Finnis on a Problem for Property Rights

John Finnis, for many years a professor at Oxford, is one the world’s greatest legal philosophers. Along with the late Germain Grisez, he is the foremost defender of a version of natural law theory called “new classical natural law theory.” In his fullest account of his legal theory, Natural Law and Natural Rights (Oxford 1980), he argues that the right to acquire property, as defended by Robert Nozick, is subject to limits that severely weaken its force. Although he does not consider Murray Rothbard in the book, his argument would if correct apply to Rothbard’s theory as well. In what follows, I’ll attempt to explain Finnis’s argument and to show why it does not succeed.

To be clear, Finnis does not reject private property. He says,

And in all those areas of activity, including economic activity, where individuals, or families, or other relatively small groups, can help themselves by their own private efforts and initiatives without thereby injuring (either by act or omission) the common good, they are entitled in justice to be allowed to do so, and it is unjust to require them to sacrifice their private initiative by demanding that they participate instead in a public enterprise…. The principle of subsidiarity … is a principle of justice.

Finnis thus allows private property and enterprise, indeed even insists on it, but the right to acquire property is limited by the “common good.”

Finnis makes evident in his discussion of Nozick what he has in mind by the “common good.” He says,

A primary concern of Nozick’s Anarchy, State, and Utopia is to argue that once anyone has justly acquired capacities, endowments, or holdings (property, etc.), it is unjust for anyone, including the State, to deprive him of any of these holdings, or to conscript any of his capacities, for the purpose of aiding other persons. Systems of taxation for purposes of redistribution and social welfare are therefore unjust; they amount to the imposition of forced labour, an unwarrantable infringement of a man’s rights over his own body, effort, and property, his rights not to be forced to do certain things.

Finnis’s objection to Nozick is different from what you probably expect. He doesn’t say that coercion by the state overrides individual rights. He instead contends that Nozick’s argument rests on a false polarization. In line with most modern thinkers, Nozick contrasts individual rights with state redistribution. Unlike John Rawls and his many followers, Nozick thinks the state ought not to engage in redistribution, but he shares the common contemporary view that if redistribution were justified, this would be a matter for the state to undertake.

This assumption is what Finnis challenges. He says that the polarization between the individual and the state wrongly neglects the fact that individuals, apart from the state, have duties of distributive justice. Finnis, a scholar of immense erudition, traces the polarization to the fifteenth- and sixteenth-century scholastic theologian Cardinal Thomas Cajetan, and once we reject the antithesis between the state and the individual, distributive justice appears in a new light.

“Nozick is far indeed,” Finnis says,

from the tradition of the scholastic textbooks, pre- or post-Cajetan. But the plausibility of his argument comes entirely from its focus on the coercive nature of the State’s intervention as the agent of (re)distributive justice. Suppose we abandon this perspective. That is to say: leave the State out of consideration for a moment, and ask instead whether a private property holder has duties of redistributive justice. (The question is strictly inconceivable in the post-Cajetan tradition.) Then we will find that Nozick indeed has little to say in favour of his assumption that what one has justly acquired one can hold without regard for the needs, deserts, or other claims of others…. If we see no reason to adopt his assumption that the goods of the earth can reasonably be appropriated to the substantial exclusion of all others and if we prefer instead the principle that they are to be treated by all as for the benefit of all according to the criteria of distributive justice though partly through the mediation of private holdings, then the question of State coercion, which dominated Nozick’s argument, becomes in principle of very secondary importance.

It soon transpires that state coercion is by no means excluded. The duties of redistribution individuals have are not created by the state, but if someone does not obey these requirements, the state may compel him to do so. “For in establishing a scheme of redistributive taxation, etc., the State need be doing no more than crystallize and enforce duties that the property-holder already had” (emphasis in original).

Finnis’s prolix style should not occlude from our vision the crucial premise of his argument that property acquisition is to be “treated by all as for the benefit of all according to the criteria of distributive justice”? Why should we accept this premise?

Finnis’s defense of this premise proceeds by uncovering what he takes to be a false assumption of Nozick’s defense of unlimited acquisition. Nozick thinks that coercive redistribution is contrary to justice because it violates claims that people have on these resources. “On what is this principle based? Well, in a nicely ironical passage of Anarchy, State, and Utopia, Nozick remarks: ‘Things come into the world already attached to people having entitlements over them.  . . .’” But, Finnis says, Nozick is wrong. “The decisive fact is that in our own world the natural resources from which all ‘things’ or ‘objects’ are made did appear ‘out of nothing’ and did not come into the world already attached to people having entitlements over them. This basic fact conditions all the entitlements subsequently derived from labour contribution, purchase, or other just sources of private title” (emphasis in original).

Finnis has started from a fact that supporters of Lockean theories of property acquisition do not deny, but instead incorporate as part of their own position. Land and other natural resources start out unowned: it is precisely this fact that enables acts of acquisition to proceed. The passage by Nozick that Finnis quotes is intended only to apply to items that have already been justly acquired. It is these that come into the world already attached.

From the premise that resources come into existence unowned, Finnis’s contention that individuals have duties of distributive justice does not follow. It amounts simply to a rejection of the view held by Nozick and Rothbard, rather than an argument for it. “Resources start off unowned. Therefore people who own property have individual duties of distributive justice.”  I wish Finnis had supplied the missing premises in this argument.

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