Instead of striving for tolerance, identarian groups seem to desire the unattainable goal of recognition.
Edward Feser provides a classical natural law theory of rights, and property rights in particular. According to Feser, human beings are naturally inclined to certain acts and ways of life. The fact of such natural inclinations makes acts and ways of life in accordance with them morally worthy or even obligatory. And, if I understand him correctly, natural rights for Feser function to protect the ability of individuals to carry out these natural inclinations.
This, of course, is far too quick a summary of Feser’s views. However, instead of focusing on Feser’s wider theory, I want here to focus on Feser’s remarks on the acquisition of property rights and appropriation???. This for two reasons. The first is that I believe that Feser gets something extremely important right about property rights. The second is that I believe that Feser does not quite go far enough in seeing this important point through. I want to suggest that Feser should “go all the way,” so to speak.
It is tempting to think of theories that defend accounts of acts of appropriation along the following lines. Certain acts somehow have intrinsic moral significance. And it is in virtue of the act’s significance that people who appropriate objects acquire property rights. Take the most famous example. Suppose we agree with Locke that people can appropriate through laboring on unowned objects. Well, then we need to learn what is so special about labor as such. For it must be something about labor that justifies the creation of property. An entire literature now exists asking what the moral significance of labor might be that would give rise to property rights.
To put it slightly more technically, the order of justification, so to speak, is said to move from the act of appropriation to the resultant property rights. People are entitled to the goods they hold because of the morally important nature of the act they have performed.
This view has a long pedigree. And it is often taken to be a necessary part of any acceptable account of natural rights to property. Natural rights are (roughly) rights that we could (logically) have prior to the creation of civil society. Appropriation of the kind just sketched fits the bill nicely.
As a result, it is often supposed that we must choose between two options. Either (a) one can come up with a successful account of acts of original appropriation (of the kind I just sketched). In that case the idea of natural rights to property may be feasible. Or (b) if we cannot come up with such an account, we must accept that no account of natural property rights is feasible after all. This in turn is taken to imply that property rights are merely conventional rights, to be established – and, inevitably, rearranged – by the political powers that be.
If these really are the only two options, then the case against natural rights to property becomes quite straightforward. For the challenge of developing an account of acts that are intrinsically appropriative is notoriously problematic, if not altogether hopeless. More on that in a moment.
First I wish to note that Feser’s argument shows that this criticism of natural rights to property is too easy. For it shows that the dichotomy above is a false one. It achieves this by resting the argument for natural rights to property not on the intrinsic nature of certain acts like labor, but simply on the argument that morality as such – in this case: the law of nature – requires that people have robust property rights. And it is from this claim, in turn, that we can derive the claim that people must also be able to individually appropriate objects.
I am unsure whether Feser intended his argument in that way. But it does not matter much. The idea is a genuinely important one: we can invert the traditional picture of the relation between rights to property and appropriation. It is the fact that property rights are justified that explains why appropriation is justified, and not the other way around (as is usually thought).
Here is another way of putting the same point. If a good general justification is present for the existence of property rights, then acts of appropriation need not carry that (justificatory) burden. That is, we need not show that there is something special about labor or occupation (or whatever) that justifies the existence of property rights in perpetuity. All we need to show is that, given the justification of property rights in general, certain acts can suffice to bring such (already justified) rights into existence. The latter task, of course, is much less daunting than the task typically envisaged for theories of appropriation.
If this strategy is coherent – and I think it is  – then the case for natural rights to property does not depend on there being acts that are intrinsically appropriative acts. Instead, it quite simply depends on whether a convincing case can be made for such rights on moral grounds alone, a case that is independent of the existence of civil society.
This is why I believe that Feser does not go quite far enough in his essay. For when it comes to the matter of appropriation, Feser appeals to old chestnuts like the idea that by performing an act of appropriation one “inevitably imparts something of his own personality to the resources he transforms.” And slightly later, again, we hear that “for classical natural law theory, to labor over a resource is, as it were, to put into it an impress of one’s own personality, and thus something one already has a right to.”
Unfortunately, as I said, the objections against these ideas are well-known and devastating. To name but a few, let’s look at the idea of mixing labor. This can be neither necessary nor sufficient for appropriation. It is not necessary because it seems we can appropriate things in ways do not involve such mixing (whatever that may mean). Consider my pet cat Molly. Molly was born a feral cat, unowned. And yet, now I am Molly’s owner. But it is strange to say that someone has mixed labor with her. The most we can say is that Molly was picked up one day and moved to my house. There, she just goes about her daily business. The main difference is that she is better fed and lives in a nicer and safer environment. Surely, labor-mixing does not come that easily.
Alternatively, though somewhat more controversially, it looks like we can own ideas. If I write a book I own the ideas expressed in it. But I did not mix my labor with these ideas (again: what would that even mean?). At most, I mixed my labor with the pages on which it is written (or better: with the keyboard on which it is typed). Yet I still somehow own the idea. Labor-mixing cannot explain such cases of ownership.
Nor can labor-mixing be sufficient. To paraphrase Nozick’s famous counter-example: if I take a swim in the unowned ocean, I mix my labor with it. But I certainly do not thereby appropriate the ocean, or even the small part in which I swum. Or, more troubling still, if labor-mixing were sufficient for bringing about ownership rights, then why does not laboring on already owned objects bring about at least some kind of joint ownership?
This is just a very quick sampling of some of the problems with such a view. There are more, similarly damaging objections. An honest reading of the debate, in my opinion, forces one to conclude that the idea that there are intrinsically appropriative acts is simply false.
But here Feser’s approach comes into its own: we do not need such a story to make the case for natural rights of property. We do not need, that is, to claim that labor (or any other act) has some kind of morally magical property. But if we do not need such a claim, and if attempts to defend it are indeed so problematic, then I think we should just abandon it altogether.
Suppose that we do. Suppose, that is, that we abandon talk of labor-mixing and personality-imparting as important to understanding the possibility of appropriation. How is appropriation possible, then? Very briefly, the idea is to derive from the nature of the justification of property rights, a justification of the ability for individuals to bring such rights into existence.
Let me put the argument in more contemporary terms (just because I’m more at ease with these – everything that follows can, I believe, be stated in terms of Feser’s natural law thinking). Suppose we say that property rights serve vitally important human interests – similar to the human goods that Feser discusses in his piece. And suppose we also accept that if a certain right would generally serve vitally important human interests (or: functions), then that is a good prima facie case for concluding that people can have such rights. We could then show that individual rights to private property are justifiable.
Now there are a number of ways in which such (justified) rights can be brought about, ways in which people can transition from a propertyless condition to a propertied condition. One way would be to demand that everyone who wants to appropriate an object ask for the consent of all others. Another way would be to have a centralized auction of some kind. A third possibility is to allow individuals to unilaterally initiate the transition by performing acts of original appropriation. On this third option, people would have a right to appropriate.
Why believe in this right to appropriate and not in other possible ways of bringing about property? At least two reasons speak in favor of this. First, given the vitally important interests served by rights to property, it is important that we transfer from a propertyless condition (in which those interests are, ex hypothesi, not served) to a propertied condition. Allowing individuals to unilaterally initiate this transition clearly serves these interests better than the other options. If people have a right to appropriate unilaterally, then they need not wait until they have secured everyone’s consent, or until the auction has finally taken place, before their important interests can be served.
Second, there are specific advantages to allowing individuals to unilaterally appropriate. Perhaps most important are the additional incentives for searching behavior that result. A right to appropriate implies potential pay-offs for individuals who are the first to discover new resources. As a result, more goods predictably will come into the total pool of goods that can be owned. This leads to increased welfare, and thus again serves the interests crucial for the justification of property rights to begin with.
One might reject the latter argument as objectionably consequentialist. But that would be a mistake. For both reasons piggyback on the more general right to property. And so the order of justification is just as it should be: the justification of property rights in general serves to justify the right to appropriate. We evaluate different potential ways of transferring from a propertyless to a propertied condition in terms of how well they function to bring about the morally important latter condition.
The task of showing that there are natural rights to property and appropriation, then, may be less daunting than it sometimes seems. And they plausibility of such rights is thereby greater. What defenders of natural rights to property need to do is show that vital human interests (or: functions) are indeed served by rights to property and appropriation, that these suffice for justifying rights, and that these justifications do not make essential reference to the state or positive law. Feser is showing us the way.
 At the risk of blatant self-promotion, I have defended this view in “What Counts as Original Appropriation”, Politics, Philosophy & Economics 8 (2009): 355-373