In thinking and talking about rights, including property rights, it seems natural to put the argument in either moral or legal terms. From the former viewpoint, rights are part of a description of what actions are right or wrong. The fact that I have a right to do something is an argument, although not necessarily a sufficient argument, that someone who prevents me from doing it is acting wrongly.

Reflection on the variety of forms of social life has long been a source of moral skepticism. The thought that there are many radically different social systems, each of which colors the way its members think about moral and political questions, has been thought by many moral philosophers to undermine confidence in our belief that our way of looking at-or even posing-these questions is the correct one. The fact of cultural variety is held to reduce, if not eliminate altogether, the possibility of moral criticism of the practices of other societies. This thought is not a recent one; it is implicit, for example, in an observation made in David Hume's “A Dialogue,” when he writes:

There are no manners so innocent or reasonable, but may be rendered odious or ridiculous, if measured by a standard, unknown to the persons; especially, if you employ a little art or eloquence, in aggravating some circumstances, and extenuating others, as best suits the purpose of your discourse.

Cultural pluralism is both a fact and a norm. It is a fact that our world, and indeed our society, are marked by a large diversity of cultures delineated in terms of race, class, gender, ethnicity, religion, ideology, and other partly interpenetrating variables. This fact raises the normative question of whether, or to what extent, such diversities should be recognized or even encouraged in policies concerning government, law, education, employment, the family, immigration, and other important areas of social concern.

A broad range of intellectual perspectives may be brought to bear on any important social institution. To this general rule, the institution of private property is no exception. The desirability of private property has been endlessly debated across the disciplines: philosophical, historical, economic, and legal. Yet there is very little consensus over its proper social role and limitations. Is it possible to find a unique solution to questions of property and private ownership, good for all resources and for all times? The famous defense of private property that is found in chapter 5 of John Locke's Second Treatise of Government answers this question in the affirmative, for Locke writes as though all property was given to mankind in common, and then seeks to find the quickest and most expeditious way to convert all common property into private property. His implicit, but undefended, assumption is that common forms of property are both undesirable and unstable, while private forms of ownership are always just the opposite. Yet his preferred method for moving from a commons to a regime of private property—the unilateral decision to appropriate by each actor—is one that has been frequently condemned as a sop to unbridled egotism, even though it is subject to two constraints: the first against waste, and the second requiring the appropria-tor to leave “enough, and as good” for others.

As an initial approximation, pluralism may be understood as the combination of four theses. First, there are many incommensurable values whose realization is required for living a good life. Second, these values often conflict with each other, and, as a result, the realization of some excludes the realization of others. Third, there is no authoritative standard that could be appealed to to resolve such conflicts, because there is also a plurality of standards; consequently, no single standard would be always acceptable to all fully informed and reasonable people. Fourth, there are, nevertheless, reasonable ways of resolving conflicts among incommensurable values.

The typical method of acquiring a property right involves transfer from a previous owner. But sooner or later, that chain of transfers traces back to the beginning. That is why we have a philosophical problem. How does a thing legitimately become a piece of property for the first time?

In this essay, I follow the custom of distinguishing between mere liberties and full-blooded rights. If I have the liberty of doing X, then it is permissible for me to do X. But the mere fact that I am at liberty to do X leaves open the possibility that you might be at liberty to interfere with my doing X. Accordingly, liberties are not full-blooded rights, since my having a right to do X has the additional implication that others are not at liberty to interfere with my doing X. When it comes to mere liberties, interference is not a violation. You can violate rights, but you cannot violate liberties.

My aim in this essay is to explore the nature and force of “original-acquisition” justifications of private property. By “original-acquisition” justifications, I mean those arguments which purport to establish or importantly contribute to the moral defense of private property by: (a) offering a moral/historical account of how legitimate private property rights for persons first arose (i.e., at a time prior to which no such rights existed); (b) offering a hypothetical or conjectural account of how justified private property could arise (or have arisen) from a propertyless condition; or (c) simply defending an account of how an individual can (or did) make private property in some previously unowned thing (where “things” might include not only land, natural resources, and artifacts, but also, e.g., ideas or other individuals). The “original acquisition” to which such justifications centrally refer, then, may be either the first instance(s) of legitimate private property in human history (typically assumed to have been many centuries ago on earth), or only the first legitimate acquisition of some particular thing (which might, for instance, have occurred yesterday or occur in the future on Mars). But in either case, the justification will involve or entail the defense of one or more moral principles specifying how unowned (or collectively owned) things can become privately owned — that is, the defense of the kind of principles Robert Nozick has called “principles of justice in acquisition.”

Liberalism is a distinctively modern political conception. Only in modern times do we find, as the object of both systematic reflection and widespread allegiance and institutionalization, the idea that the principles of political association, being coercive, should be justifiable to all whom they are to bind. And so only here do we find the idea that these principles should rest, so far as possible, on a core, minimal morality which reasonable people can share, given their expectably divergent religious convictions and conceptions of the meaning of life. No longer does it seem evident—as it did, let us say, before the seventeenth century—that the aim of political association must be to bring man into harmony with God's purposes or to serve some comprehensive vision of the good life. The causes of this transformation are various, and not all of them lie at the level of moral principle. But a change in moral consciousness has certainly been one of the factors involved. As Hegel observed, modern culture is inherently a reflective one: notions of principle are essential to our self-understanding and thus to the stability of the social forms in which we participate. Modern culture has no room for a dichotomy between “in principle” and “in practice.” It is worth determining, then, what new moral conceptions have been responsible for the emergence of modern liberalism. Not only will we thereby better understand how we have become who we are, we will also have a surer grasp of the principles that sustain our political life.

In recent years there has been growing interest in the contrast between Humean theories of property, on the one hand, and Lockean and Rousseauian theories, on the other. The contrast is a broad and abstract one, along the following lines.

In any society influenced by a plurality of cultures, there will be widespread, systematic differences about at least some important values, including moral values. Many of these differences look like deep disagreements, difficult to resolve objectively if that is possible at all. One common response to the suspicion that these disagreements are unsettleable has always been moral relativism. In the flurry of sympathetic treatments of this doctrine in the last two decades, attention has understandably focused on the simpler case in which one fairly self-contained and culturally homogeneous society confronts, at least in thought, the values of another; but most have taken relativism to have implications within a single pluralistic society as well. I am not among the sympathizers. That is partly because I am more optimistic than many about how many moral disagreements can be settled, but I shall say little about that here. For, even on the assumption that many disputes are unsettleable, I continue to find relativism a theoretically puzzling reaction to the problem of moral disagreement, and a troubling one in practice, especially when the practice involves regular interaction among those who disagree. This essay attempts to explain why.

Suppose the prevailing distribution of property rights is unjust as determined by the relevant conception of distributive justice. You have far more than you should have under that theory and I have far less. Then I defraud you and in doing so reallocate resources so that our holdings ex post more closely approximate what distributive justice requires. Do I have a duty to return the property to you?

There are many good reasons for requiring me to return to you what I have taken. One is that while you may have no right in justice to all that you own, it does not follow that I do, or that I have a right to take it. Thus, requiring me to return the property to you is a way of recognizing that I had no right to take it from you in the first place.

Naturalism rejects a sui generis and fundamental realm of the evaluative or normative. Thought and talk about the good and the right must hence be understood without appeal to any such evaluative or normative concepts or properties. In Sections I and II, we see noncognitivism step forward with its account of evaluative and normative language as fundamentally optative (that is, expressive of wishes or desires) or prescriptive. Prescriptivism falls afoul of several problems. Prominent among them below is the “problem of prima facie reasons”: the problem, namely that prescriptions do not properly capture the character of defeasibility of the prima facie, featured by nearly all our moral convictions. We find in Section II that, ironically, emotivism, with its emphasis on optative rather than prescriptive language, though historically more primitive, is yet better attuned to that crucial prima facie aspect of the normative and the evaluative. But even emotivism still faces serious difficulties that beset noncognitivism generally, such as the problem of embedding in subordinate clauses, and the problem of normative fallibility. That takes us up to Section III.

I could not write the essay I hoped to write. I hoped to write about cultural pluralism and moral epistemology by assuming that the first is the case and exploring what implications this may have for the second. But I soon realized that I do not know what cultural pluralism is. I do not mean that I have just belatedly discovered that the phrase “cultural pluralism” is used in different ways on different occasions. I mean that I realized that I myself did not know in what sense the phrase may be used which makes it relevant to the inquiry suggested by the general topic of this volume. So the following reflections are based on one assumption: The fact of multiculturalism cannot have much bearing on moral epistemology unless it bears on moral truths.

Philosophers and lawyers are apt to view property law from different perspectives. At the risk of gross overgeneralization, philosophers who discuss property rights tend to focus on the abstract principles that underlie ownership claims, while lawyers are more likely to focus on the practical problems of adjudicating concrete disputes within the constraints of a functioning legal system. Lawyers, for example, are likely to be more sensitive than philosophers to the real-world problems of proof that often accompany legal claims of ownership. For a lawyer, the key question is not whether any given theory of property rights is true in some metaphysical sense, but whether, given the theory of property rights employed by a particular legal system, a litigant within that system can prove an ownership claim to the satisfaction of an officially constituted tribunal.

During the last forty years, the Aboriginal peoples of the Americas, of the British Commonwealth, and of other countries colonized by Europeans over the last five hundred years have demanded that their forms of property and government be recognized in international law and in the constitutional law of their countries. This broad movement of 250 million Aboriginal people has involved court cases, parliamentary politics, constitutional amendments, the United Nations, the International Court of Justice, the development of an international law of Aboriginal peoples, and countless nonviolent and violent actions in defense of Aboriginal systems of property and cultures. The Aboriginal peoples of New Zealand, Canada, and the United States have been at the forefront of the movement, and it is in these countries that the greatest legal recognition has been achieved.

Has Alexander Pope's prediction, made a quarter of a millennium ago (1742), come true in our own day?

No one who has lived through the last thirty years is unaware of the spectacular alterations of behavior norms that have occurred in most Western societies. It is not merely that everywhere incivility and crime are on the increase, that there are more and more violations of moral standards which nevertheless continue to be acknowledged. Rather, we witness the relaxation or disappearance of the standards themselves. What was bad becomes permissible or even a positive good.

The Industrial Revolution caused an expansion of our ideas of property to include other forms of wealth, such as innovations and productive techniques. And the modern age has caused a further expansion of our ideas of property to include inchoate items, particularly information. The Framers of the U.S. Constitution presumed that government not only took an expansive view of the nature of property rights, they also believed that such rights should be protected. To James Madison and the other Framers, property was a “broad and majestic term” that “embraces everything which may have a value to which man may attach a right.”

What role, if any, should our moral intuitions play in moral epistemology? We make, or are prepared to make, moral judgments about a variety of actual and hypothetical situations. Some of these moral judgments are more informed, reflective, and stable than others (call these our considered moral judgments); some we make more confidently than others; and some, though not all, are judgments about which there is substantial consensus. What bearing do our moral judgments have on philosophical ethics and the search for first principles in ethics? Should these judgments constrain, or be constrained by, philosophical theorizing about morality? On the one hand, we might expect first principles to conform to our moral intuitions or at least to our considered moral judgments. After all, we begin the reflection that may lead to first principles from particular moral convictions. And some of our moral intuitions (e.g., that genocide is wrong) are more fixed and compelling than any putative first principle. If so, we might expect common moral beliefs to have an important evidential role in the construction and assessment of first principles. On the other hand, common moral beliefs often rest on poor information, reflect bias, or are otherwise mistaken. We often appeal to moral principles to justify our particular moral convictions or to resolve our disagreements. Insofar as this is true, we may expect first principles to provide a foundation on the basis of which to test common moral beliefs and, where necessary, form new moral convictions.

It is tempting and not at all uncommon to find the striking—even noble—visage of an Ideal Observer staring out from the center of Hume's moral theory. When Hume claims, for instance, that virtue is “whatever mental action or quality gives to a spectator the pleasing sentiment of approbation,” it is only natural to think that he must have in mind not just any spectator but a spectator who is fully informed and unsullied by prejudice. And when Hume writes that “the true standard of taste and beauty” is set by those who exhibit “[s]trong sense, united to delicate sentiment, improved by practice, perfected by comparison, and cleared of all prejudice,” he appears to describe a character no ordinary human could actually possess. Indeed, Hume's frequent appeals to the moral sentiments of spectators, his insistence that those sentiments depend upon taking “the general survey,” and his persistent invocation of the general point of view (and the corrections it requires), together make the temptation almost irresistible.

William Perm summarized the Magna Carta thus: “First, It asserts Englishmen to be free; that's Liberty. Secondly, they that have free-holds, that's Property.” Since at least the seventeenth century, liberals have not only understood liberty and property to be fundamental, but to be somehow intimately related or interwoven. Here, however, consensus ends; liberals present an array of competing accounts of the relation between liberty and property. Many, for instance, defend an essentially instrumental view, typically seeing private property as justified because it is necessary to maintain or protect other, more basic, liberty rights. Important to our constitutional tradition has been the idea that “[t]he right to property is the guardian of every other right, and to deprive a people of this, is in fact to deprive them of their liberty.” Along similar lines, it has been argued that only an economic system based on private property disperses power and resources, ensuring that private people in civil society have the resources to oppose the state and give effect to basic liberties. Alternatively, it is sometimes claimed that only those with property develop the independent characters that are necessary to preserve a regime of liberty. But not only have liberals insisted that, property is a means of preserving liberty, they have often conceived of it as an embodiment of liberty, or as a type of liberty, or indeed as identical to liberty. This latter view is popular among contemporary libertarians or classical liberals. Jan Narveson, for instance, bluntly asserts that “Liberty is Property,” while John Gray insists that “[t]he connection between property and the basic liberties is constitutive and not just instrumental.”