Why Libertarian Environmentalists Should Take Locke Seriously

 

In an well-argued essay, Jonathan
Adler argues that libertarian environmentalists ought to take property
rights seriously. No writer has had a greater impact on classical liberal and
libertarian thinking about property than John Locke. It follows that any
would-be free market environmentalist must take Locke seriously. And not just
Locke’s theory of property. His theory of government, as laid out in his 1690 Second
Treatise, is equally important. In what follows, I will argue that considering
Locke’s ideas on both property and government leads to conclusions that justify
even stronger policy actions that Adler advocates.

Locke on property

Locke states the essence of his theory of property in this famous
passage:

Though the earth, and all inferior
creatures, be common to all men, yet every man has a property in his own
person: this no body has any right to but himself. The labour of his body, and
the work of his hands, we may say, are properly his. Whatsoever then he removes
out of the state that nature hath provided, and left it in, he hath mixed his
labour with, and joined to it something that is his own, and thereby makes it
his property. It being by him removed from the common state nature hath placed
it in, it hath by this labour something annexed to it, that excludes the common
right of other men: for this labour being the unquestionable property of the
labourer, no man but he can have a right to what that is once joined to, at
least where there is enough, and as good, left in common for others.” (Chap. 5,
sec. 27)

A few pages later, Locke makes it clear that the principle
for acquiring property applies not just to acorns gathered in the woods, but to
the land itself: 

As much land as a man tills,
plants, improves, cultivates, and can use the product of, so much is his property.
He by his labour does, as it were, inclose it from the common. (Chap. 5, sec.
32)

From these passages we can distill three rights and three
corresponding duties:

               Rights:

·       
to property in one’s own person

·       
to property in the fruits of one’s own labor

·       
to property in land and natural resources taken
from the commons by first use

Duties:

·       
to abstain from harming others in their persons

·       
to abstain from taking or harming the property
of others

·       
to leave enough and as good for others when
taking from the commons

The rights and duties are inseparable; anyone who wants to claim
the former is obligated to uphold the latter.

These rights and duties were reflected in the English common
law of Locke’s day. Violation of the duty not to harm others in their persons corresponds
to the common law torts of assault (threatening or attempting to inflict
offensive physical contact) and battery (carrying out a threat to harm).
Violation of the second duty, when it pertains to personal property, is theft.
Interference with others’ use of their land by knowingly entering it without
permission is the common law offense of trespass. Actual harm is not an
essential element of trespass – any interference with the owner’s right to
exclusive possession and enjoyment of property qualifies.

Locke’s third right is that of acquiring property from the
commons by mixing one’s labor with it. Locke included the right to gather acorns
from common land or to draw water from a stream, and also the right to take
possession of unused land by “mixing one’s labor” with it, that is, plowing it,
putting animals to graze on it, building on it, and so on. The broadest term to
describe that process is acquisition by first use. When applied to land,
the process was known in Locke’s day as enclosure, which calls to mind
building a fence to keep out other people’s cattle or sheep, although a
physical barrier would not be strictly required. Today, acquisition by first
use is often called homesteading. I will use the terms “acquisition by
first use,” “enclosure,” and “homesteading” interchangeably.

Over the years, acquisition by first use has sometimes been
extended to abstract as well as tangible forms of property. For example, in the
United States, in the early days of radio, the government reserved certain
frequencies for marine and military use but left others up for grabs. As
stations multiplied, interference became a problem. Courts determined that the
first user of a frequency had homesteaded it and that use by others of the same
frequency constituted trespass. That system, however, proved cumbersome and was
replaced by today’s regulatory approach. (See Pablo T. Spiller and Carlo Cardilli, Yale
Journal on Regulation, 1999.)

Locke refers to violation of his third duty, failure to leave
enough and as good for others when taking from the commons, as engrossment.
At that time, the common law applied that term to certain commercial practices
that would now be known as “monopolizing” or “cornering the market.” Locke uses
“engrossment” more broadly to include unjustly acquiring most or all of
something at the expense of other holders of common rights. In one of his
clearest statements on the subject, he writes:

It will perhaps be objected to
this, that if gathering the acorns, or other fruits of the earth, &c. makes
a right to them, then any one may ingross as much as he will. To which I
answer, Not so. The same law of nature, that does by this means give us
property, does also bound that property too. … As much as any one can make use
of to any advantage of life before it spoils, so much he may by his labour fix
a property in: whatever is beyond this, is more than his share, and belongs to
others. (Ch. 5, sec. 31)

Engrossment of land, as opposed to nuts or game, would occur
if a person claimed more land than they could “improve, cultivate, or use the
product of.” (Ch. 5, Sec. 32)

One implication of the engrossment proviso is obvious: The
whole or a disproportionate part of the land cannot be enclosed, or privatized,
by the first individual who happens to come along. (Think of a European
explorer standing on the Atlantic coast of North America and claiming a swath
of property that extends westward all the way to the Pacific.) Less obviously,
it means that the “mixing one’s labor” principle can never be used to enclose
the entirety of any commons even if each person who comes along takes only that
modest amount that he or she can use personally.

Instead, at some point a scarcity constraint is reached
beyond which enclosing even one more small parcel fails to leave “enough and as
good for others.” Beyond that point further enclosure may occur but, if so, it
must proceed using some different mechanism that requires the consent of all
who hold rights-in-common to the unenclosed remainder. In that regard, Locke
contrasts the situation of a country like the America of his day, where he
believed that unused or underused land existed in abundance, with that of
England, where the scarcity constraint had already been reached. In the latter
case, he writes,

In land that is common in England,
or any other country, where there is plenty of people under government, who
have money and commerce, no one can inclose or appropriate any part, without
the consent of all his fellow commoners; because this is left common by
compact, i.e. by the law of the land, which is not to be violated. … Besides,
the remainder, after such enclosure, would not be as good to the rest of the
commoners, as the whole was when they could all make use of the whole; whereas
in the beginning and first peopling of the great common of the world, it was
quite otherwise. (Ch. 5, sec. 35)

It is not that Locke thinks the remaining land is better
used when held in common than when held privately. Quite the contrary. Just a
few paragraphs later, he asserts that one acre of enclosed land is as
productive as 10 or even a hundred held in common (Ch. 5, Sec. 37). Still, once
the scarcity constraint is reached, if any part of the commons that remains is
to be privatized, that must happen by the consent of all the tenants in common.

But what rules should govern their giving of consent, and if
the land is to continue to be held in common, how should it be managed?

Locke on government

One possible rule would be to handle everything through
private negotiation. That could be done through contracts under which each of the
remaining common owners agrees to cede their claims to any newly enclosed
parcel in exchange for compensation from its owners. If the value of the land
really increases through enclosure, it should theoretically be possible to
obtain that consent.

Such an approach could well be practicable if the number of
parties is relatively small, and could lead to privatization of more of the
land than the rule of first-use would allow. Even then, however, some common
property would remain, either because agreement on further enclosures could not
be reached, or because the nature of the property in question made actual
enclosure impossible.

Once private negotiations had run their course, the
remaining common property, and any further enclosures, could be managed by a
committee of the whole, under a rule of unanimous consent. However, that is not
what Locke recommends. Instead, he recommends establishment of a government
empowered to devise the new set of rules for the protection of property that
has been privatized through first use and for management of any remaining
commons.

Locke, after all, was not an anarchist. He believed that it
was not only legitimate but prudent for free individuals to pursue their mutual
interests by joining together under a common government. But the kind of
government Locke supported would be limited in important ways.

First, its principal purpose – in fact, its only
purpose – would be protection of property: “Government has no other end but the
preservation of property” (Ch. 7, Sec. 94). “The great and chief end, therefore,
of men’s uniting into commonwealths, and putting themselves under government,
is the preservation of their property” (Ch. 9, Sec. 124). (Importantly, under
the principle of self-ownership, “property” for Locke included not just the
lands and homes of the landed rich, but the personal security and livelihoods
of everyone.)

Second, Locke prescribed what would later come to be called a
liberal government. Such a government would be characterized by separation
of executive and legislative powers. It would also follow the rule of law, that
is, of “settled standing rules, indifferent, and the same to all parties” (Ch.
7, Sec. 87). To ensure just enforcement of the law, no one should be the judge
in their own case.

Third, recognizing that it would be impracticable to secure
the actual consent of every citizen for every decision, Locke understood that the
ordinary business of government should be conducted by majority rule. Even so, the
actions of government should command at least the tacit support of all citizens
( Ch. 8, Sec. 199-120). By tacit consent, Locke meant that anyone who accepts
the benefits of living under a government, whether those benefits take the form
of protection of property or simply the use of public highways, must assent to
be governed by all the laws of that government without picking and choosing.

Locke’s justification for the establishment of such a
government is largely pragmatic. He recognized that government involved a
tradeoff between the freedoms of the state of nature and the benefits of a more
settled way of living:

For being now in a new state,
wherein  he is to enjoy many
conveniencies, from the  labour,
assistance, and society of others in the same community, as well as protection
from its whole strength; he is to part also with as much of his natural
liberty, in providing for himself, as the good, prosperity, and safety of the
society shall require; which is not only necessary, but just, since the other
members of the society do the like. (Ch. 9, Sec. 130)

Such, then, are Locke’s views regarding property and
government. If we take them seriously, what do they tell us about the issues we
face today?

Implications for climate policy

Figure 1 shows emissions and concentrations of carbon
dioxide in the earth’s atmosphere since the beginning of the Industrial Revolution
(Climate.gov). The relationship between the
two lines in the chart reflects the fact that emissions of carbon dioxide, the
most important greenhouse gas (GHG), stay in the atmosphere for a long time –
300 to 1,000 years (NASA).
I will organize the following discussion of climate policy around four stylized
stages of development, based loosely on the figure. The exact data and
historical dates are less important that the more general economic and
environmental relationships.  

·       
Stage 0: Any anthropogenic GHG
emissions are so low as to be undetectable against the background of natural
processes. They are absorbed by natural sinks and do not cause any cumulative
rise in GHG concentrations in the atmosphere.

·       
Stage 1: The rate of GHG emissions
exceeds the absorptive capacity of natural sinks. Ongoing emissions cause
atmospheric concentrations to rise, but concentrations remain too low to cause
any significant harm.

·       
Stage 2: GHG concentrations reach
a level that begins to cause nontrivial harm to sensitive populations who are
particularly exposed to sea level rise, droughts, storms or other climate effects.
However, during this stage the aggregate benefits of emission-causing
activities exceed the harms at the margin.

·       
Stage 3: GHG concentrations reach
the point that the aggregate harms caused by further anthropogenic emissions significantly
exceed the benefits.

Stage 0 is strictly hypothetical. If there ever was such a
stage, it presumably ended before Figure 1 begins. Some research suggests that emissions from
early farming and deforestation began to cause measurable anthropogenic effects
thousands of years ago. Whether that is so or not, Stage 1 appears to have
gotten well underway early in the Industrial Revolution, with the first
large-scale use of coal as a fuel. For the sake of discussion, we can think of Stage
2 as having started sometime in the nineteenth or early twentieth century, and
Stage 3 sometime more recently.

I realize that some readers may insist that we have not yet
reached Stage 3, so we don’t have to do anything yet, but I would invite them
to stay with the discussion. One reason is that, as Adler makes clear, is that the
harms done by anthropogenic climate change require redress already during Stage
2, when they do not yet exceed benefits such as low waste-disposal costs or the
availability of cheap fossil fuels. Furthermore, it seems to me that even those
libertarians who are most skeptical of climate science should be prepared, arguendo,
to give some thought to the kind of policy response they would endorse if and
when Stage 3 did arrive. 

The stages are briefly described in Table 1, along with
names for the transitions from each stage to the next.

Table 1: Stylized Stages of Anthropogenic Climate Effects
Stage 0	No GHG accumulation, no harms
		Scarcity threshold
Stage 1	Increases in GHG emission rates cause GHG concentrations to rise but no harm occurs.
		Threshold of harm
Stage 2	Increases in GHG concentrations cause harm to some sensitive populations but benefits of additional emissions outweigh harms.
		Cost-benefit threshold
Stage 3	Further increases in GHG concentrations cause harms in excess of benefits.

 

Let’s turn now to a discussion of how, under Lockean
principles, human impacts on the climate should be managed as we move through
the stages.

Stage 1. We will begin here, since Stage 0 is
of no real economic interest. If there ever was such a stage, the waste
disposal capacity of the atmosphere would not have been a scarce good; anyone
could use as much as they wanted with no effect on anyone else.

Things get interesting only when the scarcity threshold is
passed and greenhouse gas concentrations begin to rise. Because CO2 persist in
the atmosphere for centuries, each newly emitted ton uses up part of the
remaining capacity of the atmosphere to absorb the gas without harm. For that
reason, any first-use appropriation of emission rights would be like the enclosure
of a portion of a common field – a fixed-quantity appropriation. In
contrast, a first-use claim to draw water from a river would allow withdrawals
year after year at a given rate – a fixed-rate appropriation.

The difference between fixed-quantity and fixed-rate
appropriations seems to have been missed by libertarians who rely on Murray Rothbard’s
analysis of air pollution. According to Rothbard, “If a factory owned by A
polluted originally unused property, up to a certain amount of pollutant X,
then A can be said to have homesteaded a pollution easement of a certain degree
and type.” (Rothbard,
1982, p. 146.)

The context makes it clear that he is thinking of a
fixed-rate appropriation, which would allow A to continue to emit X pollution year
after year. However, Rothbard was writing about less persistent forms of air
pollution like smoke or the emissions that cause acid rain. A CO2 easement, in
contrast, would have to be of the fixed-quantity variety, giving the right to
emit a certain number of tons of CO2 or equivalent. A perpetual fixed-rate easement
of any finite size would eventually to exhaust the capacity of the atmosphere
to absorb wastes harmlessly.[1]
But even if homesteading were limited to fixed-quantity easements, GHG
concentrations would, over time, reach a point beyond which any additional
emissions began to cause harm. At that point, Stage 2 would begin.

Stage 2. As soon as Stage 2 begins, two things
happen. First, there is a change not just in the magnitude of the effect of one
person’s GHG emissions on others, but also in the kind of effect. Luc Bovens
points out the difference in a paper on grandfathering of emission rights (Bovens, 2011, p. 14). In
Stage 1, emissions by one person adversely affect others only to the extent
that they reduce the remaining waste disposal capacity of the air, thereby using
up potential opportunities for others to emit the same kinds of greenhouse
gasses in the future. Beyond that point, further emissions would violate
Locke’s third duty, the duty not to engross. In contrast, once Stage 2 gets
underway, any emissions begin to cause direct harms in the form of flooding,
crop damage, extreme weather, and other climate-related phenomena. Those harms
are different in kind from the benefits of low-cost waste disposal to emitters.
Those further emissions violate the first two of Locke’s duties rather than the
third.

Second, once emissions begin to harm others directly, even
if the harm to the persons and property of pollution victims is (by assumption)
less than the benefit to polluters, there can be no further first-use claims to
emission rights. All of the fixed-quantity rights that were legitimately
homesteaded during Stage 1 will have been, or will soon be, used up. At that
point, the whole earth would be in the position that Locke described for the
England of his day, in which “no one can inclose or appropriate any part,
without the consent of all his fellow-commoners.”

Importantly, though, obtaining such consent for further
emissions should still be possible, since the benefits of further emissions exceed
the costs. What is required is for the government, in its role as protector of
property and manager of the remaining commons, to develop appropriate rules to
facilitate the process.

For GHG emissions, rules to facilitate private negotiation
are not likely to be enough. Such emissions are not comparable to, say, local
particulate pollution from an iron smelter. Even if such a local polluter could
no longer renew a fixed easement, it might be possible to negotiate a
compensation agreement with victims. But, given that the harms done by GHG emissions
are spread worldwide, private negotiations would be impracticable.

Fortunately, Lockean principles do not require that
everything be done by private negotiation. The government could step in to set
administrative or market-oriented rules. We will have more to say on about
various alternative rules later, but whatever the details, as long as the
government operated under appropriate liberal safeguards, including rules that
are fixed and are the same for all, its actions would be consistent with
Lockean principles.[2]

If everything went well, emissions could continue to increase
under the Stage 2 rules until they reached the cost-benefit threshold that
marks the beginning of Stage 3. Beyond that point, it would not be worthwhile for
polluters to pay enough to compensate victims, so emissions would fall toward
net zero. Atmospheric concentrations would stabilize, and eventually, with long
lags for some effects like sea-level rise, the climate would stabilize, too.

Stage 3. Unfortunately, it appears that things
have not developed according to this happy scenario. High transaction costs have
stymied private deal-making. Courts have failed to block unjustified emissions.
The government has not balanced the interests of winners and losers in a fair
and efficient manner. Also, to some extent, emissions have grown beyond the
cost-benefit threshold simply because not enough people (or not the right ones)
realized what was happening until it was too late. As a result, at least
according to the conventional view of matters, we are already deep into Stage
3. What next?

The key difference between Stage 3 and Stage 2 is that the
harm done by any additional emissions now exceeds the benefits. To return from
where we are to the cost-benefit threshold, let alone to the threshold of harm,
will require substantial reductions in total emissions. Doing so raises many
questions, including which sources should make the reductions, how fast the
process should proceed, and what policy instruments should be used to reach emission
targets. What help with the answers, if any, can Locke provide?

Consider, first, the question of which sources should reduce
emissions. One view is that existing sources should be protected, or
“grandfathered,” when emission quotas are set. If so, those sources would be
allowed to continue polluting unless and until they are bought out with cash
payments, or subsidies for installation of emission-reducing technologies, or
in some other way. However, I see major problems with the grandfathering of
emission rights for greenhouse gasses.

One problem, already mentioned, is that any first-use easements
homesteaded during Stage 1 would have been for fixed quantities only, not for
perpetual emissions at a fixed rate. As such they would long since have been
used up. The same goes for any emission rights granted by negotiation or by
government action during Stage 2.

Leigh
Raymond (2014) raises a different issue that further weakens the argument
for grandfathering. According to Raymond, Locke’s argument in favor of
acquisition by first use is strongest when applied to appropriations that are
both tangible and beneficial. The classic example would be
building a fence to enclose a small portion of a large common pasture. The
fence is tangible, and the act enclosure is beneficial, in that it incentivizes
pasture improvements and disincentivizes overgrazing. Locke himself, we
remember, considered enclosed land to be 10 or more times as productive as
unimproved commons.

In contrast, an emission easement established by
homesteading is neither tangible nor beneficial. An easement removes a part of
the airshed from the commons legally, but not functionally. The easement fails
the functional test because there is no fence or other barrier to prevent emissions
and whatever harm they cause spread over the whole planet. Meanwhile, the owner
of the easement gains the advantage of low-cost waste disposal while others
suffer the costs of climate change. The imbalance between private benefits and
public costs means that the airshed will continue to be used just as inefficiently
as before the easement was claimed. Emissions are likely to continue far beyond
the point where costs exceed benefits.

Taking all of this into account, little remains of the case for
favoring current sources when setting targets for reductions of emissions. At
most, some temporary grandfathering might be allowed to give industry and
commerce sufficient time to adjust smoothly, or to build a coalition in support
of a new emissions-management regime. But I can find nothing in Locke that points
to a natural right for polluters to continue to do harm after they have done
more than enough already.

The Lockean case for carbon pricing

We cannot find all the answers to climate policy in the
pages of Locke’s Second Treatise. There are many practical issues for
which his principles provide little guidance. Those would include setting
optimal target levels for GHG emissions and concentrations, determining the
speed with which they should be achieved, striking a balance between mitigation
and adaptation, and others. But there is one final area on which Locke’s views do
have a bearing.

We have argued that homesteading of pollution easements
fails Raymond’s tangible-and-beneficial test because it removes the polluted
portions of the airshed from the commons in legal terms, but not functionally. But
what if it were somehow possible to remove emission rights from the commons
functionally, but not legally? That could be done by putting a price on GHG
emission. In that case, the requirement to pay for each unit of pollution would
act as functional deterrent for emissions even while the atmosphere itself
remained a global commons in legal terms.

One way to do that would be with a cap-and-trade approach.
The government would carry out its duty to protect people and their property from
the harms of climate change by auctioning off a specified number of marketable
permits, each allowing a fixed quantity of emissions. In effect, it would be
leasing a part of the community’s common airshed to private parties while
retaining legal ownership.

Functionally, holders of the permits would treat them like
private property. They could use the permits themselves to lower their
waste-disposal costs or they could resell them to others who valued them more
highly. The buyers might even include conservation organizations who would buy
permits to hold them unused.

Alternatively, the government could impose a fee or tax per
ton of CO2-equivalent. The result would be very much the same, both legally and
functionally, as a cap-and-trade system. The only real difference would be the
terms on which the government leased out emission rights. Instead of auctioning
off a predetermined quantity of pollution rights, and allowing the market to
set the price, the government would set the price and allow the market to
determine the quantity.

Either version of emission pricing would at least partially
meet Raymond’s criterion of tangibility. Although the physical airshed would
remain unenclosed, the permits themselves would be discrete, scarce, and
tradeable. Either version would meet the criterion of benefit by ensuring that
certificates ended up in the hands of those who value them most, and either
would incentivize both consumers and producers to adopt clean technologies.

Furthermore, the proceeds of a permit auction or pollution
fee could be used to compensate the victims of climate change for harm done to
their persons and property. That could be done either directly, by distributing
cash, or indirectly, by lowering taxes that people would otherwise have to pay
to maintain the government with its police, courts, and other institutions of
property protection.

Readers may object that if emissions pricing were
implemented during Stage 3, the proceeds of permit sales or pollution fees would,
by assumption, be insufficient to compensate for the harm done. That is true. Yes,
it would have been better to establish a pricing regime during Stage 2 – one with
parameters tight enough to ensure that we would never reach Stage 3. But that
did not happen.

But even if, as consensus thinking has it, we are already
deep into Stage 3, emission pricing is still attractive. Although the goal is
now not just to roll back the rate of emissions, but also the concentrations of
GHGs in the atmosphere, there are limits on how fast this should happen. Too
ambitious a program could disrupt supplies of investment goods needed for clean
energy, carbon capture, and seawall construction. It could lead to
overinvestment in existing, imperfect, abatement technologies without giving
time to develop more effective alternatives. A pricing scheme would allow the
flexibility needed to balance the speed of achieving any given emission target
against the cost of doing so, and could complement other forms of regulation
and public investment.

What we have learned

In conclusion, what have we learned from our close
examination of Locke’s views of property and government? What are their
implications for climate policy? Here is a summary:

1. Locke puts property at the center of his political
theory. He starts with self-ownership, a concept that is the basis of what we
call “human rights” in the modern world. He extends ownership to the products
of labor and to land appropriated from the commons by first use. Rights to
property are matched by corresponding duties not to harm others or their
property, and to leave enough and as good for others when taking from the
commons.

2. Locke sees protection of property, including protection
of the freedoms and human rights implied by self-ownership, as the central
purpose of government. But not just any government will do. A legitimate
government must conform to the principles that later came to be known as
liberalism, including majority rule, separation of powers, and rule of law.

3. Locke freely mixes deontic and consequentialist arguments
in support of his views on property and government. He defends the institution
of property as a natural right, but also points to the superior productivity of
private, as opposed to common, ownership. He sees government as a pragmatic
compromise in which people give up a part of the absolute freedoms that they
enjoy in the state of nature, receiving enhanced security and prosperity in
return.

4. Locke’s views on the duty not to harm and the
government’s role in protecting persons and property include no exceptions for
harms resulting from air pollution, climate change, or any other kind of
environmental externality.

5. Locke’s views on appropriation by first use provide
polluters with little or no defense. Rothbard (1982) interprets Locke in a way
that entitles uncontested polluters to have “homesteaded an easement” to a
certain rate of pollution. Perhaps in preindustrial times, polluting the air
might legitimately have been compared to taking a drink from an abundantly
flowing stream. In the modern world, however, the binding constraint on polluters
is not Locke’s duty to leave “as much and as good” for others, but rather, the
duty not to cause harm to others and their property. As Adler points out, that
constraint comes into play as soon as anthropogenic climate change first begins
to cause harm to others, even if, in aggregate, those harms do not yet exceed aggregate
benefits.

6. The resource at issue in climate change is the ability of
the earth’s atmosphere to absorb greenhouse gases. That resource cannot be
physically partitioned, so it remains an unenclosed commons. Once legitimate
first-use claims have been exhausted, Locke assigns the duty of managing any remaining
unenclosed commons to the government. Price-based management mechanisms would
be fully consistent with Locke’s thinking.

The bottom line: Neither the deontic nor the
consequentialist side of Locke’s reasoning supports the laissez-faire
approach to climate change favored by many libertarians. If we take Locke
seriously, there is a clear role for government in the productive management of
our global climate commons – one that can and should be exercised in a way consistent
with the principles of liberal government.

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