¹ For indications of this, see Schmidtz, David, The Limits of Government: An Essay on the Public Goods Argument (Boulder, CO: Westview Press, 1991), 17–20Google Scholar, where he cites several authors making this sort of claim.

² Macpherson, C. B., The Political Theory of Possessive Individualism: Hobbes to Locke (Oxford: Oxford University Press, 1962), 208Google Scholar. See also Zack, Naomi, “Lockean Money, Indigenism and Globalism,” Canadian Journal of Philosophy Supplement 25 (1999): 31–53, at 33CrossRefGoogle Scholar.

³ Lewis, Thomas, “An Environmental Case against Equality of Right,” Canadian Journal of Political Science 8, no. 2 (1975): 254–273, at 260CrossRefGoogle Scholar. See also Seaman, John, “Unlimited Acquisition and Equality of Right: A Reply to Professor Lewis,” Canadian Journal of Political Science 11, no. 2 (1978): 401–8CrossRefGoogle Scholar, where he argues that while money does not spoil and so the second proviso causes no problem for those that hoard (money), hoarding nonetheless “violate[s] equality of right” and the “sufficiency constraint of leaving enough and as good for others” that he thinks equality of right requires (ibid., 403). Seaman seems to think the problem will be that there will not be enough and as good land for all (and this is something to which people have a right).

⁴ Simmons, A. John, The Lockean Theory of Rights (Princeton, NJ: Princeton University Press, 1992)Google Scholar, notes that the two provisos may conflict and that at II.46 (see note 6 below), Locke treats the spoilage proviso as more fundamental than the first (ibid., 282); Simmons also indicates that the provisos may be consistent (ibid., 283–84). In ibid., 288, he notes that it is “at best an odd reading of Locke” to think, as many do, that the first proviso is “the most important limit on property in Locke … a limit that renders the waste limit pointless or of distinctly secondary importance.” He also notes others who recognize the correct order of importance (ibid., 289 n. 164). One of those, Waldron, argues that the waste condition is the only real restriction on property. See Waldron, Jeremy, “Enough and as Good Left for Others,” Philosophical Quarterly 29, no. 117 (1979): 319–28, at 320–21CrossRefGoogle Scholar; and Waldron, Jeremy, The Right to Private Property (Oxford: Oxford University Press, 1988), 209–18Google Scholar. See Waldron, The Right to Private Property, 209, for a clear statement that the waste proviso “is not abrogated or rendered ineffective” by money, but that “it loses the quantitative delimiting character” it has without money. Waldron thinks the first proviso is “an effect of the early operation of” the second (ibid., 211). Against Waldron's view, see Sreenivasan, Gopal, The Limits of Lockean Rights in Property (New York: Oxford University Press, 1995), 37–40Google Scholar, who treats the waste proviso as more fundamental than the first (sufficiency) proviso, but thinks the latter also sets a real restriction (see, e.g., ibid., 34). On Simmons's view, the first proviso sets an “outside limit of our share,” while “our own capacity to use what we appropriate” sets an “inside limit,” and “violating either the outside or inside limit is unjust (wrong)” (Simmons, The Lockean Theory of Rights, 283; see also 298).

⁵ For an argument that the first proviso is not problematic for contemporary accumulation of property, see the works cited in note 7 below.

⁶ Locke, John, Two Treatises of Government (1689), ed. Laslett, Peter (New York: Cambridge University Press, 1960), II.27Google Scholar. All references to this work will be to treatise number (I or II) and section number. I will not be considering Locke's view that it is labor-mixing that makes property possible. That view has been criticized, of course, but I think Simmons's reconstruction and defense of Locke's argument is successful (see especially Simmons, The Lockean Theory of Rights, 272–74).

⁷ See Schmidtz, David, “When Is Original Appropriation Required?” Monist 73, no. 4 (1990): 504–18CrossRefGoogle Scholar; Schmidtz, The Limits of Government, 20–27; Schmidtz, David and Goodin, Robert, Social Welfare and Individual Responsibility: For and Against (Cambridge: Cambridge University Press, 1998), 31–33CrossRefGoogle Scholar; and Schmidtz, David, Person, Polis, Planet (Oxford: Oxford University Press, 2008), 197–98Google Scholar. Cf. Lewis, “An Environmental Case against Equality of Right,” 262.

⁸ Shiffren, Seana Valentine, “Lockean Arguments for Private Intellectual Property,” in Munzer, Stephen, ed., New Essays in the Legal and Political Theory of Property (Cambridge: Cambridge University Press, 2001), 156Google Scholar.

⁹ Nozick, Robert, Anarchy, State, and Utopia (New York: Basic Books, 1974), 176Google Scholar.

¹⁰ Locke, II.31. In II.37, Locke indicates that no one has the right to allow spoilage and that allowing it is against natural law. Locke's argument assumes a theological basis that I do not rely on here.

¹¹ See Sreenivasan, The Limits of Lockean Rights in Property, 35, and Lewis, “An Environmental Case against Equality of Right,” 263, for the plausible argument that land becomes scarce because money cannot spoil (so more land can be used to produce, resulting ultimately in storeable money rather than perishable goods). While that is likely both to be correct and to be Locke's view (see Locke, II.47–50), it does not mean that money (or land) cannot be wasted. Of course it can: “throwing money in the sea or melting it down and sprinkling it over the earth might well count as a kind of waste prohibited by natural law” (Simmons, The Lockean Theory of Rights, 300 n. 195). See also Damstedt, Benjamin, “Limiting Locke: A Natural Law Justification for the Fair Use Doctrine,” The Yale Law Journal 112, no. 5 (2003): 1179–1221, at 1196CrossRefGoogle Scholar, for the view that the invention of money removes (most) worries about waste, but also for the view that the waste proviso is negligible with regard to tangible goods (since they can be sold), but more important for intangible goods (ibid., 1182). Damstedt is worried about wasted intellectual property (ibid., 1212ff.). For related discussion, see Strahilevitz, Lior Jacob, “The Right to Destroy,” The Yale Law Journal 114, no. 4 (2005): 781–854, at 809–812Google Scholar, for an excellent case in patent law; and Shiffren, “Lockean Arguments for Private Intellectual Property,” 140 n. 6, for discussion of why “[t]he value of information may be time-dependent.”

¹² As I have already indicated, the better Locke scholars do not ignore it. Simmons, Waldron, and Sreenivasan, for example, recognize its importance.

¹³ Waldron indicates a wonderful example in John Steinbeck's Grapes of Wrath (chapter 25) where oranges are guarded as they rot to prevent anyone from eating them because the owners wish to inflate the price of oranges by limiting supply. This is, Waldron says, a violation of the proviso because someone “accumulates resources purely to beggar his neighbors, to diminish their ability to satisfy their needs” (The Right to Private Property, 208).

¹⁴ Consider Becker, Lawrence C., Property Rights: Philosophical Foundations (London: Routledge and Kegan Paul, 1977), 82Google Scholar. On Waldron's account (see The Right to Private Property, 218–19), spoilage seems only to limit property retrospectively, so that we cannot say until after the apples spoil that they were not the property of the Misanthropic Apple Farmer. This may be so (it fits with the passage from Locke, II.38, just cited), but it seems unlikely. Citing the same section, Simmons indicates that “Locke allows … that property in external goods must continue to be used by the owner, else it returns to the common” (The Lockean Theory of Rights, 230). I think this is an accurate reading of Locke; if it is correct, it cannot be that the limit is only retrospective, because from a retrospective viewpoint, there is nothing to return to the common (the apples are gone, spoiled). In any case, if there is a moral problem, it begins before the actual spoilage is complete.

¹⁵ I will not here seek to determine if these intuitions are correct; I merely use them to motivate the view that how the proviso is formulated matters. For Locke, I think, the purported owner loses the right to exclude in both cases; that is, both the apples and the tomato cease to belong to the cultivator, and others can permissibly take them.

¹⁶ As I have already indicated, I do not seek to determine if Locke's argument for property, as opposed to his view that waste limits property, is sound. See Becker, Property Rights, 32–56, and Simmons, The Lockean Theory of Rights, 236–77, for excellent discussions of that argument. Becker includes helpful discussion of J. S. Mill's reconstruction of Locke's argument (in Mill's Principles of Political Economy, Book II, chapter 2, section 6).

¹⁷ This would be intrusive because it is not part of a system that one could become accustomed to. Taking “holdings” (or “possessions”) as a broader category than property, so that one may have a holding with or without full property rights in the item, we can say that a system wherein property was more-or-less a life-long lease on holdings need not be intrusive. (Otsuka, Michael, Libertarianism without Inequality [New York: Oxford University Press, 2005]Google Scholar argues for such a system.) It would, at any rate, be no more intrusive than our current income tax system. By contrast, stepping in to take anything allowed to go to waste would require constant vigilance of all citizens, who would constantly worry that something they (take themselves to) own would go to waste and thus be confiscated.

¹⁸ For a discussion of the historical definitions of waste, see Desrochers, Pierre, “How Did the Invisible Hand Handle Industrial Waste?” Enterprise and Society 8, no. 2 (2007): 348–74, at 349–51CrossRefGoogle Scholar.

¹⁹ McCaffery, Edward, “Must We Have the Right to Waste?” in Munzer, Stephen, ed., New Essays in the Legal and Political Theory of Property (Cambridge: Cambridge University Press, 2001), 76–105, at 85–87Google Scholar.

²⁰ Simmons, The Lockean Theory of Rights, 285. While the second item in Simmon's distinction is McCaffery's “dissipation,” the first is something distinct from either item in McCaffery's distinction—perhaps a type of hoarding.

²¹ McCaffery, “Must We Have the Right to Waste?” 86.

²² Waldron claims that “[t]he terms of the Spoilation Proviso … are not breached unless the goods in question actually perish” (The Right to Private Property, 218–19). I doubt this is Locke's final view (Waldron convincingly cites II.46), but textual exegesis is not my concern. It seems likely to me that things can be wasted without actually perishing. Strahilevitz uses “destruction” and “waste” interchangeably, but does not take the former to mean complete perishing. See Strahilevitz, “The Right to Destroy,” 792.

²³ McCaffery, “Must We Have the Right to Waste?” 88–89.

²⁴ These were suggested by analysis, Gordon Hull. In his, Hull, presented in, “Clearing the Rubbish: Locke, the Waste Proviso, and the Moral Justification of Intellectual Property,” Public Affairs Quarterly 23, no. 1 (2009): 67–93Google Scholar, you only have waste if “(a) there is irrevocably unmet demand, (b) the goods to satisfy that demand already exist,” and “(c) property claims prevent satisfaction of those demands.” I am inclined to think, though, that the product of a great musician is wasted if there is no demand for the work because existing persons are too unsophisticated to appreciate it or because it is simply unknown. In neither case would there be an irrevocably unmet demand, and in neither case would it be property claims interfering. Hull's analysis has the virtue of providing a direct relation of waste to property. My account, by contrast, leaves that for a later stage.

²⁵ Matt Zwolinski indicated this; I appreciate it. Working out the relation between need and waste would also entail an analysis of need (as opposed to want); I cannot offer such an analysis here.

²⁶ Andrea Scarantino pushed me on this question.

²⁷ Some people apparently do not think there is waste in the case as I specified it, since (I think) the food would go unused in any case. This strikes me as mistaken as a conceptual issue. I agree that the act of destroying the excess food might not be immoral in this case (or in a case where food arrives as manna from heaven), but the act still seems accurately described as waste. If the definition I endorse below is correct, it is waste. Importantly, I will note shortly that the food might “go to waste” without the interference of the inhabitant, but this would not be the waste of the inhabitant (it would be nature's waste).

²⁸ See Michener, James, “On Wasting Time,” Reader's Digest 105, no. 631 (October 1974): 193–200Google Scholar, in which he argues for the value of wasting time. I don't disagree with his basic sentiment, but I suspect that what he describes as wasting time is not actually wasting time. It is more like usefully passing time in a way that allows one to refresh.

²⁹ See, e.g., Simmons, The Lockean Theory of Rights, 282–98. For Sreenivasan, the spoilage condition “actually imposes a due-use condition on nonmonetary goods, in addition to the requirement that one not allow one's possessions to spoil” (The Limits of Lockean Rights in Property, 101).

³⁰ This is likely the first intuitive definition of waste. For Damstedt, “[w]aste occurs where a unit of a product of labor is not put to any use” (“Limiting Locke,” 1194), but he also indicates that the waste proviso is violated when there is a combination of nonconversion (into money) and nonuse (ibid., 1183).

³¹ Nonetheless, I do not think we should simply ignore the uses made of various objects by nonhuman creatures—this is the view that nature only exists for us, which strikes me as an impoverished view of nature.

³² Jessica Berry suggested I consider this possibility.

³³ I am inclined to think this is often also a confused way to speak or a shortcut for something different: disappointment with the loss.

³⁴ Marcel Weber suggested this. As I suggested in the last paragraph, I reject this claim in my final analysis. If this view were correct, nature could not waste (unless it were taken to be an agent).

³⁵ This may not be the only moral concern. If the thing wasted is of moral value, its wasting is of moral concern, and this is distinct from the moral concern with the agent who does the wasting. Jim Taggart pointed out the need for this qualification.

³⁶ Baumrin, Bernard, “Waste,” Journal of Social Philosophy 24, no. 3 (1993): 5–18, at 7–8CrossRefGoogle Scholar, notes that waste may be a comparative term.

³⁷ Note that if this definition were correct, our deserted island inhabitant would not be wasting when he tosses foodstuffs into the ocean in a weighted bag, if the island produced so much that he should not use (eat) it all. If this were correct, we could say that nature wastes here, but not that he does. Those who think these conclusions are correct may disagree with my rejection of this definition. Thanks to Bob Fudge for pointing this out.

³⁸ Simmons, The Lockean Theory of Rights, 285 (emphasis in the original).

³⁹ Baumrin, “Waste,” 6–7. See also note 22 above.

⁴⁰ Lewis seems to consider waste to be only misuse: “Waste, meaning a misuse of property, is excluded as a possible constraint because it is inconsistent with the initial assumption of freedom to govern oneself” (“An Environmental Case against Equality of Right,” 260). Against this view, see the final paragraph of this subsection.

⁴¹ Helga Varden thinks that “trying to produce tomatoes in the north of Finland (an environment naturally hostile to successful tomato farming)” is wasteful, and that we cannot maintain a distinction “between waste and inefficiency when the inefficiency is so great as to call into question the rationality of the alleged ‘productive’ activity.” Varden, Helga, “Locke's Waste Restriction and His Strong Voluntarism,” Locke Studies 6 (2006): 127–141, at 135Google Scholar. This captures, I think, the normal intuition that even successful activities can be wasteful if the success is contingent upon great inefficiency.

⁴² The example was suggested by Ari Kohen.

⁴³ This would be true even if he literally could not use it. In such a case, we might not say he shouldn't waste it (as he cannot fail to do so), but that does not mean it wouldn't be waste.

⁴⁴ This example and the water-running example below were suggested by Simon Cabulea May.

⁴⁵ Richard Chappell suggests that this is just the same normative element repeated twice, since “whether it's ‘under-usage’ depends on how much it should be used.” He thus thinks this definition might be reworded, so that waste would be “using something less than one should.” I think, by contrast, that it may be helpful, in various cases, to recognize that whether something should be used, and how much it should be used, are distinct questions. Running water, for example, should be used, but how (or how much) it should be used is a separate question. (I think we can identify some ways it should not be used: for example, for one's listening pleasure.)

⁴⁶ It may be tempting to take a different tack here. The benefit of this new definition is that it would always allow us to say, should waste be blameworthy, that the agent who wastes is blameworthy (even when the waste involves someone causing someone else to underuse). It might be thought that this can be accomplished while maintaining that waste is simply “the underusage of something one should use.” We can have blame in the appropriate place, on that view, if waste itself is not morally blameworthy but the causing of waste is. I will not dwell on this objection here.

⁴⁷ Brandon Turner originally suggested this, but it did not become fully salient for me until a discussion with Donna Cohen.

⁴⁸ This includes becoming useless, ceasing to be useful.

⁴⁹ Simon Cabulea May reminded me of this.

⁵⁰ Kristin Nelson Jones suggested this.

⁵¹ This may be thought to push back to the previous definition, “the causing of the underusage of something one should use.” “Underusage” is lost potential that is not offset. We rejected that definition, though, because it did not handle cases where overusage was wasteful. If we refined it to “the causing of lost potential without offsetting gain,” it would be similar to the first part of the definition I propose here. We could make it closer still: “(a) any process that results in potential being lost without offsetting gain, or (b) the result of such a process.” I assume this could also be refined further to match the final definition I provide below, but I see no advantage in doing so.

⁵² I should note that something that seems like waste might result from a process that produces more benefit than is lost. This would not, on this technical definition, be waste. I would call it a “remainder” or a “by-product.” The intuition against calling it waste is simply that it was part of a process that created value and that could not (we assume) have created such value without it. This is like the destruction of gas in the use of a motor that is necessary for some benefit—not a waste, but proper use. Of course, this by-product could be wasted once it is produced (by being subject to another process that produces less benefit than is lost and wherein it becomes less useful), or it could be used productively.

⁵³ Or shortened even further to “any inefficient process or the result thereof.” I believe this fails for the same reasons discussed in this paragraph and for the reason discussed in the penultimate paragraph of the next subsection (III.D).

⁵⁴ Damstedt, “Limiting Locke,” 1198. It may be, as Pat Greenspan suggested in correspondence, that the trees go to waste even if we don't waste them, or it may be that nature wastes the trees. If so, we might ask whether we have a responsibility to prevent the waste, but we would not, I think, say we waste. Finally, it may be, as Matt Zwolinski suggested in correspondence, that we waste an opportunity by not using the trees. Still, we are not wasting the trees. The case is a bit harder when we discuss things like wind and sun power. As Jim Taggart suggested in correspondence, it might seem that we do waste when we do not take advantage of them to help with our energy needs. Still, even here, I am inclined to think that what we waste (directly) is an opportunity.

⁵⁵ At least if we ignore the benefit of oxygen production and the like.

⁵⁶ Moreover, if it is assumed that revealed preferences can never be wrong, there are worse difficulties than the (likely) fact that no one would ever be said to be wasting. (For more on these difficulties, see my “On Hard-Headed Economics Capturing the Soft Side of Life,” manuscript, section V.) From the other side, discounting revealed preferences does not mean giving priority to some governing body that is meant to decide what is best for everyone. I thank Andrew I. Cohen for prompting here, and Ellen Paul for prompting on the entire question of the objectivity or subjectivity of use-value.

⁵⁷ The purposes of moral agents are not merely those things that particular moral agents happen to want; they are objectively good for those agents (whereas agents may want things that are not good, and may even be bad, for them). I cannot, of course, offer a full explanation of objective purposes here, and, hence, cannot give a full explanation of the objectivity of use-value. I suspect that a eudaimonist account, perhaps an Aristotelian one, would be the best way to approach this question. In any case, it may be that the best way to understand the objective value of the various possible uses of an object requires counterfactuals of the following sort: if item X had been used as Y, it would have served purpose P for a moral agent. But I leave this question to the side.

⁵⁸ Paul Gowder raised this concern.

⁵⁹ I suspect the ambivalence is present in Locke's thought. He seems, after all, to think that the Europeans' taking of land from Native Americans in his day was acceptable, since the latter were “wasting” the land by not using methods of agriculture available in Europe (see II.45; cf. Zack, “Lockean Money, Indigenism, and Globalism,” 32). Surely the Native Americans were not destroying the value of the land or even making it worth less—they were simply not increasing its value. They were, it might be said, hoarding it. Indeed, “land can be wasted (e.g., by the idle rich) by lying unused” (Simmons, The Lockean Theory of Rights, 286–87). Yet “Locke quite explicitly allows accumulation for comfort and convenience not just need-satisfaction” (ibid., 285, referring to Seliger, M., The Liberal Politics of John Locke [London: Allen Unwin, 1968]Google Scholar).

⁶⁰ The billionaire example is problematic, since it assumes we should ignore the value of the investment as an investment that allows other productivity. As I have said, if we do not ignore that, the billionaire does not seem to be wasting at all; she is, rather, making money available—in the form of capital to be borrowed—to others who can put it to more directly productive use than she can herself.

⁶¹ See Sax, Joseph L., Playing Darts with a Rembrandt: Public and Private Rights in Cultural Treasures (Ann Arbor: University of Michigan Press, 1999)CrossRefGoogle Scholar.

⁶² This is not to say that any interference with my purchase is warranted. Perhaps it would even be wrong for most people to even remark about the waste. Yet surely a close friend would be justified in asking if there was some special reason I would make such an oddly expensive purchase, and, of course, there may be special circumstances that make the purchase more beneficial than it appears. Perhaps the shopkeeper is someone I wish to help out but who would not accept the money unless I purchased the umbrella. Still, absent such circumstances, I do not believe we should shy away from the judgment that I would be wasting my money, even if it gave me satisfaction.

⁶³ According to Waldron, Locke believes that “[a]n owner is not entitled to decide to allow his goods to perish uselessly in his possession (II. 46). In Locke's view, such a decision is tantamount to an abandonment of exclusive property in the goods. But what counts as use and what counts as useless destruction is for the owner to decide: briefly, anything he takes to be useful to himself counts as a use of the object however wasteful it may be to someone else” (Waldron, The Right to Private Property, 161). Recognizing Waldron's implicit recognition that waste is indexed, I think the moral claim would reverse Waldron's final point: if waste is immoral, it must be so understood from the broader perspective, not the narrower.

⁶⁴ This objection comes from Justin Weinberg.

⁶⁵ Whether this counts as our wasting (since we do not interfere) or nature's wasting, I will not try to determine.

⁶⁶ The opportunity-cost idea was suggested by Mark LeBar; the idea about aiding pursuit of the good was suggested by Kristin Nelson Jones.

⁶⁷ Perhaps the values are incommensurable, but this need not be the case, since it could simply be that, as it happens, no monetary amount that could be raised in the situation at hand would alter his choice.

⁶⁸ I do not know that any actual member of the Navajo tribe believes this or that the tribe as a whole would endorse it. (But see Nabokov, Peter, Where Lightning Strikes: The Lives of American Indian Sacred Places [New York: Viking Penguin, 2006], esp. chap. 6Google Scholar.) The issue is not pertinent to my point, since surely there could be other examples where some person or group did think this way about an object or place that others had a very different (and perhaps merely monetary) appreciation for. One thinks of the Great Pyramids, the Western Wall, the Dome of the Rock, Stonehenge, etc., but more mundane cases exist, as I will discuss below (see note 99 and the surrounding text). I owe the example of Shiprock and prodding about the point (and help in phrasing it) to Jim Taggart.

⁶⁹ I mean this to be neutral between various ways of understanding efficiency and inefficiency in economics.

⁷⁰ This sort of assumption may have been behind much of Locke's thought on this matter. His failure to remain neutral with regard to the values considered arguably helps explain the limitations of his account of waste and the lack of contemporary interest in it. That is, Locke's account is likely biased toward the view of waste as nothing but inefficiency (i.e., something productive of less benefit than is lost in a purely economic sense).

⁷¹ To be clear, I take a metric to be related to a conception of the good, such that when one measures benefit, usefulness, etc., against a particular metric, anything that helps attain that good is positive, and anything that hinders it is negative.

⁷² Damstedt, “Limiting Locke,” 1195.

⁷³ Chase Turner provided the idea here as well as some of the objections.

⁷⁴ I also follow Feinberg's approach below. See note 85 and the accompanying text.

⁷⁵ A Kantian approach defending duties to oneself may fare better. I suspect, though, that a direct route here could at best defend an imperfect duty not to waste. Nonetheless, in the last paragraph of section IV.D below, I make use of this sort of approach (in more Lockean terms) as part of the argument I think fares best for showing waste to be immoral.

⁷⁶ Bob Fudge provided the idea here as well as some of the objections.

⁷⁷ See, for example, Kass, Leon R., “The Wisdom of Repugnance,” in Kass, Leon R. and Wilson, James Q., eds., The Ethics of Human Cloning (Washington, DC: AEI Press, 1998), 3–60Google Scholar.

⁷⁸ Simmons, The Lockean Theory of Rights, 233.

⁷⁹ I assume the term is better translated “a right to abuse” or “just abuse,” but from Roscoe Pound (1939) forward, it has been deemed a right to destroy, injure, or waste. The sixth edition of Black's Law Dictionary (1990)Google Scholar, for example, talks of an owner as one who has a right “to spoil or destroy” property (this is interestingly dropped in the seventh edition of 1999). See Strahilevitz, “The Right to Destroy,” 783.

⁸⁰ We might want legal interference to be permissible (on Lockean grounds), claiming that such waste—the farmer's allowing the “fruit of his planting” to perish—is such a waste that the apples “might be the possession of any other.” We might want to say, that is, that the farmer's property right is limited by his waste. I will not discuss this here.

⁸¹ The point here is that within a legal system, that system determines the conception of property within the society (cf. Waldron, The Right to Private Property, 31). This is not to say that property is only a legal construct. On my own view, property is a moral concept, but legal systems flesh out the concept to form the conception of property within their societies. In doing so, they greatly influence the resulting property schemes, so that, for example, cocaine is not (conceptually) property (whether or not it should be legal). Any particular property scheme, of course, may be immoral, but this is a question of the morality of the legal system. I thank Andrew I. Cohen and Jim Taggart for pushing me to clarify this point.

⁸² See Strahilevitz, “The Right to Destroy,” 803, 854. Strahilevitz also considers ex ante arguments (ibid., 808–21), but even these are based on the total economic value (fairly narrowly understood) that would be produced by allowing or disallowing the wasteful act.

⁸³ Cohen, Andrew Jason, “What the Liberal State Should Tolerate within Its Borders,” Canadian Journal of Philosophy 37, no. 4 (2007): 479–513CrossRefGoogle Scholar.

⁸⁴ Mill, John Stuart, On Liberty (1859), ed. Rapaport, Elizabeth (Indianapolis, IN: Hackett Publishing, 1978), 9Google Scholar (emphasis added). The harm principle is a moral principle about both individual and legal action. It indicates not only what sorts of justifications for state interference with individuals are legitimate, but also what sorts of justifications are legitimate for anyone to thus interfere. Here, I deal only with the broader category.

⁸⁵ See Andrew Jason Cohen, “What the Liberal State Should Tolerate within Its Borders,” 482. Feinberg writes: “For the purposes of the harm principle, we must think of harming as having two components: (1) it must lead to some kind of adverse effect, or create the danger of such an effect, on its victim's interests; and (2) it must be inflicted wrongly.” Feinberg, Joel, Freedom and Fulfillment (Princeton, NJ: Princeton University Press, 1992), 3–4Google Scholar (emphasis in the original).

⁸⁶ Or a correlated principle like my Principle T (see Andrew Jason Cohen, “What the Liberal State Should Tolerate within Its Borders,” 494).

⁸⁷ Here I simply assume for the sake of argument that there is such a right in a just legal regime. If there is not, then interference with waste of one's own goods is more likely to be morally permissible. This suggests that if there is no moral justification for a legal jus abutendi in property, there is more likely to be a duty not to waste. It does not imply, though, that there is no such moral duty if jus abutendi is part of property.

⁸⁸ For more on this, see Waldron, Jeremy, “A Right to Do Wrong,” Ethics 92, no. 1 (1981): 21–39CrossRefGoogle Scholar; Audi, Robert, “Wrongs within Rights,” Philosophical Issues 115 (2005): 121–39CrossRefGoogle Scholar; and Cohen, Andrew I., “Famine Relief and Human Virtue,” in Cohen, Andrew I. and Wellman, Christopher, eds., Debates in Applied Ethics (New York: Blackwell Publishers, 2005), 326–42, at 330–33Google Scholar.

⁸⁹ I do not want to say that the starving person has a right to food. While I am not prepared to deny such a claim, I also have no defense to offer in its favor. This is somewhat unfortunate, since if the starving person did have a moral (claim) right to food, waste would clearly be immoral in any instance where it prevented satisfaction of that right.

⁹⁰ Ending suffering is not the sole goal of a moral life. As Schmidtz notes, we could end all suffering by making the world uninhabitable to sentient life (see Schmidtz, Person, Polis, Planet, 155). There are other moral values.

⁹¹ Singer, Peter, “Famine, Affluence, and Morality,” Philosophy and Public Affairs 1, no. 2 (1972): 229–243, at 231Google Scholar.

⁹² For Feinberg's discussion of how omissions can be understood as causes of harms, see Feinberg, Joel, Harm to Others (New York: Oxford University Press, 1984), 171–86Google Scholar. See also Smith, Patricia, “Legal Liability and Criminal Omissions,” Buffalo Criminal Law Review 5, no. 69 (2002): 69–102CrossRefGoogle Scholar.

⁹³ Rachels, James, “Active and Passive Euthanasia,” New England Journal of Medicine 292 (1975): 78–80CrossRefGoogle ScholarPubMed.

⁹⁴ Feinberg, Harm to Others, 167. Feinberg attributes the example to Thomas Grey.

⁹⁵ As Matt Zwolinski pointed out in correspondence, this is actually too quick. That I cannot always prevent waste means that I am not obligated to always prevent waste. I may still be obligated to prevent any particular instance of waste. The point in the text is that there are some occasions of waste I cannot avoid and so am not obligated to avoid.

⁹⁶ I thank Jim Taggart for pushing me to discuss this.

⁹⁷ As I have already indicated, none of this implies subjectivism. The metrics involved would be objective facts about the parties. See notes 56 and 57 and the accompanying text.

⁹⁸ Some might think that, in the real world, since the Navajo Nation owns (or, as an independent nation, has sovereignty over) Shiprock, its metric is the controlling one. Others might think that, given the life-saving potential, that view is mistaken. I imagine more people will think that if Big Pharma rightly owns the formation, the questions we are asking here are irrelevant—that if Big Pharma owns the formation, it can do with it as it likes, even destroy it. But that has yet to be established: it is the question of whether waste limits property (a question for another essay).

⁹⁹ The example is from Strahilevitz, “The Right to Destroy,” 784 n. 7. See Eyerman v. Mercantile Trust Co., 524 S.W.2d 210, 217 (Mo. Ct. App. 1975)Google Scholar.

¹⁰⁰ Plausibly, this taking is akin to an original acquisition. When I take the unowned food, it plausibly becomes my property. If it does, the question of wasting unowned goods reduces to the question of wasting one's own goods.

¹⁰¹ See Schmidtz, Person, Polis, Planet, 145–64, esp. 148–49, and Andrew I. Cohen, “Famine Relief and Human Virtue,” for discussions of the limits of the principle Singer offers. Given those discussions, I think Singer's principle needs to be understood differently than Singer himself does if it is to be accurate, but I will not discuss this here.

¹⁰² Hardin, Garrett, “Lifeboat Ethics: The Case Against Helping the Poor,” Psychology Today (September 1974): 38–43 and 124–126Google Scholar. Hardin's point is originally about the morality of government intervention; Schmidtz's point (see the previous note) is more general. In any case, I think both points can be applied to individuals. Nonetheless, as Matt Zwolinski suggested in correspondence, it is clear that moral hazard arguments more easily justify institutions that allow waste than they justify waste by individuals.

¹⁰³ See Schmidtz, Person, Polis, Planet, 125–26, for similar worries. Andy Altman helped me see the need for the comments at the end of this paragraph.

¹⁰⁴ Varden, “Locke's Waste Restriction and His Strong Voluntarism,” 128.

¹⁰⁵ For the view that Locke intends the waste proviso to be an “imperative to labour,” see Lewis, “An Environmental Case against Equality of Right,” 260; cf. Shiffren, “Lockean Arguments for Private Intellectual Property,” 147ff. See Simmons, The Lockean Theory of Rights, 101, for a defense of the view that while we must labor, we can productively do so in ways that fit into our own plans.

¹⁰⁶ Varden, “Locke's Waste Restriction and His Strong Voluntarism,” 133.

¹⁰⁷ Hence, for Locke, “Productive labor … is virtuous and God-fearing; while idleness is sinful as well as anti-social” (Waldron, The Right to Private Property, 147). Locke is against both the idle able poor and the idle rich; indeed, it is idleness per se he opposes (Sreenivasan, The Limits of Lockean Rights in Property, 47). He opposes idleness because it is a form of waste that is particularly pernicious (for the reasons I discuss in the text).

¹⁰⁸ Simmons, The Lockean Theory of Rights, 273.

¹⁰⁹ Locke continues: “As justice gives every man a title to the product of his honest industry, and the fair acquisitions of his ancestors descended to him; so charity gives every man a title to so much out of another's plenty, as will keep him from extreme want, where he has no means to subsist otherwise” (I.42). Locke seems to recognize no conflict between the two conjuncts. In any case, my own worry about Locke's view of charity here is that he makes it too much like a perfect duty, depriving it of the element that would seem to make it charitable. (Of course, it is not unreasonable to think that Locke treats charity as a third proviso on property.)

¹¹⁰ Cf. Wolf, Clark, “Contemporary Property Rights, Lockean Provisos, and the Interests of Future Generations,” Ethics 105, no. 4 (1995): 791–818, where the first proviso is read as a harm principle (esp. 803–9)CrossRefGoogle Scholar.

¹¹¹ Andrew Jason Cohen, “What the Liberal State Should Tolerate within Its Borders,” 485 n. 9.

¹¹² On Sreenivasan's Lockean view, property ends where there is not “enough and as good direct means of subsistence … available for others” (Sreenivasan, The Limits of Lockean Rights in Property, 55).

¹¹³ Citing Locke's Two Treatises (e.g., I.37; II.33, 36, 37), Simmons (The Lockean Theory of Rights, 292) is talking about appropriation, but the same presumably holds for what is done after appropriation. Indeed, on Simmons's view, there are four types of duties that are the content of natural law (see ibid., 51, 60): duties to preserve oneself, to preserve others, not to ‘take away the life’ of another, and not to do what ‘tends to destroy’ others.

¹¹⁴ Simmons, The Lockean Theory of Rights, 292.

¹¹⁵ Ibid., 286.

¹¹⁶ Ibid., 284.

¹¹⁷ Some might suggest that we need to qualify the moral claim with intentionality, such that “if one person needs something for her preservation and a second person has it, is intentionally wasting it, and refuses to allow the first to make some further use of it, the second may be morally wrong.” I do not think the qualification is needed. One can act immorally unintentionally—this is acting negligently by not forming an intention one should.

¹¹⁸ I will simply assume that family vacations are at least sometimes morally permissible. In any case, at least some vacations are not wasteful. My family gains significant beneficial shared experiences and relaxation when we take vacations. Of course, in some cases, those benefits should give way to others—imagine, for example, that either we take our vacation or a bomb kills a million innocent civilians.

¹¹⁹ I owe thanks to Andy Altman for pushing me to clarify this issue.

¹²⁰ W2 is narrower than W1. I take all violations of W2 to be violations of W1. In cases where violations of W1 are violations of W2, there is a definitive wrong. There may be other violations of W1 that are not violations of W2 but that are definitively wrong.