Author: Timothy Sandefur
In his comments on the amusing story of a woman claiming ownership of the moon, my colleague, Luke Wake, points to the “labor” theory of property rights advanced by John Locke—the philosophical founding father of the United States. This brings to mind some interesting thoughts about how our views have changed regarding idle land—even, amazingly enough, on the moon!
As Luke noted, Locke argued not only that your right to own property comes, ultimately, from the fact that you devoted your time and energy to putting it to use—he even argues* that you have no right to just allow land to sit, unused: “Whatsoever he tilled and reaped, laid up and made use of, before it spoiled, that was his peculiar Right; whatsoever he enclosed, and could feed and make use of, the Cattle and Product was also his. But if either the Grass of his Inclosure rotted on the Ground, or the Fruit of his planting perished without gathering and laying up, this part of the Earth, notwithstanding his Inclosure, was still to be looked on as Waste, and might be the Possession of any other.” A century later, Thomas Jefferson observed that French laws that allowed wealthy aristocrats to prohibit the cultivation or possession of land by peasants so as to provide idle pastures for wealthy aristocrats to enjoy was a violation of natural law: “Whenever there is in any country, uncultivated lands and unemployed poor, it is clear that the laws of property have been so far extended as to violate natural right.” Jefferson’s words have often been misquoted by enemies of property rights who want to claim the Sage of Monticello as their own, but it is clear that he was complaining about legal institutions, like primogeniture and entail, that restricted the right to sell, buy, and use private property.
But today, unlike Locke and Jefferson, the law often favors leaving land idle and unproductive. Environmental restrictions make it difficult even to clear away land to prevent devastating fires; exactions require property owners to leave portions of their land undeveloped in exchange for permission to use other parts of their land; California’s Public Resources Code even declares that “open space” is to be legally presumed “the best and most necessary public use” for the exercise of eminent domain! In Locke’s day, the reverse would have been true: eminent domain would have been appropriately used to seize idle land and put it to productive use.
Why this change? In part, it’s due to the intellectual leadership of the environmental movement, and in particular, what philosophers call the “intrinsic theory of value”—the idea that something is valuable in itself, and not because it serves some human need or goal. This theory has been very effectively refuted by philosophers like Ayn Rand, Douglas Den Uyl, Douglas Rasmussen, Tara Smith, Tibor Machan, and others. But it persists, not only among philosophers, but among lawyers, professors, and activists. When environmentalists try to shut down roads in national parks in order to preserve the pristine nature of the park, or when they use the Delhi sands flower loving fly or the kangaroo rat to hold up the construction of a hospital, they’re relying on this intrinsic theory of value: to them, the park or the fly are just good in themselves—not good for someone, or because of something, but just…good. Comparing the costs and benefits is not allowed—asking why the thing is good is not allowed.
This is wrong. Things are good, not in themselves, but because they serve human life; because they serve our goals or our needs. Nature parks and beautiful scenery is a good because it contributes to our lives to some degree. And it’s right for us to weigh the costs and benefits, to decide if, perhaps in this case, we have more need for a hospital than for a Delhi sands flower loving fly. That kind of reasonable balancing of our desires is crucial, and it’s what the free market allows us each to do. We actually do not want a perfectly clean planet, or a perfectly pristine environment—nor should we. A perfectly pristine environment would be one with no humans in it. What we actually need is a planet that is clean enough, given our other needs. But by disregarding the crucial moral fact that things are valuable only in relation to how they serve human needs, environmentalists often find themselves in the position of arguing against making the kinds of choices necessary for humanity to flourish. That’s why it’s not an exaggeration, but the literal truth to say that the environmental movement often elevates nature (or “Nature”) above human needs and human rights.
One might think such lunacy (pardon the pun) was limited to our home planet, but here’s an example of this thinking being applied to, sure enough, the moon. Andrew Smith wrote in the Guardian three years ago that environmentalists ought to “stop state-sponsored mining companies” from “chomping [the moon] up” for needed minerals. But as Mark Whittington pointed out in response, mining the moon could be very good for Earthlings, yielding fuel that would “burn cleanly and leave no radioactive residue.” Critics like Smith are, in fact, not so much pro-environment (there is no “environment” on the moon) as they are anti-development—which means, anti-human:
One can be forgiven for suspecting that the true motives of environmentalists, whether they oppose mining the Moon, drilling for oil in Alaska, or building wind farms off Nantucket, involve less a love for the environment and more a hostility for technology itself. Modern politics has been driven, in part, by not only an irrational fear of technological progress but an antipathy toward corporations, fueled by popular culture, that make a profit off new technology. It would be a pity if the economic development of the Moon, which has such a potential for addressing problems of energy and the environment here on Earth, could be stymied by political protest brought about by irrational fears. The attitude expressed by Smith is likely shared by many others. It suggests that the job of education of the benefits of the economic development of the Moon and space in general will be a long and arduous one.
*-Locke’s argument was abused in the first century of American history to rationalize the seizure of land from Indian tribes, many of whom were not, in fact, wasting the land or leaving it idle, but were cultivating it. (Among the most tragic examples was the Cherokee; in a series of decisions, Chief Justice John Marshall held that the government had no right to dispossess the Cherokee from their lands, but President Andrew Jackson simply disregarded the law and allowed the government to seize their land—often, homes and productive farms—for transfer to whites.)
**-Incidentally, the excellent scholarly journal Social Philosophy & Policy recently published a symposium issue on Locke, property rights, and related subjects.