We discussed two parts of Locke’s and Smith’s accounts of property and government: their respective views of human nature and their ethics.
This being “Freedom, Markets, and Well-Being,” we paid special attention to property rights. We asked what ownership of a thing involves and how it is acquired. Locke addressed the second question more than the first.
He held both that God gave the world to mankind “in common” and that private property could be acquired “without any express consent of the commoners” (II §25). How? By mixing something that one owns with what is owned in common. Then, anyone who takes that thing would take what belongs to someone else: the labor.
We spent a lot of time talking about whether his explanation succeeds. How does mixing something you own with something that the community owns make that thing yours? What happened to the community’s ownership?
Why did Locke care about natural property rights? He was opposed to absolutism. Absolutists claimed that property rights depended on the sovereign’s will and, consequently, that the sovereign was free to tax or take property without significant constraint. Locke wanted to vindicate the position that subjects have property rights independent of the particular laws or commands of the sovereign. Most of us are with Locke: we think that people can have a claim to own things that is independent of whatever the laws of the state define as belonging to us.
The handout distributed on the 10th went into the background of Locke’s theory of property. This updated version includes more material.
Both Locke and Smith describe people who are like us in this respect: they think that rights and moral duties are important.
Smith takes greater pains to explain the psychology behind this, which he finds quite complicated. People are fundamentally feeling creatures; Smith’s word for feelings is “sentiments.” Our closest social relations involve having strong feelings for others. Our assessments of others primarily concern their motivations: it’s one thing to be honest because you think cheating is contemptible and another to do so because you’re afraid of being caught.
However, there is a mismatch between our feelings and our moral codes. I’m not allowed to cheat anyone, even though I don’t care that much about most people. How is this possible? Smith’s answer is that we follow what he calls general rules that spell out others’ rights and, correspondingly, our duties, in ways that are independent of our feelings. This is where our ideas of rights and justice come into play for Smith. Locke, by contrast, takes our commitment to rights largely for granted. God gives us commands and those spell out rights and duties.
For Smith, though, the idea of God as a commander is a product of our social inclinations. We seek to make our feelings line up with those that others have. In doing so, we come to believe in an objective point of view, the point of view from which one would have the correct feelings. Such a point of view is impartial, meaning it is independent of the peculiar feelings that any one of us might have. So, for instance, I might feel irritable and want to shoo a visitor away, but someone with the impartial point of view would instead welcome him. I regulate my behavior and feelings by thinking about what someone in the impartial point of view would feel. What does this have to do with God? Well, guess who we think of as occupying the impartial point of view? The Deity! And guess what the general rules line up with? They line up with the feelings of someone occupying the impartial point of view.
There are two lines of thought in Locke’s discussion. Sometimes, he refers to value in order to justify private property. This is true of his observation that labor is what adds value to natural resources such as land (II §40) and his assertion that no one can have a property right to waste things. It seems that we could attribute the following underlying idea to him: property rights are justified because they encourage people to improve the standard of living of humanity as a whole but specific property rights are not justified when they fail to do so.
Rights make up the other line of thought in Locke. The two fit uneasily together because rights give control to the right holder. The fact that your laboring on something that someone else owns would improve that thing does not normally give you permission to start working, much less ownership of the improved thing. I’m sure you could make my car look really great if you were to wash it, but that isn’t enough to show that you’re permitted to wash it without my permission and it certainly isn’t enough to give you any rights to the car if you did wash it.** The first line of thought became utilitarianism, the view that the right policy or action is the one that does more than the available alternatives to promote the overall good. The second line of thought better represents ordinary, but unsystematic, moral thinking. Attempts to build a system around its resistance to utilitarianism can be found in a wide array of political philosophies, ranging from Robert Nozick’s libertarianism to John Rawls’s liberal egalitarianism.
It may well be possible to meld the two. For instance, you might say that the fundamental idea in Locke’s political philosophy is that God wants the protection and improvement of human well-being. Rights are derived from that and, so, when the two come into conflict, rights give way to promoting the general good. That seems to be the way it works with the limits on acquisition, for instance. If the stuff you have mixed your labor with will go to waste or if there isn’t enough and as good stuff without your labor mixed in it for others, the fact that your labor is mixed in it doesn’t make it yours. Others can take the excess without violating your rights.
Or you might say that individual rights take precedence over the general good. The only requirements Locke mentions prohibit harming others. There is no requirement to make others better off. And the thrust of the theory is to protect private ownership, insulated from public interference. Property rights are acquired when you mix something of yours with otherwise independent stuff; someone who tries to take that stuff, even for the public good, would take something of mine.
I’m not sure that we can say which line of thought is really fundamental for Locke. But there is one point where the two lines cross in a way that makes his meaning ambiguous. Here’s the argument I have in mind.
“He that … subdued, tilled, and sowed any part of it [land -mjg], thereby annexed to it something that was his property, which another had no title to, nor could without injury take from him.
Nor was this appropriation of any parcel of land, by improving it, any prejudice to any other man, since there was still enough, and as good left … No body could think himself injured by the drinking of another man, though he took a good draught, who had a whole river of the same water left him to quench his thirst: And the case of land and water, where there is enough of both, is perfectly the same.” (II §§32–3)
I emphasized the words “injury” and “injured”. ‘Injury’ has a loose meaning and a technical meaning. The loose meaning is equivalent to harm, making someone worse off. The technical one is equivalent to a violation of rights.
The two often go together. But they do not always do so. If you take one of my paperclips, you injure me in the second sense but not in the first. Conversely, if your hardware store puts mine out of business, you injure me in the first sense but not in the second since you’ve made me worse off without violating my rights.
Here’s an illustration of the technical meaning of “injure”. The author, Thomas Hobbes, is discussing a sovereign who kills an innocent subject.
“… though the action be against the law of nature, as being contrary to equity, (as was the killing of Uriah, by David;) yet it was not an injury to Uriah; but to God. Not to Uriah, because the right to do what he pleased, was given him by Uriah himself: and yet to God, because David was God's subject; and prohibited all iniquity by the law of nature.” (Leviathan Ch. 21, par. 7)
If “injury” in this passage meant ‘harm’ as in ‘making Uriah worse off than he was’ it wouldn’t make any sense. David killed Uriah, after all. What it means is that David did not violate Uriah’s rights in killing him. God, on the other hand, prohibited killing the innocent. Since God had a right to be obeyed David injured him, even though he didn’t put a scratch on him.
So, when Locke says that the person who takes extra stuff out of the commons does no one any injury, it’s important to know whether he means that no one is harmed or whether he means that no one’s rights are violated. If he means the first thing, that’s probably true. But if he means the second, it appears false. Locke himself has asserted that the earth is owned in common prior to individual acquisition.
Gibbard considers two accounts of natural property rights and argues that neither supports unlimited property rights. The bargains that would be struck among a community of hard libertarians would give the community a share of whatever individuals appropriate. As for Locke, he had quite explicitly said that there are limits on individual appropriation of property. Gibbard adds one factor that Locke did not: goods can become scarce over time, so one generation’s legitimate acquisition of private property might be legitimately overturned by subsequent generations.
Jenn raised a variety of questions about what common ownership means, culminating with “does it matter whether we think that everything is owned in common or not?” I have been wondering about the same thing.
According to Gibbard, we should look at how individual appropriation effects the previously existing rights. We know that it has to limit them because having a property right to a thing involves having the right to exclude others from using that thing. As far as I can tell, nothing turns on whether the previously existing rights are characterized as individual rights or communal ones. What makes his arguments go is the thought that those who acquire things will have to bargain with those who hold previously existing rights (at least, for the hard libertarian position).
But what if the right to acquire property worked like the dibs system suggested by Greg and Michael, where the first person to take something gets it?†† Chicago has a dibs system for winter parking, believe it or not. Then we would all start off with rights to acquire things that are like the rights that runners have to win the race. But the winner of a race doesn’t change the losers’ rights or have to bargain with them to gain the right to be declared the winner. They had the right to win if they could, just like the winner. Those rights would have lapsed, but only because the race is over, not because one person’s exercise of her rights would change others’ rights. Note that if this is the way that the rights to acquire property are construed then the quick move from hard libertarianism to a welfare state that will support those incapable of appropriating property on their own will fall down.
So there would have to be a separate argument against construing the rights to acquire property as a dibs system.
Has any actual society recognized rights like these? Have they been followed in the acquisition of property in actual history? Would we agree to live under them now?
The answer to the first two questions is no. These stories attempt to spell out how the acquisition of private property could have been legitimate. If you accept the stories, then you have to compare the way the world is with the way it should have been. When the two split apart, accepting the story commits you to trying to bring them back together again.
But should we accept the stories in the first place? Whether we should do so depends on whether they reflect our values. And that’s the way to answer the third question: would we be willing to live under a regime of property like the ones described? After all, if our society is unwilling to enforce something like Locke’s property rights or the hard libertarian version of property rights, they aren’t going to be of much use.
I think we can give Gibbard something of a pass. His goal was to see whether two different stories about natural property rights could support unlimited property rights. Since the answer in both cases is no, he didn’t have to go through some of their bolder assumptions, like the assumption that everyone has an equal right to the earth’s resources.
But at the same time, you might wonder whether Gibbard chose the strongest targets. What about the dibs system? Or what about a messier, more realistic system that reflects the imbalances in power between the strong and the weak rather than one that starts with strong assumptions about equal ownership? Since property in our social world was actually acquired in those ways, can we infer that they reflect what we actually believe about legitimate property rights?