Common Ownership of the Earth Revisited
Mathias Risse, Harvard University
December 10, 2013
1. Humanity’s collective ownership of the earth is one of the five grounds of justice I
discuss in On Global Justice (OGJ). Partly because it is a central idea but partly also
because the contents of and motivation behind that idea have been misunderstood
in some reviews, it is worth revisiting that idea. In addition, OGJ contains several
discussions on those matters that are scattered across chapters. Here I bring these
discussions together and offer some further defense and elaboration. However, I do
not go substantially beyond what is already in the book. My purpose is to present
my approach to humanity’s collective ownership of the earth for the sake of critical
discussion: I hope critics will point out where more defense is needed, or where my
argument goes astray.
To make sure this paper does not get unmanageable, I omit some topics,
most importantly the details of the relationship between environmental ethics and
collective ownership of the earth and the connection to historical figures. OGJ takes
much inspiration from Grotius, and in other work I have done since the publication
of OGJ I have also elaborated more the relationship between my account and Kant
and Locke. But here my focus is on the possibility of a contemporary development of
a natural-rights-based approach to collective ownership. I also omit scholarly
references beyond what is needed. I start by clarifying the idea of natural rights that
I use; distinguish it from the idea of human rights; explain why revitalizing the
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ownership approach is appropriate; and offer my basic argument for Common
Ownership as the philosophically preferred conception of collective ownership.
To some “natural rights” is anathema. So it is important to be clear what is
meant. Let us first talk about rights. We can distinguish moral rights from positive
rights (such as legal rights, conventional rights, etc.). It is a matter of empirical
research what legal rights someone has in a given country, say. It is a matter of
philosophical inquiry what moral rights someone has. A person has a moral right to
X if and only someone else has a moral obligation to let her have X. Positive rights
can enter theories of justice as goods to be distributed; moral rights can enter as
part of the grounds of a principle of justice.
What kind of philosophical inquiry is needed to show that anybody has a
moral right? For the basic approach, I follow T. M. Scanlon. Scanlon (2003a),
(2003b) thinks of an argument for rights as involving an empirical claim about how
individuals behave or how institutions work in the absence of particular
assignments of rights; a claim that this result would be unacceptable, based on
valuations of consequences in a way that takes into account considerations of
fairness and equality (as appropriate); and a further empirical claim about how the
envisaged assignment of rights will produce a different outcome.
We can further distinguish between three different types of moral rights:
natural, transactional and associational rights. Natural rights are moral rights whose
justifications depend on natural attributes of persons and facts about the nonhuman world. The force of these rights can be recognized by all reasonable people
independently of provisions of positive law. Justifications of natural rights do not
2
exclusively involve conventions or institutions that hold within or among groups,
nor do they exclusively involve any transactions, such as promises or contracts.
Natural rights may in principle include rights whose justification also involves
transactions or agreements, but such transactions and agreements must be of a sort
that does not undermine the universal acceptability of the rights thus generated.
Transactional rights are moral rights that arise from transactions among
particular individuals. The obvious examples are contracts and promises. Needless
to say, as we explicate what contracts and promises are, we must also talk about
general features of human beings to explain among what kinds of creatures these
transactions occur. But by way of contract with natural rights the bindingness of
transactional rights does not turn on those features. Associative rights, finally, are
rights that hold among all those who belong to a particular association, to a group
that abides by certain norms that generate rights and obligations for the members of
the group. Among these associations are those into which we are born, and it is in
the way that associative rights differ from transactional rights.
My broad notion of natural rights contrasts with narrower notions that tie
natural rights to theology or a conception of practical reason. An example of the
former kind of case would be an account that thinks of natural rights as
straightforwardly bestowed by God, parallel to how a lawgiver might bestow legal
rights upon those under his jurisdiction. An example of the latter kind would be an
attempt to base rights and duties in Kantian conception of rationality. My duties are
determined by what is required of me in my treatment of others for my own
practical reasoning not to fall into a contradiction with itself. In some cases such a
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contradiction would occur if I treated a particular person a certain way, and in that
case that person has a right against me that I not treat here that way. Given how
broad my account of natural right is it may sometimes be debatable whether a right
is best understood as a natural right or as either a moral transactional right or a
moral associational right.
Natural, transactional, and associative rights are three kinds of moral rights
that stand in contrast to legal rights (which may or may not replicate some of the
moral rights). Precisely what duties natural rights imply must be worked out for
given proposed rights, but in principle all human beings could be duty-bearers.
Transactional and associative rights hold only among those involved in the
transaction or belonging to the association. Natural, transactional, and associative
moral rights can all be articulated within T. M. Scanlon’s account of rights. What I
said about the characteristic features of these types of rights pertains to the second
part of how Scanlon understands a rights claim, the reasoning given about why a
situation without rights would be unacceptable. What is unacceptable in cases in
which natural rights are involved is not that people are not treated properly as
members of an association, and it is not that certain transactions are broken.
Instead, it is that people are being mistreated as human beings in a way that would
have to be explained in detail.
2. What then are human rights, and what is the connection between natural rights
and human rights? Human rights, I take it, are rights that are invariant with respect
to local conventions, institutions, culture, or religion. Moreover, human rights
4
language focuses on abuses committed by those in positions of authority: of two
otherwise identical acts only one might violate human rights, namely, the one that
amounts to an abuse of authority. There is a difference, say, between thefts
committed by petty criminals and thefts that are part of abusive patterns of
government behavior or otherwise expressions of socially entrenched or violently
enforced oppression. And there is a difference between marital abuse that occurs in
isolation and marital abuse that occurs as an overall structural pattern of
discrimination. Both times the difference consists in their effect on, or the extent to
which these scenarios express, one’s status in society. So I take the concept of
human rights to refer to rights (vis-à-vis agents who, in virtue of their size, power,
etc., can intelligibly be held responsible for this matter) with regard to the
organization of society that are invariant with respect to local conventions,
institutions, culture, or religion.
A host of questions arises about human rights. Why would we hold such
rights? Is there a set of features of human beings on which such rights are based?
What ought to be their function in the global order, and does this help define what
they are? What list of rights arises in this way? Who must do what to realize these
rights? Cohen (2006) proposes that human rights have three features: they are
universal and owed by every political society to everybody; are requirements of
political morality whose force does not depend on their expression in enforceable
law; and are especially urgent. Any account of human rights must meet these
constraints, as well as two methodological assumptions: fidelity to major human
rights documents, so that a substantial range of these rights is accounted for (a
5
criterion that grants that major human rights documents play a significant role in
fixing the meaning of human rights talk); and open-endedness (we can argue in
support of additional rights).
However, these criteria (which I agree characterize the concept of human
rights) do not entail commitments with regard to a range of questions about such
rights. The function of a conception of human rights is to provide a fuller set of
answers.1 A conception consists of four elements: first, a list of rights classified as
human rights; second, an account of the basis on which individuals have them (an
account of what features make individuals rights holders);2 third, an account of why
that list has that composition, a principle or a process that generates that list; and
fourth, an account of who must do what to realize these rights, an account of
corresponding obligations. Any full-fledged conception also makes clear both why
such a conception is worth having and why the language of rights (rather than goals
or values) is appropriately used.
As far as the relationship between natural rights and human rights is
concerned, notice that all natural rights will be invariant in the sense required by
the concept of human rights. However, human rights could be specified in ways that
do not make it true that human rights are natural rights. In fact, a conception of
human rights could select as human rights a subset of all those rights that are
invariant in the relevant sense that does not include any natural rights at all.
1
For the distinction, see e.g. Rawls’ Theory of Justice, section 1.
2
One should think broadly about the term “features of individuals,” to include bases formulated
purely in terms of a distinctively human existence and bases that talk about membership in
particular associations.
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Indeed, once we specify a conception of human rights, we must clarify the
relationship
between
natural
rights
and
human-rights-according-to-that-
conception. Some such conceptions do not classify human rights as natural rights.
On a Beitzian (2009) practical conception, for instance, human rights would not
depend on local conventions, but no justification of the sort needed to establish
natural rights appears. So human rights then are not natural rights, and the set of
natural rights may or may not be argued to be empty as far as a defense of this
conception of human rights is concerned. As opposed to that, according to a
conception that understands human rights as protecting the distinctively human
life, human rights are natural rights. But only those natural rights are human rights
that are needed to protect the distinctively human life. Natural ownership rights, for
instance, are natural rights but are not rights needed to protect the distinctively
human life.
According to the conception I advance in OGJ, human rights are membership
rights in the global order and thus associative rights (holding in virtue of
membership in particular associations). These membership rights derive from
different sources. The distinctively human life is one such source, as is collective
ownership of the earth. So while human rights on my conception indeed are
associative rights, some human rights have their logical foundation in natural rights.
But other sources generate human rights that have no such foundations but instead
essentially appeal to features of the human world to that end. According to my
conception, all natural rights give rise to human rights, but not all human rights are
derived from natural rights.
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3. Let us turn to original ownership. Asking about “original” ownership is not asking
about a certain period, but whether resources and spaces that exist independently
of human activities are owned in a sense that will then be prior to moral claims
individuals or groups have to resources based, say, on first occupancy or the
“mixing” of labor with resources, as well as prior to any kind of legal claims they
may have. But why inquire about humanity’s collective ownership?
The idea that humanity collectively owns the earth was the pivotal thought of
17th century European political philosophy. Grotius, Hobbes, Pufendorf, Selden, the
much underappreciated Filmer, Locke, and others debated how to capture the
ownership status of the earth and the conditions under which parts of the Global
Common could be privatized. It is easy to see why this idea would have engaged
people’s philosophical imagination. The 17th century was the period when European
expansionism became entrenched and established. Europeans then had a decent
sense of what much of the Earth looked like, at least along the coastlines. They were
eager to integrate far-flung parts of the earth into their sphere of influence and to
dominate sea-routes that made such integration possible. Questions about how to
divide up the spoils of the age of discovery were therefore prominent.
Even in those religiously troubled times (as far as Christian quarters were
concerned) the Old Testament remained a trusted guide. That was true especially
for the divine donation of the earth to humanity recorded in Genesis (1:26, and 9:23; see also Psalm 24:1). One poetic rendering of the donation appears in Milton’s
Paradise Lost: “Not only these fair bounds, but all the earth/ To thee and to thy race I
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give; as lords/ possess it, and all things that therein live,/ or live in sea, or air, beast,
fish, and fowl;” verses 339-341. That Bible passage was generally bad news for NonEuropeans because they were not among those who would negotiate about how to
divide up the earth within this framework (even though some thinkers in that
framework did attempt to be fair-minded to those outside of it). This passage was
also bad news for animals because they are mostly treated as foodstuff here (even
though it is also true that the relationship of superiority established by Genesis can
be, and has been, interpreted as one of responsible stewardship).
Nowadays this historical and biblical background poses a problem rather
than an encouragement for revitalizing the collective ownership approach. How
could it not be discrediting that this approach was used to provide the intellectual
foundations for colonialism? How could it not smell of parochialism to use an
approach based on divine truth that was not revealed to everybody? If one takes
inspiration from the 17th century, one might as well visit the Sistine Chapel and look
at Michelangelo’s painting of the creation of Adam to get insights into the origins of
the human species. Or so the objector may say.
There is another problem. Even if one were willing to set aside these issues,
one might think humanity as such could be an owner of the planet only in a theistic
universe. In a theistic universe natural law and natural rights could be put in place
by a divine lawgiver parallel to how a human lawgiver does so. In such a universe
the deity also owns the planets and might as well give one away to some of his
creatures. But outside of a theistic universe one might say it is hard to see how one
could even conceive of humanity’s relationship to the earth as an ownership
9
relation. This a conceptual issue about the ownership approach as such, rather than
about its past uses. So for all these reasons it would seem fitting that except for the
recent revival of left-libertarianism, the collective ownership approach has been
mostly invisible since the Rawlsian Renaissance of political philosophy.
But in spite of all these problems revitalizing that approach is appropriate.
What needs to be motivated is (a) why humanity’s relationship with the earth as a
whole should assume a bigger role in political philosophy than it normally does, and
(b) why we should go about this in terms ownership. Let us begin with (a). Notice
that humanity’s relationship with the planet as such is to some extent already
addressed in international law, where for more than forty years the term “common
heritage of mankind” has been applied to the high seas, the ocean floor, Antarctica,
and Outer Space.
The 17th century authors mentioned earlier wrote at a time when many
questions of global scope first arose, and when just what “sovereign” states were
allowed to do still needed to be settled. But this was also a period when for the first
time a truly global economic and political system was gradually being created.
Somewhat oddly, the period characterized by increasing global interconnectedness
also was a period where each state’s entitlement to operate internally largely as it
saw fit while having only very limited obligations towards the rest of the world
became the guiding combination of ideas in international relations. Even though the
world has become increasingly interconnected in recent centuries, humanity has
nonetheless established a global political system based on the maximization of
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mutual indifference. This is no longer serving us well. It is also philosophically
indefensible.
By way of contrast, we must take more seriously the interconnected nature
of human affairs in a globalized economy and on a planet whose limitations become
increasing clear to us. Among the implications of this assessment is that indeed our
relationship with the planet as a whole must become more prominent in our
thinking. Climate change is an obvious problem that concerns our relationship with
the planet earth as such. Reflection on that issue also makes us realize that our
relationship with subsequent generations must be understood in terms of
obligations to leave this planet behind in a certain shape. Population movement is
another obvious problem that concerns our use of the planet as a whole. The human
population continues to increase and some regions are severely overpopulated. As a
result, many people try to move to a different location. Philosophers need to reflect
on the conditions under which acceptance of new immigrants is required of a state.
Let me offer an example that I have often used to show how readily one
starts thinking about questions about immigration as questions about acceptable
population movement across the planet. Suppose the population of the US shrinks to
two, but they control access through border-surveillance mechanisms. Nothing
changes elsewhere. Surely these two should permit immigration since they are
grossly under-using their area. We can best explain this view by the fact that all of
humanity has claims to the earth. This already takes us to clams about ownership,
but my point for now is only that this kind of example makes us think about
immigration in terms of the distribution of people across the planet. If in this case
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we would say that more immigration should be permitted, then we have accepted
that there is a spatial dimension to reflection on immigration. So we must try to
identify what conclusions we can draw in that way when we reflect on population
distribution in the world as it is.
In a speech at American University in Washington D.C. in June 1963, US
President John F. Kennedy stated the following: “For in the final analysis, our most
basic common link is that we all inhabit this small planet.”3 This may not be our
most basic common link – there is also the distinctively human life that we partake
of – but a substantially important and very basic common link it nonetheless is.
Philosophers have echoed the basic point, so let me end this section simply with a
few quotations. What is at stake is ownership of, as John Passmore put it, “our sole
habitation (…) in which we live and move and have our being” ((1974), p 3), or in
Henry George’s words, of “the storehouse upon which [man] must draw for all his
needs, and the material to which his labor must be applied for the supply of all his
desires” ((1926), p 27). Or as Hannah Arendt said in The Human Condition, “[t]he
earth is the very quintessence of the human condition, and earthly nature, for all we
know, may be unique in the universe in providing human beings with a habitat in
which they can move and breathe without effort and without artifice” ((1958), p 2).
4. So we can see then that reflection on our relationship with the planet as such
should take center stage more than it does. But why should this be done in terms of
3
This quote is set in stone in a column at the entrance to the John F. Kennedy Memorial Park in
Cambridge, MA.
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ownership? One might say the problematic legacy of 17th century thought is by no
means the renewed focus on the planet. The problematic legacy is the focus on
ownership. But this should not be considered problematic as soon as we understand
it properly.
There is admittedly something confusing about using the term “ownership”
here because of the connotations with the notion of ownership in the civil law. But
natural ownership rights as I will defend them are detached from the complex set of
rights and duties that the civil law delineates under the heading of property law
(Honoré (1961)). The confusion that arises in this way cannot be eliminated. Still,
the advantages outweigh the problems.
I am talking about collective ownership because I am concerned with claims
to resources and spaces. My guiding intuition throughout is that the resources and
spaces of the earth exist independently of human activities, and that therefore
human beings, to the extent that they have claims to the earth, each have the same
claims. Any two human beings, no matter when and where they live, have
symmetrical claims to the earth. To be sure, these days the form in which we find
resources and spaces has been affected by millennia of human interference. But the
planet as such with the climate conditions, raw materials and spaces that it provides
exists independently of us.
One might say what I just said is a reason for not thinking of the earth as
owned by a species that has only existed for a miniscule period of time compared to
the truly ancient nature of the earth and much of what it carries. The sheer
awesomeness and life-giving character should make it repulsive to talk about
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ownership here. Ownership, it seems, is embedded into human activities and it
would therefore be preposterous to apply it to the system that gives life to the
whole human species. One might push the point further and insist that this
ownership-based thinking and the attitude that gives rise to it is among the root
causes of our ongoing environmental crisis.
These are fair points. But this is where it matters that I said above that
“human beings, to the extent that they have claims to the earth, each have the same
claims.” This is one crucial difference between my secularization of collective
ownership and the more chauvinist interpretations of Genesis. That formulation is
meant to make clear that my account is consistent with the most plausible manners
of making sense of the rights of animals and the value of nature.
Common
Ownership captures claims and liberties directed at other human beings.
The
corresponding duties may not be all-things-considered duties, which in turn would
also take concerns about nature or animals into consideration.4 Chapter 6 of OGJ
offers a detailed discussion of how this approach would fit with environmental
ethics that I cannot repeat here. The problem is not with the substance of the
ownership approach but with certain connotations that one must fend off.
Ownership of resources and spaces is a rather central human concern.
Conventional legal systems regulate ownership. That fact raises the question of
whether such conventional legal systems can themselves be justified by preconventional considerations. Humanity’s collective ownership of the earth provides
that kind of standpoint, and thus a link between the rather abstract standpoint of
4
See Sreenivasan (2010) for the distinction I just made.
14
humanity’s collective ownership of the earth (where the ownership notion does not
amount to very much) and the rather concrete conceptualization of ownership with
its various incidents in the civil law. There is a connection between natural
collective ownership rights and property law parallel to the connection between
Rawls’ principles of justice and judicial decisions. Like Rawls’ four-stage sequence
((1999), section 31) that begins with the Original Position, then proceeds to the
constitutional, legislative, and finally to the judicial stage, I begin with the abstract
viewpoint of collective ownership, develop conceptions of it, and could (but do not)
proceed to assessing civil law prescriptions in light of the most plausible conception.
The moral significance of human needs features prominently in my account.
One objection is that I should try to make do with appeals to basic needs, instead of
proliferating foundational elements. But claims of need are frequently frustratingly
amorphous. They are often usefully supplemented by the consideration that what
we require to meet basic needs is resources and spaces that are nobody’s
accomplishment. That thought is again well-captured in terms of appropriately
understood natural ownership rights. Making collective ownership of the earth
central is tantamount to making central the consideration that the resources and
spaces that we need for all human life to unfold are themselves nobody’s
accomplishment. That is a thought over and above the moral significance of human
needs. Compared to a theorist who wishes to make do with appeals to need alone
the theorist who accepts collective ownership of the earth has two reference points
to work with. That makes it easier to reach reasonably clear-cut conclusions.
15
Some think outside a theistic framework collective ownership is meaningless
(Narveson (2001), p 73). What leads to this view are concerns about what exactly is
owned and who owns, and to a larger extent concerns about the sort of ownershiprelation that can apply to humanity per se. These worries are automatically
addressed through a careful development of the idea that humanity collectively
owns the earth. One may also say ownership presupposes that some people are
excluded; “humanity,” that is, cannot be an owner unless there is a class of nonowners. Perhaps this class could consist of animals or extraterrestrials. But the
better response is that ownership, in the limit case of humankind as an owner, loses
this feature.
Should intelligent extraterrestrials emerge, they may have claims as coowners, for the same reasons why we should recognize human beings as co-owners.
In the 2008 science fiction “The Day the Earth Stood Still,” a representative of alien
species (played by Keanu Reeves) arrives to assess whether humanity is capable of
preserving the earth’s rare and thus invaluable life-sustaining capacities. I think
such species would have claims. So let us hope they will not show up any time soon.
5. An entity may have roughly four types of ownership-status: no ownership; joint
ownership – ownership directed by collective preferences; common ownership – the
entity belongs to several individuals, each equally entitled to using it within
constraints; and private ownership. Common ownership is a right to use something
without a right to exclude other co-owners. If the Boston Common were held in
common when it was used for cattle, a constraint could have been to bring no more
16
than a certain number, a condition supported by respect for others and a concern to
avoid the Tragedy of the Commons. If Bostonians held the Common jointly, each use
would require the consent of every other co-owner. Joint ownership ascribes to each
owner rights as extensive as private ownership rights, except that others hold the
same rights.
The difference between common ownership and no ownership emerges
clearly if we ask how to generate natural private property. To that end, No
Ownership would require a theory of acquisition. The crucial issue is how to
generate rights and duties constitutive of property at all, one important question
being if this process is subject to moral constraints. Right-libertarians deny this. But
such a denial does not follow from No Ownership. One may argue that, while
resources are originally unowned, acquisition requires consideration of others
(“provisos”). Common Ownership would require a theory of privatization, the
crucial issue being how to derive private ownership from a bundle of rights and
duties constituting common ownership. Private ownership derives either from a
contract, or in a way that renders contracts superfluous. (I speak of “appropriation”
when staying neutral between acquisition and privatization.)
“Joint Ownership” and “Common Ownership” in capital letters are names of
conceptions of collective ownership and hence views about ownership specifically
of the earth. In small letters “joint ownership” and “common ownership” are general
forms of ownership. I say that humanity “collectively” owns the earth if what
matters is merely that in some recognizable sense, humanity as a whole owns the
earth. I use the term “Equal Division” for the conception of collective ownership that
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corresponds to private ownership. According to Equal Division, each of altogether n
human beings has a claim to a 1/n share of original resources. Joint Ownership,
Common Ownership, and Equal Division are the three conceptions of collective
ownership that OGJ explores. Political philosophers in the 17th century debated how
to interpret God’s gift. We need a similar debate about these conceptions. There may
well be other conceptions. As Rawls (1999) defends his principles not against every
objection, but against several relevant alternatives, I defend my preferred
conception, Common Ownership, against a short list of competitors.
Let me elaborate on Common Ownership some more. Its core idea is that all
co-owners ought to have an equal opportunity to satisfy basic needs to the extent
that this turns on collectively owned resources. This formulation, first, stresses an
equality of status; second, it insists that the equality concerns opportunities to
satisfy basic needs (there being no sense in which co-owners are entitled to an equal
share of what is collectively owned, let alone to support in getting such a share, any
more than co-owners of the Boston Common had such claims); and third, it does so
(only) insofar as such needs require collectively owned resources. 5 In the standard
Hohfeldian rights terminology, common ownership rights include liberty rights
accompanied by what Hart (1982) calls a “protective perimeter” of claim rights (p
171). To have a liberty right is to be free of duties to the contrary. Co-owners are
under no duty to refrain from using resources.
5
Equality of opportunity is exhausted by the liberty, claim, and immunity rights I am about to
introduce. For the Hohfeld terms, see Jones (1994), chapter 1, Edmundson (2004), chapter 5, or
Wenar (2005).
18
However, were co-ownership reducible to such rights, a Hobbesian state of
nature would arise where everybody is allowed to interfere with anything. Some
might legitimately be deprived of everything. Common Ownership guarantees
minimal access to resources by adding a protective perimeter of claim rights. (This
demand of non-interference is limited to appropriations necessary to satisfy a
person’s basic needs.) There might be further-reaching natural rights with respect
to these resources, including exclusive rights to bits of the earth arising from such
actions as occupation, consent, and so on. And there will be positive law that
regulates access to resources in legal systems. In cases of a conflict natural common
ownership rights have priority.
Property arrangements of the positive law may be conventions where access
to resources plays little immediate role for most people. A necessary condition for
the acceptability of such conventions – to make sure of the aforementioned priority
-- is that the core purpose of the original rights is still met. That purpose is to ensure
that co-owners have the opportunity to meet basic needs. In Hohfeldian
terminology, co-owners have an immunity from living under political and economic
arrangements that interfere with their having such opportunities. So the right
involved in common ownership is no simple use right, but a more complicated
disjunctive right to either use (in the narrow sense) resources and spaces to satisfy
one's basic needs, or else to live in a society that does not deny one the opportunity
to satisfy one’s basic needs in ways in which it otherwise could have been done
through original resources and spaces.
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Hobbesians might say that individuals may rationally agree to live under
conditions that fail to offer guarantees that are called for by the aforementioned
immunity. But given the basic nature of the needs at stake, individuals would
normally make such agreements only under duress. The unstated premise of this
objection seems to be that if we accept a natural right to X, then we cannot
consistently accept living arrangements that do not guarantee X. But that is false:
we may reasonably settle for less if we believe it is the best we can get.
We can now also see a difference between common ownership of the earth
and common ownership of the Boston Common. Bostonians had rights to use the
Common for purposes other than basic needs satisfaction. But such purposes
reflected shared cultural understandings of how it was appropriate to use land.
Since I wish to construct a set of natural ownership rights, I limit their content to
what would be acceptable to every reasonable person. Therefore I talk about basic
needs satisfaction. Common Ownership includes no right to use whichever
resources and spaces a person chooses to satisfy her basic needs. This right is only a
right to access some (sufficient) bit.
6. My argument for Common Ownership proceeds in several stages. I explain first
why one should find collective ownership of the earth plausible. Since Common
Ownership captures a minimal conception of collective ownership, the argument for
collective ownership also takes us to Common Ownership. The challenge is to
explain why stronger conceptions, and conceptions of some prominence (Joint
Ownership, Equal Division), are implausible.
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I introduce three claims to establish that (and the sense in which) humanity
collectively owns the earth. Conceptions of collective ownership (of which Common
Ownership is one) spell out precisely what this means. The first claim is that the
resources and spaces of the earth are valuable to and necessary for all human
activities to unfold, most importantly to secure survival. This claim remains true as
long as human life is earth-bound, and accounts for the relevance of inquiries about
original ownership. It also makes sure that references to remote galaxies do not lead
our inquiry ad absurdum.
What is meant is not that all resources are necessary for each human activity
to unfold. What is meant is that the earth is humanity’s natural habitat, a closed
system of resources everybody needs for survival. If space travel expands
humanity’s habitat, we may have to reformulate this first claim. The other claims
speak to the expanded space too. The idea of “common heritage of humanity” has
been applied to Outer Space. More problematic than the outer limits of what is
collectively owned is why we should accept that the relevant space includes the
whole earth. Why could not people in Japan or New Zealand say they, but only they,
collectively own their islands? I return to this point shortly.
The second claim is that the satisfaction of basic human needs matters
morally, and matters more than any environmental value (such as protecting the
biosphere). I elaborate below on the reference to environmental values. Whereas
the first is descriptive, this claim (like the next) is normative. Without such an
assumption we cannot illuminate the appropriateness of talk about claims in this
context. The satisfaction of basic needs (“the conditions that must be met for a
21
person to have a decent life given the environmental conditions he faces,” Miller
(2007), p 184) is morally as significant as life itself. I wish to make maximally
uncontroversial claims that lead to a universally acceptable, non-parochial
standpoint to adjudicate questions of global reach, and generate a set of natural
rights. I mean by “basic needs” merely Doyal and Gough‘s (1991) fundamental
needs: physical health and a mental competence to choose and deliberate. The first
claim is also true broadly for “human activities.” However, such a broad claim is
unsuitable for deriving claims of universal reach.
I have yet to respond to somebody who denies that the shared space of
humanity is the whole earth. The view that it is not the whole earth that is
collectively owned implies that one may deny support or entry to some even in light
of the complete absence of opportunities to satisfy basic needs. However large we
make the local area to which we restrict ownership, there are possible futures in
which, for instance through natural disasters, that area could not support the needs
of those within it. To cover for such cases each person must have rights to the whole
earth. If people have rights only to local resources duties relating to people’s basic
needs (i.e., duties to provide the relevant opportunities) would be distributed too
narrowly, namely only among fellow locals. The moral significance of human needs
generates a kind of minimal solidarity that applies to all of humanity.
One might wonder whether an analogous argument would not after all
extend the rights to the whole universe. The whole earth might face disasters, too.
However, for now we face a situation in which natural disasters might well
annihilate our planet, but none in which humanity’s habitat is larger than this
22
planet. One way of comprehending the idea that Outer Space is a natural heritage of
humanity is in terms of its potential for being subject to natural ownership rights
should space travel expand humanity’s habitat. Note that while common ownership
rights are natural rights, they are not the kind of rights that are needed to protect
the distinctively human life. In principle the distinctively human life is not earthbound although it is for the foreseeable future. We should distinguish between
theorizing about the distinctively human life and theorizing about what contingently
but enduringly is our natural habitat now.
The third claim states that, to the extent that resources and spaces have come
into existence without human interference, nobody has claims to them based on any
contributions to their creation. This claim merely states a straightforward
implication of the nature of the resources whose ownership status is at stake. The
matter is nonetheless significant. Since nobody has such claims, nobody can have
claims to resources that draw on accomplishments of others either, as I may be
entitled to an inheritance if I am the designated beneficiary of somebody else’s
accomplishments.
Consider social primary goods. No newly-born baby has done more than
another to create such goods, but others have. For entities whose form of existence
depends on human interference, it is not generally true that of any two individuals,
none has a stronger claim to them. The only way of denying this is to insist that no
manner of being involved with the way in which an entity comes into its form of
existence generates claims to it. This I take to be false. Maximally uncontroversial is
that to resources and spaces that have come to exist without human interference
23
nobody has claims in terms of accomplishments that are privileged over those of
others. No statement about (human-made) artifacts is as uncontroversial.
While the first and third claim also hold for animals (as does, arguably, the
second, for some animals), I assume that humans stand in moral relations to each
other that differ from their relations to animals, if only because the distinctively
human life differs importantly from the life of animals. Nothing turns on claiming
that animals are inferior. Again, I explore original ownership to assess redistributive
claims humans make upon each other. So the first claim explains why there can be
claims to original resources and spaces of the earth. The second makes clear how
claims of some sort arise here. The third insists that such claims cannot be
constrained by reference to the accomplishments of others. In a nutshell, all human
beings have some kind of claims to original resources and spaces that cannot be
constrained by reference to what others have accomplished. I said I would talk
about “collective ownership” generically, capturing the idea that, in some sense to
be explicated in more detail, humanity as a whole owns the earth. That sense has
now been established and is contained in the summary sentence I just provided.
But the three claims I have discussed also take us to Common Ownership. We
can sum up our account of Common Ownership as follows: first, each person,
independently of her actions, has a natural right to use original resources and
spaces to satisfy her basic needs; and second, in conflicts with any further
entitlements with respect to these resources this natural right has priority. The
realization of common ownership rights may involve either the right to use original
resources and spaces of the earth, or else the right to live in a society that does not
24
deny one the opportunity to satisfy one’s basic needs in a way in which it otherwise
could have been done through the use of original resources and spaces. The liberty,
claim, and immunity rights constitutive of Common Ownership are entailed by my
three claims. Common Ownership offers a way of making precise the idea of
collective ownership of the earth that the three claims establish. It does so by
proposing a minimally demanding set of rights.
7. Common Ownership has some strength. Nonetheless, it captures a minimal
version of collective ownership. The claims I made in support of collective
ownership should be acceptable across cultures. Natural rights are rights every
reasonable person should be able to accept. We must therefore limit ourselves to
minimally demanding starting points. Reasonable people can reject conceptions
proposing a stronger set of ownership rights than Common Ownership because
Common Ownership exhausts what we can make of the claims about original
ownership that everybody should reasonably accept.
While the point in the preceding paragraph is easy to state it is a very
important part of my argument, and I want to flag this clearly. My argument for
Common Ownership as the preferred conception rests partly on this claim, and
partly on objections to competing conceptions.
8. Chapter 6 of OGJ contains much discussion of left- and right-libertarianism and in
that context also discusses the No-Ownership view. This is a discussion I will
neither repeat nor revisit here. I will assume that the basic plausibility of collective
25
ownership has now been established. But of course, the skeptical reader should feel
free to turn to the aforementioned chapter for an engagement with the libertarians.
Let me here defend Common Ownership against two competing conceptions
of collective ownership, Joint Ownership and Equal Division. Consider first Joint
Ownership. To support this view, one needs a theory of what it is about individuals
that requires such a high standard of justification for each use of collectively owned
assets. Defending Joint Ownership, Grunebaum (1987) takes the notion of autonomy
to imply that each use violates a person’s autonomy unless she approves.
A first response might be that this use of autonomy overstates its normative
weight. The notion of autonomy captures a vision of persons controlling their
destiny to some extent. The limited control over one’s destiny demanded by the
value of autonomy might imply that one should have some control over one’s
immediate environment, but not over the rest of the world. However, what is really
troublesome is that if each person must be asked about any use of the collective
property, she must also ask about any such use. So others can veto uses that satisfy
basic needs. Joint Ownership would not give people the claim right that Common
Ownership acknowledges. So Joint Ownership violates autonomy by expecting of
each person to get everyone’s consent before she can satisfy her basic needs.
Perhaps I have not offered the best view of Joint Ownership. Joint Ownership,
one might say, should not be conceptualized at the level of acquisition (which is
where my objection applies). Instead, this view captures the idea that we must
justify the acquisition of resources to each other. This could be done by modeling an
original position where all parties are joint owners and seek to agree on principles
26
under which all may acquire without unanimity in particular acts. In the original
position, this is to ask what permissions it is reasonable both to give and to receive.
Let us grant all this. But Common Ownership would then emerge from such
deliberation. An “original position” is an expository device to capture factors
relevant to collective decisions. Rawls’ Theory is the contemporary locus classicus for
the application of this device. Given the nature of the state, we must decide which
features of individuals give them just claims to primary goods. In each case, this
must be carefully argued in light of the factors characterizing shared membership in
the state as a ground of justice. In the original position where deliberators are
concerned with one state, deliberators know all and only those features of
themselves that entitle them to primary goods. Were we to construct a similar
device here, we could only help ourselves to the claims leading to collective
ownership, of which after all Common Ownership and Joint Ownership are
competing conceptions.
Suppose the question arises of whether, say, intelligence and strength make
it acceptable for some to acquire more resources than others. One might incline to
answer negatively because of the morally arbitrary nature of these features. But this
will not do. Consider again the parallel to the state. Strength and intelligence should
have a limited effect on one’s distributive shares because such assets are morally
arbitrary. Pressed why this arbitrariness matters, we could say that everybody,
weak or strong, intelligent or simple-minded, is subject to the state (an artificial
structure) and offer the considerations discussed in Chapters 2 and 3 of OGJ where I
explore the normative peculiarity of the state.
27
However, crucially, when discussing resources and spaces, we can offer no
such elaboration to support duties among all co-owners beyond what Common
Ownership prescribes. As long as the exercise of intelligence or strength does not
keep others from satisfying basic needs, there is nothing morally problematic about
this exercise. Unlike in the case of the state, no additional considerations are
available when discussing resources and spaces to explain why certain kinds of
arbitrariness would be problematic.
What enters here is a point made before: Whenever somebody offers a
stronger interpretation of collective ownership than Common Ownership, a sensible
response is that Common Ownership exhausts the claims supporting collective
ownership. As reasonable persons can reject stronger claims in support of collective
ownership, they can also reject stronger conceptions of it. So no stronger conception
delivers natural rights (rights every reasonable person should accept). Therefore, as
a way of setting up certain deliberations, Joint Ownership does not conflict with
Common Ownership as a view about how co-owners should relate to each other.
Common Ownership would be chosen in the original position that accompanies Joint
Ownership so understood.
9. Consider now Equal Division as defended, for instance, by Steiner (1994). Equal
Division gains plausibility from the idea that there is a (figurative) heap of resources
to which each person has an equal claim. However, the idea of “dividing up” such a
heap presupposes an ability to assign values to sets of resources to render them
comparable. This could be done in ways that either do or else do not draw on human
28
practices. The second manner of doing so is ruled out from the start. Such an
approach would involve evaluations made from something like a divine standpoint,
or a standpoint of the universe. Regardless of whether it is plausible for anything at
all, such a standpoint holds no plausibility for an assignment of values to original
resources. These assignments would have to be made in a way that draws on human
practices.
To assign such values one needs to find some way of assessing an aggregated
value for the overall heap of resources. This would be complicated because we do
not merely have to assess property values of two-dimensional spaces, but the
overall usefulness of three-dimensional regions for human purposes. But let us
ignore the complexity of this enterprise. What is crucial is that defenders of Equal
Division need a uniquely most plausible way of assessing the value in question, one
that everybody could reasonably accept. The aggregate value of the overall heap of
resources would in particular draw on valuations of raw materials. However, many
materials only acquire value through activities that require social contexts. How
valuable, say, oil, uranium, or silicon are depends on what people can and want to do
with them. So it depends on what technology is available that requires these
materials; on how people choose to integrate it into their lives; and on what specific
property rules determine what they can do with resources and technology.
These matters do not only in fact vary across societies, but are not the sort of
thing for which there would be a single most plausible arrangement that everybody
could be expected to respect. One might say that, at least for those entities for which
there is a world market value, we should use that value, and find some way of
29
assigning values to those entities that are not priced in this way. However, world
market prices have arisen from different ways of valuing entities in local contexts
and merely reflect their differential impact on overall demand. Such prices cannot
provide what defenders of Equal Division need to determine which resource
bundles have equal value.
A supportive consideration for my argument against Equal Division is this:
Suppose we have fixed a context for which we know what technology is available
that requires certain materials; we know how people integrate such technology into
their lives; and we know what rules determine what people can do with resources
and technology. How valuable particular resources would be nonetheless depends
differentially on the activities of different people. Not everybody would contribute
equally to the practices that make materials valuable. This observation would sit
uneasily with the claim that the particular manner of valuing resources used in this
context should be employed to divide up a figurative heap of resources.6
One might wonder whether the problem I raised in the second to the last
paragraph could be solved through an auction mechanism of the sort used by
Ronald Dworkin (1981) and (2000). Dworkin envisages a scenario where a group of
ship-wrecked people enter an auction with the same number of shells to bid for
resources. Participants calculate their demands at every price and submit the
6
(1) Miller (2007), chapter 3, rejects equal entitlements to resources as a principle of global equality since
“the idea of global equality of resources remains indeterminate in the absence of a non-arbitrary way of
determining resource values” (p 61). Although Miller thinks his argument has further-reaching
implications, it is an argument (only) against Equal Division, very similar to mine. (2) If one particular
measure for evaluating resource bundles were picked although many materials only acquire value through
activities that require social contexts, the claim that all human beings have an equal claim to the spaces and
resources of the earth in terms of that measure would simply be unfounded.
30
results to an auctioneer. The auctioneer sets the prices so that demand across
participants equals the amount of the goods. All shells are spent, and all goods clear.
What individuals can acquire arises from how much others value the goods. But as
Dworkin is aware, the applicability of this device presupposes facts about what kind
of technology is available, how people choose to integrate it into their lives, and
what rules determine what they can do with resources and technology. Dworkin’s
device therefore does not provide what defenders of Equal Division need.7
One might also object that I fail to do justice to Steiner (1994). Steiner aims
to distribute freedom equally. He seeks to do so via two derivative principles of
original ownership: self-ownership of persons and equal ownership of original
resources, captured in terms of Equal Division. Equality of resources (equality of
current exchange value of individuals’ current total holdings) is supposed to be
indicative of equality of freedom. But we again encounter the problem that the value
of any set of resources and spaces depends on preferences and judgments about
what types of actions can be performed, as well as on the level of technology that
generates those. These things indeed change over time in response to scientific
advancement and cultural shifts. None of this is a problem if Steiner’s view is
appropriately limited in its application, as Dworkin’s auction mechanism is limited
to people who have much in common as far as scientific advancement and cultural
7
But see Brown (2009), chapter 7 for an attempt to reconstruct Dworkin’s auction for the global
level. Brown envisages an emergency evacuation of the earth after a crisis that some people from all
cultures survive. After arriving on an inhabitable planet smaller than the earth, they use Dworkin’s
auction device to divide up the land. Brown’s proposal for how to adjust Dworkin’s device seems to
function well as a political proposal (much as my immigration proposal in Chapter 8 of OGJ does), but
does not solve the problem we are discussing now.
31
parameters are concerned. But we cannot thereby establish Equal Division as a way
of generating natural original ownership rights.
10. Our findings contrast with the broadly egalitarian results with which I have
started to develop my pluralist view on the grounds of justice in Part 1 of OGJ. As
such a ground, collective ownership differs enormously in its implications from
shared membership in a state. While the density of the relation of shared
membership in a state creates strong principles of justice, there is little to say by
way of formulating starting points that generate natural ownership rights. Within an
intensely shared and jointly maintained social world egalitarian pressures are
considerably higher than for the natural world.
It is not without some ex ante plausibility to approach these topics with
intuitions that point precisely the other way: that the equality pertaining to the
natural world should be much stronger than what I allow (because the natural
world “is just there”), and that the inequality pertaining to the social world is much
stronger than I allow (since people leave their mark in the human-made world in
very different ways). So in that sense, the theses I have advanced here are nontrivial. The arguments I have offered are meant to show that the ex ante intuitions I
just sketched are ultimately misguided.
We find that the following principle of justice is associated with collective
ownership: The distribution of original resources and spaces of the earth among the
global population is just only if everyone has the opportunity to use them to satisfy
their basic needs, or otherwise lives under a property arrangement that provides
32
the opportunity to satisfy basic needs. This principle is the pivotal result of Part 2 of
the OGJ.
One might still wonder if we do not plainly need some conception stronger
than Common Ownership to give fair consideration to those bearing the
consequences of appropriation. Consider two groups of ship-wrecked people on an
island. One group occupies most of it, leaving just enough to the others to satisfy
basic needs. According to Common Ownership, this may not be unjust, which might
seem counter-intuitive. But Common Ownership does not demand of those left with
little to acquiesce. As far as original ownership is concerned, they are justly entitled
to taking holdings if the others do not use them to satisfy basic needs. Neither side
commits an injustice, as far as those rights are concerned, either by appropriating
much more than others, or by not accepting this result. Nor would they in that sense
commit an injustice if either side defended the exercise of their rights with force, if
force is limited to what is necessary to this defense. This analysis also applies to the
thought experiment of the people who control access to the US via sophisticated
border surveillance. They would not do anything unjust in terms of Common
Ownership, but neither would others if they tried to dismantle the surveillance to
enter the country.
While this seems right as far as natural ownership rights are concerned, we
can also ask: under what circumstances could both sides be reasonably expected to
waive their liberty right to resources within, or entry to, a certain portion of threedimensional space? Under what conditions could they not only attempt to control
entrance to an area, but expect outsiders to accept exclusion? As far as the group is
33
concerned that occupies most of the island, we should say this: while it would not be
unjust to exercise liberty rights in this way, it would be reasonable for them to
waive their rights, but unreasonable to expect others to suspend efforts to enter.
Common Ownership does give appropriate consideration to individuals who bear
the consequences of appropriation. It does so by allowing not only for judgments of
“just” and unjust” but also for judgments in terms of what exercises or waivers of
rights it is, or is not, reasonable to expect.
Malcolm Bull (2013), in his in many ways very perceptive review of OGJ in
the London Review of Books, worries that requirements of reasonable conduct may
fall short of what is needed. Especially, the account of immigration in OGJ is
developed in terms of reasonable conduct. Bull thinks that immigrants may not be
able to enter since it is merely a demand of reasonable conduct that the host let
them in. Indeed, in my dwindled-population example, would-be immigrants would
not be doing anything unjust if they tried to dismantle the surveillance systems that
keep them from entering, but neither would the remaining Americans if they
redoubled their efforts to keep them out. Bull is right that if there were a famine in
the rest of the world, and everyone sought entry to the US, the Americans would be
entitled to use robotic guards to detain the others and feed them their ration of
natural resources at the border.
It would indeed not be unjust but it would be highly unreasonable. One may
wonder how much bite it has to say that. Chapter 17 of On Global Justice discusses
how different principles of justice would apply to the state. It points out that
principles that capture reasonable expectations should only be integrated at a later
34
stage of development than the principles of justice that are concerned with nondomestic matters, at a stage when countries can be expected to contribute to the
creation of a mutually acceptable global order. But once such a stage is reached,
principles of reasonable conduct concerned with immigration, among other things,
should get priority over principles of justice concerned with the relative standing of
citizens vis-à-vis each other and regulate inequalities that remain after the
preceding principles have been realized. Those demands of reasonable conduct
should be discharged – and resources be redirected accordingly -- before remaining
primary goods are regulated entirely in terms of domestic priorities.
Would this be enough to make sure that would-be immigrants who are
entitled to entry as a matter of reasonable conduct would be able to enter? Perhaps
not. But keep in mind that our subject matter is principles of justice and reasonable
conduct. The world obviously is not just. So even if something were a matter of
justice there is a guarantee that it be done only to the extent that those who can
make it happen prioritize the relevant measures in their actions. Justice, in that
regard, is no different from reasonable conduct.
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