Locke: Property

It is a problem that the environment is often seen and treated as a reservoir of resources awaiting human use. How did this outlook arise? This essay analyzes a formative moment in the constitution of the environment as a buffet of goods to be consumed: seventeenth-century efforts by agricultural improvers, including John Locke, to eradicate waste. Locke’s theory of property prohibits the wasteful spoilage of food and charges mankind with a responsibility to cultivate, incorporate, and thereby appropriate earth’s nonhuman eatables—what (...) I call his “partition of the digestible.” But eating both underwrites and unhinges Lockean property rights, for all food contains materials that cannot be used by the body and must be excreted from it. Poop and pee serve as visible reminders that consumption is inhabited by, and thus cannot resolve, waste. Even the improvers’ ostensible solution of repurposing excrement as manure to produce more food just creates more waste: this “peristaltic circle,” as I describe it, is voracious and expansive. Circular waste-eradication projects are best understood as enabling preconditions for the wastefulness of linear, take-make-waste political economies, not their antidote. (shrink)

This paper offers a conditional defence of a minimalist theory of appropriation. The conclusion of its main argument is that, if people do enjoy a natural right to appropriate unappropriated resources, then that right is best understood as a derivative right that stems from a more fundamental natural right to self-preservation. If this conclusion is correct, then insofar as people have a natural right to appropriation, it is much more limited than it is usually assumed, as the minimalist theory places (...) very stringent restrictions on both the amount of unappropriated resources each person has a right to appropriate and the use they can make of those appropriated resources. The conclusion of my argument can be either used as a premise in a modus tollens argument to be used against natural-right theories of property rights or as a premise in a modus ponens argument in favour of a broadly left-libertarian theory. (shrink)

Since the 1950s, interpreters of John Locke have debated whether his ideas about political economy figured among the intellectual sources of capitalist development. While some have labeled Locke a mercantile or agrarian “capitalist thinker,” others have insisted that, although a mercantilist, he was in no sense a theorist of capitalism. By reconstructing the relationship between Locke's ideas and the capitalist society of his day, this article challenges the prevailing terms through which commentators have traditionally interpreted his political economy and its (...) place in the history of capitalism. I interpret Locke's perspectives on capital accumulation, foreign trade, and labor discipline throughout the 1690s as a reflection of the historical rise of export-oriented cycles of commodity manufacturing in the English countryside known as “proto-industrialization.” Moreover, I claim that, because proto-industrialization was tied to the expansion of England's colonial economy, this neglected context of Locke's economic doctrine sheds new light on his vision of empire. Looking to his writings on Ireland, I argue that Locke pursued proto-industrial economic reform by combining a hierarchical, stadial theory of progress with an imperial policy aimed at “improving” the colonies through decreed patterns of production and exchange that favored metropolitan trade. (shrink)

This article presents a reinterpretation of John Locke's contribution to debates about the interest rate in the seventeenth century. It suggests that his argument that England should maintain the ‘natural’ rate, rather than impose a lower rate, was motivated by his theological, moral, and social conceptions of credit and its dependence on trust. In order to solve the endemic shortage of metal coin limiting the growth of monetary exchange in England, Locke stressed that the higher, ‘natural’ rate of interest would (...) facilitate interpersonal borrowing and lending among neighbours, allowing currency to flow more freely around the country. By contrast, while he acknowledged that institutional creditors such as goldsmith-bankers could quicken the circulation of money by issuing debt instruments like bills of exchange, he saw institutional credit as a threat to the moral community. Not only did he question how people could rationally trust financiers without any epistemic apprehension of their personal probity, but he moreover doubted whether individuals accumulating so much money were likely to act trustworthily. Finally, using an otherwise unstudied dialogue about the Bank of England, this article argues Locke extended his criticisms about the threats posed by private banks to the country's nascent system of public credit. (shrink)

The most important parent of the idea of property in the person is undoubtedly John Locke. In this article, we argue that the origins of this idea can be traced back as far as the third century BCE, to classical Stoicism. Stoic cosmopolitanism, with its insistence on impartiality and the moral equality of all persons, lays the foundation for the idea of self-ownership, which is then given support in the doctrine of oikeiosis and the corresponding belief that nature had made (...) all human beings equal, self-preserving, and self-regarding. On the Stoic account, self-ownership is a natural correlate and consequence of oikeiosis, the natural urge to self-preservation, proprioception, and the individuation that came with it. In recognising that people are separate and individual, and entrusting each individual’s welfare to herself, Zeus appears to make everyone a ‘self-guardian’. We uniquely argue that Locke was directly inspired by these Stoic ideas, which he then develops and incorporates into his own theory. (shrink)

The Lockean theory of property licenses unilateral appropriation on the condition that there be ‘enough, and as good left in common for others’. However, the meaning of this proviso is all but clear. This article argues that the proviso is centered around the Lockean theory of freedom. To be free, I argue, we must be ‘non-subjected’ in the exercise of our rights, including our rights to appropriate. We enjoy such freedom only when the ability to exercise our rights does not (...) depend on others. That can obtain if literally enough and as good is left in common. But it can also obtain in other ways, for example through competitive labour markets. The latter offer something as good as ‘enough and as good’. (shrink)

During the Coinage Crisis of 1695, John Locke successfully advocated a full recoinage without devaluation by insisting on silver money's “intrinsick value.” The Great Recoinage has ever since been seen as a crucial step toward the Financial Revolution and it was long regarded as Locke's most consequential achievement. This article places Locke's intervention in the context of the postrevolutionary English state at war and reads his monetary pamphlets as an integral, if largely neglected, part of his political philosophy. Instead of (...) taking Locke's insistence on “intrinsick value” itself at face value, I argue that it was precisely money's fragile conventionality that threatened its role as a societal bond of trust. In response to this fragility and corruptibility, Locke tied money by fiat to an initially arbitrary but unalterable quantity of metal. While Locke's argument contributed to the modern naturalization of money, it arose from a paradoxical political act of monetary depoliticization. (shrink)

It is morally impossible, Locke argued, for individuals to consensually establish absolute rule over themselves. That would be to transfer to rulers a power that is not ours, but God’s alone: owner...

John Locke’s theory of state is heavily constructed around his doctrine of consent. The doctrine indeed signifies a critical moment in the development of liberal and democratic theories in the history of political thought. Nevertheless, the doctrine has provoked various controversies and raises doubts on whether Locke’s early and later positions are reconcilable. This paper joins the scholarly debate through investigating the role of consent in Locke’s theory of state. It rejects the ahistorical readings of the doctrine that deliberation and (...) voluntary intention constitute the necessary condition of consent. It also opposes the view that the doctrine of consent offers a moral ground for Locke’s argument on the legitimacy of government, nor does the doctrine directly makes the case for political obligation. Instead, I argue that the doctrine of consent normatively proclaims the essential value of liberty in Locke’s theory of state while historically it was employed as a response to England’s political reality. Locke’s articulation of the doctrine also reveals his life-long concern about the peril of anarchy. Thus, consent should be understood as a dynamic process of recognising the necessity of government while acknowledging the people’s resolution to be free. (shrink)

Este trabajo estudia críticamente seis posibles límites a la apropiación privada, individual, unilateral y desigual en el estado de naturaleza descripto por John Locke. I) la restricción expresada bajo la forma de dejar suficiente y tan bueno en común para otros; II) la prohibición del desperdicio de los frutos perecederos; III) asociada a esta segunda condición pero aplicada a la tierra, la prohibición de cercar tierra cuyos frutos se desperdicie; IV) la limitación propuesta por Macpherson, según la cual es una (...) condición de la apropiación mezclar el propio trabajo de modo personal con el objeto; V) el principio de caridad como derecho del necesitado a los medios de subsistencia; VI) la limitación que advierte Simmons, según la cual es posible derivar del principio de caridad un derecho al auto-gobierno, esto es, a no ser esclavizado a cambio de brindar, como es el deber del propietario al necesitado, los medios de subsistencia. (shrink)

Locke’s property rights are now usually understood to be both fundamental and strictly negative. Fundamental because they are thought to be basic constraints on what we may do, unconstrained by anything deeper. Negative because they are thought to only protect a property holder against the claims of others. Here, I argue that this widespread interpretation is mistaken. For Locke, property rights are constrained by the deeper ‘fundamental law of nature,’ which involves positive obligations to those in need and confines the (...) right to excess property within circumstances where it is not needed to preserve human life. (shrink)

Scant attention has been paid to the notion of property in Hannah Arendt’s thought, and this paper aims to address this gap. For Arendt, property is the realm of privacy, located in the house. She argues that the modern age represented its loss with the expropriation of the peasant classes after the Reformation. As a result, wealth started to be accumulated and became productive through the labor of the new propertyless classes. This new way of dealing with property needed a (...) new notion of property for the laborers. Locke’s understanding gave the laborers the hope of being property-owners through their labor and simultaneously justified the unending accumulation of money; nevertheless, property in its true meaning was never recovered. Arendt believes that recovering property under conditions of equality is an essential consideration, and this egalitarian vision of property only can be achieved if law protects prop- erty as well as set limits on the accumulation of wealth. (shrink)

In this paper we articulate and diagnose a previously unrecognized problem for theories of entitlement, what we call the Claims Conundrum. It applies to all entitlements that are originally generated by some claim-generating action, such as laboring, promising, or contract-signing. The Conundrum is spurred by the very plausible thought that a later claim to the object to which one is entitled is a function of whether that original claim-generating action is attributable to one. This is further assumed to depend on (...) one’s being identical to the person who performed the claim-generating action. But the right theory of personal identity for grounding these later claims proves quite elusive. In demonstrating both the Claims Conundrum and diagnosing its source, we begin with its instantiation in John Locke’s theories of personal identity and initial acquisition, and then we gradually expand its net to include both Lockean and non-Lockean theories of both, moving ultimately to show that this is a problem for most entitlements generally. We then diagnose the source of the trouble, showing that a basic assumption about the link between attributability and identity that most people take to be obvious is in fact false, clearing a path for future investigation into this overlooked but serious problem’s resolution. (shrink)

It is traditional to ascribe to Locke the view that every person who acquires natural property rights by labouring on resources is obligated to leave sufficient resources for everyone else. But during the last several decades, a number of authors have contributed to a compelling textual case against this reading. Nevertheless, Locke clearly indicates that there is something wrong with distributions in which some suffer while others thrive. But if he does not endorse the traditional proviso, what exactly is the (...) problem? In this paper, I offer a solution to this puzzle. I argue that according to Locke, once people use their natural rights to acquire large properties, many individuals are unable to enjoy the material and moral wellbeing, or “preservation,” that is the end of natural law. For even if such large properties pose no problem for material preservation, they foster arbitrary power that offends against moral preservation. (shrink)

Property, or property rights, remains one of the most central elements in moral, legal, and political thought. It figures centrally in the work of figures as various as Grotius, Locke, Hume, Smith, Hegel and Kant. This collection of essays brings fresh perspective on property theory, from both legal and political theoretical perspectives, and is essential reading for anyone interested in the nature of property. Edited by two of the world's leading theorists of property, James Penner and Michael Otsuka, this volume (...) brings together essays which consider, amongst other topics, property and public law, the importance of legal forms in property theory, whether use or exclusion are most essential to our understanding of property, distributive justice, Lockean and Grotian theories, the common ownership of the Earth, and Confucian ideas of property. (shrink)

Historians have recently begun to gather round imperial, and lately “global,” contexts in which Western political thought might be better understood. John Locke has been pulled along behind them; the contours of his account of private property have increasingly been explained by his personal connections to the colonies. But in his case, the imperial context does less interpretive work than it appears to. This article attempts to show why: it tells a different, more explicitly intellectual, story about why Locke's depiction (...) of property took the shape that it did. It does so by underlining the extent to which seventeenth-century property debates took place in the spatial and temporal dimensions inhabited by sacred history. It then tries to explain why this might have mattered to Locke. (shrink)

In Locke’s economic and politic thinking is possible appraise some articulations that connect the teological, the economic and the politic. The humans work for divine decree and the labor is an economic concept inasmuch as it is the activity that yields private ownership, whose possession entails a natural right for all individuals. Safeguarding this right is liability of the government and of the state institutions. For Locke the market is previous to the civilian society, trade’s regulative structure sets the guidelines (...) of the governmental action, so that money’s circulation should not be interfered directly by the sovereign power neither leading it under particular politic interests. Thus, it is can find out an ontology of market in lockean thought, insomuch as trade space’s existence takes up the natural laws and project them in the space`s political. (shrink)

The early modern writings of John Locke are important not for their originality or coherence but for what they offer in understanding the ideological grounds of capitalist economics. Locke offers a justification of inequality in terms of the apparently meritocratic idea of equality – not the equality between people but rather the equivalence between the work of each isolated individual and their reward. This justification of inequality in terms of the work of individuals is anchored in a quite specific conception (...) of work, which I call the vulgar concept of work. According to this conception, work is located in the unmediated action of an isolated individual at a particular moment in time and place. While this vulgar concept of work has historically been and today is central in justifying inequality, this concept is radically at odds with the reality of work and also with key moments in Locke’s own writings, in which there are at least four different concepts of work. It is not simply that Locke maintains an indefensible concept of work but rather that there is a certain awareness of this indefensibility in Locke and in the waves of liberal individualists who follow him. In order to navigate these contradictions, and in an effort ultimately to justify inequality at all costs, Locke has recourse to a profound set of metaphysical presuppositions regarding isolation, separation and origin. On the one hand Locke’s concept of work is incoherent and inconsistent. On the other, despite his apparent empiricism and demand for clarity of concepts, Locke’s writings and the politics he bequeathed rest on a fantastic metaphysics that seeks constantly to obscure and discredit the ongoing work of others. (shrink)

Intellectual property regimes necessarily create artificial scarcity leading to wastage, both by blocking follow-up research and hindering access to those who are only able to pay less then the actual retail price. After revising the traditional arguments to hinder access to people’s intellectual labour we will examine why we should be more open to allow free-riding of inventive efforts, especially in cases where innovators have not secured the widest access to the fruits of their research and failed to cooperate with (...) follow-up innovators. We will do so by questioning the voluntariness involved in consumption of objects of innovation, restating the positive social externalities that arise when wider access to the fruits of innovation is assured, and examining the eventual harms innovators face. (shrink)

According to Locke, appropriation is a precondition for moral responsibility and thus we can expect that it plays a distinctive role in his theory. Yet it is rare to find an interpretation of Locke’s account of appropriation that does not associate it with serious problems. To make room for a more satisfying understanding of Locke’s account of appropriation we have to analyse why it was so widely misunderstood. The aim of this paper is fourfold: First, I will show that Mackie’s (...) and Winkler’s interpretations that have shaped the subsequent discussion contain serious flaws. Second, I will argue that the so-called appropriation interpretation —that is the view that appropriation is meant to provide alternative persistence conditions for persons—lacks support. Third, I will re-examine Locke’s texts and argue that we can come to a better understanding of his notion of appropriation in the Essay if we interpret it in analogy to his account of appropriation in Two Treatises. Fourth, I will offer a more fine-grained interpretation of the role of appropriation in relation to persistence conditions for persons. I conclude by showing that the advantage of this proposal is that it reconciles interpretations that have commonly been thought to be inconsistent. (shrink)

Eric Fabri | : Le cinquième chapitre du Second traité du gouvernement de John Locke a été l’objet de nombreuses mésinterprétations dont l’origine est à chercher dans la volonté des commentateurs d’y trouver une « théorie de la propriété », là où ne se trouvait qu’une « théorie de l’appropriation ». Après une présentation du texte et de ses interprétations, l’article étudie le contexte d’écriture des Deux traités du gouvernement et la place qu’y occupe le cinquième chapitre pour démontrer que (...) l’intention de Locke dans ce chapitre était restreinte : il ne s’agissait que de légitimer l’appropriation originelle dans l’état de nature en vue de poser les jalons indispensables à la démonstration aboutissant au droit de résistance. La distinction faite entre « théorie de la propriété » et « théorie de l’appropriation » permet alors de comprendre comment les interprètes ont extrapolé les écrits de Locke et quels problèmes cette extrapolation pose aux théories modernes de la propriété d’inspiration lockéenne. | : Because most commentators searched a “theory of property” where only a “theory of appropriation” was to be found, the fifth chapter of Locke’s Second Treatise of Civil Government has often been misinterpreted. After recalling briefly Locke’s text and presenting the two major lines of interpretations, the article examines in detail the political destination of the Two Treatises and the role of the fifth chapter in their general economy. The objective is to demonstrate that Locke’s intention when writing this chapter was rather restricted : he only aimed at legitimating private appropriation in the State of Nature because it was a necessary preliminary step for concluding that resisting an arbitrary political power is legitimate. With the distinction between a « theory of property » and a « theory of appropriation » at hand, the article points out which indeterminacies allowed such divergent interpretations to coexist, and further explores the problems this distinction rises for modern theories of property like the Nozickean “entitlement theory”. (shrink)

O presente artigo analisa a propriedade privada a partir da teoria de John Locke no que se refere à aquisição originária. São discutidos o princípio da apropriação pelo trabalho, os limites à propriedade privada pelo deixar em comum para apropriação pelos demais 'o suficiente e de mesma qualidade' - o que Nozick nomeia como 'cláusula lockeana' –, bem como a possibilidade de acumulação. Para isso serão analisados os argumentos apresentados por Locke, acompanhado das críticas elaboradas por Robert Nozick.

In the present article I claim that there is a strong relationship between the conception of the individual that we hold and the way we understand our relationship with others, and more specifically, the way we conceive our political bond, that is, the ends or purposes that we claim to pursue while being part of a society or political community. Following this premise, I have examined John Locke’s political thought under the category of ‘possessive individualism’ as it was coined by (...) C.B. Macpherson in his book The Political Theory of Possessive Individualism. This analysis was performed in order to disclose the conception of ‘political society’ proposed by Locke, as well as expose the limits that such conception imposes over our political life and understanding of citizenship. (shrink)

The objective of this article is to compare and contrast the influential notion of natural and property rights created by John Locke in his "Second Treatise on Government" (1689) to the posterior notion of abstract right expressed by Georg Wilhelm Friedrich Hegel in his "Elements of the Philosophy of Right". Said analysis is particularly pertinent given the complexity of Hegel’s political philosophy, and, perhaps more importantly, seeing as Hegel’s abstract right was (allegedly and in part) intended to point out the (...) shortcomings of Locke’s theory of natural and property rights, in order to further the human understanding of the world. More specifically, this article will examine the two rights theories in terms of their respective amounts of emphasis on individualism, or lack thereof. It will reveal three areas in which Lockean rights are more geared towards the primacy of the individual than Hegelian rights: (1) in their respective understandings of what it means to be a person, (2) in their conduciveness to individual wellbeing through the obligations each theory entails, and (3) in the extent of the rights themselves in relation to the state. (shrink)

Does intellectual property satisfy the requirements of the Lockean proviso, that the appropriator leave “enough and as good” or that he at least not “deprive others”? If an author's appropriation of a work he has just created is analogous to a drinker “taking a good draught” in the flow of an inexhaustible river, or to someone magically “causing springs of water to flow in the desert,” how could it not satisfy the Lockean proviso?

A base de todas as discussões políticas de John Locke é o conceito de direito natural; e o desenvolvimento das suas ideias políticas é acompanhado pelas interpretações que ele nos deu deste conceito, em especial daquelas que norteiam as suas concepções de liberdade e propriedade. Locke argumenta que não é a força nem a tradição, mas somente o “consentimento” expresso dos governados que se constitui como a única fonte de um poder político que se quer legítimo. Tal consentimento deriva-se da (...) liberdade que existe no estado de natureza e fundamentará os alicerces da sociedade civil. (shrink)

The debate over Locke’s theory of slavery has focused on his involvement with the Royal African Company and other institutions of African slavery, as well as his rhetorical use of slavery in opposing absolutism. This overlooks Locke’s deep involvement with the Carolina colony, and in particular that colony’s Indian slave trade, which was largely justified in just-war terms. Evidence of Locke’s participation in the 1682 revisions to the Fundamental Constitutions of Carolina, which removed the infamous “absolute power and authority” clause, (...) and his knowledge of colonial affairs, when examined alongside textual evidence of the timing of the composition of Locke’s theory of slavery, indicates a significant connection between the colony and Locke’s work. In light of this evidence, this article suggests an interpretation of Locke’s theory that stresses its character as a response to the conditions he encountered in Carolina. (shrink)

Locke’s Second Treatise of Government lays the foundation for a fully liberal order that includes representative and limited government, and that guarantees basic civil liberties. Though future thinkers filled in some gaps left in his doctrine, such as division of powers between executive and judicial branch of government, as well as fuller exposition of economic freedom and human rights, it is Locke, who paves the way for others. The article reviews the Treatise, paying particular attention to his ingenious way to (...) render absolute power illegitimate and to create an order that breeds citizens, not subject. In this, the article claims, Locke is a Whig rather than a continental liberal. He worries about state omnipotence and the threat it poses for citizens. Though resorting to an abstract construct—state of nature—he still is a common sense, English thinker, far from a continental reformer who would thoroughly redesign the existing order. (shrink)

Rising sea levels may sink entire countries. Individualistic solutions to this climate catastrophe, such as those proposed by Meisels and Risse, are inadequate on both Kantian and Lockean criteria. This article concurs with Cara Nine's recent argument that such ‘ecological refugee states’ are entitled to territorial remedies. But Nine's proposal, founded on Locke's ‘sufficiency’ proviso and Nozick's famous application of it to waterholes in the desert, is instructively incorrect. Careful consideration of the distinction between land and territory, and of the (...) structure of Proviso arguments, supports a new theory of how territorial claims can be positive-sum — how the amount of territory can increase even as the land base remains constant or decreases. This normative conception of territory as the ratio of justice to land use provides a better foundation for a political solution to the problem of ecological refugee states and also generates deeper insight into the nature of territory itself. The article thus contributes not only to our thinking about redress for ecological refugees, but also to the burgeoning literatures on territory and on the Lockean Provisos. (shrink)

Research Articles Adam Mossoff, Social Philosophy and Policy, FirstView Article.

A private property account is central to a liberal theory of justice. Much of the appeal of the Lockean theory stems from its account of the so-called `enough-and-as-good' proviso, a principle which aims to specify each employable person's fair share of the earth's material resources. I argue that to date Lockeans have failed to show how the proviso can be applied without thereby undermining a guiding intuition in Lockean theory. This guiding intuition is that by interacting in accordance with the (...) proviso persons interact as free and equal, or as reciprocally subject to the `laws of nature' rather than as subject to one another's arbitrary will. Because Locke's own and contemporary Lockean conceptions of the proviso subject some persons to some other persons' arbitrary will, the proviso so conceived cannot function as it should, namely as a principle that restricts interacting persons' actions reciprocally and thereby enables Lockean freedom under law. (shrink)

I argue there is a distinct and integrated property-concept applying directly, not to things, but to actions. This concept of Property in Activities describes a determinate ethico-political relation to a particular activity – a relation that may (but equally may not) subsequently effect a wide variety of relations to some thing. The relation with the activity is fixed and primary, and any ensuing relations with things are variable and derivative. Property in Activities illuminates many of the vexing problem cases arising (...) in property theory. Communal, intangible, fugacious, hunting, fishing, customary and recreation property rights are not ersatz instances of owning things – they are paradigms of Property Protected Activities. The same is true of the functioning of property in various aspects of contemporary law, its application in philosophical arguments such as Locke’s, and much of its historical application prior to the Nineteenth Century. By illustrating how one stable concept can resolve this myriad of otherwise puzzling cases, I argue that Property in Activities is as important and influential a concept as Ownership of Things. (shrink)

This paper is an evaluation of John Locke's labour theory of property. Section I sets out Locke's labour view. Section II addresses several possible objections, including against the conceptual coherence of Locke's argument, against the metaphysical implications of his view, as well as foundational criticisms of the moral significance of labour and of my relations with objects that are grounded in labour under certain conditions and circumstances. I attempt to address each of these criticisms in a Lockian spirit, which will (...) require strange metaphysical moves. The final Section raises further objections that are more significant because they cannot be squared with the labour view. (shrink)

For the last 30 years I have been writing a trilogy on Locke’s, Berkeley’s, and Hume’s philosophies of money. With the publication of Clipped Coins. Abused Words and Civil Government; John Locke’s Philosophy of Money and Exciting the Industry of Mankind; George Berkeley’s Philosophy of Money and with the last volume on Hume in preparation, the trilogy is now almost completed.

The purpose of my paper is to show the derivation of what is sometimes called the ‘new liberalism’ (or ‘progressive liberalism’) from the basic principles of classical liberalism, through a reading of John Locke’s treatment of the right to property in his Second Treatise of Government. Locke’s work sharply distinguishes between the natural right to property in the ‘state of nature’ and the societal right to property as established in a socio-economic political system. Whereas the former does not depend on (...) the consent of others, it is qualified by strict limits on the amount of property that may be rightly acquired. The societal right to property lifts these limits but is justified only under the principle of universal consent. This principle, I argue, implies the Rawlsian difference principle; i.e., that the regulation and distribution of property must be such as would elicit the freely proffered consent of society’s least advantaged members. (shrink)

Defenders of strong Intellectual Property rights or of a nonutilitarian basis for those rights often turn to Locke for support.1 Perhaps because of a general belief that Locke is an advocate of all things proprietary, this move seldom receives careful scrutiny. That is unfortunate for two reasons. First, as I will argue, Locke does not issue a blank check in support of all property regimes, and the application of his reasoning to intellectual property would actually tend to favor a substantially (...) limited rights regime. Second, the attempt to understand intellectual property as an instance of Lockean property, though admittedly anachronistic, offers an opportunity to further our understanding of Locke's own thought. My major claim will be twofold: on the one hand, intellectual property would be an almost paradigmatic case of Lockean property; on the other hand, Locke's provisos—specifically the widely neglected spoilage proviso—would sharply limit the scope of any entitlements. My secondary claim will accordingly be that the spoilage proviso's neglect is undeserved, and that it deserves a more central place in our understanding of Locke. I will not here address whether Locke provides the right way to think about property, whether IP is a good idea, or whether property rights ought to include a right to destroy; my concern is to elucidate Locke's arguments and then to block this application of them. (shrink)

Locke's defense of private property rights includes what is called a proviso— "the Lockean proviso"—and some have argued that in terms of it the right to private property can have various exceptions and it may not even be unjust to redistribute wealth that is privately owned. I argue that this cannot be right because it would imply that one's right to life could also have various exceptions, so anyone's life (and labor) could be subject to conscription if some would need (...) it badly enough. Since this could amount to enslavement and involuntary servitude, it would be morally and legally unacceptable. Key Words: rights • John Locke • Lockean proviso • scarcity. (shrink)

Locke's admittedly 'very strange' sounding doctrine of natural executive power, according to which the individual has the right to execute the law of nature, has long been one of the most controversial features of his moral philosophy. In contrast to the many commentators who deny its theoretical innovation and challenge its individualist premises, this study proposes that the philosophical significance of Locke's natural right to punish derives from its critical departure from earlier moral and political theory. It also argues that (...) the individualist political and religious implications of the natural punishment doctrine are only fully intelligible in light of Locke's theory of property and the assessment of the epistemological limits and possibilities for acquiring moral knowledge in his Essay Concerning Human Understanding. (shrink)

The present paper examines conventional wisdom on the subject of the justification of indigenous peoples' intellectual property rights, and offers an alternative approach. The examination is achieved by a critique of two such conventional approaches in terms of the strength of each argument employed, and in terms of the efficacy of each in the roles allotted to them. The first such argument is Stenson and Gray's application of Kymlicka's individualist theory advocating national minority autonomy. The second argument is the labour (...) entitlement theory of property acquisition, as advanced by Locke and Nozick. These theories only explain how a liberal social contract theorist would construct justifications from the outside. That this is inadequate is shown by reference to a case study involving indigenous claims against Australian law based on indigenous customary law. There, appeals are not made to abstract theory, but to tribal imperative. This observation finds sympathetic support in a reading of Hegel's philosophy of history. Hegel finds spirit in all peoples at all times. To Hegel, non-state peoples are developmentally prior to states; this means that states have developed dialectically from such peoples and cannot therefore deny them without self-contradiction. This places an onus upon a state that has subsumed an indigenous people to accommodate its laws and ways. (shrink)

In this article I argue that, despite the views of such theorists as Locke, Hart and Raz, most of a person's property rights cannot be individualistically justified. Instead most property rights, if justified at all, must be justified on non-individualistic (e.g. consequentialist) grounds. This, I suggest, implies that most property rights cannot be morally fundamental ‘human rights’.

The article takes up and challenges the Lockean conception of common sense and common right to property in two ways: first, through a critical investigation of Locke's historical connection to colonialism, and second, by turning to contemporary indigenous conceptions of common sense. Locke's practical experiences in the founding of Carolina, I argue, serve not simply to explain the problematical colonial impulses of the Second Treatise, but indeed to help undo the credibility of that text's ideological claim to acquire and assimilate. (...) Next, I turn from an internal historicized critique of the Second Treatise to a contemporary external challenge, examining current indigenous perspectives de-legitimized by the Second Treatise. I contend that traditionalized conceptions of indigenous knowledge and understanding provide a strategic revitalization of common sense in ways that re-define and re-characterize the word's roots not only in the common but also in the senses themselves. The article concludes by questioning whether these revitalized 'traditionalisms' — as much as they challenge exclusionary Lockean conceptions of the 'common' and common sense — also carry the risk of denying aspects of indigenous modernity and excluding alternative indigenous conceptions of land and resource use. (shrink)

The article takes up and challenges the Lockean conception of common sense and common right to property in two ways: first, through a critical investigation of Locke's historical connection to colonialism, and second, by turning to contemporary indigenous conceptions of common sense. Locke's practical experiences in the founding of Carolina, I argue, serve not simply to explain the problematical colonial impulses of the Second Treatise, but indeed to help undo the credibility of that text's ideological claim to acquire and assimilate. (...) Next, I turn from an internal historicized critique of the Second Treatise to a contemporary external challenge, examining current indigenous perspectives de-legitimized by the Second Treatise. I contend that traditionalized conceptions of indigenous knowledge and understanding provide a strategic revitalization of common sense in ways that re-define and re-characterize the word's roots not only in the common but also in the senses themselves. The article concludes by questioning whether these revitalized 'traditionalisms' — as much as they challenge exclusionary Lockean conceptions of the 'common' and common sense — also carry the risk of denying aspects of indigenous modernity and excluding alternative indigenous conceptions of land and resource use. (shrink)