DITAT DEUS
For Locke, God provides and commands. The earth, given in common, affords what human life requires; preservation is obligatory and reason directs toward flourishing. Through labor one transforms the given; the transformation justifies appropriation, so long as enough and as good remains for others and nothing spoils from disuse.
Moral justification grounds claims; it does not settle form. Which channels make claims legible, which authority makes them enforceable, which forms suit which scale—these are institutional questions. Locke noted that as populations grow, people "set out the bounds" of territories, and "the possession of land is determined by positive constitutions."
Chief Justice Marshall showed how title is constituted in Johnson v. M'Intosh. Title to lands "depends entirely on the law of the nation in which they lie." Under the discovery doctrine, European powers coordinated claims among themselves; discovery gave title to the sovereign "by whose subjects, or by whose authority" it was made. Indigenous peoples were treated as retaining rights of occupancy; ultimate dominion vested in the discovering nation.
Within that order, ownership becomes legible through possession and authorized forms—grant, patent, license. Standardized categories reduce information costs for strangers and let outsiders treat rights as modular things. But when the state dispenses access, scarcity relocates from things to positions. The form becomes the scarce resource.
Charles Reich saw the consequence: if access remains privilege, revocable at discretion, dependence follows—a new feudalism. In Board of Regents v. Roth, the Court articulated a limit: property interests arise from "existing rules or understandings" that support "claims of entitlement." When law creates entitlement, deprivation requires process.
Space—abundant resources, unobtained, not yet property—reprises the pattern without territorial appropriation. The Outer Space Treaty bars national appropriation while charging each State Party to authorize and supervise its nationals' private activity, with due regard for corresponding interests. Within that framework, the Commercial Space Launch Competitiveness Act provides that U.S. citizens are entitled to resources they obtain through commercial recovery. The Act directs the President to promote the right to engage in such activity, subject to authorization and supervision by the Federal Government. Private claims run through authorizing states; stability depends on mutual recognition.
As we labor toward this abundance, transaction costs shape what's possible—Ronald Coase's foundational insight. AI agents convert costly intermediation—search, negotiation, scheduling, monitoring—into low-cost computation. But property's audience is not the counterparty. It is strangers: an indefinite world that must know what to respect. Standardized forms let them comply without inquiry.
Stress-test the premise. An agent swarm coordinates design, procurement, and manufacture across firms and platforms. Imagine that what emerges is a self-replicating spacecraft. It launches, replicates—one becomes thousands. The fleet becomes abundant; the cost to obtain collapses. Recovery under authorization becomes property.
But replication multiplies spillovers along with output. Exclusion and bilateral contracting cannot internalize effects that touch countless parties—trajectories, emissions, interference, debris.
To secure abundance without dependence, access must be rule-defined. Reich pointed to the Homestead Acts: conditions publicly legible, compliance vesting the right, administrators verifying facts rather than dispensing favors. The object is more complex—resources recovered amid trajectories and debris, not territory bounded by survey—but the structural need is the same: rule-based access to labor the cosmos.
In this expanse, given technology and good governance, enough and as good remains—and we are enriched. Property secures what it ought to secure: labor in pursuit of flourishing.
— Lesaun Harvey
References
[1] J. Locke, Second Treatise of Government, 1690.
[2] Johnson and Graham's Lessee v. M'Intosh, 21 U.S. (8 Wheat.) 543 (1823).
[3] C. A. Reich, "The New Property," Yale Law Journal, vol. 73, pp. 733–787, 1964.
[4] Board of Regents v. Roth, 408 U.S. 564 (1972).
[5] U.S. Commercial Space Launch Competitiveness Act, Pub. L. 114–90 (2015) (codified in relevant part at 51 U.S.C. ch. 513).
[6] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (Outer Space Treaty), 1967.
[7] Convention on International Liability for Damage Caused by Space Objects (Liability Convention), 1972.
[8] R. H. Coase, "The Nature of the Firm," Economica, vol. 4, no. 16, pp. 386–405, 1937.
[9] R. H. Coase, "The Problem of Social Cost," Journal of Law and Economics, vol. 3, pp. 1–44, 1960.
[10] P. Shahidi, G. Rusak, B. Manning, A. Fradkin, and J. J. Horton, "The Coasean Singularity? Demand, Supply, and Market Design with AI Agents," 2025.
[11] H. E. Smith, "Property as the Law of Things," Harvard Law Review, vol. 125, pp. 1691–1726, 2012.
[12] T. W. Merrill and H. E. Smith, "Optimal Standardization in the Law of Property: The Numerus Clausus Principle," Yale Law Journal, vol. 110, pp. 1–70, 2000.
[13] R. C. Ellickson, "Property in Land," Yale Law Journal, vol. 102, pp. 1315–1400, 1993.
[14] D. Schmidtz, "The Institution of Property," Social Philosophy & Policy, vol. 11, no. 2, pp. 42–62, 1994.
[15] C. M. Rose, "Property Law," in Handbook of New Institutional Economics, Springer, 2024.
[16] H. Demsetz, "Toward a Theory of Property Rights," American Economic Review, vol. 57, no. 2, pp. 347–359, 1967.
[17] E. Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action, Cambridge University Press, 1990.
[18] W. N. Hohfeld, "Fundamental Legal Conceptions as Applied in Judicial Reasoning," Yale Law Journal, vol. 26, pp. 710–770, 1917.