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{{DES | des = A very nice review of the problems of Locke, Nozick and Rothbard in defining how "mixing" works.  "This paper reveals substantialistic, idealistic and teleological foundations of the admixture theory and discusses their problems. A categorical mistake at the heart of the argument concerning the difference of the substances of labour and land is analyzed. Historical queries with the Lockean proviso that „enough and as good” must be left in common for others in the process of appropriation, and contemporary contributions in this field by Robert Nozick and Murray Rothbard are discussed. Altogether, internal frictions of the admixture theory and problems with the historical breach of its constraints on appropriation are quite substantial. In conclusion, the admixture theory fails to justify the institution of private property in land." | show=}}
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Cusanus Hochschule Bernkastel-Kues Department of Economics
Winter Semester 2017/18
Modules „Gesellschaftsgestaltung“ & „Institutionsgestaltung” Examination paper
Examiner: Prof. Dr. Silja Graupe
Revisiting the labour admixture theory as foundation of the institution of private property
Submitted January 3, 2018 by Matthias Neumann
Matriculation: 21601
M.A. Ökonomie (Gesellschaftsgestaltung), 5th semester neumann.matthias@posteo.de Bernkasteler Straße 11, 54470 Graach

keynotes: admixture theory, private property, land, natural rights, political philosophy, political economics,
abstract:
This paper revisits the admixture theory, one major legal philosophical argument for private property. It discusses its original version by John Locke and contemporary restatements by Robert Nozick and Murray Rothbard. The admixture theory postulates the legitimate ownership of one’s labour and, accordingly, legitimate ownership of objects with which one has mixed it. Standing in the natural rights tradition, it defends the institution of private property, a set of very far-reaching property rights for individual land owners.
This paper reveals substantialistic, idealistic and teleological foundations of the admixture theory and discusses their problems. A categorical mistake at the heart of the argument concerning the difference of the substances of labour and land is analyzed. Historical queries with the Lockean proviso that „enough and as good” must be left for others in the process of appropriation, and contemporary solutions to these problems are portrayed.
Altogether, internal frictions of the admixture theory and external problems with the historical breach of its constraints on appropriation are substantial. In conclusion, I argue the admixture theory cannot justify the institution of private property in land.
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Introduction
Until recently, the institution of private property, which gives individual owners a set of far-reaching rights, went largely unquestioned. Today, it is the dominant legal institution concerning the ownership of land in capitalist countries, which comprises the ground, its natural resources and water below it and the air above. In times of extreme social inequality, scarce natural resources and environmental challenges, private property should be subject to renewed scrutiny. This paper is devoted to that purpose and investigates the labour admixture theory as a legal philosophical argument for private property.
Justification of the legal institution of private property is discussed in political
economics, political philosophy and legal philosophy in the private property 1
controversy. Readers entering this debate should come well-prepared. As private property in the means of production is since Karl Marx traditionally considered to be the landmark between the rivaling lands of capitalism and socialism (van Parijs 1997; Cirillo 1966, 158; Wright 1915, 498), the dispute is infused with emotions and ideology.
From the several legal philosophical arguments for private property, this paper investigates the historically influential labour admixture theory. Its fundamental idea is that human labour on land creates legitimate property claims. It was popularized by John Locke and is upheld today by American Libertarians, who are devoted to property as a means for political freedom and individual autonomy.
This paper follows a systematic approach; its focus is on philosophical arguments. Historical data is only provided where required for the understanding of arguments. To reflect this argumentative character, the paper is composed somewhat similar to Platonic dialogues: Queries are presented immediately after the original argument.
In the first part of this paper, I wish to shed light on the institution of private property from a legal philosophical perspective. In the second part, I discuss the original Lockean version of the labour admixture theory and focus on the question of how it describes the process of appropriation of natural objects in general. This general discussion is then specified to the case of land in the third part. Later advocates of the admixture theory like Robert Nozick and Murray Rothbard have come up with changes to the original concept. Their modifications are discussed in the fourth part. Yet, first of all, I shall present the legal institution of private property.
1 See (Macpherson 1978) for a convenient introduction.
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1. The institution of private property2
In this paper, property is understood as a legal term. Property constitutes legal claims against other people in relation to objects. Property is a form of „authority over the
3
It is important to distinguish this technical notion from the meaning of ‘property’ in every-day language. In colloquial speech one might refer to a building or an estate as ‘property’, as if material objects were property. Not so in academic debate. „Anyone who frees himself from the crudest materialism readily recognizes that as a legal term ‘property’ denotes not material things but certain rights.” (Cohen 1978, 158, also see Alchian & Demsetz 1973, 17) This is why property is discussed as a „bundle of rights” in contemporary law, economics and political philosophy. (Pennock 1980, 172; Grey 1980, 69; also see Macrae 1980, 327)
There has been a lot of debate on the elements of the bundle. Lawrence Becker, building on Honoré, provides a list of thirteen different categories of property rights (Becker 1980, 191 f.), which is the most exhaustive list I came across. Considering these different forms of rights, and the possibility of only gradually implementing them, one can design a broad range of differing property institutions. Private property is one such institution with a particularly strong set of property rights in land. Land comprises the ground, its resources and water and the air above it. The legal institution of private property constitutes individual legal claims to them. It has also been referred to as „full ownership“ (Denman 1978, 31 ff.) and „absolute ownership“ (Freyfogle 2003, 17).
Private property includes „the power to use, the power to alienate, the power to assimilate, the power to pass by succession and the power to defend or lay claim to.“ (Denman 1978, 29) From these 5 basic powers, practical rights can be derived, among which are most notably
„the right to earn income from the property, the right to sell it, the right to bequeath it at death, the right to exclude others from it, the right to use water on or under it, and the right to pledge it as security“ (Freyfogle 2003, 19).
Why should individual owners have such extensive rights in land? „Defenders of private ownership of land argue that it promotes individual liberty, political stability, and economic prosperity.” (Ellickson 1993, 1317) Some even refer to it as „a
2 Some thoughts in this part draw on (Neumann 2015).
3 See (Steiner 1977, 247) or (Cohen 1978, 158) for further elaboration on this matter.
lives of other people” (Freyfogle 2003, 28) , which makes it a highly political and ethically important institution. Property requires a secure property order, which in turn consists of a functioning legislative, executive and judiciary.
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hallmark of individualism” (Denman 1978, 132), which allegedly „is crucial to formation of just and open societies.” (Chapman 1978, 298) This institution with its extensive set of rights has a major historic predecessor in the Roman dominium plenum with its absolute rights of individual utilization and alienation. However, historically speaking, „[t]he fragility of use rights [...] is the rule, not the exception”, which makes private property a predominantly modern institution. (Becker 1980, 207)
In political philosophy, there is consensus how to distinguish capitalist from socialist societies: The fundamental question is whether the bulk of the means of production is in collective or private property (see above). Yet, the most basic means of
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production, on which all others depend, is land. The institution of private property
is thus a quintessentially capitalistic institution. This makes the philosophical foundation of the institution of private property a highly important topic with major economic and political impact.
Historically, the natural right to the products of labour is the most important legal
philosophical argument in favour of the institution of private property. John Stuart
Mill, giving an overview of the property debate in 1848, claims that this argument
was present in every defense of private property (see Mill 1978, 83). Some writers in
the middle of the last century still referred to it as the „only justification” of property
(Villalobos-Domínguez 1951, 246). In contrast, this paper embraces Lawrence C.
Becker’ contemporary account on this matter, who states „that there are at least four
sound and independent lines of general justification for private property.” (Becker
1980, 193) The natural right to the products of labour is the first of these. The other
strands of argument Becker mentions include the ideas that people are entitled to
private property because of their need for subsistence, freedom of personality, public welfare 5
and social peace. I think what might be called the „right of first occupancy“ is another categorically different argument Becker does not mention (see Steiner 1977, 251).
It is worth noting that all of these philosophical foundations of private property have been contested and „nothing has given more trouble in liberal-democratic theory than the liberal property right.” (Macpherson 1978b, 199) Some modern political philosophers claim that „we lack a theory of property“ (O’Neill 1981, 309). Robert Nozick, one of the protagonists in the fourth part of this paper, agrees with this assessment (see Nozick 1974, 174). Some scholars even hold that no argument whatsoever could possibly legitimize the institution of private property (see Sanders
4 However, one could argue that in times of digitalization the societal importance of land as a means of production is becoming less substantial, whilst remaining fundamental.
5 Readers interested it these other lines of argument will find them in the private property debate (see above). Famous legal philosophers affiliated with them are: Need for subsistence - rights philosophy, e.g. Kant; freedom of personality - idealists, e.g. Hegel; public welfare - economists, Bentham; social peace - Hobbes.
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2002, 48). Leaving such broad assessments to others, this paper exclusively deals with the first major philosophical line of argument for private property.
2. The natural right to the products of labour and the admixture theory
Theories of the natural right to the products of labour go by the name of labour theory of property, labour theory of appropriation, or admixture theory. Their fundamental idea is that property is created by mixing labour with natural objects. Appliance of the admixture theory as philosophical foundation of the legal institution of private property goes back to John Locke. In the following much-cited passage from his 1689 Second Treatise of Civil Government, Locke lays out the core of his admixture theory:
„Though men as a whole own the earth and all inferior creatures, every individual man has a property in his own person; this is something that nobody else has any right to. The labour of his body and the work of his hands, we may say, are strictly his. So when he takes something from the state that nature has provided and left it in, he mixes his labour with it, thus joining to it something that is his own; and in that way he makes it his property. He has removed the item from the common state that nature has placed it in, and through this labour the item has had annexed to it something that excludes the common right of other men: for this labour is unquestionably the property of the labourer, so no other man can have a right to anything the labour is joined to - at least where there is enough, and as good, left in common for others.“ (Locke 1689, ch. 5, art. 27)6
In this dense paragraph, Locke develops a number of claims and knits them together to his admixture theory. The primary assumption, on which the whole argument rests, is the liberal principle of self-ownership. Its idea is: „Born with a body, it is in the natural order of things that a man should have property rights over it; to deny him these would make him a slave.“ (Denman 1978, 1)7
Furthermore, Locke concludes that people must also be the sole legitimate owners of the products of their labour, because the latter are produced in the exertion of their self-owned bodies. This raises the issue of what precisely a product of labour is and how it comes into existence. Locke’s description of this process came to be known as the admixture theory.
6 In this paper, when I make no opposing statement, accentuations in quotes (like italics or bold print) are adopted from the original source.
7 In Locke’s day, the liberal principle of self-ownership was directed against the feudal institution of socage, which gave feudal landlords the right to force inhabitants of their fees (i.e. the land given to landlords by the royal Prince) to do compulsory work for them.
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According to the admixture theory, natural objects are originally in a „state of nature”, as Locke called it. This simply means that no human being has yet put them to use. According to the admixture theory, people have the power to take natural objects out of the state of nature and transform them into property. How does this work? „[H]e mixes his labour with it, thus joining to it something that is his own; and in that way he makes it his property.“ (see above) This is how the admixture theory came by its name; it describes the process of appropriation as one of mixing previously owned labour with previously unowned natural objects.
Robert Nozick later called this reasoning a „historical” view of justice as opposed to „structural“ or „patterned” views (Nozick 1974, also see Scanlon 1981, 108). In Locke’s view, one cannot judge whether an allocation of property is just or unfair by simply looking at its proportions. Principally, there is nothing about a more equal allocation that would make it more just or unjust than a more unequal allocation. The only thing that matters is how an allocation of property historically emerged. If it emerged in violent robberies, it is wrongful; if there were only fair appropriations and transfers, it is just. This is what makes the Lockean admixture theory a predominantly historical account of distributive justice.
However, Locke puts the process of appropriation under two important constraints, which also have an impact on the resulting pattern of property allocations. The first of these constraints is discussed in contemporary political philosophy as the Lockean proviso8: One may only appropriate „where there is enough, and as good, left in common for others“. (see above) There is a second, less discussed constraint Locke mentions later in his Treatise: that appropriation is only legitimate where the property can be used by the owner and is not left to spoil. „Anyone can through his labour come to own as much as he can use in a beneficial way before it spoils; anything beyond this is more than his share and belongs to others.“ (Locke 1689, ch. 5, art. 31) Accordingly, appropriation is only legitimate where the appropriated objects can be actually used.
Both constraints, and particularly the latter, render Nozick’s classification of Locke’s theory as a purely historical account questionable. On the contrary, Locke’s constraints are motivated by a clear concern for distributive patterns. The first constraint is meant to protect the poor; the second prevents the rich from excessive hoarding. Accordingly, both constraints operate towards a more egalitarian allocation of property. After all, Locke’s admixture theory is much rather a hybrid of historical and structural considerations than the purely historical account as which it is described by Nozick.
8 This denomination was introduced by Robert Nozick in his 1974 Anarchy, State, and Utopia.
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In summary, Locke deduces the natural right to the products of labour from the liberal principle of self-ownership. Labour creates legitimate property claims when people mix it with natural objects. This is put under two constraints: that enough and as good is left for others (the Lockean proviso) and that one can actually use what one appropriated. In the following, before I proceed to the special case of mixing labour with land, I should like to add some observations of the general admixture idea.
Admixture theory and substantialism
The admixture theory is a fundamentally substantialistic view, which means that it assumes the real existence of stable substances in phenomena. Substantialism has a longstanding philosophical tradition going back to Plato and his Theory of Forms. It manifests in several aspects of the admixture theory.
First of all, the principle of self-ownership requires people having a permanent personal identity, because you can only own clearly-shaped, constant objects. This is not the only way to think of people. In a process philosophical view, people have no such permanent substance; they are mere agglomerations of changing processes. The idea of owning these processes does not make any sense, because neither are they stable enough, nor is there any fixed substance among these changing processes which could be defined as „owner“. According to the process philosophical work of Karl- Heinz Brodbeck, for example, personal identities are ultimately illusions, which are collectively produced. Only within such illusionary ego-conceptions can the idea of ownership arise. (see Brodbeck 2002, 229 ff.)
The process philosophical view reveals the substantialistic conception of people in the labour admixture theory, precisely because it does not share it. Only in the perception of the fundamental difference of conceptions do their basic assumptions get revealed. This is the structural reason why pluralistic, interdisciplinary and intercultural research is so illuminative and why I roughly sketched the process philosophical view here.
Furthermore, the substantialistic view of man also shapes the interpretation of acts of labour: Locke’s admixture theory must assume the real existence of a substance of labour. The labour mixed with natural objects does not only temporarily change them; we speak of a permanent transformation from state of nature to property. The invisible substance of labour indefinitely sticks with property after the concrete acts of labour. Otherwise no lasting property claims could arise. I will get back to this train of thought in part 3.
The discovery that the admixture theory is essentially substantialistic raises a lot of questions. What is the substance of people? Where is it? What is the substance of
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labour? Where is it? How can it be mixed with natural objects? How precisely does this mixing work? How much labour needs to be put into natural objects before they are transformed into property? What happens when two people mix their respective substances of labour with the same natural object; who becomes the legitimate owner?
These questions might point to some serious problems of the admixture theory. Unfortunately, Locke does not address any of them. Anyway, I should like to return to Locke’s argument now, in order to learn how the admixture theory deals with the case of land as a particular form of natural objects.
3. Grounding the institution of private property in land in Locke’s admixture theory
Having dealt with the general labour admixture theory, I can now proceed to the issue of how it justifies the institution of private property in land. Continuing the above line of reasoning concerning the process of appropriation of natural objects, Locke goes on explaining that the same principle is at work in the process of appropriation of land:
„It is clear that ownership of land is acquired in the same way that I have been describing. A man owns whatever land he tills, plants, improves, cultivates, and can use the products of.“ (Locke 1689, ch. 5, art. 32)
The last bit of that sentence very much resembles the before mentioned second constraint: that only so much may be appropriated as can be used by individual owners. In addition, Locke restresses his first constraint that appropriation is only legitimate where there is „still enough (and as good) left for others“ at this point (art. 33). The idea is that people, by adding their labour to the land they cultivate, become its legitimate proprietors. However, this equalization of land with other natural objects produces some difficulties, which shall be raised in the following.
First of all, I find it quite noteworthy that Locke’s account systematically favours practices of settled societies over those of hunter & gatherer societies. Among the acts of labour on the land Locke includes practices of tilling, planting, improving and cultivating. Those are all forms of labour which are only practiced among settled peoples. Just to give some examples, practices like worshipping the land, telling mystical narratives of the land, creating paths or traditional aboriginal land burning are not mentioned as acts of labour. Locke’s examples of mixing labour with land only represent the more invasive forms of living with the land. The more subtle relationships maintained by many indigenous peoples are excluded. Having such less invasive relationships in mind, one may want to reconsider the counter intuition to Locke’s point of view, which is articulated by John Stuart Mill:
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„The essential principle of property being to assure to all persons what they have produced by their labour and accumulated by their abstinence, this principle cannot apply to what is not the produce of labour, the raw material of the earth.” (Mill 1978, 94)
Later in the same text, Mill restates his point a bit more bluntly: „No man made the land. It is the original inheritance of the whole species.” (ibid. 96) Land reformer Henry George9 explains the processual view of man behind this alternative approach:
„Life does not use up the forces that maintain life. We come into the material universe bringing nothing; we take nothing away when we depart. The human being, in physical terms, is just a transitory form of matter, a changing mode of motion.“ (George 2010, 72)
Viewing people as processual beings like George, the changes they force onto the land cannot create the lasting private property claims to land. Apart from that, the general difficulties of substantialistic thinking arise in a new form:
„Just how far does the labored-upon object stretch? [...] How deep does such admixture extend? If one owns the mineral resources under the land one has improved, why doesn’t one own land on the other side of the earth? What about the air above one’s farm - does one own the space that different molecules inhabit or rather these molecules themselves [...]?“ (Horn 1984, 345)
These questions trigger one fundamental weakness of substantialistic thinking: it has to clearly define the constant objects it postulates. But where are the objective borders which make plots of land well-defined objects? Yet, on top of these general problems of substantialism, there also seems to be a categorical mistake at the heart of the admixture theory.
The admixture of land and labour as a categorical mistake
Land and labour are so different that it seems justified to consider the idea of mixing them to be a categorical mistake. Land is part of the physical universe. Each plot of land can be seen, touched, smelled and so forth. Labour, on the contrary, is an abstract notion denoting certain types of human activity. Its substance must be invisible, located in a sphere somewhat resembling Plato’s „Realm of Forms“.
Only the concrete acts of labour are physically apparent: the carpenter sawing a board, the professor holding a lecture, the husband doing the shopping. The substance of labour however, if there was such a thing, could not possibly be found in the physical world. This is why the admixture theory is an idealistic concept. At its heart is the claim that the ideal substance of labour is present in every physical act of labour
9 George was in many respects influenced by Mill’s thinking. The two of them actually had a vivid intellectual relationship (see Gaffney & Harrison 2006, 45).
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and that it is possible to mix it with the physical substance of the land. This raises a
fundamental objection, which Plato himself, and a long tradition of philosophers 10
sincethen,haveraisedagainstPlato’sTheoryofForms:thethirdmanargument. The
third man argument points to the fundamental struggle of idealistic theories: they
have to find ways to explain how purely ideal Forms, despite not being part of the
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One might at first glance object that the mixing idea only referred to the concrete acts of labour on a plot of land and not to the transfer of an ideal substance of labour to the land. This misunderstanding is quite understandable, because Locke himself only gives examples of mixing labour with the land, and does not discuss the general process of labour mixing. Remember his statement: „A man owns whatever land he tills, plants, improves, cultivates, and can use the products of.“ (see above) Unfortunately, this materialistic interpretation does not work, because the admixture theory is essentially idealistic. If the mixing of labour with the land was constricted to practical acts of labour, the mixture would have no permanence whatsoever. As soon as the practical acts of labour ceased, the mix would dissolve again and the land fall back from the status of property into natural state. Locke has to hold that after the labour practices some ideal substance of labour sticks with the land that was laboured on. Or, to put it in the words of Murray N. Rothbard, the second main protagonist in the fourth part of this paper: „Now that his labor has been inextricably mixed with the land, he [the labourer] cannot be deprived of one without being deprived of the other.“ (Rothbard 2012, 42)
But can we not argue that it was simply the physical improvements of the land that stayed after the labour, and not any ideal substance? This demur does not work as well. If it were mere physical changes that stayed after the acts of labour, no property claims could arise. The admixture concept says that property claims only arise because the labourer mixed something that was his own (labour) with something that belonged to nobody (natural objects). Now, it is his labour, not the mere physical changes of the land it effectuates, which the labourer owns. Consequently, the admixture theory cannot avoid holding that an ideal substance of labour stays in the ground after the acts of labour. It is this materialized substance of labour which creates valid property claims.
10 You will find the original argument in Plato’s Parmenides (132a-b) and one of its classic discussions in Aristotle’s Metaphysics (139a2).
11 This very short version does not at all do justice to the longstanding academic debate of the third man argument. See (Rickless 2015) for an introduction.
physical world, still have an impact on the latter.
an example this problem. Locke, however, did not explain how the mixing of ideal labour and physical land is possible.
The mixing of labour and land is
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Libertarian thinkers in Locke’s tradition do not reflect upon this matter, but it shines through their statements concerning the appropriative process, like here in Rothbard:
„[The sculptorer, M.N.] has the right to own the product he has made, by his energy and effort, a veritable extension of his own personality. He has placed the stamp of his person upon the raw material, by „mixing his labor“ with the clay, in the phrase of the great property theorist John Locke.“ (Rothbard 2012, 37, bold print by me, M.N.)
Thus, mixing labour with objects is really much like placing an invisible stamp on them, which demarks the extension of the labourer’s personality on objects. But how does this extension of personality on objects work? Libertarians cannot avoid understanding appropriation as a process of mixing the ideal substance of labour (or the labourer’s personality, respectively) with previously unowned physical objects. Accordingly, the burden of explaining how precisely this ideal substance of labour (or the labourer’s personality) comes about and how it can be mixed with physical objects - and land in particular - still rests on them.
Dominant and receptive substances in the admixture theory
There is yet another query. Even if one accepted the admixture idea, one would still wonder why labour should be the dominant substance in the mix. One may just as well suspect the substance of land was dominant and the substance of labour receptive, so that mixing the two lead to a dissolution of the substance of labour in the greater substance of land. The idea is: „Nature does not proceed from humans, but humans from nature. And it is into the bosom of nature that we and all our works must return again.“ (George 2010, 189) Robert Nozick states quite similarly:
„Ownership seeps over into the rest. But why isn’t mixing what I own with what I don’t own a way of losing what I own rather than a way of gaining what I don’t? If I own a can of tomato juice and spill it in the sea so that its molecules [...] mingle evenly throughout the sea, do I thereby come to own the sea, or have I foolishly dissipated my tomato juice.“ (Nozick 1974, 174 f.)
I would have loved to hear Nozick’s way out of this, especially because the question does not discourage him from proposing a renewed admixture theory of his own (see part 4). However, he leaves us behind with his question unanswered.
Summing the last line of argument up, the admixture theory is based on the idea that one can mix ideal substances (labour) with physical substances (plots of land) and that the former thereby get to dominate the latter. Proponents of the admixture theory thus have to explain not only why it is appropriate to conceive of people and labour as ideal substances, but also how it is possible that the categorically different substances of labour (ideal) and land (physical) can be mixed and why labour comes
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to be the dominant substance in the mix. Locke himself addresses none of these issues.
Teleological thinking in the admixture theory
It should be noted that Locke’s natural rights approach shows yet another typical aspect of Western thinking: teleology. The whole idea of justifying institutions by making reference to antecedent principles (like natural rights) only arises in a mindset which is searching for teleological relations in the world. This teleological view has at its heart the dogma that the whole existence was pointing to some end. In Jewish- Christian terms, the idea is that there is a purpose of existence, which is to return to God. Existence, in this perception, is filled with sense and direction. Legal philosophy in this tradition is justifying legal institutions by making reference to antecedent principles.
There are of course alternative mindsets which do not share this idea. In Buddhism, existence is perceived as Samsara, a gigantic essentially hurtful process without any final destination. In this view, teleological thinking is just another form of deception. From a process philosophical perspective, there is no such thing as antecedent principles. There are only processes, like e.g. the continued societal (re)production of the institution of private property in land. There is nothing behind this (re)production, notably no substance like natural rights; all processes are empty. Justification of institutions in Buddhism’s alternative mindset refers to the amount of suffering they produce or prevent and not to alleged antecedent principles.
Apart from this, the strictness in Locke’s teleological derivation of private property may be doubted. Judith Thomson, discussing Robert Nozick’s natural rights philosophy in favour of private property, makes the point that even natural rights should not be viewed as absolute, but as relative to other natural rights. The idea is that one can transgress secondary natural rights like property rights without breaking them when primary natural rights like the right to life and physical integrity are threatened (Thomson 1981, 136 ff.). This point is reiterated by Thomas Nagel (1981, 196).
I hope this helps to contextualize the teleological approach of justifying the institution of private property by making reference to natural rights. Eventually, the intercultural contextualization helped to understand the admixture theory better in revealing its substantialistic, idealistic and teleological elements.
The historical breach of the Lockean proviso
The historical breach of the Lockean proviso is one additional major objection to Locke’s admixture theory:
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„The problem in honoring this right of acquisition, of course, was that it became harder to satisfy as more and more land passed into private hands. Land became expensive long before all of it was gone.“ (Freyfogle, 53)
This, contrary to all other critique mentioned up to this point, is actually anticipated by Locke. Already back in his Europe, he acknowledges, had population and cattle growth as well as money usage „made land scarce and thus of some value“ (Locke 1689, ch. 5, art. 45). One might think the fact that land had in fact become scarce and valuable in Europe in his day would make Locke realize that his proviso had been breached and the then property regime already illegitimate on his own terms. Accordingly, it comes as quite a big surprise when Locke continues:
„Even after all this, however, there are great tracts of ground that still lie in common and so could legitimately be claimed on the basis of labour. [...] Though this can hardly happen among people who have agreed to use money.“ (Locke 1689, ch. 5, art. 45)
In this quote, like in other parts of the Treatise, Locke refers to America, the „New World” with its vast resources. Thus, Locke bypasses the obvious breach of his proviso in Europe by making a colonial argument: European paupers deprived of access to land through former acquisitions still had the opportunity to cross the Atlantic and take the land of the indigenous people of America.
This aggressive attitude is not only present in Locke’s writing, but also in his deeds. He was „a major investor in the English slave trade through the Royal African Company and the Bahama Adventurers company.” (Quiggin 2015) The more land was stolen by European settlers in America, the greater became the demand for the human commodity whose sale to America bestowed Locke with financial profits. (ibid.)
I think this contextualization reveals that Locke’s American escape route from the breach of the proviso in Europe is actually a dead end. Considering his argument nonetheless, one finds pragmatic reasons why it cannot be sustained today. In the course of history after Locke, the land of the indigenous peoples of America became entirely appropriated. The Lockean proviso was breached again in America, just as it was in Europe. Consequently, from today’s perspective, past appropriations of land were illegitimate on Locke’s own terms. This insight led critics of the institution of private property in land to reject the entire admixture theory.
„Ownership of natural resources – lands, forests, mineral deposits, water- power, harbor rights, franchises etc. – rests not on a natural right of workmanship but on the ancient feudalistic ground of privilege and prescriptive tenure, vested interest, which runs back to the right of seizure by force [...]” (Veblen 1978, 121)
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Henry George states quite similarly: „In a word, ownership of land rests upon conquest.” (George 2010, 188) The claim here is that the „natural right of workmanship”, thus the admixture theory, was some academic fiction designed to hide the ugly reality that the institution of private property has historically been established in acts of violence.
More moderate critics hold the institution of private property may have been „suitable for an agrarian order” (Chapman 1978, 303), but that its function to preserve the use right to the labourer was perverted by „the course of economic development” following the breach of the Lockean proviso, which left no land for newcomers. The enclosure of the Commons historically came along with a rising capitalist workforce composed of the masses of dispossessed Commoners (Ryan 1981, 337). The institution of private property thus even „reversed“ the originally intended effect, because landless paupers today are forced to sell their labour to landlords for subsistence. (Tawney 1978, 145 ff.) Henry George concludes on this basis: „Recognizing property in land inherently denies the right to property produced by labor.“ (George 2010, XVII) It is quite ironical, but the very institution designed to ensure that labourers are not deprived of their labour, when spread so far that the Lockean proviso is breached, turns into an institution that does the exact opposite and forces poor people to give up the products of their labour to rich landowners. Cohen describes more closely how this process works:
„The money needed for purchasing things must for the vast majority be acquired by hard labour and disagreeable service to those to whom the law has accorded dominion over the things necessary for subsistence.” (Cohen 1978, 159)
Where there is no free land left for poor people to provide the things necessary for
subsistence (food, shelter, etc.) on their own terms, they are as members of monetary
economies forced to acquire money by selling their labour to other people to buy the
12
4. The revised admixture theory
This latter critique historically became quite influential. On its basis, articulate land reformers like Henry George threatened to turn around public opinion in disfavor of
13
things necessary for subsistence.
fatal to the whole admixture concept: It reverses the original intention to secure to the labourer the products of his labour.
the institution of private property, particularly in the USA..
The breach of the
This is why the breach of the Lockean proviso is
 12 See (Brodbeck 2012) for a detailed analysis of this process.
13 Georges main work "Progress and Poverty" in his day was sold more often than all other economic books and even the Bible in America. His ‘single tax movement’ against private property was a major
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Lockean proviso was undeniable, and thus the original admixture theory unsustainable as justification of the institution of private property. It became „impossible to defend modern property rights in the traditional Lockean terms.” (Schlatter 1951, 278) Therefore, proponents of the admixture theory had to come up with new ideas. Walter Horn names Murray Rothbard and Robert Nozick as most important scholars in this tradition (Horn 1984, 341 f.). Their revisions of the Lockean admixture theory shall be examined in what follows.
Nozick
Political philosopher Robert Nozick may be the seen as the most important
twentieth century advocate of the labour admixture theory. In his much celebrated
book „Anarchy, State, and Utopia“ (1974), Nozick builds his entitlement theory
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upon the Lockean admixture idea. modifications.
However, there are a couple of important
First of all, in Locke’s thinking the earth belongs to all people in common before it gets appropriated. Locke’s state of nature is thus one of shared ownership. For Nozick, on the contrary, the earth belongs to nobody before it gets appropriated. (see O’Neill 1081, 316) This very basic ontological distinction has its practical consequences. Nozick holds that the labourer is only entitled to the positive changes he made to natural objects. The idea is that „laboring on something improves it and makes it more valuable; and anyone is entitled to own a thing whose value he has created.“ (Nozick 1974, 175)
At this point, one may rightfully wonder whether this entitlement to the value created is strong enough to justify the institution of private property, which not only gives rights to the improvements of objects, but to their entirety. Nozick’s move around this problem is to state that it was impossible to separate the value of improvements from the objects on which they were imposed.
All academic thinking about property orders designed to do precisely this, like notably George’s single tax scheme or Silvio Gesell’s Freiland concept, are slashed by Nozick without further explanation in a single subclause on page 175 of his book.
societal movement in the USA. In today’s economic textbooks, you will hardly get by the name. In the 7th edition of Mankiw’s ‘Principles’, George is not even mentioned. In Samuelson’s introductory textbook you find him hidden in a small box on page 272. The neglect of the critics of the institution of private property is not all there is to mainstream economics’ apologetic position in the land question. Another major coup was the banning of the production factor of land from the firms production function, which gradually led to the complete denial of all land issues, and especially the property question in economics. This coup was landed among others by J. B. Clark: "His aim was to undercut Henry George’s attack on landed property by erasing the classical distinction of land and capital." (Gaffney & Harrison 2006, 47)
14 Surprisingly, Walter Horn interprets Nozick as not being a proponent of the admixture theory (Horn 1984, 346), quite incorrectly I believe (see Nozick 1974, 175 ff., also see Teitelman 1977).
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Because, according to Nozick, the separation of value creating improvements from the respective objects is infeasible, the institution of private property is necessary to ensure the labourer’s natural right to the value added to objects.
Anyway, how does Nozick deal with the most influential critique of the Lockean admixture theory concerning the historical breach of the Lockean proviso? His strategy is to reinterpret the latter:
„The crucial point is whether appropriation of an unowned object worsens the situation of others. Locke’s proviso that there be „enough and as good left in common for others” (sect. 27) is meant to ensure that the situation of others is not worsened.” (Nozick 1974, 175)
Nozick’s reinterpretation of the Lockean proviso states that appropriation is fair where it makes nobody worse off. If Nozick was successful in proving that past appropriations have a positive impact on everybody today, his admixture theory would thus be immunized against the criticism of the broken Proviso. And indeed, he comes up with an argument stating „that the free operation of a market system will not actually run afoul of the [revised, M.N.] Lockean proviso.“ (ibid., 182) In part 1, I mentioned five „independent lines of justification“ of private property in academic debate. Nozick here appeals to the welfare argument for private property.
The welfare argument states that capitalism has led to a dramatic improvement in general living standards. This comprises not only the long range of products available to consumers in capitalist societies. For example, improvements in public health have raised general life expectancy drastically (Nozick 1974, 177). Thus, public welfare has substantially improved in capitalist societies. The idea is that historical appropriations of land make everybody better off today. Without these appropriations, the success story of capitalism would not have unfolded. In making this claim, Nozick takes on an argument of famous economist and moral philosopher Adam Smith, who writes in his Wealth of Nations (1776):
„The natural effort of every individual to better his own condition [...] is so powerful, that it is alone, and without any assistance, not only capable of carrying on the society to wealth and prosperity, but of surmounting a hundred impertinent obstructions with which the folly of human laws too often encumbers its operations.“ (Smith 2012, Book IV, Ch. V, para. b 43)
In this view, public welfare is produced by people precisely when they follow only their selfish interests, not thinking about public welfare at all. The selfish appropriation and amassment of property, in this view, ultimately leads to improved living conditions for all through the invisible hand of the market.
Adam Smith himself, at least to my knowledge, did not use the public welfare argument to explicitly justify the institution of private property. This was most
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famously done by Jeremy Bentham, who, discussing the institution of private property, states:
„Thus the laws, in creating riches, are the benefactors of those who remain in the poverty of nature. All participate more or less in the pleasures, the advantages, and the resources of civilized society.” (Bentham 1840, 140).
From this perspective, the institution of private property makes everybody better off. Even poor people who do not own property benefit from the institution, because general public welfare comes with it. The welfare argument was later embraced by Libertarians like Robert Nozick. His reinterpretation of the Lockean proviso is based on this pro-capitalist idea.
The academic discussion of the welfare argument is ongoing. Critics point out that capitalism has also led to massive environmental problems and social inequality, which rather produce more suffering. This view is supported by the Easterlin school of happiness research, which showed that the simple amassment of property in Capitalism does not necessarily make people happier. When the negative externalities of “public welfare” prevail, it even makes them unhappier. (see Easterlin 1974) Yet, as stated above, this discussion is ongoing and a consensus lies far-ahead.
Nonetheless, today’s critique of the public welfare argument at least weakens one of Nozick’s assumptions. As Nozick does not address the more fundamental problems raised above, his version of the admixture theory is actually not much better than Locke’s. In the following, I should like to exhibit whether a stronger foundation is provided by Murray Rothbard, who is arguably the second most distinguished twentieth century proponent of the admixture theory.
Rothbard
Murray N. Rothbard adopts the Lockean admixture idea by stating that „any piece of nature [...] is subject to a man’s ownership through his first use or mixing of his labor with this resource.“ (Rothbard 1962, 147) This ownership arising from labour mixing, just as in Locke, is Rothbard’s explanation of the institution of private property: „[...] the origin of all property is ultimately traceable to the appropriation of an unused nature-given factor by a man and his mixing his labor with this natural factor [...].“ (ibid.) Rothbard, however, substantially radicalizes the original Lockean admixture theory:
„The libertarian creed can now be summed up as (1) the absolute right of every man to the ownership of his own body; (2) the equally absolute right to own and therefore to control the material resources he has found and transformed; and (3) therefore, the absolute right to exchange or give away the ownership to such titles to whoever is willing to exchange or receive them.“ (Rothbard 2012, 85)
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Rothbard’s radicalization is hidden in his second axiom of libertarianism quoted
above. He postulates an „absolute right to own and therefore to control the material
resources he has found and transformed“. The natural right of appropriation is thus
unconstrained in Rothbard’s account. In particular, the two constraints John Locke
put on the process of appropriation are dropped. Firstly, Rothbard abolishes the
Lockean proviso that „enough and as good“ must be left for others. The natural
right of appropriation, in his account, is „absolute“, that is unlimited. There is no
need to leave anything behind for anybody else. Secondly, the Lockean constraint
that only so much may be appropriated as can be used by the owner without spoiling
15
This is what Rothbard says about the natural right of appropriation:
„We have established each individual’s right to self-ownership, to a property right in his own body and person. But people are not floating wraiths; they are not self-subsistent entities; [37] they can only survive and flourish by grappling with the earth around them. They must, for example, stand on land areas; they must also, in order to survive and maintain themselves, transform the resources given by nature into „consumer goods,“ [sic!] into objects more suitable for their use and consumption.“ (Rothbard 2012, 36 f.)
Rothbard states here that the idea of a natural right to self-ownership cannot be viewed in isolation. It has massive consequences for relationships, particularly to natural objects. In short, a natural right to self-ownership requires access to natural objects in order to function. Only sufficient property in land and other natural goods ensures the individual against any violations of his natural right to self-ownership. This is precisely how Rothbard derives a natural („human“) right to property:
„If a man has the right to self-ownership, to the control of his life, then in the real word he must also have the right to sustain his life by grappling with and transforming resources; he must be able to own the ground and the resources on which he stands and which he must use. In short, to sustain his „human right“ - or his property rights in his own person - he must also have the property right in the material world, in the objects which he produces. Property rights are human rights, [...].“ (Rothbard 2012, 52)
But what if there is no land left for people to „stand“ on for free? What if, due to past appropriations, they do not have access to „resources given by nature“? Does not the very property regime of unrestricted appropriation Rothbard defends for
15 See (Horn 1984) for further elaboration on Rothbard’s abolishment of Locke’s constraints.
is dropped as well.
who already weakened the original Lockean constraints on appropriation by ignoring the second constraint and weakening the first. This empowerment of absolute appropriation is, again, motivated by a fundamental belief in the capitalist system and the beneficial wealth creation of markets. (see Rothbard 2012, 28)
This is a substantial radicalization, even compared to Nozick,
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reasons of natural rights of first movers amount to the denial of these very natural rights of late comers? If appropriation of property, as Rothbard holds, is so vital to the liberal principle of self-ownership, then what about today’s poor people? This is basically the same point of critique mentioned above, which historically refuted the original Lockean admixture theory. Rothbard’s defense of the natural right to unrestricted appropriation amounts to an offense of the same natural right of people who come later, when everything got appropriated.
This is not a hypothetical query. We live in a world today, in which practically no land is left to appropriate. It turns out John Locke introduced his proviso for excellent reasons; it is a vital part of a natural rights account of appropriation. Without it, the possibility of scarcity of natural goods resulting from extensive appropriations means automatic violation of natural rights of late comers. To simply drop the Proviso, like Rothbard does, perverts the whole concept. Rothbard does not address this issue, just like he does not consider the more principled objections against the admixture theory raised above. On this basis, I believe it is fair to say that his version of the admixture theory cannot function as foundation of private property.
After all, neither Rothbard nor Nozick have solved the principled objections against the admixture theory. Both of them tried to overcome the breach of the Lockean proviso, Nozick by modifying it, Rothbard by dropping it altogether. Nozick’s pro- capitalist welfare argument for the modification looks at least questionable in our days, whereas Rothbard’s entire rejection of the Proviso perverts the entire natural rights approach to the justification of property.
Walter Horn, after a critical investigation of both Nozick’s and Rothbard’s defenses of the labour theory of property, concludes that „there is really nothing to the admixture theory beyond the pretty metaphors of infusion and emanation“. (Horn 1984, 346) Indeed, the process of admixing is never properly explained by admixture theorists. This paper suggests that the lack of a proper explanation can be attributed to fundamental problems of all substantialistic thinking, and such which postulates the mixing of ideal substances with physical objects in particular.
Conclusion
This paper investigated the admixture theory, one major legal philosophical line of argument in favour of the institution of private property in land. After an introduction into the institution of private property, I discussed the admixture theory in its original version put forward by John Locke. It turned out that the admixture theory entails a substantialistic view of the land, men and their labour. The idea of
18

mixing labour and land remains mystical and is not clarified by its proponents. Plenty of principled objections and questions remain unaddressed.
Historically, the critical argument that the Lockean proviso had been breached became so influential it actually threatened the institution of private property. This is why subsequent proponents of the admixture theory, like Nozick and Rothbard, made significant changes at this point: Nozick reinterpreted the proviso, Rothbard dropped it altogether. It turns out that these revisions are at least questionable, if not entirely baseless.
After all, the outcome of this paper is that one major legal philosophical argument in favour of the institution of private property, at least in its popular articulations, cannot be sustained. If Lawrence Becker got his counts right, the institution of private property is legitimized by three other strains of argument. Consequently, this paper in itself cannot form any conclusive judgment about the institution of private property. In the current crisis of capitalism, this quintessentially capitalistic institution and its philosophical foundations deserve further scrutiny.
19

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Eidesstattliche Erklärung
Ich versichere, dass ich die Arbeit selbstständig und ohne Benutzung anderer als der angegebenen Hilfsmittel angefertigt habe. Alle Stellen, die wörtlich oder sinngemäß aus Veröffentlichungen in schriftlicher oder elektronischer Form entnommen sind, habe ich als solche unter Angabe der Quelle kenntlich gemacht. Mir ist bekannt, dass im Falle einer falschen Versicherung die Arbeit mit „nicht ausreichend“ bewertet wird. Ich bin ferner damit einverstanden, dass meine Arbeit zum Zwecke eines Plagiatsabgleichs in elektronischer Form versendet und gespeichert werden kann.
Graach, den 03.01.2018 Matthias Neumann
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