GEORGIA LAW REVIEW - StephanKinsella.com

CORPORATIONS AND RIGHTS
I want to proceed, then, by simply assuming that just as "being
there first" seems to generate a property right in the status quo, so
"getting there first" generates a similar right as individuals move
out of the status quo. At the very least one could add that no one
else has a better claim to what has been "staked out" than the
person who has made the effort to do that; certainly those who have
done nothing have no claim. Let us assume also that boundary
problems will work themselves out with reference to economic considerations,
economies of scale, and so forth. As our individuals
move out of the status quo, then, property will arise, claims will be
staked out, and the world will eventually get divided up-all of
which can happen, in principle, without anyone's rights being violated.
Or can it? Are there limits to what an individual can claim
(or to what he can claim in combination with others), after which
any further claiming will violate the rights of others? (Antitrust
theorists take note!)
The tradition, at this point, is to invoke some version of Locke's
proviso, that we can acquire provided there is "enough and as good
left in common for others."95 Thus Nozick pursues, with some invention,
"the crucial point," which is "whether appropriation of an
unowned object worsens the situation of others."" For Locke, " 'tis
very clear, that God, as King David says, Psal. CXV, xvi, has given
the Earth to the Children of Men, given it to Mankind in comm~n."~
The problem before Locke, then, is to show how private
property arises out of this common property. For it would appear
that all must give their consent before such acquisitions can occur.
At the least, the proviso would seem justified in this setting in that
it insures that the situation of others is not "worsened," as Nozick
puts it.
It is at this important juncture, I should argue, that the theory
or rights must bite the bullet: the discomforting conclusions must
In the ordinary world, of course, we get around the difficulty that arises from everyone's
having an equal right to control the public spaces by establishing rules of conduct for such
spaces, which we determine according to some decision procedure. But this is a practical
expedient only; i. e., the conduct set by these rules cannot be seen as a direct manifestation
of our individual wishes-as is possible in our own private spaces-but is rather a reflection,
in our society, of majority opinion (e.g., nude bathing prohibited in San Diego, California)
or earlier-affirmed rules (e.g., Nazi marching permitted in Skokie, Illinois). The democratic
device, in short, gives us nothing like the liberty insured by the private device. See Berlin,
Two Concepts of Liberty, in FOUR ESSAYS ON LIBERTY 118-72 (1969).
O5 J. LOCKE, supra note 58, § 27.
B6 R. NOZICK, supra note 11, at 175.
O7 J. LOCKE, supra note 58, 5 25.