Rejecting Aggression by Gary Chartier (2013) Chapter 2 of Anarchy and Legal Order(pdf) • HRV

I. Acting Reasonably Means Avoiding Aggression against Others and Their Justly Acquired Possessions

An understanding of well-being and the requirements of practical reasonableness, in tandem with a set of truisms about human beings, yields a maxim barring aggression—the basic guideline for a society rooted in peaceful, voluntary cooperation: avoid aggression against people’s bodies and just possessory interests.

Roughly speaking, I engage in aggression when I injure another’s body or interfere with her just possessory interests (except when defending myself against or securing a remedy for her unjust attack); the Nonaggression Maxim (NAM) summarizes the prohibition on aggression (Part II). The NAM highlights some of the requirements implicit in the Principle of Respect, which rules out all purposeful and instrumental attacks on others’ welfare, and the Principle of Fairness, which precludes harming people’s bodily well-being (and other aspects of their welfare) unreasonably (Part III). The Principle of Fairness also grounds robust protections of others’ just possessory claims—claims rooted in initial acquisition through effective possession or in voluntary transfer (Part IV). Just possessory claims do not extend to other sentients (human or nonhuman) or to abstract patterns (Part V [omitted]). They are not exceptionless (Part VI [omitted]), but the constraints on harm to others’ bodies and their possessions encapsulated in the NAM are both robust and consistent (Part VII).

II. Aggression Involves Unreasonably Injuring Others’ Bodies or Interfering with Their Just Possessory Interests

As I will use the term here, an act is an act of aggression if, roughly, it is a voluntary act (or a voluntary inaction in violation of voluntarily assumed duty) that (i) causes injury to another’s body or interferes with her just possessory interests or her control over her body; (ii) occurs without her consent (harming someone in certain ways can be wrong even with her consent, but she can reasonably be regarded as being estopped from demanding forcible compensation if she has consented); and (iii) is not undertaken to prevent, end, or remedy an actual or threatened unjust injury to another’s body or just possessory interests. Aggression need not be morally culpable, but, whether it is or not, it will trigger the duty to compensate for action (or inaction in breach of voluntarily assumed duty) to bodies and possessions.

Aggression need not be morally culpable because it may be negligent or inadvertent (in this case, the negligence itself may be morally culpable, of course). It may also not be morally culpable because the Principle of Fairness—which grounds the basic constraints on just possessory claims and their legal enforcement, constraints I call the baseline possessory rules—may not preclude infringements on possessory interests in some cases, though the reasonableness of such infringements will not void the corresponding requirement to compensate.

There will, of course, be choices of various kinds (involving both action and inaction) that are not instances of aggression but that are nonetheless varieties of moral wrongdoing—perhaps very serious moral wrongdoing. As instances of wrongdoing, they will be blameworthy, and it will be entirely reasonable for people to use nonaggressive social pressure of various kinds to prevent, end, or remedy them. However, in virtue of the considerations that ground the prohibition on aggression, it will not ordinarily be appropriate to prevent, end, or remedy nonaggressive injuries by using force against the bodies or the justly acquired possessions of others. What distinguishes aggressive from nonaggressive wrongdoing is not that the former is always more serious than the latter, but rather that ordinarily only the former can reasonably be met using force against people’s bodies or forcibly interfering with their just possessory claims.

The nonaggression maxim (NAM) is the injunction that moral agents should avoid harming the bodies and interfering with the just possessory interests of others. Generally ruling out the use of force against others and their justly acquired possession, this maxim summarizes key implications of the principles of practical reasonableness.

III. The Requirements of Practical Reasonableness Preclude Many Choices Causing Injuries to Basic Aspects of Welfare

A. The Requirements of Practical Reasonableness Safeguard the Basic Aspects of Well-Being

Taken together, the Principle of Respect and the Principle of Fairness rule out purposeful (including instrumental), reckless, and negligent injuries to basic aspects of others’ well-being and require compensation for essentially all injuries. The Principle of Respect requires that an agent always avoid causing injury to any basic aspect of welfare deliberately—for its own sake, as a means to an end, or out of hostility (Section B). The Principle of Fairness requires that an agent always avoid causing injury to any basic aspect of another’s well-being in a case in which she would not be willing to permit herself or her loved ones to be injured were roles reversed, and that she accept responsibility for remedying injuries she causes even when they are justified (Section C). The requirements of practical reasonableness provide sturdy protection for the basic aspects of well-being (Section D).

B. The Principle of Respect Imposes an Absolute Prohibition on Purposeful or Instrumental Harm to Basic Aspects of Welfare

The Principle of Respect rules out in principle any purposeful or instrumental attack on any basic aspect of another’s well-being, including her life, bodily well-being, and peace of mind. This kind of conduct is wrong under any circumstances.

The Principle of Respect imposes an absolute prohibition on injuring people’s bodies, and other basic aspects of their welfare, purposefully, instrumentally, or out of hostility. Thus, this principle grounds a significant prong of the nonaggression maxim.

It does not follow, of course, that all such attacks ought to be legally remediable. Legal remedies (as I argue subsequently) ought to involve compensation for economic losses constituted by harms to bodies and injuries to or interference with justly acquired possessions, together with reasonable costs of recovery. Not all violations of the Principle of Respect will amount to attacks on bodies, and few will likely amount to attacks on people’s possessions. Thus, only some violations of the Principle of Respect will be remediable using force—though other social institutions can and should address violations not remediable in this way. To the extent that the NAM is understood to refer to legally remediable injuries, therefore, it rules out only injuries to life and bodily well-being. But while the NAM is narrowly focused, concerned only with injuries for which compensation ought to be available at law, the Principle of Respect which helps to undergird it clearly does preclude a broader range of injuries.

C. The Principle of Fairness Precludes Unreasonable, Albeit Unintentional, Harms to Basic Aspects of Well-Being, and Requires Compensation even for Nonculpable Injuries

The Principle of Fairness imposes further limits on causing injury.

Many injuries are not purposeful or instrumental or rooted in hostility. For instance, using force to defend oneself or another against an unjust attack will Rejecting often be reasonable. Doing so need not involve causing purposeful or instrumental harm. Rather, any harm one causes may be incidental—anticipated but unintended. Even if an injury resulting from a defensive action is unintentional, however, one must still also inquire whether inflicting it is consistent with the Principle of Fairness.

Causing injuries of various kinds will likely be ruled out by the Principle of Fairness. Consider some examples.

1. A violent thug is hiding in a crowd while randomly shooting at passersby when she can do so; impatiently, I spray the entire crowd with a machine gun. My purpose is not to cause the injuries that result, but, rather, to stop the thug; and the occurrence of the injuries is not a means to my purpose. It’s a reasonably predictable side effect of my attempt to stop the thug. But I have chosen to try to stop the thug in a way that harms lots of people. Doing this would be reasonable, per the Principle of Fairness, only if I would be willing for someone else to spray the crowd with machine-gun fire to stop the thug even if I or a loved one were part of the crowd, rather than behind the gun. In most cases, I surely would not be, so my attack on the crowd would be inconsistent with the Principle of Fairness.[1]
2. I use force to stop another from idly grazing me lightly with her fingertips. If she succeeds in touching me she will, in current legal terms, have committed a battery. And I’m not seeking to harm her. But I would not be willing to accept this kind of treatment of my loved ones (or of myself). So I can hardly have good reason to treat another in this way.
3. The members of a cooperative operate a factory. Because doing so reduces their expenses, they dispose of chemicals used in the manufacturing process in a nearby community’s stream. Residents of the community develop serious illnesses as a result. The members of the cooperative don’t intend to cause the illnesses. And causing the illnesses isn’t a way of achieving some other goal. Rather, causing injuries to the victims is a by-product, an unintended consequence, of disposing of the chemicals in the stream. It should be obvious that, if the members of the cooperative know or strongly suspect that the chemicals are toxic, they almost certainly act unreasonably by dumping the chemicals in the stream. No member of the cooperative would likely be willing that others dump similar chemicals in a stream providing the water she used to cook and bathe and clean. And, if she wouldn’t, it would be unreasonable of her to support or participate in the dumping of the chemicals in a stream providing water others used for these purposes. However, even if the members of the cooperative don’t know the risk to which they’re subjecting the people who use the stream, perhaps they should know: perhaps it’s unreasonable of them not to conduct the investigation required to determine that the chemicals pose a serious risk to others. This will be true, obviously, if they would be unwilling for others to dump the chemicals under similar circumstances without conducting certain kinds of tests or engaging in certain kinds of inquiry; it will be unfair of them, in these circumstances, not to conduct these sorts of tests or to engage in the relevant sort of inquiry. And, having done so, if they learn that the chemicals pose serious risks, it will, again, be unreasonable to impose these risks on others when they would not be willing that others impose comparable risks on them or their loved ones.

Of course, it may be the case that the members of the cooperative conclude in good faith, after reasonable investigation, that the chemicals don’t pose a serious risk of harm when in fact they do. In this case, they will not be morally culpable for dumping the chemicals. But causing injuries by dumping the chemicals into the stream will still count as aggression. People will still, ex hypothesi, be harmed. And, because they are responsible, the Principle of Fairness suggests that the members of the cooperative should still be liable for remedying the harms: their acts caused the harms, and, given this, it is more reasonable that the risk of liability fall on them than on those they have harmed. (I leave to one side the interesting question of whether this should still be the case, and, if so, why, if those injured opted to live near the factory fully aware of the dumping and the risks.) Aggression is not limited to deliberate choice.[2]

Injuries that are unfair, but not caused purposefully or instrumentally, are (like purposeful and instrumental injuries) not limited to harms to life and bodily well-being. Perhaps you expose some sort of venality on my part in order to keep me from acquiring a position in which you believe I would engage in corrupt conduct; as a result of the exposure, I lose some friends. Or perhaps you and a partner close the coffeehouse you’ve been operating, a coffeehouse that displays paintings by local artists; along with other patrons, I’m denied opportunities to have æsthetic experiences I could have had if the coffeehouse had stayed open. In these cases, of course, causing the injuries will be reasonable if the actor is willing that similar injuries be caused to her or her loved ones under similar circumstances (or, to put the point differently, if she is willing that everyone operate under a rule allowing the foreseen but unintended causing of similar injuries under similar circumstances). As in the case of harms inconsistent with the Principle of Respect, however, compensation in these cases should be available for injuries to life and bodily well-being (and, as I’ll argue subsequently, justly acquired possessions), leaving other institutions and mechanisms to provide remedies for injuries to other aspects of well-being.

D. The Principle of Respect and the Principle of Fairness Preclude Aggression against Basic Aspects of Well-Being

The basic aspects of sentients’ well-being are protected from attack by the requirements of practical reasonableness. Causing injury purposefully or instrumentally—especially, though not exclusively, to life and bodily well-being—is inconsistent with the Principle of Respect. Causing injury arbitrarily, or refusing to accept legal liability for any injury to life or bodily well-being one has demonstrably caused under any circumstances, is inconsistent with the Principle of Fairness. These principles serve as vital safeguards against aggression.

IV. The Principle of Fairness Provides Good Reason to Avoid Interfering with Others’ Justly Acquired Possessions

A. The Justice of Possessory Claims Is a Function of Their Consistency with the Principle of Fairness

The Principle of Fairness imposes substantial limits on the treatment of people’s possessions. Given the way in which they flow from the requirements of practical reasonableness, just possessory claims should be seen as in one sense contingent, derivative, and instrumental—but also as narrowly limited by the Principle of Fairness (Section B). There is good reason to respect simple possession (Section C), but multiple considerations help substantially to extend and constrain just possessory claims (Section D)—providing support for a stable, robust set of rules governing such claims (Section E). Thus, a relatively narrow range of baseline rules governing the initial acquisition, control, and transfer of physical objects, and so determining when such objects have been justly acquired, can be seen to be consistent with the requirements of practical reasonableness (Section F).

B. Rules Regarding Possession Can Be Seen as Conventions That Are Contingent, Instrumental, and Derivative, but Tightly Constrained by the Principle of Fairness

Rules regarding possession are not themselves basic moral norms. From a moral standpoint, they are at least to some degree contingent, because they can take somewhat different forms. They are instrumental, designed to foster, and justified to the extent that they foster, general participation in the basic aspects of well-being. And they are derivative, flowing from the Principle of Fairness (in tandem with a variety of facts about our natures and circumstances).[3] They come into being through the actions of moral agents in community (in community because the notion of a possessory claim necessarily involves just claims against other agents).[4]

The meaning and justification of possessory claims must be understood with reference to the well-being of everyone. In particular:

• Physical objects (the only reasonable foci of just possessory claims, because a scheme of such claims serves to resolve problems of scarcity, and only physical objects are scarce in the relevant sense) must be appropriated in order to be justly claimed; before appropriation, they are unclaimed and available to anyone.[5]
• Rules governing the acquisition, control, and disposition of possessions can promote widespread well-being in a variety of ways.
• The specific rules regarding the acquisition, control, and disposition of possessions which it is reasonable for institutional actors to identify, articulate, and uphold ought to be framed in light of the Principle of Fairness, so that the interests of all those affected by a given rule are taken reasonably into account

While possessory claims are contingent, instrumental, and derivative, what counts as a reasonable possessory rule will be substantially constrained by the Principle of Fairness in tandem with a set of truisms regarding human nature and existence, which yield multiple desiderata for a scheme of just possessory rules. Thus, while they might first appear to be a matter of unconstrained decision, it turns out, on closer inspection, that their content—given a set of facts about humanness—is quite narrowly limited by the Principle of Fairness.

This principle will not constrain just possessory claims simply by governing two-person relationships. Rather, its primary role will be to limit what general rules governing possession will count as reasonable. Most decisions about the origins, natures, and implications of possessory claims are not made in the context of freestanding interpersonal interactions. Rather, they will characteristically reflect judgments about whether one ought to respect particular general rules regarding possession. That’s both because the Principle of Fairness applies generically to all similarly situated people, and thus lends itself naturally to the generation and assessment of rules of practice applicable to generically equivalent situations rather than just particular choices—given the commonalities that link situations—and also because there are good reasons for rules about possession to be general, stable, reliable, and predictable. While one thus has responsibilities to others with respect to objects one comes or might come to possess, one fulfills those responsibilities first by adhering to and supporting a just system of possessory rules.

C. Actual Possession Itself Deserves Protection under the Principle of Fairness

A physical object has to be possessed if it’s going to be justly possessed. Whatever counts as just possession, it can only reasonably apply in the case where something actually is possessed. When someone is in actual possession of something, she characteristically is unwilling that others deprive her of it. Someone who would not be willing to be deprived of a particular possession in a given set of circumstances cannot reasonably deprive another of a relevantly similar possession in comparable circumstances. There is thus a strong presumption against interference with the things people actually possess.

This presumption must be defeasible, of course. At least, there is reason to think so if at least some deprivations of people’s possessions are inconsistent with the Principle of Fairness and ought to be remedied, for, in this case, someone depriving an otherwise just possessor of something will become a possessor herself, and it will be important to be able to distinguish between the two cases.[6]

The injunction to respect people’s claims to the things they currently possess is insufficient to determine how conflicts over possessions are to be resolved. If the presumption in favor of existing possession is to have any weight, then, when a rule embodying that presumption is violated unreasonably, it will at least often be appropriate to return the unreasonably taken possession to the person from whom it was taken in violation of the rule. Returning the possession, however, will mean taking the possession away from the person who has taken it. And no doubt she may be unwilling to be dispossessed as well. If the only relevant rule were, Avoid taking people’s possessions, there would be no way to provide a remedy for unjust taking.

The need to decide how to sort out problems posed by cases of this sort requires a reasonable scheme of rules regarding agents’ relationships with each other vis-à-vis physical objects. To be useful, such a scheme would need to make clear when possession itself was reasonable in the first place, so that it could be ascertained when someone currently in possession of something was its just possessor, someone whose possessory claim ought to be protected, and when her possessory interest deserved no particular respect because she was an unjust possessor. Thus, rules specifying what will count as just acquisition, determining just what further entitlements ought to be associated with just possession, and governing the disposition of justly held possessions are all important.

D. Truisms about the Human Situation Ground Multiple Desiderata That Provide Further Reasons for Narrowing the Range of Possible Just Possessory Rules

While the presumption in favor of current possessors is strong, it requires augmentation in light of the Principle of Fairness and a range of facts about human behavior and the human condition. Taken together, these “truisms” or “‘rule[s]’ of human experience”[7] help to generate a set of rules that provide reasonable limits on choices regarding possessions.

It might be possible to formulate any of several schemes of possessory rules building only on the Principle of Fairness and the fact that people are not willing that others deprive them of their possessions. However, without canceling or ignoring the basic, if defeasible, presumption in favor of retaining what one possesses, it is possible to identify a set of more extensive and nuanced norms regarding possession. These norms ground reasonable and substantial limits on the contents of just possessory rules. Several desiderata derived from a range of useful truisms about the human situation, in tandem with the Principle of Fairness,[8] can serve (i) to explain why supporting and adhering to some system of rules protecting and regularizing possession might be a requirement of practical reasonableness, (ii) to determine whether a given system of possessory rules will count as reasonable, and so (iii) to establish, at least in some cases, whether a given claim to possess some physical object in particular should be regarded as reasonable.[9] The relevant desiderata include at least those I identify by talking about concern with:

In general, the truisms suggest, a just system of possessory rules will be one that:

• promotes the accessibility of goods and services;
• facilitates people’s autonomy;
• fosters interactions that help to convert strangers and enemies into allies and
• friends and facilitates fellow-feeling and community; coordinates people’s interactions by making possible the aggregation of infor• mation about their interests and needs and the determination of appropriate production levels and distribution patterns for goods and services; makes it possible for people to receive, and likely that they will receive, com• pensation for the goods and services they provide to others and that, more broadly, one good turn will follow another; facilitates experimentation with new products and processes and ideas;
• makes it possible for people to be generous and likely that they will be;
• provides some security for people’s interests in possessions that might be
• identity-constitutive; facilitates people’s contribution to the performance of a community’s economy
• by providing them with things they want when they contribute in ways that others value; equips people to uphold social norms nonviolently;
• minimizes conflict—notably by clearly allocating responsibility for particular
• things to particular people; ensures that possessions are put to productive use;
• fosters relationships marked by mutuality and reciprocity;
• enables people to depend on their expectations that otherwise just possessory
• rules will continue in force, that decisions made about particular claims in light of such rules will be respected, and that otherwise just possessory claims will be respected; features rules that are simple—that are easy to formulate, articulate, learn, and
• apply; encourages specialization;
• embodies norms rooted in self-enforcing conventions;
• facilitates stewardship—taking good care of physical objects, cultivating and
• developing them responsibly, and preventing them from falling into disrepair; and encourages people to be trustworthy.

E. The Principle of Fairness and the Desiderata Provide Credible Support for the Baseline Possessory Rules

1. The Principle of Fairness Constrains the Range of Reasonable Possessory Rules

The Principle of Fairness can justify a system of robust possessory rules in virtue of which first possessors retain what they come effectively to possess, transfer it to others voluntarily, and control it while their claims under the rules persist.

Taken together with the Principle of Fairness, the basic presumption in favor of respecting current possessors’ claims, and the various desiderata significantly limit the kinds of possessory rules that it might make sense for anyone to endorse. Indeed, they provide substantial overlapping and mutually reinforcing support for a simple set of rules with respect to physical objects, which I will call the baseline possessory rules: (i) the first person or group to establish effective possession of an object of which no one else is the just possessor becomes its just possessor (Subsection 2);[33] (ii) the just possessor of a physical object may dispose of it freely by gift or as part of an exchange on any terms she wishes (Subsection 3);[34] and (iii) a just possessor is entitled to exclusive control over what happens to each physical object she has justly acquired (though she may not use it to cause harm to the bodies or justly acquired possessions of others) (Subsection 4). There is a strong presumption in favor of the baseline rules (Subsection 5).[35]

2. The First Baseline Rule Provides for Initial Acquisition through Effective Possession

The first rule, the rule of initial acquisition through effective possession, of “first come, first served” or “finders’ keepers,” serves to solidify and clarify the defeasible presumption, supported by the Principle of Fairness, in favor of respecting people’s claims on the possessions they actually have. It is clearly supported by multiple desiderata.

The proposed first rule leaves open the question of how effective possession is to be established and so of precisely how unclaimed objects might justly be acquired. Various sorts of procedures would likely be consistent with the spirit of the rule. Possession sufficient to allow someone to begin transforming an object in some way, or to make it easier to control the object than it would have been prior to one’s possessory action, would seem likely to qualify. Thus, while transforming an object through one’s labor would not establish a special metaphysical relationship with the object, transforming the object could certainly amount to possessing it effectively.

3. The Second Baseline Rule Provides for Just Possessors’ Unconstrained Transfer of Their Possessions to Others at Their Discretion

The second rule, the rule of voluntary transfer, entitles a just possessor to transfer anything she possesses to another, for any reason, when she does so voluntarily. That is, she is always free to transfer, but can never be forced or fraudulently manipulated into doing so. The desiderata provide strong support for this rule.

Since the various aspects of well-being involved and affected are not commensurable, there is no way to establish that no alternative rule could, in principle, be superior to the proposed second rule. But it can plausibly be maintained, with reference to all of the desiderata, that there is a very strong presumption in favor of the proposed second rule. It is difficult to imagine realistic arguments invoking the Principle of Fairness in support of alternate rules thought to be more likely to promote generalized desert and identity, given the importance most people will place on the other desiderata and the degree to which the alternate rules would undermine those desiderata.

Realistically, in any case, objections to the second rule are likely to be framed, not in terms of concern about identity or generalized desert, but rather with reference to injuries to or losses suffered by transferors or transferees. The availability of remedies for fraud and for injuries caused to the unwitting by dangerous products should suffice to render these possibilities less worrisome, and should thus leave the strong presumption in favor of the second rule intact.

4. The Third Baseline Rule Provides for Just Possessors’ Exclusive Control over Their Possessions

The third baseline rule, the rule of exclusive control of possessions acquired in accordance with the first rule (or through voluntary transfers consistent with the second rule and ultimately rooted in acquisitions consistent with the first), entitles a just possessor to exclude others from access to her justly acquired possessions.[41]

Reasons to challenge the third baseline rule would not, realistically, concern its responsiveness to the various desiderata but rather the various particular cases in which people might be expected to favor violations of a strong presumption in favor of exclusive control. These will come in at least three varieties. In some cases, while the envisioned circumstances might evoke initial sympathy, it will be obvious that, even with regard only to the immediate facts, violating just possessors’ exclusive control over their possessions would be unreasonable. In others, were particular instances considered on their own, violating just possessors’ control might be judged to be reasonable; however, from a systemic perspective, it might reasonably be concluded that interference with possessors’ control was unwarranted—that is, in a case of this kind, the potential interferer should judge that, taking systemic considerations into account, she should not interfere, even though she might have good reason to do so when ignoring these considerations. Finally, there may be cases in which, even allowing for systemic considerations to be relevant, a potential interferer judges that interference is reasonable. But this would not be a reason for adjusting the rule as such, but rather for understanding that the rule requires compensation to, and permits reasonable resistance by, just possessors even in cases of morally defensible interference.

The third baseline rule would obviously make it possible for some people to exclude others on arbitrary, unfair bases. On the other hand, so would a scheme that allowed for much more control by ethnic groups, traditional authority structures, and so forth, rather than by particular possessors. The difference is that, with the proposed baseline rules in place, those engaging in irrational discrimination would be subjected to constant pressures to opt for openness rather than inclusion. By contrast, when, as in the Jim Crow South or apartheid-era South Africa, particular groups are able to control how other people use their possessions, the dominant groups can, by cartelizing, block the pressures that would otherwise lead to greater openness and inclusion. The proposed baseline rules would make it difficult for people to impose their prejudices on others.

5. The Various Desiderata Provide Strong Support for the Baseline Rules

There is a strong presumption in favor of the baseline rules: the rule of initial acquisition through effective possession; the rule of voluntary transfer of possessions; and the rule of exclusive control of possessions.

• This cluster of rules would contribute to the accessibility of goods and services by giving people opportunities and motives to transform and exchange possessions, enabling them to direct these possessions to the uses for which they are most desired and most worthwhile and the users by whom they are most valued, and prompting them to shape possessions into the forms in which they are most valued. The rules could thus lead (through incentivization) to the optimization of production levels, and (through the preclusion of monopolistic privileges) the reduction of costs to end users.
• The set of baseline rules would foster autonomy by establishing a zone of control within which a person was able to choose without being constrained by others.
• It could encourage the development of unexpected forms of relationship and community linked by exchanges that undermined the effects of prejudice and distrust.
• It would make possible the exchange of goods at people’s discretion, and therefore allow for the coordination of production and distribution effected by prices.
• It would give people the resources needed for them to make agreements and exchange goods and services, thus rewarding their labor.
• It would offer people the relatively unconstrained capacity to experiment and discover new possibilities, as well as the motive to do so.
• It would enable people to express generosity through gift-giving and increases the likelihood that they will do so.
• It would offer some protection to identity-constitutive possessory interests.
• It would create the opportunity for people to be incentivized by having the opportunity to acquire physical objects. It would thus encourage them to make resources more productive by taking initial steps toward rendering those resources apt for development.
• It would enable people to uphold valuable social norms by disposing or retaining control of their possessions.
• It would create conflict-reducing, peace-enhancing boundaries.
• It would encourage reciprocity by facilitating exchange and other kinds of >behavior with signaling potential.
• It would generate a reliable background structure that enabled people to plan not just their economically productive activity, but also their lives more generally, in effective ways.
• It may plausibly be seen as exhibiting much greater simplicity than options that assigned putatively just claims to groups of people or parcel out different aspects of putatively just claims with respect to particular possessions to different people or that required more elaborate actions than those required to establish actual possession in order to secure claims.
• It would encourage and allow people to make the investments of time and resources needed to specialize in particular kinds of economic activities.
• It could exhibit the stability typical of rules tracking stable conventions: rules protecting acquisition through effective possession, control over possessions, and free exchange by possessors would tend to be self-enforcing.
• It would assign responsibility for particular physical objects in ways that rendered it more likely that they would be safeguarded for the benefit of anyone with the potential to benefit from them.
• It could encourage people to develop and exhibit honesty and a willingness to keep promises and to exhibit concern for equitable mutual benefit—at minimum in the context of peaceful, voluntary cooperation through (direct and indirect) exchange.

There is thus good reason to endorse each of the baseline rules. But the value of embracing the rules is most clearly apparent when it is understood that they function as interlocking, mutually supportive elements of a system that fosters peaceful, voluntary cooperation through (direct and indirect) exchange. Attempting to identify specific instances of the various aspects of flourishing to be furthered or not by the adoption of these or other rules would obviously be a fool’s game: predicting outcomes would be impossible, and many of the relevant outcomes would be, in any case, indeterminate. But if the focus is instead on the proposed baseline rules as providing the structure for an endless variety of harmonious interactions, their appeal should be obvious.

The vindication of the baseline rules will necessarily include a key dialectical element. Positive arguments clearly help to establish their validity. But vindicating them also seems to involve demonstrating their superiority to alternatives, and it is not realistically possible to imagine all possible alternatives, or all possible kinds of alternatives, before they come on the scene. Still, I have considered alternatives throughout in ways that suggest that baseline rules are vindicable in the face of other realistically conceivable options.

Understood as precepts to be announced and enforced by the institutions of a legal system, the rules are exceptionless. That they are reflects the significance of desiderata including autonomy, simplicity, and reliability.[43] While reliability is fostered by each of the baseline rules, so that under the rules just possessors would be able to count on being able to retain, control, and dispose of their possessions, at least to some degree, just legal institutions will also foster reliability with respect to each of the rules and the possessory claims made in accordance with them. The rules (like any similar possessory rules) can be expected to function effectively to the extent that they, and the claims that flow from them, are undisturbed, to the extent, that is, that people are able to use them to plan and coordinate their actions.[44] This means that, from the standpoint of just legal institutions, they should be treated as uniformly applicable. None of the rules incorporates built-in exceptions—and simplicity dictates that none should. So enforcing these rules means treating them as limiting and liberating action in just the way they appear to do. (To be sure, the circumstances of legal institutions enforcing rules in repeated cases involving many different people and influencing the behavior of many others, directly and indirectly, are obviously different from those of particular persons, who may sometimes reasonably appeal to the Principle of Fairness underlying the rules to justify making exceptions to them, even while acknowledging the requirement of compensation owed in virtue of violations of others’ justly protected interests.)

The rules’ generality, and their focus on limiting actions without regard to specific outcomes, mean that they would obviously constrain ad hoc attempts to pursue particular outcomes. And this might be seen as an objection to the rules. However, (i) the rules themselves are shaped with a view to their likely positive contributions to a range of desirable outcomes, outcomes that might be rendered less likely were the rules ignored in the course of pursuing particular goals. They foster good consequences precisely by their focus on actions rather than on good consequences. And (ii) the goals it might be tempting to ignore the rules in order to foster can often be achieved using action within the constraints created by the rules.

This set of rules does not on its own resolve questions about emergencies, questions about de minimis infringements, questions about remedies, questions about the ways in which land ought to be treated differently from moveable possessions, and so forth. Thus, for instance, it does not seem to provide a definitive basis for deciding on a reasonable abandonment period: it certainly leaves open, say, the length of time that would need to pass, and the other events, if any, that would need to occur, before a possession once held by one person might be treated as abandoned and ripe for effective possession by someone else, and just what the would-be possessor of an abandoned possession would need to do to establish a claim.[45] It is compatible, more broadly, with a variety of subsidiary possessory rules.[46] Despite the degree to which the rules leave various secondary issues open for reasonable decision, however, they do provide a clear, stable, readily navigable framework for peaceful, voluntary cooperation.

F. The Principle of Fairness Supports Baseline Possessory Rules

The justice of possessory claims is rooted in the capacity of respecting people’s possessions to foster reasonable action in furtherance of flourishing. Just possessory norms can be derived from the Principle of Fairness in tandem with basic truisms about human beings and their environment. A broad range of overlapping, mutually reinforcing considerations provide support for the affirmation of the baseline possessory rules, which permit people to acquire physical objects through meaningful first possession or through voluntary exchange, to transfer possessions voluntarily, and to control justly acquired possessions.

The baseline rules determine what counts as justice in acquisition. Someone acquires a physical object justly if she acquires it in accordance with these rules— either, roughly, (i) by taking effective possession of something (a) which has not previously been claimed by anyone else; (b) which has been claimed by someone else, but not in a manner consistent with the baseline rules; or (c) which has previously been claimed in a manner consistent with the baseline rules by someone who has now abandoned it; or (ii) by receiving a possession through voluntary transfer from a just possessor (that is to say, someone who has, in turn, acquired the possession in one of the ways specified here). The baseline rules flow from the Principle of Fairness. Thus, the obligation to respect a possessory claim in accordance with these rules is an obligation to all those to whom one has duties that flow from this principle. Sometimes, a simple two-person application of the principle will be enough to establish that I am obligated to respect someone’s claim to something. Sometimes, however, it would be unreasonable for me to decline to respect the claim because doing so, while not necessarily unfair to the possessor, would be unfair to others – say, those (including myself) affected by the existence and operation of a system of simple, reliable possessory rules (or, of course, those associated with a consensual legal regime that supports the baseline rules, with which I’ve agreed to affiliate, and by the rules which are upheld by the regime and by which I’ve agreed to be bound). The duty I owe under the rules is a duty to a just possessor; but the justification for this duty reflects fair respect for the interests not only of the possessor but also, potentially, of many or all others.

It does not follow, of course, that every use someone might make of the opportunities that are hers in accordance with legal standards embodying the baseline rules will be prudent or moral. Though connection, for instance, is a desideratum underlying the baseline rules, someone may use her control over her possessions to exclude others on unreasonable grounds. Though accessibility, too, is such a desideratum, someone may unfairly deny others access to material assistance out of stinginess or malice. The baseline rules are justified in virtue of their systemic effects—in full recognition that undesirable consequences will sometimes follow from their consistent enforcement, but that multiple desiderata militate strongly in favor of treating them as exceptionless and against authorizing people to use force to tinker with them on a case-by-case basis.

It may be too simple to talk about the baseline rules, which flow from a combination of moral requirements and truisms about the human situation, as “natural.” But while justice in possession is in some sense a matter of convention, it is a matter of convention very tightly constrained by that combination of truisms and moral requirements—constrained tightly enough that it should be easy to distinguish between just and unjust claims.

One important feature of a just system of possessory rules is, as I have suggested, its reliability. And this means that proposals for various kinds of legal norms not consistent with the baseline rules can be understood most charitably not as ­ suggestions for ad hoc exceptions but rather as proposals to amend or alter the baseline rules—as proposals that these generally applicable rules should not take quite the form I have outlined here. While I cannot demonstrate a priori that alternate forms of the rules could not be better than the ones I have outlined, I do believe I can show that a number of possibilities are not preferable. I consider one of these in Part V—a proposal to treat possessory claims on abstract patterns as acceptable—along with another idea worth rejecting: that the physical objects on which just possessory claims can be made might include the bodies of humans and other sentients.

V. Just Possessory Claims Do Not Extend to Other Sentients or to Abstract Patterns

Section on the impermissibility of slavery and invalidity of intellectual property omitted. See Anarchy and Legal Order^(pdf)

VI. Arguments for Exceptionless Possessory Claims Seem Unpersuasive

Section critiquing "absolute" property is omitted. See Anarchy and Legal Order^(pdf)

VII. Key Requirements of Practical Reasonableness Can Be Encapsulated in the Nonaggression Maxim

Although the Principle of Respect and the Principle of Fairness have significant implications for nonviolent conduct, as regards the use of force they ground requirement that may be summed up in the nonaggression maxim:[150] avoid aggression against others and their just possessory interests. This phrase summarizes a set of interrelated moral prohibitions on aggression—that is, on (i) purposefully or instrumentally attacking others’ bodies; (ii) causing harm unfairly to others’ bodies or interfering unfairly with their just possessory interests; and, derivatively, (iii) declining to provide compensation for injuries, both reasonable and unreasonable, deliberate and unintentional, for which one is causally responsible. The NAM offers robust safeguards for peaceful, voluntary cooperation and creates spaces for the exercise of creative self-determination.

What counts as a justly acquired possession is determined primarily by the Principle of Fairness. In tandem with this principle, various truisms about human behavior and the human condition ground overlapping, mutually reinforcing desiderata for a robust scheme of requirements I call the baseline possessory rules, protecting initial acquisition of physical objects through effective possession and entitling just possessors to control and transfer their possessions. These rules do not protect possessory claims on persons, on nonhuman animals, or on physical embodiments of abstract patterns as such, but only on non-sentient physical things. There is good reason for just legal rules and institutions not only to enforce the baseline rules but also to treat them as exceptionless, and for moral agents to regard the possessory claims they ground as generally inviolable. But it may also sometimes be consistent with the requirements of practical reasonableness for moral agents to infringe on these claims, as in emergency and de minimis situations, with the recognition that in so doing they accept responsibility to provide compensation for any harms they cause.

In accordance with the NAM, the circumstances under which force can be used in response to moral wrongdoing are limited to those in which force is necessary to stop harm to bodies and (sometimes, though not necessarily) interference with just possessory claims. That is because, while just legal rules flow from the requirements of practical reasonableness, those principles themselves generate limits on their immediate applicability. In particular, when they are applied in the context of legal institutions, they generate limits on the goals those with official roles within those institutions can pursue and the means they can justly employ in pursuit of those goals in their official capacities—and thus, in short, the legal rules reasonable people can uphold.[151]

The NAM does not comprehend all moral requirements, of course. It is concerned “with violence and non-violence as modes of interpersonal relations.”[152] Its narrow purpose is to ground legal rights. To say that a given interest is safeguarded by a right is to say that the interest may not be “interfered with by violence,” and that it may be vindicated using force, not to deny that there may be “immoral ways of exercising that right.”[153] Many actions are wrong but not aggressive. But only (aggressive) force may be met with (defensive and remedial) force. Conduct may thus be inconsistent with the requirements of practical reasonableness even though one or more of these principles might also preclude forcible interference by others with that conduct. The NAM therefore enshrines, in an important sense, a “right to do wrong.”

Despite initial appearances, the recognition of such a right is in no sense paradoxical once it is clearly understood. The recognition of a right to do wrong in the sense in which such a right ought to be acknowledged by a just legal system is not premised on the assumption that it is right—morally appropriate—to do wrong, or on the curious notion that a choice can simultaneously be morally right and morally wrong in complementary senses. Rather, a just legal order will safeguard a right to do wrong only in that it will license the use of force only to prevent, end, or remedy aggression.[154] The NAM, the ground of a just legal order, does not itself resolve a broad range of moral problems, the province of those requirements of practical reasonableness that underlie it. But it is nonetheless exceedingly important, since it provides a framework for peaceful, voluntary cooperation.

I have not attempted to defend or elaborate the NAM by treating, say, self-ownership as a premise. This notion is sufficiently contentious that it does not make an appealing starting-point for legal or political theory.[155] Self-ownership is arguably better understood as a conclusion than as a starting-point, a consequence of accepting the principles of practical reasonableness. Instead of saying that someone should embrace the NAM because she believes in self-ownership, it would make more sense to say that she should affirm self-ownership because she endorses the NAM.

It is frequently supposed that the operation of a society in which the NAM is consistently respected—a society organized on the basis of peaceful, voluntary cooperation—depends on the existence and operation of the state. In fact, however, the state is both unnecessary to the maintenance of the social order needed for cooperation to flourish and inimical to this kind of order, given its persistent engagement in aggression and its support for the aggression-based privileges of elite groups. The state is aggression writ large. It is an enemy of the NAM and so of just social order. In Chapter 3, I seek to explain why the state is unnecessary, dangerous, and deeply compromised by its ongoing involvement with injustice.

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Notes

1 Cf. John M. Finnis, Joseph M. Boyle, Jr. & Germain G. Grisez, Nuclear Deterrence, Morality, and Realism 313 (1987).

2 Cf. Chapter 5.II.C.2.iii, infra.

3 Cf. Harold Demsetz, Toward a Theory of Property Rights, 57 Am. Econ. Rev. 347, 347 (1967) (emphasizing the social context and significance of possessory claims).

4 Thanks for insights on this point from Douglas Rasmussen and Douglas Den Uyl.

5 “A physical object” here means anything physical, whether mobile and immobile, and so includes land and space. And, to anticipate, (i) possession can be continuous, but need not be, provided the absence of continuous possession is not reasonably interpreted as abandonment, and (ii) a just possessor can be someone who personally controls a physical object or someone who is the partner or principal of someone else who does so.

6 It is not crucial that we identify at this stage just what circumstances would or would not make depriving someone of something incompatible with this principle.

7 The notion of truisms about human existence as providing the basis for legal rules lies at the root of H.L.A. Hart’s minimalist account of natural law; see H.L.A. Hart, The Concept of Law 191–200 (2d ed., 1994). Hart’s list of truisms—human vulnerability, approximate equality, limited altruism, limited resources, limited understanding and strength of will—is somewhat more modest than the one I offer in this chapter, and is obviously less moralized; but, like Hart, I seek to build on relatively obvious data of human experience. It seems reasonable to view each of the truisms to which I attend as, to draw on an analysis offered by John Finnis that in some ways parallels the one I offer here, “a ‘rule’ of human experience”; see John Finnis, Natural Law and Natural Rights 170 (1980) (referring, in particular, to the notion that particularized control leads to more extensive and effective stewardship).

8 On this general approach to justice in possession, see, e.g., Aristotle, Politics II.5 (Benjamin Jowett trans., 1905); Finnis, supra note 7, at 169–67; Gary Chartier, Economic Justice and Natural Law 32–33 (2009) [hereinafter Chartier, Justice]; Gary Chartier, Natural Law and Non-Aggression, 51 Acta Juridica Hungarica 79 (2010). The new classical natural-law theorists emphasize the significance of incentivization, stewardship, and autonomy as reasons for the recognition of possessory claims. The additional considerations I adduce here further constrain the range of reasonable options regarding just possessory claims, I believe. Cf. 2 Armen Alchian, The Collected Works of Armen Alchian 3–144 (Daniel K. Benjamin ed., 2006) (discussing the economic logic of possessory claims); L.W. Sumner, The Moral Foundations of Rights (1987) (seeking to show how robust, reliable rights might be provided with a perhaps unexpected consequentialist grounding).

9 In effect, I seek to show that supporting some set of rules is reasonable—and so to fulfill goal (i)—by arguing directly for the constraints limiting the range of available options—and thus meeting goal (ii). My general view regarding particular claims is that arguing for their justice—fulfilling goal (iii)— should ordinarily be a matter of appealing to the considerations adduced in fulfillment of goal (ii), though it will of course be reasonable to argue that the proper way to understand a given rule in a given case is in light of the considerations underlying the rule as they are made relevant in that case.

10 Cf. Stephen R. Munzer, A Theory of Property 191–226 (1991). Of course, there are many sorts of uses, and deliberate noninterference can be a kind of use.

11 The concern with societal wealth generally parallels the focus on wealth-maximization as a basis for the relevant sorts of legal protections, a notion ably defended by Richard Posner; see, e.g., Richard A. Posner, The Economics of Justice 13–115 (1981). But where appeals to wealth-maximization often seem framed in such a way that maximizing wealth is seen as the primary or exclusive purpose of law, I simply suggest that economic productivity benefits many people and should thus be taken into account when possessory rules are being framed, not that it is or should be the sole objective of such rules. I resist the consequentialist and monist reduction of flourishing to monetarily measurable wealth; it seems clear that there are multiple kinds of things that matter, or ought to matter, to us, and wealth is an imperfect proxy for these things because it offers access to them. Obviously, there is no entity that holds societal wealth—“society” names a set of people and relationships and activities, and it is the people who hold the wealth; but, given just rules of acquisition and transfer, the presence of a given level of wealth held by all the members of a group can provide information of limited but real value in determining the prosperity of the group’s members. Concern with societal wealth is obviously closely related to concern with incentivization, but incentivization has to do with the impact of a just scheme of possessory rules on the behavior of particular actors; one key reason for regarding this kind of impact as significant is its impact on societal wealth, but presumably there might be other reasons as well.

12 See Mark Pennington, Robust Political Economy: Classical Liberalism and the Future of Public Policy 5 (2011). Pennington’s concern here is with the absence of altruistic behavior, rather than with abuses of power, but his observations suggested to me the need to emphasize this point.

13 Cf. Germain Grisez & Joseph M. Boyle, Jr., Life and Death with Liberty and Justice: A Contribution to the Euthanasia Debate 454–55 (1979).

14 See Finnis, supra note 7, at 168–69, 172, 192; 2 Germain G. Grisez, The Way of the Lord Jesus: Living a Christian Life 794–95 (1994). If someone would be unwilling to accept someone else’s infringing on her autonomy in particular circumstances, it would be inconsistent with the Principle of Fairness for her to violate another’s autonomy in comparable circumstances: for such a person (who is, I would have thought, quite typical), disregarding the autonomy of others would be unreasonable quite apart from its role in making moral agency possible.

15 Cf. Neera Kapur Badhwar, Friendship and Commercial Societies, 7 Politics, Phil. & Econ. 301 (2008); Murray N. Rothbard, Man, Economy, and State with Power and Market 100–101 (2d scholar’s ed., 2009). Obviously, as regards (iii), some people will have countervailing desires for, say, homogeneous environments not disrupted by outsiders. It may not be unfair for them to disfavor possessory rules that foster communication of the sort I have considered under the description that they foster this kind of communication, provided they do so in pursuit of authentic fulfillment. On the other hand, they may nonetheless have good reason to favor such rules under other descriptions.

16 See, e.g., Randy E. Barnett, The Structure of Liberty: Justice and the Rule of Law (1998); David D. Friedman, A Positive Account of Property Rights, 11 Soc. Phil. & Pol’y 1 (1994).

17 See, e.g., John Finnis, Aquinas: Moral, Political, and Legal Theory 197 (1998); Munzer, supra note 10, at 254–91.

18 Peaceful, voluntary cooperation through exchange is presumptively beneficial to both parties: after all, if no one forces someone to make an exchange, it’s likely that she regards it as beneficial—and there’s good reason to assume that we are better positioned than are others to determine what’s good for us. But while, for purposes of interpretation, explanation, or prediction, it is reasonable to treat each choice, including each choice to participate in an exchange, as undertaken in pursuit of a goal the agent regards as important, there might be cases in which a peaceful, voluntary exchange is not mutually beneficial from a normative perspective. This might be because (i) a party to the exchange is mistaken about the relevant facts, (ii) a party mistakenly believes that what she receives in the course of the exchange is inherently worthwhile (an instance of an aspect of flourishing, or a reasonably sought means to such an instance) when it is not, or (iii) a party chooses unreasonably to receive something under the description that it is not objectively worthwhile (but perhaps objectively harmful). Except in these cases, each party receives in the course of a peaceful, voluntary exchange something worthwhile she didn’t have before. She chooses this because she does not have it and desires it—but not necessarily because she desires it more strongly or takes it to be somehow more preferable than any alternatives: she may, but she need not. And it almost certainly will not be objectively more preferable, given the incommensurability of the various aspects of flourishing. This incommensurability means that no quantitative comparison will be possible when people exchange different goods with each other, so that one party cannot be said to have benefited more in objective terms than the other. However, when one party to an exchange would not be willing to accept an arrangement in which the terms were the same but the roles of the parties were reversed, she acts unreasonably in making the exchange on the current terms. If she makes the exchange anyway, it will qualify as unfair. Obviously, the possibility of error or unreasonableness does not justify forcible interference with any instance of cooperation through exchange that is peaceful and voluntary (and so, among other things, non-fraudulent).

19 Cf. Pennington, supra note 12, at 5.

20 See, e.g., Aristotle, supra note 8, at II.5; Finnis, supra note 7, at 175.

21 See, e.g., Margaret Radin, Reinterpreting Property 35–71 (1993); Chartier, Justice, supra note 8. The notion of selfhood involved here is articulated in Raziel Abelson, Persons: A Study in Philosophical Psychology 91 (1977).

22 See, e.g., Finnis, supra note 7, at 170–71; Grisez, supra note 14, at 794; Finnis, supra note 17, at 190. As Finnis observes: “a theory of justice is to establish what is due to a person in the circumstances in which he is, not in the circumstances of some other, ‘ideal’ world. And those many members of the community who reasonably depend for their livelihood upon the productive efforts and good husbandry of other members can rightly complain of injustice if a regime . . . is adopted, on the basis that it would enhance their well-being of the non-dependent members of the community had characters different from those that in fact they have, but which actually yields them (and everyone else) a lower standard of living than they would enjoy under a different regime . . . operated by the non-dependent members as they actually are”; Law, supra note 7, at 170–71 (footnote omitted). To be sure, not everyone requires this sort of incentivization; some people will regard as intrinsically valuable tasks or objects others will view only as instrumentally or strategically valuable, and some people will act persistently for the purpose of fostering the well-being of others without the expectation of personal benefit. But rules that incentivize are important because they serve to promote desirable behavior on the part even of those who never act out of benevolent motives and of those who do act on the basis of altruistic motives but who do not, and are not morally required, to do so all the time; cf. Pennington, supra note 12, at 5–6.

23 See, e.g., John Hasnas, Toward a Theory of Empirical Natural Rights, 22 Soc. Phil. & Pol’y 111 (2005): Butler Shaffer, Boundaries of Order (2009); Friedman, supra note 16.

24 See, e.g., David Schmidtz, The Limits of Government: An Essay on the Public Goods Argument 138–56 (1991); Robert Nozick, Invariances: The Structure of the Objective World 240–84 (2001).

25 See, e.g., Charles M. Fried, Modern Liberty and the Limits of Government 156–60 (2006); Munzer, supra note 10, at 191–226. On the negative consequences of undermining the perceived reliability of possessory rules and claims, see, e.g., Robert Higgs, Regime Uncertainty: Why the Great Depression Lasted So Long and Why Prosperity Resumed after the War, 1 Indep. Rev. 561 (1997).

26 See, e.g., Richard A. Epstein, Simple Rules for a Complex World (2005); Demsetz, supra note 3, at 354–55.

27 Cf. Alchian, supra note 8, at 38–43, 62–66, 96–98.

28 See, e.g., Anthony de Jasay, Against Politics: On Government, Anarchy, and Order 193–202 (1997); Anthony de Jasay, Political Philosophy, Clearly: Essays on Freedom and Fairness, Property and Equalities 320–33 (2010).

29 See, e.g., Finnis, supra note 7, at 70.

30 Cf. Demsetz, supra note 3, at 355–58.

31 Cf. David C. Rose, Moral Foundations of Economic Behavior (2011).

32 On exchange relationships as promoting equitable interaction, see Joseph Henrich et al., “Economic Man” in Cross-Cultural Perspective: Ethnography and Experiments from 15 Small-Scale Societies, Beh. & Brain Sci. 795, 808, 813 (2005). Thanks to Paul Zak, Jason Brennan, and David Schmidtz for this reference. Cf. Paul J. Zak & Stephen Knack, Trust and Growth, 111 Econ. J. 295 (2001) (highlighting the complex connections between trust and economic performance).

33 It is worth emphasizing both that (i) the first possessor may be a group (whose members act cooperatively to establish effective possession) rather than a particular person, and (ii) a particular person may combine her holdings with those of others or opt to share a possession with someone else in a way that renders it the justly acquired possession of both. The baseline possessory rules do not embody any in-principle bias in favor of personal as opposed to common possession, and certainly leave room for the emergence of common possessions. What matters is simply that just possessors, whether personal or collective, be (i) identifiable, (ii) able discretionarily to exclude others from the use of their possessions, (iii) responsible for internalizing the costs associated with harms done using their possessions, (iv) responsible for internalizing the costs associated with nonaggressive harms done to their possessions, and (v) able to reap the benefits derived from the uses of these possessions in which they engage or which they authorize. For a classic discussion of how groups might successfully manage shared possessions, especially natural resources, see Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action (1990). I think there is clearly an argument for vesting control over a given possession in the smallest efficient unit possible. Obviously, there will be different ways of assessing the merits of different possessory arrangements, since incommensurable aspects of flourishing and uncertain futures will be at issue. But it seems clear that smaller possessory units will encourage greater flexibility, efficiency, and autonomy, which each decision maker involved will have reason to value, with the result that the Principle of Fairness will provide good reason for subsidiarity to be respected through the creation of possessory units as small as possible. For instance: it might make sense for all those living around a lake to exercise some control over some or all aspects of the lake, depending on the degree to which particular segments might or might not be efficiently controlled by smaller groups. But control over one aspect need not entail control over all, and it would often seem to make little or no sense for all lakes in a given region to be treated as the possession of, say, a group made up of all those living around all of them. For a careful analysis of collective possessory claims from a standpoint compatible with the one I take here, see Kevin A. Carson, Communal Property: A Libertarian Analysis (Center for a Stateless Society, Paper 13, 2011). It is also worth emphasizing that, while claims against unjust dispossessors ought not to be arbitrarily time-limited, there will be effective constraints on the instability of just possessory claims as long as there is a presumption in favor of the current possessor, so that someone who wants to maintain that the current possessor’s claim is unjust will have the burden of demonstrating that it is.

34 For a similar list, see, e.g., Anthony de Jasay, Choice, Contract, Consent: A Restatement of Liberalism 65–79 (1991). Jasay’s account tracks Hume’s. See David Hume, A Treatise of Human Nature 3.2.2–5 (2d ed., 1749). Hume proposes three rules, but his proposed rules feature separate requirements that possessions be transferrable by consent and that agreements be kept. While the keeping of agreements is obviously of considerable moral importance, and the duty to keep promises clearly flows from the Principle of Fairness, the legally enforceable duty to keep agreements is simply the duty to honor transfers of possession, so there is no need for a separate rule governing agreements. See Chapter 5.II.C.2.iv, infra.

35 Anthony de Jasay plausibly defends something like what I’m calling the first and third baseline rules; see Jasay, supra note 34, at 69–79 (Jasay characterizes what I’m calling the first rule as embodying the principle “first come, first served” and “finders’ keepers”). Randy Barnett, David Schmidtz, and Carole Rose also defend version of the first rule. See Barnett, supra note 14, at 68–71, 100–102, 112, 153–54; David Schmidtz, Elements of Justice 153–57 (2006); Carole Rose, Possession as the Origin of Property, 52 U. Chi. L.R. 73 (1985). On the second and third rules, see, e.g., Alchian, supra note 8, at 105–07; curiously, Alchian seems to devote little attention to rules of acquisition.

36 The requirement that one fulfill simple evidentiary requirements to establish that one is, indeed, in effective possession of something, or that one meet simple registration requirements to ensure that a given agency is aware of and will defend one’s claim would not amount to a grant of meaningful discretionary authority to a third party in the sense in which I am objecting to such grants here; cf. Barnett, supra note 14, at 100–02. My focus here is on what constitutes a just claim, and simple, nondiscretionary constraints on verifying and seeking defense for claims would not change the fact that effective possession of an unclaimed object constituted a just claim to that object.

37 See id. at 153–54.

38 See id. at 70; Rose, supra note 35, at 78–82.

39 This kind of rule would appear to justify evicting someone who was an effective possessor, and so to fall foul of the presumption in favor of respecting actual possession. (This would be true, of course, only if actual possession were deemed irrelevant to establishing a just claim. If a rule instead provided that actual possession would establish a claim, but that the action of a third party of the sort I’ve envisioned could also establish a just claim, the rule would be problematic at least because it wasn’t simpler than the obvious alternatives and because it would increase the likelihood of conflict. A variety of other objections noted below to third-party allocation would also apply.) Given the basic defensibility of this presumption, it seems as if actual possession should be overturned only when someone else has a better claim rooted, at least originally, in actual possession. Giving third parties discretionary authority over the assignment of possessory claims would undermine autonomy by giving people the authority to determine others’ holdings. In so doing, they would count against accessibility, since people’s incentives for use of their possessions would be reduced. It would undermine connection, since people might be less likely to engage in exchange relationships, given the reduced incentives for effective possessors to make use of their possessions, the reduced incentives for beneficiaries of third parties’ assignment of possessory claims to work to develop their resources, and the possibility that the third parties might use their assignment authority to reduce ­ connection. It would undermine coordination, since the authority granted to third parties under these envisioned alternatives would reduce predictability and the capacity to coordinate. It would seem to ignore the importance of desert by disregarding the effort involved in establishing actual possession. It would undermine generosity, since gifts could be unsettled by third-party action and people might be less likely to take initial action to acquire possessions that could be used as gifts. It could affect the protection of identity interests, since people would run the risk of being denied access to identity-constitutive possessions. (It may be more likely that one will have an identity-constitutive interest in a physical object one has claimed oneself through effective possession than in one which one has been allocated by a third party.) It would adversely affect incentivization: third-party allocation of unclaimed possessions would reduce incentives for people to establish effective possession over unclaimed physical objects; people simply assigned claims to such objects might not do anything with them. Further, people who expected that they might receive claims allocated by third parties might not be incentivized to perform, to the benefit of others, in other contexts since they would know that they might be awarded possessions by third parties as an alternative to receiving them in virtue of their own effort or work. A rule permitting the allocation of possessions by third parties would undermine the peacemaking function of the possessory rules: effective possessors would likely come into conflict with the third parties and with those to whom they claimed to assign possessory rights. A rule vesting allocative authority over possessory claims in third parties would reduce productivity, since people would have less incentive actually to establish effective possession through actual use of potentially possessed objects. It would create an unequal distribution of power, and thus militate against reciprocity while encouraging self-dealing. It would reduce the reliability of the set of claims resulting from the system of possessory rules, since third-party involvement in the determination of the justice of possessory claims could create uncertainty. It would waste societal wealth on legal disputes over possessory claims and on efforts to manipulate those with the ability to assign possessory claims. It would certainly count against stability, since a rule allowing for third-party involvement would not be a stable convention. It could militate against stewardship, since people assigned possessory claims by third parties might care less for the objects assigned to them, and since effective possessors might care less in anticipation of being deprived of their claims by the third parties. And it could be expected to exert other problematic effects simply by making it harder for people to gain access to physical objects and thus to put them to use in cooperation with others.

40 See Schmidtz, supra note 35, at 155.

41 That one may justly control a possession means, among other things, that one may justly exclude others from access to it. And, because no one likes to be excluded, the Principle of Fairness might be thought to militate against allowing this sort of control. However, (i) those who do not wish to be excluded will characteristically wish to be able to exclude, so it will be difficult for them to object to a rule permitting exclusion (perhaps some will not want to be able to exclude either, seeing themselves as sufficiently weak-willed that they need to be restrained from excluding, and there will thus in their case be no inconsistency between their immediate preferences with regard to their own opportunities and those of others, though the Principle of Fairness may still ultimately entail, in view of other considerations, that they are being unfair for opposing opportunities for exclusion); (ii) while the right to exclude might be thought to pave the way for the creation of a vast array of landless paupers, the requirement a just possessory claim must be rooted in effective possession rules out legislated engrossment of land, in particular, and thus means that it can be expected to be available to those who might wish to homestead it in accordance with the first baseline rule; and (iii) similarly, the emergence of large numbers of landless persons reflects not only state-driven engrossment but also state-underwritten violence, see Ludwig von Mises, Socialism: An Economic and Sociological Analysis 335 (1981), which the baseline rules prohibit and for which they imply the suitability of remedies; (iv) the ability of anyone to establish exclusive claims to resources is potentially beneficial to everyone (given all the truisms underlying the baseline rules) and thus worth affirming by everyone; see David Schmidtz, Person, Polis, Planet: Essays in Applied Philosophy 193–210 (2008).

42 Obviously, the proposed third rule could cut in both directions where identity interests were concerned. One might have an identity-constitutive attachment to something justly possessed by someone else, and a rule that permitted one some control over it might thus allow for some protection of one’s identity interest in it. However, there are multiple reasons not to favor such a rule, and a rule that provided for exclusive control over just possessions would indeed protect many, even if by no means all, identity-constitutive interests in possessions.

43 On the importance of exceptionlessness, cf. Henry Hazlitt, The Foundations of Morality 58, 72–73, 181–85, 258–61, 264 (1964); cf. Sumner, supra note 8.

44 As guides for personal conduct, they leave room for exceptions, as I argue below; see infra, Chapter 2.VI.

45 A possessory rule will not count as just, will not be consistent with the Principle of Fairness, if (for instance) it denies homesteaders access to land that is unused, and so abandoned. This is simply because there is (I think) good reason, morally, for those with land and all others involved in interpreting and applying possessory rules to embrace and implement rules that give the homesteaders this access; the first baseline rule does not treat initial effective possession as valid without renewal, nor should it, for reasons related to autonomy, compensation, productivity, and other desiderata. Just what a legal regime’s abandonment rules ought to be is unavoidably in part a matter of convention; that there ought to be such rules is, I think, more plausibly regarded as a matter of justice. My own view, for which I will not argue here, is that legal rules which treat just possessors and their agents as indistinguishable for purposes of determining whether abandonment has occurred are simpler to understand and apply than rules that require otherwise just possessors themselves to be persistently present on land for it not to be abandoned and are, at least for this reason, to be preferred to the alternatives. I do believe, however, that the period of disuse (by just possessors and their agents) required to constitute abandonment ought to be very short—perhaps one or two years. This kind of time line is desirable because it discourages unproductive use, ensures that social influence is less likely to be concentrated, and creates opportunities for more widespread economic betterment. But I obviously can’t claim that a specific time line is required by practical reason.

In general, I think rules treating just possessors and their agents as equivalent are fairly clearly preferable to ones that require a just possessor to occupy and use land to which she has a just possessory claim in order to avoid abandoning it. It is clear, however, that rules requiring occupancy and use do have one advantage over alternatives: they render impossible the occurrence of nightmare scenarios in which states or the equivalent are reestablished in a stateless society through some variety of landlordism. Prescriptive easement requirements, and other requirements flowing from the Principle of Fairness, might mitigate these risks to some degree, as would the availability of significant numbers of living options, which could be expected to increase the pressure on proprietors to avoid unwelcome impositions on tenants. And the concentration of land in a small number of hands in the real world seems to be rooted in unjust violence. Cf. note 41, supra.

46 To be clear, I do not regard this as a criticism: some variability in possessory rules seems perfectly reasonable to me. (i) Some empirical facts and some implications of particular ideas are unclear and need still to be discovered or understood more fully, and experimentation among different possessory rules, within the constraints of justice, will facilitate greater understanding. (ii) Different people’s personalities will obviously vary, and some people will simply be more comfortable with some rules than other people will be—and there seems no reason for them not to be able to proceed accordingly. At the same time, while people should be free to consent to any set of possessory rules they like, the voluntariness of their consent will be vitiated if it is not understood that, prior to their consent, any possessory claims they might have which would be consistent with the baseline rules will be respected; see Chapter 4, infra.

150 This maxim is similar to, but not identical with, the Non-Aggression Principle defended by Murray Rothbard. As Rothbard outlines this principle: “no one may threaten or commit violence (‘aggress’) against another man’s person or property. Violence may be employed only against the man who commits such violence; that is, only defensively against the aggressive violence of another. In short, no violence may be employed against a nonaggressor.” Murray N. Rothbard, War, Peace, and the State, in The Myth of National Defense: Essays on the Theory and History of Security Production 66 (Hans-Hermann Hoppe ed., 2003). I refer to the nonaggression maxim, rather than the nonaggression principle, because of the limited qualifications I note in Chapter 2.V, supra. I do not mean to imply (see n.141, supra) that Rothbard, at any rate, would have disagreed regarding many of the situations to which I mean my qualifications to apply.

151 While I would hope successfully to avoid Hume’s subjectivism and consequentialism, the kind of approach he wants to take seems to me, if nothing else, a useful model for the way in which the transition from the interpersonal to the institutional might be made.

152 Rothbard, supra note 124, at 25.

153 Id. at 24.

154 With the qualifiers noted in Chapter 2.VI, supra.

155 Cf. Carole Pateman, Self-Ownership and Property in the Person: Democratization and a Tale of Two Concepts, 10 J. Pol. Phil. 20 (2002).

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