—that persons literally hold exclusive right over a part of the world—a position which is too difficult to defend here; on the other, they simply help clarify the extent of certain entitlements, in as much as we believe that those certain entitlements are of the “directly earned.”

Value Creation

The basic principle behind value creation could be that for some given thing of economic value, the person who actualized that value has full property rights over that thing; it would not have “existed” save for that person’s actions that led to its actualization. But this is too strong, for we can only say that something might not have existed save for the actualizer. This naturally should prompt us to find an account for why the temporally first creator is so entitled. In other words, we must find and justify some “first-come, first-served” principle, a challenge which we will address later. Here, we will investigate Kirzner’s interpretation of value creation, regarding exactly what it is that we ‘own’:

In the conventional view (apparently shared by Nozick), once a unit of resource has been acquired, ownership has been established in it with respect to all its properties and powers, whether these have been known or imagined or not. In the view being now considered, on the other hand, those aspects of a thing which are unknown remain, so-to-speak, non-existent. Their discovery constitutes the discovery of a hitherto unknown, ‘non-existent,’ and hence un-owned dimension of the thing. An owner owns only those aspects of ‘his’ property of which he is aware.[2]

This will have some important implications when it comes to what we are justified in spatially controlling (where to spatially control something means to own something with respect to all its properties and powers, known and unknown). Nonetheless, the complexities of dealing with spatial control issues are the task of a separate odyssey. At least for now, we will accept this definition of ownership put forward here, with the intention of clarifying it.

A simple case of value creation is Kirzner’s example of an entrepreneur discovering a willingness of consumers to pay a price for oranges converted into juice ($12, with a $4 manufacturing cost) over the price of oranges alone ($5). From this, he draws the following intuition:

Up to the moment when the entrepreneur’s vision ‘saw’ the juice and marmalade which the oranges represent, oranges had value only for eating – a value which the market set at $5. The entrepreneur has discovered $3 additional value in the oranges. He may, then, be held to have ‘created’ this additional value in these oranges. It is as if the entrepreneur found orange juice and marmalade in nature, where no one had perceived their existence; he has ‘created’ the orange-resource that can provide juice and marmalade.[3]

This is fairly self-explanatory. A set of actions leads to the creation of a consumption opportunity which some consumers prefer to some of their old consumption habits, for which they are willing to pay extra. Of course, Kirzner does far more here than simply give us part of the case for why the entrepreneur is entitled to profit here; he also hints at an argument for the likeness of natural resources to the orange juice scenario.

Before turning to the more complex issue of natural resources, however, it would do us well to finish framing the importance of value creation in exchange. On one hand, if we argue successfully for original appropriation of, say, oranges, then perhaps any questions beyond it are moot, notwithstanding any complexities raised by Kirzner’s definition of ownership. This is because just original appropriation of something entails full property rights over it, which entails free disposal of it, and we are not bound by any sort of Lockean “no-waste” condition. With full property rights over oranges, we could just as easily turn them into juice and exchange them freely for a net benefit to ourselves as we could throw them off of a cliff in nihilistic spite while slowly dying of scurvy.

Nonetheless, some theories would posit that even from a starting point of full property rights, some (non-coercive, non-fraudulent) processes can occur that unjustly result in profit. A theory of value creation-based entitlements can show how no such processes are possible. Thus, even if we fail to properly demonstrate our case regarding natural resources, an understanding of value creation is both applicable and useful to the previously-mentioned “right-libertarian” components of libertarian theories—especially Steinerian ones—which still entail a level of free and voluntary exchange (and hence the potential for mutual gain in exchange, and thus profit). This ground has been well covered by Kirzner, so we need not pursue it further here.[4]

It is necessary to clarify how value creation generates entitlements, or perhaps more importantly, what value is. Our definition of value can only be manifested through human action: we gauge the value of something by how someone will act to attain it. An entrepreneur, through some process of discovery and/or innovation, comes to control some object. Someone else desires this object. The “value” to which the entrepreneur is entitled is only going to be what is voluntarily offered to him and accepted by him in order to relinquish his control over the object.

So clearly, we are not simply saying that having special knowledge of some potentially added economic value entitles one to that value, of course. That knowledge only justifies whatever profit might be had when entrepreneur A buys oranges from entrepreneur B, turns them into juice, and gains a profit over the cost of the oranges. Better said, we are only advancing the case that one is entitled to any rewards reaped from discovering and executing a means of further contributing to the satisfaction of their own and others’ preferences (whether it is by selling information to someone else or by using that information to sell oranges at a higher price). Entrepreneur B is not entitled to any more than is offered and he agrees he will accept in exchange for his oranges. Of course, this could include his partial (or even full) knowledge of the value of juicing and hence his price discrimination toward Entrepreneur A, to which he is just as entitled.

To further specify the nature of our claim, we exclude any considerations of division of labor, specialization, and so forth from this discussion altogether. In a world of perfect and symmetric information, these conditions, quite trivially, imply that the juicer (entrepreneur A) and the orange harvester (B) are entitled to their respective contributions of value. It is where there is an information asymmetry that we are still claiming that entrepreneur B is entitled to profits from juice, even where entrepreneur A, if he also possessed the same knowledge of juice, would profit similarly from it. The attainment of information is as much a feature of the world that bears a human cost as is anything else under consideration, labor included. This fact is the primary reason why someone is justified in profiting to any degree from asymmetric intellectual information.

Overall, given a framework of already existing property entitlements and voluntary exchange, we have good reasons to believe that additional entitlements generated from those exchanges is just. It is how we get to those “already-existing property entitlements” which will be the task of the next section.

Natural Resources

We are now led to the more serious possible implication: if we accept the intuition of value creation when it comes to things like the natural properties of oranges and consumer preferences, why distinguish between those things and other things that are more affixed parts of the world, like land, water, or coal? We credit the entrepreneur with discovering, and thus bringing into existence, the value of juice. Putting aside issues of whether someone else could have brought about the value of the juice, we give the entrepreneur some level of equity based on how he in particular brought about this particular juice at this particular time. Prior to the entrepreneur’s intervention, the “juice value” was inaccessible.

Taking a parallel case of an entrepreneur drilling into a mountainside and finding gold, we can easily see that a similar statement can be made about the gold: prior to the entrepreneur’s intervention, the value brought about by the gold was also inaccessible. So we at least see no distinction between kinds of value-creating activities—in both cases, some sacrifice was required on the part of the entrepreneur to bring about access to something valuable that was previously inaccessible. Note that this is a fact independent of whatever independently-established conclusions we have about natural resources and people’s entitlements to them. At the very least, we have established that there is a common element between creations of value through what label “natural resources” and creations of value elsewhere.

The issue here is, as always, why the first-comer to a pile of uranium or some other resource can lay absolute claim to it. If it were the case that if not for the entrepreneur, the resource would not have existed, then our answer is clearly that he is entitled. But for most things, we can only say that if not for the entrepreneur, the resource might not have existed. We can likewise read this issue “backwards” into natural resources, scientific discoveries, inventions, etc. If we have this problem with land, why don’t we have this problem with everything else? Our definition of value creation here certainly fights against the separation of land and natural resources from other possessions. Nonetheless, no matter how we treat the distinction, even by eliminating it, priority for first-comers to any possession must be justified. In the next section, I will advance the rights of first-comers by putting forward some considerations that must be addressed by any theory which prizes self-ownership.

The Rights of First Comers

Having begun to argue for why value creation makes us responsible for—and thus entitled to—the effective existence of certain things, we still must answer why one’s temporal location never confers some unjustifiable advantage in appropriation. Indeed, we can hold that an appropriation is just, even if someone at a later date could have come along and created an inferior, equal, or larger value which he no longer could do as a result of the first appropriation. Kirzner offers the following example in favor of a “first-come, first-served” (FCFS) principle or what he calls a “finders, keepers”[5] ethic:

Consider then the case (referred to only by implication, in Nozick’s discussion) of the un-held sole water hole in the desert (which everyone in a group of travelers knows about), which one of the travelers, by racing ahead of the others, succeeds in appropriating. For Nozick this case, involving as it does no discovery at all, clearly and unjustly violates the Lockean proviso: the other travelers who n the absence of appropriation by their fellow, would have all enjoyed some water without cost, are now forced to pay a price (even a ‘monopoly price’) for that same water. For us, however, this view is by no means the only one possible. We notice that the energetic traveler who appropriated all the water was not doing anything which (always ignoring of course, prohibitions resting on the Lockean proviso itself) [would have prevented the other travelers from racing ahead]. Assuming (for simplicity) that [if] all the travelers were of equal strength and speed there would have ensued a ‘gold-rush’ in which each would have, let us say, captured some water. As it happened, the other travelers did not bother to race for the water. May it not be that they were less alert, entrepreneurially, to the possibility that someone else might indeed appropriate all of the water than the energetic traveler? Should we not, then, say that the latter was the first to ‘discover’ the true market value of the unheld water? For the others the water was indeed known, but the worthwhileness of its appropriation was not known. (Perhaps they mistakenly thought there was more water available than could possibly be drunk; perhaps they mistakenly thought that no one would or could race across the desert at a faster speed than that at which they were traveling, or perhaps they gave the water no thought at all.) It does not seem obvious that these other travelers can claim that they were hurt by an action which they could themselves have easily taken, had they been as alert as the successful appropriator. What, one must ask, even under conditions involving the appropriation of known substances is so obviously acceptable about the Lockean proviso, as interpreted by Nozick?[6]

While it is certainly a useful and intuitive way to show how we might falsely identify some appropriation scenarios as being a product of mere arbitrary temporal advantage, this example fails to fully address the issue. On the face of it, there are two potential routes we can take here to vindicate a FCFS principle. To preserve the validity of this example as an answer, we must show that every single appropriation will always contain an element of some value creation of the sort shown in the given scenario, no matter how small. On the other hand, to keep the example as only a useful insight, but still advance the case for a FCFS principle overall, we must show that even an appropriation characterized by mere temporal advantage is still justified.

In large part, the full resolution of this discussion depends on whether we accept that an individual’s gains from unchosen natural circumstances are “undeserved”; or, at least, that someone’s luck-based disadvantage makes an appropriation made possible by that disadvantage unjustified. Rejecting this notion would constitute an answer of the second kind provided in the paragraph above. Here, I will move toward an answer of the first kind instead, in the same vein as Kirzner’s water-hole example. In as much as any theory takes “brute luck” into consideration, it also allows for the mutually exclusive category of the “earned.” The following considerations should help to further define the boundary between the consequences of brute luck and choice.

The Value Creation of Being First

Before concluding anything about permanent appropriation of a resource, we must examine what non-arbitrary differences always exist between a first-comer and those who come later. The insufficient counterfactual that drew us to investigate whether a FCFS principle could be justified—that if not for the appropriator, something only might not have existed—ignored a crucial element of that something: specifically, when that something would have existed. Indeed, time is not irrelevant to value; other things equal, a rational agent prefers some fixed payment now to the same fixed payment later (likely for reasons of certainty and maximization of choice sets). This implies that there is a component of value that first-comers provide, and provide uniquely. We can refine the counterfactual to then say, “if not for the appropriator, something would not have existed at the time it did.”

Being a first-comer does more than add a time-value to an appropriation, however. It also actualizes unknown elements of the resource in question, the brunt of which is borne by the first-comer. First-comers bear the burdens of their appropriations as well as the benefits. There is the simple example of risking direct personal harm, such as exploring a cave only to find an angry bear.  There is the broader possibility that the effort the first-comer spent to make an appropriation was not worthwhile. Furthermore, those who are not first in any process of discovery often have the option of learning from the mistakes and failures of those who were first, making their own forays more productive. What makes these revelations possible is an actualization of one outcome of many possible outcomes.

This point stands, whether we believe that everyone owns natural resources or not. Even someone exploring on behalf of humankind would be creating value that humankind would otherwise not have, but at his own expense. Even if he was first only by some arbitrary temporal circumstances, it does not change the fact that he is the one who has borne the costs of the appropriation. Thus, in at least enough cases worth considering, an individual’s temporal advantage is an individual’s value creation, and one that any for which any theory of appropriation must account.

The Endogeneity of “Starting Points”

Any notion of “temporal advantage” in its construction relies on the broader concept of a “starting point.” An arbitrary temporal advantage is going to be the product of some distribution of starting points, in which one person was, for example, closer to a resource and hence arrived at it sooner. If A starts 1 mile closer to some resource than B does but they are otherwise equal, and they both move toward it, A will be able to appropriate the resource and exclude B from it, a result which can be credited to A’s better starting point. One might argue that this represents some unearned advantage of A over B that can be justifiably adjusted or redistributed.

But we have failed to ask how A and B got to their respective “starting” locations. If A had decided to take a well-trodden path to a resource, but B decided to take a mountain pass in hopes that it would be faster, then we would not consider the 1 mile difference to be some sort of arbitrary advantage. It would seem that the goal of the above argument is to show that starting points are simply given, that is, exogenous, and hence morally arbitrary. At the core of this is that no decision on the agents’ part put them there. Indeed, a central component of libertarianism is ownership of one’s self and thus responsibility for one’s actions.

We can’t really say, though, that those “starting points” were unchosen (in one sense). In reality, any number of different actions on the part of the agents could have resulted in a significant difference of those starting points. As Kirzner argues in his water-hole example, perhaps the other parties were not as entrepreneurially alert to the resource as the appropriator, who situated himself more opportunely. Unless we have no qualms with making one person responsible for the erroneous or non-optimal actions of another (outside of a guardian-type relationship), then we can not consider the first-comer in an appropriation scenario unjustified in appropriating a resource.

By this logic, any cases of an agent’s “starting point” being determined by a choice among alternatives can not be validly considered a “starting point” with any moral weight. So what cases could be? It is safe to say that people do not appear independently of choice-making; that is, they are not exogenously given. This creates an ever-important moral relationship between parents and children. At best, we can define a starting point as a point exogenous to the decision-maker in question. For example, an agent’s birthplace is not chosen by the agent. However, it is not simply a brute fact of nature; it is the product of someone’s choices. So, it would make sense to explore the following avenue: if there are any qualms as to the harms to an agent caused by a particular starting point, any burden should be upon those who made the decisions to put that agent in that situation.

If we accept that having children is not something to which people are unconditionally entitled, but which they may do, and that having children also generates obligations for the parents, then complaints about a starting point like birthplace should always be directed toward parents. A poor family with five children can not validly claim circumstantial hardship (not, at least, without bending the boundaries of responsibility for one’s actions). It was their decision to take an action that would result in their having of five children.

Perhaps they were young and reckless, and made mistakes. Or, even, they made reasonable attempts at averting the situation by using birth control. But neither of these is a good reason as to why anyone outside this parent-child relationship, who made no decisions to create this situation, should have his freedom limited. Mistakes and unfortunate consequences of typically successful behavior still bear a clear relationship to one’s choices by definition. At the very least, if one says that children under some circumstances can be treated as exogenous and thus a basis for an entitlement, then he must also accept a variety of other unintentionally caused hardships as the basis for entitlements too.

The outsider, clearly, does not gain a duty from the choices of others. There certainly remains the question of “brute luck”: that, after tracing back history to the point before there were any moral decisions, some circumstances led to agent A’s relative situation being worse than agent B’s, though choices could alter the final outcomes. Still, it is seemingly impossible separate any circumstantial hardships from agent choice, and the power of those choices must be reflected before drawing a conclusion about luck. Even for seeming “acts of nature,” like natural disasters, one’s risk of being affected by them changes with a variety of decisions.

It seems that the axiom underlying the notion of arbitrary advantages is something like as follows: for some sort of situational disadvantage in appropriating something to make the advantaged appropriator unjustified in appropriation, it must be a factor independent of agent choice. So, then, the task of any “brute luck” entitlement framework is to find this exact handicap placed upon someone by circumstances, entirely separated from their choices. It must consider the range of possibilities across many different possible choices in sum, and determine whether one agent’s exogenous choice set’s “expected value” (for lack of a better concept) surpasses another.

Ultimately, a central point of the discussion here will remain unresolved: is person A justified in reaping the benefits of his unchosen advantage? If yes, then considerations of what is “directly earned” are a mere afterthought; if no, then we can not afford to ignore any advantages of his which are chosen.

[2] Ibid, pp. 202

[3] Ibid., pp. 202

[4] The first half of “Entrepreneurship, Entitlement, and Economic Justice” demonstrates how profit, even when there is error or asymmetric information (besides in cases of fraud), is always the result of just transfers in a voluntary exchange setting.

6 When describing the “finders, keepers” ethic, Kirzner makes it a point in a footnote to distinguish it from another ethic labeled “first-come, first-served” condemned by economist William Vickrey for being “of dubious equity.” I, too, would like to make such a distinction.

[6] Ibid. 1, pp. 208-209. Note that the bracketed clause in the center was meant to repair a grammatical anomaly in the original text.

In the section titled “Persons and bodies,” Steiner explores the issue of offspring rights, asking “how can we each own what we produce if we ourselves are others’ products?” Steiner whittles this question into what he calls “the paradox of universal self-ownership,” which he proposes to ameliorate via modification of the propositon, “All persons (originally) are the fruits of other persons’ labor.” He contends that reproduction occurs via a mixing of labor with natural resources in the form of “germ-line genetic information,” hence avoiding the contradiction with the proposition “all self-owners own the fruits of their labor” that generated the paradox in the first place. Thus, once children reach the age of majority, they become self-owners (all rights relating to their foetal and minority statuses are really legal powers and liberties held by adults).

Steiner turns to the question of the rights of the dead in “Persons and times.” Appealing to Hohfeldian jural relations—that rights and powers in one party are correlative to duties and liabilities in others—he argues that transfers of ownership involve an exchange of correlatives which is impossible with a testator. While a gifting process transfers rights and powers from the gifter to the receiver, and a restriction from the receiver to the gifter in turn, a testator incurs no such restriction. In other words, the transfer of ownership of property can only be performed by a living person. Thus, the dead have no rights and their property is rightfully treated like a natural resource. Steiner then connects his discussion of rights of the dead with rights of future persons: because having a right, according to Steiner, is to be in possession of the powers to waive or demand and enforce compliance with its correlative duty, a future person has no rights against present persons.

In the final section, “People and places,” Steiner underscores the meaninglessness of international boundaries with regard to persons’ original rights and the rights derived from them; they do not “suddenly evaporate” at arbitrarily drawn boundaries. National boundaries only demarcate group territorial holdings, so natural resource entitlement is global in scope. He also addresss the flaws in the ‘theory of magic dates,’ a problem faced by individual rights theorists like Locke who are anti-secession. He argues that there is no justification for a date prior to which rights-holders are empowered to jointly enter into agreements for the protection of their rights by an agency of their chosing, but after which those rights are truncated.

In the Epilogue, “Just Redistributions,” Steiner fleshes out his notions of redistribution, beginning with the process of redress as a mode of acquiring just titles to things, and how redress can be manifested through a global fund. Steiner generalizes that in a fully appropriated world, “each person’s original right to an equal portion of initially unowned things amounts to a right to an equal share of their total value.” Thus, “over-appropriated” persons owe a contribution of value to a global fund from their duties correlative to “under-appropriators’” original property rights. Another thesis advanced in the epilogue include that persons using “germ-line genetic information” must pay competitive rent on its value, as it is a natural resource; hence, adults with children with more valuable offspring (genetically speaking) must compensate those with offspring less so.

Locke’s Theory of Acquisition

Nozick’s goal in this section of AS&U is to, in his words, “introduce an additional bit of complexity into the structure of the entitlement theory.” To do this, he uses as a starting point Locke’s approach to justice in property acquisition—namely, that ownership of an object originates in one’s mixing of labor with that object. Nozick then proceeds to ask the standard gamut of questions calling attention to some difficulties in Locke’s theory of acquisition, like whether dumping a can of tomato juice in the ocean constitutes “mixing one’s labor” with the ocean. Essentially, the questions seek the strict boundary between what constitutes a mixing of labor sufficient for just acquisition and what does not. Under the Lockean notion of acquisition, it seems that one naïve interpretation would say that improving upon an object entails full ownership of the object. Of course, as Nozick points out, if the stock of improvable unowned objects is limited, this view is unfeasible. He uses the appropriation of a grain of sand as an example of one’s appropriation removing another’s liberty (as Hohfeld uses the word) to act on a previously unowned object, but intuitively suggests that this particular removal is not problematic. The central concern, he says, “is whether appropriation of an unowned object worsens the situation of others.”

Here, Nozick introduces a principle aimed at addressing that notion, which he terms “Locke’s proviso”: that an appropriation must leave ‘enough and as good left in common for others.’ One version of the proviso, if applied consistently, would make all past appropriations 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. Further, he asks whether persons in a world where there are no more “accessible and useful unowned” objects are indeed worsened, citing numerous empirical considerations favoring private property vis-à-vis its satisfaction of the proviso. The difficulty of the argument, however, lies in answering the question “Lockean appropriation makes people no worse off than they would be how?” Nozick says answering this question lies beyond the scope of his work; he suggests that discovering the baseline could begin by estimating the general economic importance of original appropriation (say, by the percentage of income based on natural resources rather than human action). He closes with a note that these questions not only must be faced by advocates of private property; all theories of property (like collective property) must still, too, provide a theory of property rights legitimately originate.

The Proviso

Nozick starts off by assuming that any reasonable theory of justice must have some sort of proviso similar to a weak version of Locke’s. In short, if the position of others no longer at liberty to use an appropriated thing is worsened, a permanent bequeathable right to that thing can not be conferred by any valid process. The emphasis on the mode of worsening is important here, as the proviso does not encompass other modes of worsening, like worsening due to more limited opportunities to appropriate or “worsening” of one seller by another due to an appropriation leading to more market competition. Nozick also suggests that compensation of the appropriator to those whom he is worsening can satisfy the proviso.

Nozick then shifts the focus to justice in transfer, asserting that any theory of just acquisition must account for justice in transfer. Quite centrally, he posits, “If my appropriating all of a certain substance violates the Lockean proviso, then so does my appropriating some and purchasing all the rest from others who obtained it without otherwise violating the Lockean proviso.” Unlike the earlier argument in which the original appropriation violated the proviso as well as the appropriation which actually left a person worse off, it is only the combination of the original appropriation and the later transfers that is sufficient to violate the Lockean proviso.

Next, Nozick argues that one’s title to his holding includes the “historical shadow” of the proviso; namely, the title-holder may not transfer it into an agglomeration that violates the proviso, nor may he use it in a way that violates the proviso by making others worse than their baseline situation. Thus, one may not only not appropriate the only water hole in a desert and charge what he pleases, but he also may not charge what he pleases if it just so happens that circumstance destroys all other watering holes. Nozick briefly deviates for a moment to clarify that the owners’ rights are not eliminated in these cases, but simply “overridden to avoid some catastrophe” (not, however, in some ad hoc way, but internal to the given theory of property).

Delving into further exposition, Nozick asserts that someone owning the entire supply of something necessary for others to remain living does not always mean that appropriations leading up to this ownership left some people in a situation worse than the baseline. In service of this assertion, he cites the case of a medical researcher who finds an effective treatment for a disease but refuses to sell it except on his own terms; the researcher does not violate the proviso because he did not appropriate the chemical materials he used in a way that, through causing scarcity, violated the Lockean proviso. Ultimately, this demonstrates that the Lockean proviso is not an “end-state principle”; the structure of the situation that results is not relevant, but the nature of the actions taken to reach that result is. Following this, Nozick puts forward his belief that a free market system would not actually come into conflict with the Lockean proviso, making the “empirical historical” claim that people’s concern for the possibility of the proviso’s violation above other possibilities is only due to the effects of previous illegitimate state action, ending his exploration of the “complication in the entitlement theory introduced by the Lockean proviso.”

Nozick then moves on to address what he earlier labeled “the negative argument”: “the use of the claim that people don’t deserve their natural assets to rebut a possible counterargument to Rawls’ view. He has us consider the following counterargument to Rawls (“E”):

1. People deserve their natural assets.

2. If people deserve X, they deserve any Y that flows from X.

3. People’s holdings flow from their natural assets.

Therefore,

4. People deserve their holdings.

5. If people deserve something, then they ought to have it (and this overrides any presumption of equality there may be about that thing.)

Because Rawls would rebut this counterargument by denying the first premise, the connection between natural assets being morally arbitrary and the statement that distributive shares should not depend on natural assets is clearer. Here, Nozick attempts to show that the concept of “desert” needn’t be present in an argument of this sort for it to properly follow. He starts with a new counterargument, “F”:

1. If people have X, and their having X (whether or not they deserve to have it) does not violate anyone else’s (Lockean) right or entitlement to X, and Y flows from (arises out of, and so on) X by a process that does not itself violate anyone’s (Lockean) rights or entitlements, Then the person is entitled to Y.

2. People’s having the natural assets they do does not violate anyone else’s (Lockean) entitlements or rights.

The argument would then proceed to argue that people are entitled to the fruits of their labor and to what others voluntarily give or exchange with them. Nozick, quite succinctly, phrases his objection to holding equivalence between desert and entitlement:

It is not true, for example, that a person earns Y (a right to keep a painting he’s made, praise for writing a theory of Justice, and so on) only if he’s earned (or otherwise deserves) whatever he used (including natural assets) in the process of earning Y. Some of the things he uses he just may have, not illegitimately. It needn’t be that the foundations underlying desert are themselves deserved, all the way down.

Thus, since people can be described as entitled to their natural assets even if they can not be labeled as deserving of them, then an argument parallel to argument E with ‘are entitled to’ replacing ‘deserve’ throughout will be valid. Returning more explicitly to Rawls, Nozick then implies that Rawls’ argument is in a bind. Recognizing people’s entitlements to their natural assets could be necessary to avoid a strict application of the difference principle that would entail even stronger property rights than wealth-redistributive theories usually yield. Nozick cites Rawls’ counterargument that he avoids this dilemma, “because people in [Rawls'] original position rank the principle of liberty as lexicographically prior to the difference principle, applied not only to economic well-being but to health, length of life, and so on.” One of Nozick’s footnotes calls our attention to the discussion of collective assets later to further this objection.

Continuing, Nozick professes his inability to find a cogent argument to help support that variations in holdings caused by variations in natural assets ought to be eliminated or minimized. He connects the idea of the “moral arbitrariness” of natural assets to Rawls’ construction of the original position by pointing out that there must be an argument to “shape” the original position to exclude natural assets from the participants’ knowledge (i.e. there must be a justification for the veil of ignorance). Nozick argues that if a particular feature being arbitrary from a moral point of view is sufficient to fall under the veil of ignorance, then those behind the veil of ignorance should know nothing about themselves, because each of their features (like rationality, the ability to make choices, having a life span of more than three days, having a memory, ability to communicate) will be based on morally arbitrary facts (that the sperm and ovum that made them were genetically composed in a particular manner). However, Rawls’ construction of the original position has persons know some of these things.

At this point, Nozick stops to qualify his argument. He calls our attention to an ambiguity in the statement that “a fact is arbitrary from a moral point of view”: in one sense, it could mean that there is no moral reason why a fact ought to be; in another, it could mean that a fact is of no moral significance and has no moral consequences. Nozick states that rationality is not morally arbitrary in the second sense. Nonetheless, if rationality escapes exclusion for this reason, it now has a “partner in guilt”—natural assets—which must also escape exclusion for that reason. Thus, an entitlement theory similar to Rawls’ that holds that entitlements arise from or are at least dependent on such facts is called into question.

“Collective Assets”

Later in the book, Nozick aims to tackle Rawls’ seeming notion of “collective assets,” specifically referring to the idea that “everyone has some entitlement or claim on the totality of natural assets (viewed as a pool), with no one having differential claims.” He argues that a theory separating men from their talents, assets, abilities, and so on can only be adequate if one “presses very hard on the distinction between men [and those things],” noting that whether any conception of a coherent person remains when this distinction is made is an open question. Further, he states that talents and abilities are an asset to a free community, and are not part of a constant sum game, then asking whether extraction of more benefit is what justifies treating natural assets as a collective resources, leaving open the question of what justifies the extraction.

He first sets out to define what libertarian self-ownership means. To do so, he asserts that a libertarian’s claim to a full right of self-ownership must face the following dilemma: such a full and uninfringed right either is, or is not, compatible with some nonconsensual incursions upon one’s body that result in serious harm. If it is not compatible, Otsuka argues, the libertarian is committed to a “moral fanaticism” that holds, for example, that one may not turn a trolley in order to kill one person and save five. More importantly, it is a “moral fanaticism” that rules out serious harms to innocents, foreseen or not, as necessary consequences of minimizing harm rather than intended as a means of minimizing harm (i.e. it also rules out cases conforming to the doctrine of double effect). The other case of the dilemma (if it is compatible) places the libertarian in the position of having to explain why certain incursions and not others are compatible with such a right of self-ownership.

Otsuka claims that he avoids this dilemma because his position “is not committed to a full right of self-ownership.” He defines a ‘libertarian right of self-ownership’ as one that encompasses two rights: a stringent right of control that bars others from forcing one to sacrifice life, limb, or labor through incursions upon one’s mind and body or threats thereof; and a stringent right to all the income one gains one one’s own or through unregulated and untaxed voluntary exchanges with other individuals.

In the next section, Otsuka criticizes Nozick’s claim that taxation is equivalent to forced labor on the grounds that it is in fact a complaint against taxation being a violation of property rights. Otsuka then says that such a critique is weakened if the premise that one’s right of ownership over worldly resources he uses to generate income is as full as his right of ownership over himself. This leads to questions of world-ownership, which Otsuka addresses in the next section by putting forward an egalitarian version of Nozick’s Lockean proviso: “You may require previously unowned worldly resources if and only if you leave enough so that everyone else can acquire an equally good share of unowned worldly resources.” While he leaves the meaning of “equally good” an open question, he simply intends to argue that libertarian self-ownership and equality are reconcilable when equality is measured by equality of access to welfare.

Otsuka answers Cohen’s argument that the egalitarian proviso is incompatible with a libertarian right of self-ownership by asserting that libertarian self-ownership says nothing about the acquisition and distribution of worldly resources. As a means of reconciling self-ownership and equality in a “non-Pyrrhic” fashion, he defines one’s libertarian right of self-ownership as ‘robust’ if and only if one has rights over enough worldly resources so that others can not force one to come to their assistance in some form (sacrifice of life, limb, or labor) through withholding access to their resources. Leaving aside institutional or political unfeasibility, Otsuka claims that it is possible, through some distribution of worldly resources, for the badly off in society to support themselves through voluntary exchanges that do not involved forced assistance of this kind. Because of this, the badly off can justify their equality of welfare on the grounds that they have a right to a share of worldly resources that enable them to secure an equal level of welfare to everyone else.

Next, Otsuka addresses the intergenerational problems of egalitarianism, as well as issues of voluntary transfers. His egalitarian proviso spells out that equality of opportunity is intergenerational. The egalitarian proviso, interpreted as allowing a single generation to appropriate and destroy all, or as allowing that generation to bequeath all holdings to the few, generates what he terms an arbitrary and indefensible bias against proceeding generations. He concludes that it is reasonable to deny the existence of complete rights to consume, destroy, or bequeath worldly resources one has acquired in an unowned state. Further, he argues that bequeaths should be treated no differently from one’s natural talents (that one with a bequeath should be allowed to acquire fewer unowned resources.) Here, Otsuka, quite critically, concedes that nonmarket transfers and sharing of worldly resources (through gifting, marriages, etc.) is incompatible with the egalitarian proviso. Beneficial sharing and giving disrupts patterns of equality, so any form of this giving can only occur when no one derives any net benefit from such actions.