John Locke proposed his theory of property in his 1689 ‘Two Treatises of Government’. The right to property, Locke claimed, is derived from the labour of those who work on it. Starting from a fabled ‘State of nature’ in search of the origins and appeal of political society and rights, just as others including Pufendorf, Grotius, Hobbes and Rousseau, he argues that as ‘labour’ is naturally ‘owned’ by the person in whom it is embodied. Consequently anything that labour is applied to becomes owned or ‘appropriated’ by the labourer. Locke also pointed out in his Second Treatise of Government (1689) that property can be acquired lawfully by purchase or inheritance, once a political society is formed.
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Locke’s treatment of property is generally thought to be his most important contribution to political philosophy. However, it is also his most criticised. There are many debates over his theory and what exactly Locke attempted to convey.
Locke’s landmark writings famously posited that the government must be established on the consent of the governed, and that men have a natural right to life, liberty and property. This idea is of clear political significance, resonating in modern constitutions such as in France, Britain and America. Proving this legitimacy and consensual basis of government and, making clear distinctions between tacit and express consent was essential to Locke’s aims. This essay will outline his theory of legitimate property, critically examining its foundations from the State of nature, its continuation in following generations, particularly through inheritance and how the theory fits in with the rest of his doctrine. This essay will draw on works from thinkers such as Filmer, Grotius, Pufendorf, Macpherson, Laslett, Hampsher-Monk and Reeve, considering major criticisms, such as that the State of nature never existed, that the theory was written to protect the status quo and that it is incoherent because all men in Locke’s society do not end up as equal. A conclusion will be drawn, that Locke’s “Second Treatise” can provide a cogent account of the origins of legitimate private property despite its criticisms, thereby retaining a convincing argument which formed the foundations of the American and French constitutions, maintaining its relevance to date.
To begin with, a suitable definition for property must be presented, first as a standalone concept and then as the most significant part of Locke’s political doctrine. Rawls (2007) defines property as consisting of “a bundle of rights, with certain conditions impressing as to how those rights can be exercised. Different conceptions of property, private or otherwise, specify the bundle of rights in different ways.” (Rawls, 2007:142) It is of course true that the importance of property is significant and we, as people, cannot live without owning property of some kind, as it includes such fundamental things as food and clothing: Locke states “Men, being once born, have a right to their Preservation, and consequently to Meat and Drink and such other things, as Nature affords for their Subsistence” (Locke, 1689:285), proving just how integral property is. Miller and Coleman state that “property is related to ownership; the greatest amount of power over things which a man can legally exercise is usually in the hands of the person treated as the owner” (Miller and Coleman, 1991:404). Marxist scholars, however, contend that everyone in a society has ownership of everything.
More specifically in Locke’s case, “property is a right to do something, or a right to use something under certain conditions, a right that cannot be taken from us without our consent” (Rawls, 2007:143) It is easy for us in our current, modern society to see property in this way, but as Reeve (1986) notes, Renee Hirschon (1984) revealed that our notions of property: “are rooted in our own particular historical experience.” She adds “Property, for us, is based on the idea of “private ownership” which confers on the individual the right to use and disposal”, but what we do not appreciate is personal property being brought about by “the idea of an individual actor having defined rights vis-a-vis others” (Hirschon, 1984:2). This quote brings awareness to the historical context of property.
When it comes to dealing specifically with ‘private property’ and distinguishing it from ‘common property’, another challenge is posed. Reeve (1986) says that “The institution of property is…extremely flexible” and that man “might decide that the most desirable arrangement requires common property in some things or resources, and private property in others.” (Reeve, 1986:3)
In his ‘Two Treatises of Government (1689), Locke sets out his theory of his version of the state of nature. He claimed that men are naturally made to be free and equal, as opposed to claims asserting that God had made all people to be, by nature, subjects to an overriding monarchy. Locke contended that mankind have natural rights, including the right to life, liberty, and property. These would become his idea of the foundation of particular society, which would be taken on by modern nations. Laslett asserts “Locke is sketching his account of the passage from a state of nature to a state of society in terms of biblical history.” (Laslett, 2010:296) Bearing in mind the timing of Locke’s writing, it holds true that religion was an integral part of society and consequently, in his work, there are several references made to God’s will, including biblical quotes.
Locke disputes Filmer’s theory and ideas and seeks to disprove his patriarchal account of property. When Locke states that men live to ensure their subsistence, Laslett analyses this by saying “This important chapter is…integral to Locke’s argument and it is also obviously part of his polemic against Filmer” (Laslett, 2010:285). Locke’s labour theory of property also contrasts distinctly with the theory of private property which Hobbes put forward, which conceived property as only a state guarantee from a monarchy in complete control of a territorial jurisdiction. Grotius’ theory proposed that property emerges from social consent. It is also questioned whether Locke’s theory is presented to legitimate the fact that he owned property himself and justify the ownership of private land and property by a political elite to which he was emotionally and politically attached.
The basis of Locke’s labour theory states that individuals have the right to own that with which they mix their labour and that they create it from their own initiative, capability and work: “The labour of his body and the work of his hands we may say are properly his.” (Locke, 1689:287-8). Locke justifies this claim of his by conceding that an individual’s rights to own the fruits of his labour are derived from the prior property right or self-ownership of his own body and that the right to appropriate is required in just return for his efforts. Initially, the world belongs to all of mankind, thanks to the kind grace of God: “‘Tis very clear that God, as King David says Psalm CXV. xvj. has given the Earth to the Children of Men, given it to Mankind in common.” (Locke, 1689:286) This demonstrates the point made earlier regarding religious significance. Locke continues, “Before they [the ‘fruits of the Earth’] can be useful or beneficial to any particular man, there must be some way for a particular man to appropriate them” (Locke, 1689:286). Since all contained in the Earth had no initial way of being split up amongst mankind, a process of doing so must be set up. Every person also has the right to self-preservation, and with it, a right to take possession of any object that will help him or her to that end. Finally, “The labour of his [an individual’s] 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 in it, he mixes his labour with it, thus joining to it something that is his own; and in that way he makes it his property” (Locke, 1689:289)
However, the right to the acquisition of property is limited. Locke presents three conditions for his theory. ‘The Implicit Labour Limitation’, embodied by the notion one may only acquire as much as one mixes one’s own labour with. ‘The Spoilage Limitation’, is exemplified by the idea that one may only acquire as much as one can use without spoilage. And ‘The Sufficiency Limitation’ which is also referred to as ‘The Lockean Proviso’, presented in the form that one’s property must be acquired ensuring that “enough and as good” (Locke, 1689:288) is left in common for others to attain.
Clearly Locke provides us with one plausible explanation as to how private property has arisen. Providing that we accept certain premises, his conclusion is indeed reasonable. His restrictions appear to ensure parity and fairness within society, which should hopefully lead to legitimacy, as Locke intended.
However, three immediate problems arise: needs and labour “He that is nourished by the acorns he pickt up under an Oak, or the Apples he gathered from the Trees in the wood, has certainly appropriated them to himself. No Body can deny but the nourishment is his. I ask then, when did they begin to be his?” Here, Locke asserts that we require property as a means to preserve ourselves. Hoarding something until it wastes is irrational, as another person could have acquired it and made use of it. Productivity enhances property. People will discover instead of bartering. But, there are limits as to what can be appropriated. This was Locke’s sufficiency limitation, that enough and as good is left for others. This prevented the issue of human-induced waste created by men collecting too much from the common, so that it rotted and became unusable. This was a problem because consequently, that which was wasted could otherwise have been appropriated by another and would have come to be used.
Locke asserts that “All men are free and equal” and Rawls corroborates this, with his first two principles being “equal liberty and equality of opportunity. The first is that of a guaranteed social minimum, understood in terms of the set of needs that must be met to give every citizen a decent life.” (Miller, 2003:90). Beyond one generation, however, Locke’s theory of property cannot hold true due to the right of inheritance he presents. His contradictory argument follows that a society should accept private property as being established of its own accord, at the same as the idea that property could permissibly be inherited, and thus passed on through generations according to the will of its present owner (Reeve, 1986:4). This is a key critique of Locke and will be discussed in more detail later.
One viewpoint defends unrestricted capitalist accumulation. But as the theory progresses, the restrictions that he places on obtaining property transcend. Locke’s first ‘spoilage’ restriction becomes redundant with the introduction of money. This is because money maintains value and does not decay.
Locke’s ‘sufficiency’ is transcended when man progresses beyond the state of nature to private property ownership. This allows for increased productivity on the land enabling livelihoods.
As for the ‘only appropriate through one’s own labour’ clause, this doesn’t rule out employment of workers, or indeed slavery. Locke writes “the turfs my servant has cut”, which is applicable even in the state of nature. In this way, he is potentially seen to advocate possessive individualism, a view that Macpherson talks fully about.
Filmer argued against the positions of Grotius and Pufendorf, who believed that all men are born free and equal and consent is of utmost importance. Pufendorf and Grotius argued that legitimate private property originated as a result of consent and political obligation. Filmer’s argument was that it is impossible to ask people and gain consent before something is made in private. What if the general consensus is not to give consent to the privatisation of property? Filmer also tackles the inconsistencies surrounding natural law, that it is said to sanction private property in the state of nature and private property in political society. But Locke argues for the fact that property can be justified by labour expenditure.
In the state of nature, any property that becomes ownerless reverts to the common stock of mankind and may be subsequently appropriated by anybody who can use it. In a civil society, however, the legislature is likely to make detailed provision for the orderly distribution of such property. Such provision may well include familiar principles of inheritance, including what we now know to be estate duties, more specifically, inheritance tax. All of this will be subject to the overriding natural duty to give enough to the less fortunate saving them from extreme want and poverty. However, this leads to every property entitlement being subject to this.
There is an issue that Locke presents in his First Treatise, which is the right to bequest having precedence over a dependent’s right to succeed. As such, the right to bequest has a secondary position in Lockean theory of property and is always a matter of civil as opposed to natural law. Locke argues that even the landless will prosper in an economy where all resources are in private hands. Hence, passing property from one generation to the next allows continuity in a sensibly managed way.
With Locke stating that God created the Earth and everything within it for all of mankind, which he also formed, he continues “But this being supposed, it seems to some a…great difficulty, how any one should ever come to have a Property in anything” (Locke, 1689:286). He expands by considering that with God in mind, and the fact that all of mankind should have access to all parts of the Earth, the fact that people claim property is an issue. He did not believe one should wait to be allocated property and await others’ consent. Instead, he advocated that man should appropriate from the common.
To elaborate on exactly how Locke has done so, we can consider his statement that
“God…hath given the World to Men in common…The Earth and all that is therein, is given to Men for the Support and Comfort of their being. And though all the Fruits it naturally produces, and Beasts it feeds, belong to Mankind in common, they are produced by the spontaneous hand of Nature; and no body has originally a private Dominion, exclusive of the rest of Mankind, in any of them, as they are thus in their natural state: yet being given for the use of Men.” (Locke, 1689:286)
Theistic philosophers, as well as Rawls, assert that “we are not free by nature, but always born subject to obligation” (Rawls, 2007:142) These political philosophers, including Filmer, reject democracy in favour of an absolute monarchy based on the unquestionable divine right of kings to rule men. However, in our modern society, where theistic philosophies have less and less standing and very few societies fully submit to monarchical rule, it is easy to disregard such a criticism.
Locke says that property does not require consent because it is essential to survive. Grotius and Pufendorf both refute this, instead asserting that consent is an absolute necessity. The issue of consent and political authority is also integral to this debate, in deriving whether Locke’s account of the possible origins of legitimate private property was convincing. Locke talked of tacit and express consent. In giving express consent, it could not be doubted that one was a member of society. Tacit consent does allow one to be a member of society, but it is contentious because, despite any intentional action, an individual is seen to have given consent. Locke claims that even by lodging in a property for a week or so, tacit consent is being expressed. Fundamentally, everyone residing in a country gives tacit consent, but Reeve says the issue may be concerned with foreigners entering the country, especially as Locke says this applies to them as well. Dunne agrees that tacit consent is intended to trap foreigners into obeying our laws as soon as they step onto our lands. A major critique of Locke therefore materialises. Locke’s only suggestion to counter tacit consent is to leave the country in which this consent is necessary. However, this seems a very rash suggestion as most people at the time of writing didn’t have enough money to even get to the coast, let alone pay for a fare to flee abroad. And even if they did manage to leave, wouldn’t other nations necessitate tacit consent as well? Every government in the world would require you to give tacit consent upon arrival in their grounds. Those who may not wish to enjoy any property would still have given tacit consent despite deciding whether to or not. This is because one only has to be in a certain territory to have given tacit consent, which makes giving tacit consent unavoidable.
Filmer argues that it should not be consent based, but rather convention. Filmer says on Grotius: “that by the law of nature, all things were at first common, and yet teacheth that after propriety was brought in, it was against the law of nature to use community. He does thereby make the law of nature changeable, which he sayeth God cannot do, but also makes the law of nature contrary to itself.” (Tully, 1993:54). Locke suggests that consent is being given even if it might not seem so. Filmer argues that Locke’s definitions of consent are not definitive, claiming express consent is that which cannot be revoked, resulting in a perpetually tie to the state and that tacit consent is temporary and that the obligations that go alongside it only end if one leaves. Macpherson argues that only the landed gentry can express their personal consent and that proles cannot. He claims that tacit consent functions only to trap proles, that is to say, those who are only able to sell their labour for a wage and have limited property in their possession. However, this could be undermined by the suspicion that it is but a conspiracy theory.
Tacit consent must come into play when a son accepts his father’s land. This is obviously conditional on becoming a member of civil society. Therefore inherited property is based on consent. Is inheritance express consent? One would become perpetually tied to the political community through it?
Filmer used the argument of children to show a contradiction in political obligation. He stated that if children are obliged to obey their parents then there is political authority, which is a contradiction to obligation by consent. He goes on to state that if children are not obliged, therefore being without political obligation, then private property cannot be legitimate.
Locke does demonstrate the importance of governmental law when stating “The Law of the Land is not to be violated. And though [the Earth] be Common…it is the joint property of this Country, or this Parish.” (Locke, 1689:292). It is deduced that it is only through consent that an individual’s property can come to be under the control of a legitimate authority. That property which has been left in common and does not yet belong to an individual is indeed belonging to the authority.
Macpherson’s view of Locke’s ‘enough and as good’ requirement follows from another principle assuring labour being used as an opportunity to acquire the fundamentals. The third restriction, to ‘only appropriate through one’s own labour’, is one that Macpherson argues Locke did not actually maintain. Although Locke in his Implicit Labour limitation, seems to suggest that one can only have property in what they have personally laboured on, when he makes labour the sole source of property rights Locke seems to dismiss the fact that even in the state of nature, “the Turfs my Servant has cut” (Locke, 1689:289) can become the owner’s property. This shows how Locke has recognised that labour can be detached. Locke stating “Tis Labour that puts the difference of value on everything; and let anyone consider what the difference is between an Acre of Land planted with Tobacco, Land lying in common…and he will find that the improvement of labour makes the far greater part of the value.” demonstrates this. According to this “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.” (Locke, 1689:287) If everything one labour’s on becomes one’s property, how can it be acceptable for a land-owner to continue owning the land upon which his servants have been toiling? Additionally, how can one inherit something that they did not work for? In the same vein, if Locke believes that one does own all that you labour and work on, it would be your property to pass on to your children if you so desired.
A more relevant criticism of Locke’s account of the possible origins to private property questions whether the mixing of an individual’s labour with property found in the common necessarily means that the individual then comes to own it. Nozick (1974) holds this view, and enquires “Why isn’t mixing what I own with what I don’t own a way of losing what I own rather than gaining what I don’t?” He uses a poignant example to corroborate his point: “If I own a can of tomato juice and spill it in the sea so that its molecules mingle evenly throughout the sea, so I thereby come to own the sea, or have I foolishly dissipated my tomato juice?” (Nozick, 1974:174-5). However, Locke’s spoilage limitation does provide a convincing defence for this. Nozick’s example falls down here, as by attempting to own something that is beyond our needs as well as our means to utilise, we contravene another of Locke’s restrictions, therefore we cannot own it. This does not fully defend the doctrine, because adding our property to something cannot be shown to necessarily result in ownership, but this does render Nozick’s theory invalid, particularly in the context of the question this essay is addressing.
It is debated whether or not Locke’s theory of property is able to cope with more than one generation as there are inconsistencies when it comes to Locke’s theory of inheritance. He accepts that there is a natural right to inheritance in the state of nature the passing of property on from one generation to the next is permissible. “Existing rules of property ownership and inheritance allow people to reap large rewards by virtue of luck, inherited wealth, corporate position and so forth – factors unrelated to their contribution to society.” (Miller, 2003:90) Inheritance is therefore an issue, as despite the specific rules regarding the origins of private property, particularly in Locke’s view, inheritance counteracts those as property is merely passed down from generation to generation, disregarding the lack of knowledge of who the subsequent generation may be. This means that Locke’s theory does not stand the test of time as inter-generational factors do not allow the theory to hold true. However, fathers are also said to have an obligation to pass their property on to their children.
However, he does not explain why or indeed what paternal power is or should be. Children do not just have a minimalist, subsistence existence but instead they inherit all the property, luxuries and comforts that their parents have accumulated over their lifetime from the laws of God.
Locke again advocates the right of bequest from his first treatise, which allows people to have the right to write a will. In this way, it would be legitimate to allow one to dispose of their possessions as they please and ensure that their children are out of danger. This aspect of Locke’s theory on the origins of legitimate private property directly contradicts children’s right to inherit their parent’s property. Perhaps Locke intended for his support of the right to inherit to be the only way of guaranteeing the preservation of man. However, in political society people are not in danger of “perishing for want” (Locke, 1689: 311), deeming this reasoning unnecessary and flawed.
The conditions under which a man is entitled to inherit the estate of his father play an important part in the Lockean argument. In criticising those who contend that birth, not consent, make man a member of an established civil society, Locke argues that inheritance rather than birth does determine membership within society and that consent is a condition of inheritance. As Locke originally justifies the origins of legitimate private property to be allocated on the basis of an individual’s personal investment of labour, you would expect him to advocate that this right should die with the man who earned it and that inheritance would lead to the creation of an unearned right to property. Instead, Locke’s view is starkly different. He argues that, unless otherwise stated, property “descended naturally to children and they had a right to succeed to it and possess it.”
This is connected to Locke’s views on paternal power. A father is said to hold this specific power over his children, by virtue of his ability to bestow estate to them. A coherent account of inheritance can be built upon Lockean foundations. This first principle of such an account requires that the dependent children of a decreased proprietor be entitled automatically, as a matter of natural right, to take enough out of their parental estate to maintain themselves. Locke asserts that apart from the needs of these dependents, there exists no natural right of succession. Filmer believed that property rights are akin to the household goods that a father may dole out among his children. This would be the father’s right to take back and dispose of according to his pleasure. This view can originally be traced back to the book of Genesis, where God gives Adam the Earth, and from there, the patriarchs ruled.
When Locke and Rawls affirm that property is a right that cannot be taken from us without our consent, this provides a lapse of logic in Locke’s argument for inheritance. With inheritance, it is a possibility that future generations would have property, that as a natural right should be theirs, taken away from them.
Locke’s acceptance of money as a reasonable social construct instantly removes the spoilage and sufficiency limitations, consenting to the building up of estates by labouring beyond one’s needs and allowing for inheritance as a valid method of receiving wealth. This leads us to the conclusion that one can receive the rewards of labour, either through inheritance or perhaps by slave labour, without actually being required to add our own labour and can result in inequality which grows with each consecutive generation. When we introduce money into our political system, equality is neglected. There is an incentive, that is, according to Rousseau, inevitable in man to surpass ones contemporaries, and money and estate beyond one’s needs provides a vehicle to do so. However, a theory without money would be dismissed almost instantly as it could never be applicable to practical necessities. Therefore, if we are to legitimise money through consenting as a community to its use, we must also consent to any potential inequality that can derive from it.
Through gaining an understanding of Locke’s theory of property, we can tackle the question of its legitimacy. As we have seen, Locke shows how private property might have arisen, but is this account of the origins of private property legitimate and what exactly is meant by legitimacy? Initially, his proposition appears to be extremely reasonable and rational; we reap the rewards of our labour, nothing more and nothing less. However, problems begin to arise when we consider the introduction of money, and thus the ability to legitimately build estates and wealth which can lead to inequality.
Furthermore, Locke seems to imply that he believes a class based doctrine, where those without a minimal amount of property (a forty shilling freehold, which at the time of writing ruled out as much as eighty percent of those governed) should not be allowed to participate in political action. “It is true, governments, cannot be supported without great charge, and it is fit everyone who enjoys his share of the protection, should pay out of his estate his proportion for the maintenance of it” (Locke, 1689:362) Locke claims that his theory should allow us to progress from a state of nature into a social contract while preserving our equality, yet if we follow his arguments logically, we end up with a class-based elitist system that seems inherently unfair in contrast to our original state.
It has already been stated that a legitimate political doctrine requires the consent of those that are to be governed by it, but if only twenty percent of a population are in a position to voice their consent, how can it possibly be considered that such a system is legitimate? Can we find legitimacy within Locke’s doctrine or should we simply reject it? Although it may be obvious that we should remove Locke’s property requirements on political participation, would this alone provide legitimacy? What about the issues brought about by Locke’s acceptance of the validity of inheritance and states? Surely property should entail the right for one to choose what to do with their money, but there seems to be an inherent unfairness in allowing inequality based on some form of chance: whether one is born into a wealthy family or not.
Locke himself provides us with a definition of legitimate political power, which requires the consent of those governed. Adapting this concept into a theory, it can be said that a theory is considered legitimate provided it has legitimate power over a society in that it carries the consent of it. So for a legitimate theory of private property, we have to consent to live by its maxims. With the variety of interests within modern society, finding anything that an entire society is able to agree upon is frankly implausible. In practicality, a theory is required that is supported by popular opinion, requiring fairness and the protection of natural rights. Locke’s theory is not necessarily perfect: in particular, the class based aspect of it. However, it does provide us at the very least with a legitimate account of how private property might have arisen.
