Chapter 10: Property

The Nature of Property

Paul Jurczak

When we think about property we often think about the “stuff” we own like our computer, our clothes, and maybe a car and a house. We also tend to think that once we own something we can pretty much do whatever we want with it. I can loan my car to my brother, if I want to. I can throw away an old shirt I no longer want. But ownership is actually a complex idea.

Even if I own a car, I can’t park it wherever I want. Also, I am required to pay a registration fee to the state every year, and I must buy insurance (in case I crash into someone), and I am required to perform certain repairs even if I don’t want to (headlights must function in order to drive at night). Also, my use of my car is limited: I still have to obey the traffic laws.

Additionally, there are complex forms of property like stock investments in large corporations, real estate, and intellectual property. These forms of property are often co-owned with other people to whom one is legally bound. Many people live in apartments which are rented; paying rent for an apartment gives the renter SOME ownership rights but not others. So, ownership of property is not as simple as it might, at first, seem.

Property is a Right, Not a Thing

Property ownership is best understood not as the ownership of things but as a set of rights to the use of things. A person who owns a house has rights to certain uses of the house but not to others. For houses in zoned communities (most houses) the ownership rights are limited. I cannot tear down my house and put up a movie theater without changing the zoning of the physical property upon which the house is situated. The right to change zoning is a collective right held by the community in which the house is located. We can say that the city in which a house is located has an ownership right over the proper use of that house. The city also has an ownership right to extract certain taxes from the owner. The political philosopher C.B. Macpherson says, “As soon as any society, by custom or convention or law, makes a distinction between property and mere physical possession it has in effect defined property as a right. And even primitive societies make this distinction.”[1] This distinction between mere possession and property right is further explained by Macpherson:

“. . . to have a property is to have a right in the sense of an enforceable claim to some use or benefit of something, whether it is a right to share in some common resource or an individual right in some particular thing. What distinguishes property from mere momentary possession is that property is a claim that will be enforced by society or the state, by custom or convention or law.”[2]

Using Macpherson’s language, we can say that the owner of a car has an “enforceable claim” to who may use that car. If the owner does not give you permission to use her car, and you use it anyway, she can go to the police who are empowered to take the car from you, with violence if necessary. This is an “enforceable claim,” or what we are calling a “right.”

Although within a capitalist system we tend to see property as private property (that is, owned by some person or group of persons), we need to understand that there is a long and continuing tradition of “common” property even in highly capitalistic societies: streets, public parks, and other common land, like state forests. Although philosophers living in past ages often took for granted certain forms of common property, we in the 21st century are even more highly aware of the need to protect common property like water and air from pollution.

In this chapter, we will examine two major issues: 1) the nature of “property” as either natural or as a social construct, and 2) the possible reasons to limit ownership of property. As for the first issue we find thinkers including John Locke and Adam Smith claiming that property is “natural,” and we find David Hume and Thomas Hobbes claiming that property is necessarily a social construct.

Key Question: Is Property a “Natural” Right or a “Social” Right?

Two of the most influential early modern Western philosophers, Thomas Hobbes (1588-1679) and David Hume (1711-1776), argued that there could be no natural right of property ownership, rather the various rights of ownership were created by the state (or some less formal community) and were, thus, a human creation. This human convention we call ownership of property was begun simply because it was useful.

Hobbes and Hume continue an ancient Christian tradition (substantially developed in the work of St. Thomas Aquinas) in stating that the function of law is to protect our rights to survive. To the extent that property rights help us to thrive, those rights are defended in law; when those property rights harm the community, those rights are properly curtailed. Thus, Hume and Hobbes argued that political officials had the right to open granaries and to distribute grain to hungry masses, even if that offended the owners of the granaries. Put simply, if the law stood between a starving person and the food he needed to survive, then the Law no longer had any meaningful function and would be superseded by human need. Hume says that the ownership of property “can be done after no other manner, than by a convention entered into by all the members of the society to bestow stability on the possession of those external goods, and leave everyone in the peaceable enjoyment of what he may acquire by his fortune and industry.”[3] How exactly this “fortune and industry” made something a person’s property is not clear, but Hobbes and Hume insist that ownership serves a public good and that the state needs to establish rules that govern property rights.

There are philosophers who argue that property rights do not derive from human conventions, rather, these other philosophers argue that property rights precede the origins of states and human communities. Arguing in favor of a “natural” origin of property is John Locke (1632-1704). He is probably the most influential thinker on the idea of property. Much of what we might casually say about property rights the is rooted in Locke’s philosophy.

Locke argues that although all of god’s creation was given to people as our common property, we each uniquely own our bodies and our ability to perform labor. Locke says

Though the Earth . . . be common to all Men, yet every Man has a Property in his own Person. This no Body has any Right to but himself. The Labour of his Body, and the Work of his Hands, we may say, are properly his. Whatsoever then he removes out of the State that Nature hath provided, and left it in, he hath mixed his Labour with, and joyned to it something that is his own, and thereby makes it his Property.[4]

Locke is saying that all persons have equal right to the goods of nature until that point were some person engages in some work (labor) to obtain that good; in performing that labor the person has joined their personal labor (which is uniquely their own) to some object in nature, and thus that particular object in nature has become the property of that person. We should be able to easily imagine such a case. Imagine a primitive forest in a time before the organization of the world into states, and imagine there were trees in that forest that bore fruits. If some ancient person went into the forest (which exists, according to Locke in a state of nature and thus is owned by no one) and that person were to pick fruits, those fruits become the gatherer’s property because that person gathered them. We can also imagine a large lake full of fish. If some ancient person were to put her own labor into catching a fish, that fish becomes her property because the fish in her hands is no longer in the state of nature (where god had originally placed it) but has been caught though her own efforts. So, Locke argues that when any person mixes their own labor into the natural thing, that thing now becomes the property of the person whose labor has been mixed with it.

For Locke, ownership of land is somewhat different than the ownership of more moveable things. When gaining a property right to a piece of land, Locke insists that we not simply take from the common store of nature, but that we engage in productive labor. To claim a piece of land from out of the state of nature, our labor must actually increase the amount of goods made available for people. It is not enough for me to harvest the apples from trees in the forest in order for me to claim that I thereby own the forest. According to Locke I must also cultivate that land so that it produces more apples. If by so doing I actually increase the number of apples available for people, then I can call that apple orchard my property because there are now more apples than there had been in the state of nature. So, I can make a section of forest or a coal deposit or a lake my own property if, through my labor, I increase the quantity of goods available. Put simply: a person makes a piece of land their own by increasing the productivity of that land. This way of thinking supported the European colonists in the Americas as they drove out the native Americans and seized their land; since the Europeans could build productive farms, cities, and harbors in what they considered “waste land” (land that the Native American had not made “maximally productive”) the Europeans claimed a property right to that land and its improvements. Locke’s model says that whoever can maximize the productivity of any given property has the right to do so as long as no one else had already improved that land. European settlers, for the most part, saw the Americas as “waste” land, open to themselves, and everyone else, to seize and improve.

Although Locke’s model may seem attractive, it does not seem to have much to say to us in the 21st century. We do not find ourselves in a world full of primitive forests and pristine lakes. Rather, everything I see is already owned by someone. Locke was living in England in the 17th century; even 350 years ago this kind of untamed natural world was not something Locke actually saw. Once most of the world is owned, the abilities of later generations of people to gain ownership rights to the things they want or need has changed radically. We do not live in the world described in Locke’s “state of nature.”

Locke grounds his theory of property in the Bible. Locke says, “God and his reason commanded him [humans] to subdue the Earth.” Thus when “He that in Obedience to this Command of God, subdued, tilled and sowed any part of it, thereby annexed to it something that was his Property, which another had no title to”[5] Further Locke says that god gave land “to the use of the Industrious and Rational.”[6] Since the native population of the Americas were not thought to have truly settled and cultivated the lands, it seemed natural to the Europeans (from Locke’s point of view) that they had God’s sanction to the land of the Americas.

David Hume (1711-1776) claims—much as did Thomas Hobbes (1588-1679) —that there is no natural right to property, rather, all property is grounded in the laws of a just society. Hume says,

A man’s property is some object related to him. This relation is not natural, but moral, and founded on justice. Tis very preposterous, therefore, to imagine, that we can have any idea of property, without fully comprehending the nature of justice, and shewing its origin in the artifice and contrivance of man. The origin of justice explains that of property.[7]

Hume brings us back to the idea that the rules that establish property ownership are constructed by a society in order achieve some positive goal(s). If a group of people are to agree that some person actually does have property rights in some object, the conditions whereby that right is properly held must be known and agreed to by that group. Rather than tracing ownership back to some mysterious “state of nature,”

Hume claims that rules of justice must already exist prior to any claim of property ownership. Remember that if we think of property as an “enforceable claim” (and most contemporary philosophy of property does) then there must be a group of people (say police and the courts) that exist in order to enforce one’s claims to property.

The Essential Distinction

We see an essential distinction between these two conceptions of property. For Locke, ownership precedes all forms of social connection; property is a “natural” right. Laws produced by societies may function to protect natural rights but do not, themselves, produce those rights. The rights to property exist outside of any form of social agreement. From the Lockean perspective, the written laws of property in any given nation can be either moral or immoral: the human laws may either enforce natural law or abridge natural law. A contemporary Lockean might claim that Capitalism merely enforces the natural law of property while Communism abridges those natural rights. However, the claim that property rights are “natural” is not an argument; it is merely a claim.

Hume, on the other hand, sees human society (community) as fundamental. So, for Hume, society has both a temporal and an ontological priority over property. That is to say that there can be no property without first there being some sort of community of persons who can agree upon the rules of property ownership. In this view, there is no “natural” way that property exists; it is merely a human agreement—though, perhaps, a very important one. No set of property rules is natural, since all rules of property are devised and enforced by community. Each community has the right to choose the rules of property for themselves. Therefore, the rules (or laws) of property if freely chosen by a community cannot be, themselves, either moral or immoral. Those property rules are merely the ones chosen and can be changed as the community decides to change them.

Criticism of Locke and Natural Property

Hume is critical of Locke’s claim as to the ownership of property through the “mixing” of our labor with some object of nature. There are various kinds of properties people claim to own but have not mixed their labors to it. Hume gives the example of a meadow on which one places one’s cattle to graze. In this instance, there is no “mixing” of labor into a natural thing, rather what has happened is that the herder has merely “accessed” a piece of land and not mixed his/her labor into that meadow.

Further, Hume claims that we never actually mix our labor into anything; our labor merely makes some alteration in the natural thing. For example, the fish I catch from some lake is, itself, still a fish, and I have not mixed my labor into the fish itself. I have merely altered the placement of the fish out of the lake and into my hands. The fish itself remains unchanged; it remains a fish.[8]

In support of Hume’s position, we should easily be able to think about the kinds of labor we expect human beings to perform that do NOT give any person a property right. If during some particularly cold winter day (say a January blizzard in Michigan) I encountered another human collapsed in the snow, I would have a moral obligation to aid that person. I might use my “labor” to call the police, or I might labor to move that person into a warm shelter. My labor does not give me any property right over that

person I have aided. Justice itself seems to demand that I use my labor to help other people in mortal danger. We can also imagine a cabin in the wilderness of the Upper Peninsula of Michigan. There are people who own such cabins and (because of traditional values) do NOT lock the door to their cabin. The reason is simply that any person lost and in need of shelter has the “right” to make use of that cabin in circumstances where his/her life might be in danger. In this sense of justice, the legal owner of the cabin retains full ownership rights to their property. However, a person whose life might be in danger has certain limited property rights to the cabin as well. Hume would argue that the cabin owner’s right to property is not more important than the lost traveler’s right preserve their own life.

Thinking about property having some natural origin in labor leads to certain problems. First, if while traveling I were to lose a $5 bill, Locke would claim that this specific $5 bill remains mine forever. If you were to find that $5 bill at some future date, you cannot claim it as your own. Abandoning Locke’s “natural right” view and taking on a more modern view (property as an enforceable right), it should be clear that since I cannot distinguish one $5 bill from another, I have no “enforceable” claim on the $5 you have found.

Additionally, Locke’s picture of natural rights seems unable to explain why people over time so frequently change the rules of ownership. One might think that if ownership were simply “natural,” people would figure this out and then rules of ownership would remain stable over time. However, if we examine almost any set of property rules we find them often changed.

Even though John Locke insists that we all have ownership rights in our own bodies, throughout most of European history women were not allowed to own property or to choose a marriage partner. Several U.S. states changed their property laws in 1835 and for the first time allowed married women to own and manage property in their own name IF their husband were incapacitated. In 1860, the state of New York took leadership in women’s rights by passing the New York Married Women’s Property Act; this new law allowed married women (rather than their husbands) to control the money they earned. In 1870, the United Kingdom passed the Married Women’s Property Act which allowed married women to legally own the money they earned and to inherit property. Prior to these laws, husbands owned not only their own property but also all property that had come to their wives.

We look at these laws simply in order to show support for Hume’s position: ownership doesn’t seem to have some basis in nature, but, rather, only in human ideas about justice. If we agree with Hume, then we cannot appeal to some original/natural facts about property. We need to think about communities and nations choosing rules that define the terms of property ownership. Those rules would be, in part, the result of some conception of what is justice. Is it justice that allows married women to control the money they earn from their own labor? Is it justice that allows married men to take control of money earned by their wives? As our sense of justice changes, our ideas of property ownership change. When slavery was eliminated in the United States in 1865, it was no longer considered justice for one person to own another as property. During the American Civil War, many people believed and were willing to fight to the death over their sense of their rights to own other people as property. How many contemporary people honestly believe that we may own other people as slaves?

Limitations on Ownership of Property

Human history has been lived in scarcity, and under such circumstances it made sense to claim that if some person owned more, some other person must own less or nothing. It is only since the time of Locke and afterwards that it was thought rational to desire without limits. This desire without limits could only be seen as rational once the industrial revolution had made the elimination of scarcity thinkable. In the history of scarcity, unlimited wealth could never be attained, and, so, as an unattainable goals the desire for unlimited wealth was irrational. However, “What was new from the seventeenth century onwards, was the prevalence of the assumption that unlimited desire was rational and morally acceptable.”[9] But humans are complex beings for whom economic development is only part of life. There is a long tradition going backto, at least, Aristotle that “what had to be maximized was each man’s ability to realize his essence. What had to be asserted was the equal right of every man to make the best of himself.”[10] Included within that unlimited ownership of property is the right to hire other people to perform work in exchange for wages; in hiring others one transfers or appropriates the powers of other persons to one’s own agenda. “The unequal properties acquired in market operations became the means by which some men increased their powers by acquiring the powers of others.”[11] This kind of transfer increases the ability of one person to attain their goals, but it lessens the ability of the other person to pursue and attain their own highest development. To see Macpherson’s point, all one need do is to imagine a small group of very wealthy people who use their powers to create laws that keep unions weak or illegal and wages low. In this a situation, the right to personal development of some has been sacrificed to others.

Our traditional philosophy of property developed in Europe in the 17th and 18th centuries. At this time in European history, philosophers (like John Locke) were engaged in revolutionary thinking; they were arguing against the absolute right of kings. The American legal scholar Morris Cohen explains, “As is natural in all revolts, absolute claims on one side were met with absolute denials on the other. Hence the theory of natural rights of the individual took not only an absolute but a negative form: men have inalienable rights, the state must never interfere with private property, etc.”[12]

Ayn Rand (1905-1982)

Although she is not counted among the great philosophers, her published novels and film scripts make her rather well known today. Her thinking on the nature of property is, for the most part, derived from both John Locke and Adam Smith. So, although she is not an original thinker, she brought important philosophical ideas to a wide audience through her works of fiction (mostly The Fountainhead and Atlas Shrugged). She explores the idea of property in a number of her writings. The following quotation is from her character John Galt in Atlas Shrugged, “Just as man can’t exist without his body, so no rights can exist without the right to translate one’s rights into reality—to think, to work and to keep the results—which means: the right of property.”[13] It seems that Rand is echoing the ideas of John Locke: property comes into being through the physical or intellectual work of human beings. Rand’s character, John Galt, further says that “The source of property rights is the law of causality. All property and all forms of wealth are produced by man’s mind and labor.” Here Rand is taking up the argument of Adam Smith. Smith says, “The property which every man has in his own labour, as it is the original foundation of all other property, so is the most sacred and inviolable.”[14] Like Adam Smith, Ayn Rand claims that property rights are the most fundamental of all rights; without a secure right to hold property no other rights matter; all other rights are founded upon the right to property. Rand says,

The right to life is the source of all rights—and the right to property is their only implementation. Without property rights, no other rights are possible. Since man has to sustain his life through his own effort, the man who has no right to the product of his effort has no means to sustain his life. The man who produces while others dispose of his product, is a slave.[15]

Rand claims that property rights are the most fundamental of all rights, and without rights to property no other rights are even possible. One might wonder if rights to religious freedom concern Ayn Rand. They do not. One might imagine that a person who was enslaved (and thus had no rights to any property) might still find value in their “right” to practice a religion of their choice or to live with their family. There is good evidence that enslaved people did value these rights. In contrast, Rand was a committed atheist who had no regard for religious practices of any kind; she left her family in Russia in 1926 and never returned. She says little about religion in her works of fiction. Her most thorough look into religion was an interview she did for Playboy magazine (March, 1964). When asked if she thought that religion had done any positive service to humanity, she responded, “Qua religion, no—in the sense of blind belief, belief unsupported by, or contrary to, the facts of reality and the conclusions of reason. Faith, as such, is extremely detrimental to human life: it is the negation of reason.” Unlike Rand, many people see that property rights are only one aspect within a larger collection of human rights. Among contemporary philosophers, property rights are usually regarded as important, even central, but property rights are not understood as the sole foundation upon which all other rights are grounded.

Even very conservative thinkers have argued in favor of limiting, at least, some forms of property. For intellectual property (like copyrights and patents) Ayn Rand makes clear that this kind of property right can only have a limited lifespan: the life of the creator of that intellectual property. When the creator dies, the right to full use of that creation spreads to all living people; it does not make sense for the dead to control what the living may do with ideas. Rand makes clear that intellectual property rights cannot be granted in perpetuity. “If it were held in perpetuity, it would lead to the opposite of the very principle on which it is based: it would lead, not to the earned reward of achievement, but to the unearned support of parasitism.”[16] Rand sees a use (and most other people do as well) in granting certain limited rights to the creators of ideas and works of fiction. By providing those creative persons the sole right to their creations, society rewards, and thus encourages, creative work. But allowing copyright and patent rights to live on past the lives of these creators is to grant a right that is unearned. To pass copyright and patent rights across generations is to grant a right to function as a parasite—to be rewarded for work one has done nothing to earn.

Rand is usually considered a politically “conservative” thinker, one who defends the property rights of the wealthy. But, specifically, as to the property we call copyright, her argument condemns some of the largest and most powerful copyright holders, including the Disney Corporation. The Copyright Act of 1976 allowed for copyright to last for the entire life of the author plus 50 years, or 75 years for corporate copyrights. However, in 1998 the U.S. Congress passed the Copyright Term Extension Act (CTEA). This act further extended copyright to the life of the author plus 70 years, and the legal copyright of corporate products to 95 years after publication. This act (CTEA) was widely ridiculed as the “Mickey Mouse Protection Act.“ The Disney Corporation encouraged Congress to pass the law; CTEA allows Disney complete control of all images of Mickey Mouse until the year 2024. Had CTEA not been enacted, Mickey Mouse would have entered public domain and thus been released to the world for free and unlicensed duplication in 2003, thus reducing profits of the Disney Corporation.

This law allows the Disney Corporation to charge substantial fees on all images of Mickey Mouse decades after the creators have died, thus permitting the Disney Corporation to function, in Ayn Rand’s words, as a “parasite” by continuing to extract money it has not earned from the character of Mickey. Many conservative economists agreed with Rand and opposed the extension of copyright, these economists included Kenneth Arrow and Milton Friedman.

Rand is of interest in part because of her influence on later thinkers of importance. Even though her influence on academic philosophy has been very minor, she cultivated friendships with people who later did become politically powerful, including Alan Greenspan who served as Chairman of the Federal Reserve bank from 1987-2006.

Rand is often associated with modern Libertarian thought; she believed, for instance, in a woman’s unlimited right to abortion, and she opposed the Vietnam War. On the other hand, many understand her work as aligned with mainstream conservative thought; she condemned homosexuality and insisted that Europeans (in the 16th through 19th centuries) had the right to take the land from American Indians. She is a complicated thinker who was most successful in providing entertaining works of fiction in which she developed the ideas of others, especially the ideas of Adam Smith and John Locke.

A Christian Point of View

A much older philosopher working in the 13th century explains why property rights are always limited. This philosopher is St. Thomas Aquinas, and his writings are foundational for much of Christian morality. Although Aquinas lived much of his life in a monastery, he was not cut off from human suffering. He tries to understand (from a Christian point of view firmly grounded in the Bible) what kinds of moral obligations people have to each other. Aquinas has an interesting argument on what prosperous people owe to people in dire need: hunger, thirst, cold and disease. He says “ In cases of need all things are common property, so that there would seem to be no sin in taking another’s property, for need has made them common.”[17] In his argument, Aquinas follows the logic of his Christian belief even when it leads to an answer that some people (especially Adam Smith and Ayn Rand) might find troubling. From his Christian point of view, Aquinas teaches that all useful things have been put on this planet by God to supply the needs of human beings. For example—water in rivers and lakes is present to take care of our thirst. Plants and animals exist to nourish our bodies. Trees grow to supply wood for houses and other human needs. There is such a thing as privately-owned property for Aquinas, and under normal circumstances we have no right to take the property of other people. However, when someone is truly in NEED, property that can address those needs becomes “common property,” and private property ceases to exist. Common property is like air to which we all have a common right; no one may claim exclusive ownership over it.

According to Aquinas the person in need should ask the owner of abundant property for help, but if the owner is not present or if the owner denies access to what a person truly needs, the person in need may take and use the needed property. In such circumstances, no sin occurs. What may surprise us is that any person with abundant property who refuses to aid a person in need has sinned by hoarding the property that God has placed onto the Earth to serve all human needs, not just the needs of a few.

Taking the property one needs is no more a sin for Aquinas than is drinking water from a lake; all things are common property when someone is truly in need and so all things are available to whomever needs to use them.

Sir Anthony Kenny (a contemporary philosopher) summarizes the philosophy of Aquinas on wealth and property.

First of all, it is sinful to accumulate more property than one needs to support oneself, relatively to one’s condition in life and the number of dependents one has. Secondly, if one has money to spare one has a duty—as a matter of natural justice, and not of benevolence—to give alms to those in need. Thirdly, if you fail to relieve the poor, then they may, in urgent need, legitimately take your property without your leave.[18]

John Rawls and the Limits on Property

John Rawls (1921-2002) argues that a society built upon unfair principles for the distribution of property is not a society we would choose to be part of and is, thus, an immoral society.[19] Thus, he agrees with Hume, Hobbes and Aquinas that ownership of property is not a primary right; rather, it is based in a society’s agreement on the notion of justice. What one may rightfully claim as one’s property is grounded in a society’s understanding of justice. Rawls develops his ideas on property from within a more general discussion of justice. Rawls acknowledges that within any society, there will almost certainly be people who are not well off. But a just society will not permit people to be systematically discriminated against or impoverished. Thus, Rawls insists that IF we were given the opportunity to choose which society we were to be born into, we would choose one that abided by what Rawls calls “The Equality Principle”— All offices and positions are to be effectively open to all people regardless of social background, ethnicity, sex, or other possible distinguishers. If I did not know whether I was going to be born male or female, if I didn’t know whether I was to be born into one ethnic group or another, I would choose to be born into a society that operated in accordance with “The Equality Principle.” In such a society, all jobs and offices are effectively open to all adults within that society.

We recognize that not everyone can be a brain surgeon or a physics professor. Our communities also need people whose careers are more modest and who will likely be paid less. One reason we pay a window washer less than a brain surgeon is that a large percentage of our adult population is capable of washing windows, while a relatively small number of people have the capacity to become a brain surgeon. Also, one must train longer for some jobs than others. Thus, we see very plainly, that Rawls’ “Equality Principle” will allow some people to be paid more than others; equality of opportunity seems to lead inevitably to some level of economic inequality. So why would we tolerate such a difference? Is a society that pays brain surgeons $250,000 per year and window washers $25,000 per year a just one? Would you willingly enter into such a society IF you did not know the kinds of skills and abilities you might have? Rawls answers that we would willingly enter that society IF we had a further guarantee. Rawls calls this the “Difference Principle”—we accept unequal distribution of offices and positions IF those differences function to benefit the least well off.

In this instance, Rawls argues that we would willingly enter into a society in which his “Equality Principle” and his “Difference Principle” (and also a principle of equal basic liberties like freedom of religion, assembly, and speech) operated EVEN if we did not know what position we might hold within that society. We would agree to enter that society because (even if I became the window washer) having highly qualified brain surgeons in my society benefits me (the window washer) when I have access to the brain surgeon should I need one. Rawls argues that even people who are poorly paid are treated fairly IF all offices and positions of a society are effectively open to all AND IF the poor have some real advantage in having well paid people with useful skills in their society. Exactly how any society might choose to enact Rawls’ “Difference Principle” can vary. Some might choose to more heavily tax the wealthy so that the “least well off” have some benefits they might not otherwise possess. Also, a just society (according to Rawls) might strongly encourage (or perhaps force) people who possess highly paid skills to share those skills with the people who are the “least well off.” Either way, we should see that within Rawls’ model, the “property” of the well- paid members of a community can be compromised for the purpose of a more just society.

A second look at Locke

Locke (and by extension those philosophies that develop his tradition) has been criticized by more modern thinkers for failing to understand some fundamental aspects of our humanity and for fueling (among other things) the current financial situation in which the distribution of wealth is extraordinarily unequal. C. B. Macpherson (1911- 1987) is, perhaps, Locke’s most perceptive critic. Remember that Locke claims that each of us has unique ownership rights over ourselves. Locke says my labor, my mind, my ideas are fully my own. “Though the Earth . . . be common to all Men, yet every Man has a Property in his own Person. This no Body has any Right to but himself. The

Labour of his Body, and the Work of his Hands, we may say, are properly his.”[20] Macpherson calls Locke’s position “possessive individualism.” Locke fails to see that we exist within complex families and communities which have legitimate claims on us. Locke uses a totalizing metaphor of property that denigrates our humanity in seeing that individual persons relate even to themselves as “property.” Within Locke’s concept of “self-ownership” individual people view themselves as an aspect of property rather than as complex moral/religious wholes or as part of an encompassing social community. In fact, Locke implies that our primary manner of relating to other people is economic—as nothing more than a set of “relations of exchange.” But is that the best understanding of Locke?

Locke and others have assumed that each person is entitled to the full product of their own labor. But such an assumption only engenders more questions. It should be obvious that from within any moderately complex society no one’s labor is ever fully their own. We should ask “How shall we determine what part of the value of a table should belong to the carpenter, to the lumberman, to the transport worker, to the policeman who guarded the peace while the work was being done, and to the indefinitely large numbers of others whose cooperation was necessary?”[21] Though we may agree that in some sense we do “own” ourselves and our labor, does that ownership mean that no one can legitimately make any claim on my property or on my labor? Isn’t virtually all labor performed within highly social contexts and within series of interconnected processes? In one of the more entertaining explanations of Adam Smith’s The Wealth of Nations, he states how a single workman, alone, might “perhaps, with utmost industry, make one pin a day, and certainly could not make twenty.”[22] However, with “modern” (1776) industry a small shop could, “make among them about twelve pounds of pins in a day. There are in a pound upwards of four thousand pins of middling size. Those ten persons, therefore, could make among them upwards of forty-eight thousand pins in a day.”[23] How much more interconnected is a 21st century manufacturing plant? How do we figure the benefits we derive from each step of a complex process of manufacturing? It would seem that there is very little that is “natural” in determining the exact extent to which each person in a complex manufacturing process has contributed their “labor.”

One problem in understanding John Locke’s writings on property is that people commonly do not read enough of Locke! In 1690 Locke published Two Treatises of Government. The “second” treatise is still widely read, whereas the “first” is not. The original title of Locke’s Two Treatises is overly long, as was common in his time, but explains why the first treatise is rarely studied any more. The original title is: Two Treatises of Government: In the Former, The False Principles and Foundation of Sir Robert Filmer, and His Followers, are Detected and Overthrown. The Later is an Essay

Concerning the True Original, Extent, and End of Civil-Government. Locke’s purpose in the first essay is to argue against an older political philosopher Robert Filmer (1588- 1653). Filmer had published a defense of the “divine right of kings” to absolute authority over their people. Locke, in the first essay, argued against Filmer’s position. Today, we no longer seem to need much of an argument to convince us that kings are neither appointed by God, nor do kings have absolute rights to do whatever they please. Thus, few students read the first treatise. However, when we do read that first treatise we find Locke making some claims that show him to be less of an “absolutist” with regard to property rights. We find that his argument is very much the same as the one we read from St. Thomas Aquinas.

But we know that God has not left one Man so to the Mercy of another, that he may starve him if he please: God the Lord and Father of all, has given no one of his Children such a Property, in his peculiar Portion of the things of this World, but that he has given his needy Brother a Right to the Surplusage of his Goods; so that it cannot justly be denied him, when his pressing Wants call for it. And therefore no Man could ever have a just Power over the Life of another, by Right of property in Land or Possessions; since ‘twould always be a Sin in any Man of Estate, to let his brother perish for want of affording him Relief out of his plenty. As Justice gives every Man a Title to the product of his honest Industry, and the fair acquisitions of his Ancestors descended to him; so Charity gives every Man a Title to so much of another’s Plenty, as will keep him from extreme want, where he has no other means to subsist otherwise; and a Man can no more justly make use of another’s necessity, to force him to become his Vassal, by withholding that Relief, God requires him to afford to the wants of his Brother, than he that has more strength can seize upon a weaker, master his to his Obedience and with a Dagger to his Throat offer his Death or Slavery.[24]

So Locke, who some have argued claims a right to property that is absolute, actually makes no such claim. To the laws of justice, Locke has mated the laws of charity, which equally bind all people. Locke agrees with Aquinas that prosperous people have obligations to the less fortunate. In more modern terms, Locke claims that we do have property rights, but along with those rights come responsibilities to assist the least well off.

Locke is aware that many people will sell their labor to others. He doesn’t seem to think that such a situation violates his “labor theory” of property. In the very beginning of the property chapter of the Second Treatise (Chapter V) when Locke is establishing the connection between labor and property rights he says, “Thus the grass my horse has bit; the turfs my servant has cut; and the ore I have digged in any place where I have a right to them in common with others, become my property.” It might seem strange that in attempting to show how labor creates property that Locke’s chosen example is of a servant’s labor belonging to the employer. Locke seems to have treated it as entirely natural and understandable. If each man has a property in his own person, he has the right to sell the use of that property if he so wishes. However, Locke limits the extent to which any man may sell his labor to others; that limit is reason.

What might be even more disturbing is Locke’s support for and profiting from the institution of slavery. Locke owned stock in the Royal African Company which was begun in 1660. This company was originally granted the right to exploit the gold fields of West Africa, but in 1663 it began to deal in slaves. In the 1680s the Royal African Company was transporting some 5,000 slaves per year to the Americas. Locke was also the author of the document upon which the American colony of Carolina was founded. This document is called the Fundamental Constitutions of Carolina (1669). Though it has many disturbing claims, most critics of John Locke point to article 110: “Every freeman of Carolina shall have absolute power and authority over his negro slave, of what opinion or religion soever.” Locke not only profited directly from the trade in slaves but he formulated laws that enshrined the rights of slave owners to absolute authority over their slaves. Locke’s distinction of who is free (and therefore able to hold property) is based in “reason.”

When writing about the relations between husbands and wives Locke states that since someone must rule, “it naturally falls to man’s share, as the abler and stronger.”[25] Although Locke does not here use the word, he sees men as abler in the use of “reason” than women. He makes the same defense of parents over children. However, when it comes to slaves, Locke says

But there is another sort of Servants, which by peculiar Name we call Slaves, who being Captives taken in a just War, are by the Rights of Nature subjected to the Absolute Dominion and Arbitrary Power of their Masters. These Men having, as I say, forfeited their Lives, and with it their Liberties, and lost their Estates; and being in the State of Slavery, not capable of any Property, cannot in that state be considered as any part of Civil Society; the chief end whereof is the preservation of Property.”[26]

By placing slaves totally outside of “civil society” Locke has allowed harsh treatment and substantial financial reward for the masters. Might we wonder how many slaves actually were “captives taken in a just war.” And even if this were the case, how can Locke justify his placement of them radically outside of any civil society simply because they are not allowed to own property?

Ultimately, Locke grounds property rights in human reason. Those persons regarded by Locke as having developed their reason were free, while those persons deficient in reason were not. The most central freedom accorded those people in possession of reason was the freedom to own property. “The Freedom then of Man and Liberty of acting according to his own Will, is grounded on his having Reason, which is able to instruct him that Law he is to govern himself by, and make him know how far is left to the freedom of his own will.”[27]

What Do We Owe to One Another?

Even in our own society it is rare to hear people proclaim that it is unjust to moderately tax a wealthy old bachelor to help pay for public schools, roads, or local fire departments. We know that paying moderate taxes is fair because of the interdependent nature of our communities. No one can justly claim that their wealth is entirely the result of their own unaided effort.[28] Within a Judeo-Christian ethic of property ownership, we should always remember, and St. Thomas Aquinas reminds us, that the first right to property is based in need not in labor. Even Locke manages to justify private ownership of land only because a larger social need is served; Locke says that I can justify my claim over a parcel of fruit trees in a forest only because with my ownership and hard work more fruit is available to the other people in the neighborhood. If I merely gather the fruit and do nothing to increase the productivity of the piece of forest, I can claim only the fruit I labored to gather; I cannot also claim an ownership right to the forest itself. According to Locke, any ownership claim to a piece of land can be only justified through hard work that makes the land more productive and thus able to serve more human needs. Thus, Locke is himself immersed in a Christian ideal grounding ownership in need rather than in labor.

The error some people make in their understanding of Locke stems from an incomplete reading of Locke and in thus reducing human beings to property. Locke is often interpreted as having a reductive understanding of our humanity. Locke’s writings imply that our first relation to ourselves is as “property”: we own ourselves. As we saw above, C.B. Macpherson labelled Locke’s idea of self-ownership as “possessive individualism.” For Locke we are essentially what we own, and our society is nothing but the sum of the “relations of exchange between proprietors.” Macpherson’s essential criticism of Locke (and of all theories of property based in Locke) is this impoverished concept of self-ownership in which every individual sees him/herself as a “property” rather than as a moral whole or a part of a larger social whole. However, reading Locke’s First Treatise of Government we see that, like Aquinas, Locke himself held a complex understanding of human nature grounded in Christian theology.

We should not dismiss Locke’s “labor theory” of property. It does contain an important idea. Labor is encouraged if the people who labor are rewarded for their work. And the distribution of property in accordance with the amount of one’s labor does function to encourage hard work. But since property is legitimately only one human interest— alongside of justice, intellectual and physical development, freedom of conscience and of religion—the right to property cannot be pursued if it leads to harming the interests of others. If we are to be thoughtful about the issue of property, we should think neither of prohibiting private property altogether nor of allowing the pursuit of property in a fully unregulated way. We should encourage labor and the acquisition of property within the boundaries of the concept of the “common good.”[29]

Questions for deeper thought

  1. Why does it make sense to think about property as a “right” rather than as a “thing”?
  2. Explain Locke’s “labor theory” of property. Then explain the strengths and weaknesses of Locke’s theory.
  3. St. Thomas Aquinas argues that in some cases people taking the property of others is not sinful. Explain Aquinas’ argument.
  4. Is property a “natural” right or is it a man-made right?
  5. In what way does Ayn Rand want to limit ownership of property?
  6. What problems (both philosophical and practical) arise if we think of property as the original right upon which all other rights are grounded?
  7. How does Locke ground property rights in “reason”?
  8. What are some of the ramifications of Locke’s understanding of who has reason?
  9. John Rawls’ claims that unequal distributions of property can be done in a just manner, however if such a society is to be just then it must also include both his “Equality Principle” and his “Difference Principle”. Explain briefly these two principles and why Rawls claims they are necessary for a just society.

  1. Macpherson, C. B. Democratic Theory: Essays in Retrieval. Oxford: Clarendon Press, 1973.
  2. Macpherson, C. B. ed., Property: Mainstream and Critical Positions, Toronto: Uni. of Toronto Press, 1978, p.3.
  3. Hume, A Treatise on Human Nature, 1739, Part II, Sect. II.
  4. Locke, John. Two Treatises of Government, 1690. (Part II, para. 27) [Spelling and capitalization are from Locke’s original text.]
  5. Ibid., § 32
  6. Ibid., § 33
  7. Hume, A Treatise of Human Nature, Part II, Sect. II.
  8. Treatise of Human Nature, Part II, Sect. III, FN. 16
  9. Macpherson, 1973, p. 18
  10. Ibid.
  11. Ibid., p. 21
  12. Macpherson, 1978, p. 167.
  13. Rand, Ayn. Atlas Shrugged, 1957
  14. Smith, Adam. An Inquiry into the Nature and Causes of The Wealth of Nations, 1776. Bk. 1, Chap. 10, pt. 1.
  15. Ayn Rand Reader, 1999, p. 380.
  16. Rand, Ayn. Capitalism: The Unknown Ideal, 1966, p. 131.
  17. St. Thomas Aquinas. Summa Theologica, Book II, Part II, Quest. 66, Art. 7.
  18. Kenny, Anthony. Medieval Philosophy, A New History of Western Philosophy, Vol. 2, Oxford: Oxford University Press, 2005, p. 270.
  19. Rawls, John. A Theory of Justice, 1971.
  20. Two Treatises of Government, II, para. 27
  21. Macpherson, 1978, p. 163.
  22. Bk. I, Ch. I
  23. Ibid.
  24. First Treatise, Chap. IV, § 42.
  25. Second Treatise, § 82.
  26. Ibid., § 85.
  27. Ibid., § 63.
  28. Macpherson, 1978, p. 163
  29. Ibid., p. 167


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