In Chapter 3, Cohen wants to block the inference from self-ownership to ownership of external resources. To further this end, he seizes on libertarian original appropriation of unowned land and capital goods and criticizes its justice.
Locke's theory stresses that appropriation is permissible as long as the new owner leaves "enough and as good" for others.
Nozickian proviso seems weaker, as he requires only that those whose position may have been worsened as a result of any particular appropriation be compensated with the overall benefits of capitalistic social cooperation.
Our author chides Nozick for comparing a private property regime solely with the state of nature and not with all the alternative property arrangements. As an example, he describes a situation in which two men, A and B, presumably on some small island, get m and n units of some good respectively when the land is unowned. If A were to appropriate the entire island and employ B for wages, then both men's shares would increase to m + q and n + p, where q > p. The Lockean proviso is obviously violated; but the Nozickian proviso is seemingly satisfied, because both A and B are better off under private property than under a commons. But not so fast. For if B had been able to appropriate the land, then it would have been he who would enjoy an increase of q. Hence, A's claim harms B relative to the counterfactual situation of B staking the claim instead.
This, of course, is a contrived and unrealistic scenario which does nothing to help us formulate rules for developing the human civilization starting at the beginning of the recorded history until a thousand years in our future. The "nature" whose "state" we are considering in Cohen's fantasy bears no relation to the actual human environment. It's almost a "lifeboat situation" such as when two people are contesting for a plank to hold on to after a shipwreck. Ought the first person who reaches the plank to keep it and save himself, while the second guy who was a minute late drown? Rothbard comments:
Does the concept of aggression and property right apply even here? Yes, for again, our homestead principle of property right comes into play: i.e., the first person who reaches the plank "owns" it for the occasion, and the second person throwing him off is at the very least a violator of the former's property and perhaps also liable for prosecution for an act of murder. ...
To those who believe that such a homesteading principle is unduly harsh, we may reply (a) that we are already in an intolerably harsh and fortunately rare situation where no solution is going to be humane or comforting; and (b) that any other principle of allocation would be truly intolerable. (EoL, 150-2)
Even this implausible situation can be resolved by the rule that the first person to mix his labor (or whatever) with matter gets to own the resulting good. Whoever arrives at the scene later has the duty to respect the newly arisen property right. In that case, B's claiming the land instead of A ceases to be a counterfactual if we keep fixed the assumption that A was there first, and there is no longer a need to deem it an alternative.
In other words, B cannot claim the land if he is not there, and A is permitted to claim the land, because at the moment of asserting ownership, there is no one around to complain. When B at long last makes his appearance, he is faced with an existing property right and must take it as given; once again he does not have the luxury of objecting.
Cohen seems aware of this argument: "Why should B be required to accept what amounts to a doctrine of 'first come, first served'?" he asks (80). There are a number of reasons.
(1) It is a uniquely orderly rule to conduct privatization of resources conflict-free.
(2) There is no rational alternative. Should it be "second come, first serve"? But that's essentially taxation wherein the second person is a self-proclaimed feudal lord who subjugates the rightful owner, forcibly converts him into a mere "tenant," and demands that he pay rent-tax to him. This is illegitimate according to libertarianism.
(3) It encourages everyone to go out and explore the earth as fast as he can, so that he may claim for himself land and other goods. This presses resources into social use most efficiently.
(4) Prior to homesteading, no one controlled or used the land. But controlling and improving (or having at one time improved) the land is both necessary and sufficient for the land's coming to be under private ownership. Thus, (a) the land was first unowned; (b) whoever makes profitable use of the land first gets to own it.
We then want someone, whether A or B, to own the land, so that the process of human subduing and mastering the earth can commence, and we adjudicate competing claims with the help of the (exceedingly reasonable) "first come, first serve" rule.
Cohen's second counterfactual is cooperation between A and B "under a socialist economic constitution." (87) Now socialism does not work. But abstracting from that point, Cohen asks why we cannot consider the world's resources to be jointly owned by all mankind, such that "what each may do with it is subject to collective decision." (84) First of all, ownership is a legal notion, but in the state of nature there is no law other than natural law. Though self-ownership is part of natural law, nothing in natural law specifies anyone's particular ownership of any specific land or capital or consumer goods, least of all joint collective ownership by all humans of the entire world.
Second, it is explicitly absurd; Rothbard considers the "'communist' Universal and Equal Other-ownership":
It is physically impossible for everyone to keep continual tabs on everyone else, and thereby to exercise his equal share of partial ownership over every other man. In practice, then, this concept... is Utopian and impossible, and supervision and therefore ownership of others necessarily becomes a specialized activity of a ruling class. Hence, no society which does not have full self-ownership for everyone can enjoy a universal ethic. ...
Can we picture a world in which no man is free to take any action whatsoever without prior approval by everyone else in society? Clearly no man would be able to do anything, and the human race would quickly perish. But if a world of zero or near-zero self-ownership spells death for the human race, then any steps in that direction also contravene the law of what is best for man and his life on earth. [Hence, "communism" is contrary to natural law.] (45-6)
We can argue similarly that if people in North America, say, had to wait for the permission of the people in Mongolia to appropriate land, then they'd all have starved or at least never taken any steps toward improving their lot and creating a civilization.
There is a final point of disagreement between me and Cohen. Our author claims that Nozick presupposes the "empirical" fact of capitalism's superior productivity in order to establish that "if a private property system exists, then the fact that some people own no or little private property in it is not a reason for removing it." (85) The idea again is that the advanced capitalism began aeons ago with original appropriations compensates all adequately for the disadvantage of the loss of the primordial freedom.
It's a true, good, and important argument. But here it's beside the point.
Even in regard to the stronger Lockean proviso, it may be that in AD 3,000, all or most land and even oceans will be privately owned, which will result in the proviso literally to "leave enough and as good" becoming inoperative at that time. But this fact would not invalidate the then existing property titles, which will have been justly traded hundreds of times by that time; nor will it make unjust the original appropriation of parcels of land amidst a mostly wild world by our ancestors in 4,000 BC. Hence, we do not need the argument in favor of keeping private property proposed by Cohen.
If the fact of some people's owning no property were a reason to "remove" the private property system, Cohen's job would be easy. For clearly, children are born owning literally nothing; their parents grace them with the gift of care. At best a child may hope someday to inherit his parents' property. It is perfectly legitimate for a parent to throw a grown child out of the house at a high enough age with nothing but his clothes and tell him to go and fend for himself. But no one takes the existence of children to impugn capitalism. Neither then can the existence of propertyless adults do so.