Essays
A History of the Philosophy of Property Rights
By Grant Madsen,
Defenders of Property Rights
Summary: Starting with Jehovah’s command not to steal, private property gained greater protection through the centuries, ultimately gaining the status of a natural right, as explained most clearly by John Locke. In Lockean natural rights theory, property rights stand as the foundation for all other rights and the basis for forming government. The Founders of the United States Constitution adopted Lockean theory and used it to shape the United states, granting the private possession of property its most protected status. Since that time, three philosophic viewpoints have challenged the Lockean conception of property: Marxism, radical or pure democracy, and environmentalism.
The first understanding of property rights dates back as far as the Ten Commandments when Jehovah commanded the people of Israel not to steal. The idea of compensation for theft also dates to roughly that time with the edict of an eye for an eye and a tooth for a tooth. In essence, a prohibition against taking the fruits of another man’s labour has, for centuries, been one of the most fundamental principles of any moral code or legal system.
But the earliest injunctions against stealing covered only one scenario: the situation when one person in a society takes from another person in the same society without consent. i Jehovah, in the Law of Moses, did not offer much recourse when He took from an individual Hebrew for benefit of the entire House of Israel, in part because, as the Israelites understood things, He owned everything. While some shepherds might have occasionally grumbled whenever a tabernacle went up on their pastureland, for the most part, the idea of seeking compensation for a taking by God meant, in essence, blasphemy. People were scared enough of trouble here on earth, let alone the hereafter.
By the time Christianity had spread through Europe, Kings continued to use the weight of heaven on their side. Among other things, the “divine right” of Kings meant that they pretty much owned everything. Thus was feudalism born: the peasants worked the noble’s land, giving to him a certain percentage of their gain as rent. The nobles in turn gave a certain percentage of their gain to the king in exchange for their privilege to rent their land. And the king collected what he could for the waging of war and the stuffing of his own coffers.
Through most of the first thousand years AD in Europe, the real property question had to do with taxation: what sort of rent did everyone need to pay in order to work the land? Then, in England, a remarkable notion began to grow, namely, that taxation was not a matter left purely to the king, but required the consent of those being taxed. People began to think that the King did not, in fact, own everything. Ultimately, this new idea found expression in law around 1215 AD with the creation of the Magna Carta, which expounded the basic rule of taxation that lasted in England for centuries: in times of national defense the King’s prerogative could take property as he saw fit; but in times of peace, only Parliament had the authority to raise or lower taxes.
Once the English had broken free from the belief that everything belonged to the King, it was a short leap to begin outlining property rights. And so, unsurprisingly, the Magna Carta includes a compensation provision for protecting what amounted to the most valuable piece of property at that time: food. In chapter 28 it states: “No constable or other bailiff of ours shall take corn or other provisions from anyone without immediately tendering money therefor, unless he can have postponement thereof by permission or the seller.” Suddenly government understood a second property right alongside theft, a governmental “taking.”
This tradition continued for a few more centuries and out of it grew a common law understanding that, more or less, filled in some of the gaps of protecting property from government takings. But philosophically speaking, not much happened until 1651 when Thomas Hobbes tried to move property rights back a few steps in the interest of preserving the crown.
In 17th-century England, Natural Law was all the rage. While Natural Law can trace its origins to Plato and especially Aquinas, intellectuals of the Enlightenment really allowed it to flourish. They felt that Nature, which included humanity and the rest of the universe, acted according to an objective set of principles that stand above and beyond it and can be seen by the “light of reason” possessed by just about everyone. To the religious, these principles simply expressed God’s will. In non-religious views, they meant the rules that make the world work. In terms of morality, ethics and politics, these laws “explain the objective conditions for human flourishing” and outline “the constraints upon permissible actions and social arrangements.” ii The really innovative thing about the Enlightenment was that reason, which belonged primarily to philosophers in Plato’s time, now belonged to all people. Science, as the embodiment of human reason discovering Natural Law, could be accessed and used by everyone.
Hobbes fit perfectly within his time. He wanted to establish a scientific basis for moral and political laws, and thereby create a reasonable society acceptable to all reasonable people. Naturally, he started his investigation by focusing on humans in a state of nature. And he was not particularly impressed with what he saw. In its essence, he argued, human life is “solitary, poor, nasty, brutish and short.” The state of nature is a state of war, “of every man against every man.” iii Given such a tenuous grip on life and facing the real prospect of imminent violent death, Hobbes raised an important question: how can we avoid these frightening dangers and give free rein to our most natural instincts of self-preservation and personal security?
His famous answer in a nutshell? Get yourself a king and cut a deal. In essence, we must strike a “contract” or “covenant” with the sovereign to whom we give up personal liberty and all property in exchange for imposed social order. We may find ourselves constrained in uncomfortable ways from time to time, but given the options, occasional constraint seems a whole lot better than “every man against every man.” The King’s job is simply to maintain, through the coercive powers of the state, peace within the kingdom and protection from enemies abroad.
While this may sound like a simple return to the pre-Magna Carta understanding of things, it differed in an important way. Hobbes introduced the idea of a social contract: instead of the king’s power coming from God, it came from the people who give him the power to rule. Suddenly, the source of government’s power comes not from above but from below. As a good monarchist arguing for the king during the time of Oliver Cromwell, Hobbes hoped to restore the power to the throne he felt it rightly deserved. Ironically, his argument sewed the seeds of monarchy’s undoing everywhere. As one observer noted, “The growth of modern constitutional theory is best understood as a response to Hobbes.” iv
No response to Hobbes has carried as much weight through the years as that of his protégé, John Locke. Locke accepted Hobbes’s terms and basic goal, namely setting government upon a rational base of Natural Law. But he saw no reason to turn all power over to the king. In fact, he felt very strongly that such a move violated Natural Law more than it upheld it.
To start with, he disagreed with Hobbes’s pessimistic assessment of men in a state of nature. Locke argued that we are all born “equal and independent,” but Natural Law determines that “no one ought to harm another in his life, health, liberty, or possessions.” v While Hobbes felt that man’s natural state was war, Locke explained that war only occurred because of the “corruption and viciousness of degenerate men” vi —those who fail to recognize the basic laws of nature as protecting life, liberty, and possessions. As long as these areas of life remain respected, few conflicts arise between people.
Locke then investigated a little clearer the rational basis of possessions and why we have a right to them. He starts by noting that, in a state of nature—something like Adam in the Garden of Eden—property does not flow from a king or government, but instead begins as common to us all. No one, at least initially, owns any part of nature. So much for the king’s right to all property.
But this view causes a problem of its own: How can something common to humanity at large become the particular property of any individual? Why does Locke believe in a natural right to property? His answer, as we will see, has powerful reverberations down the philosophic road.
Locke’s investigation, like Hobbes’s, works from the individual outward. “Though the earth and all inferior creatures be common to all men,” he says, “yet every man has a property in his own person.” In other words, we own, by definition, our selves. By extension, we own what we make. “This nobody has any right to but himself,” Locke writes, “the labour of his body and the work of his hands, we may say, are properly his.” vii Locke concludes that whenever labour and property mix, labour counts most. Thus, he concludes, “Nor is it so strange, as perhaps before consideration it may appear, that the property of labour should be able to overbalance the community of land. For it is labour indeed that puts the difference of value on everything…” viii Once touched by human hands, nature belongs to those hands that, by their touch, have improved it.
People, therefore, come together to form a civil society, and appoint a sovereign, in order to protect, first and foremost, the fruits of their labour. Thus, Locke concludes: “The great and chief end of men’s uniting into commonwealths and putting themselves under government is the preservation of their property.” ix But as he has developed his argument, Locke has done much more than to describe basic preservation of wealth. Remember, our own person is our first property right, from which the fruits of our labour flow. By Locke’s account, protection of property rights means, literally, the protection of life. And when government protects life and property, the people have liberty. x
Locke then considers one problem his theory spawns. What to do when natural resources run out? What good is my right to my own labour if I have nothing to labour upon? Put another way, why would someone without any hope of property beyond his person—because all the land, for example, had already found a labourer—want to enter into a civil society? If, by chance, we ever ran out of bits of nature to go around, those who had none would simultaneously lose the protection of life and liberty under the government.
Locke might have argued for the rationing of property, guaranteeing each individual some piece of the overall pie. Instead, however, he strikes off into a dramatically new direction. What we need is a surplus—so much opportunity for property that everyone has a reasonable expectation of obtaining some. But how to get this surplus, especially given the natural propensity for most goods, at least at his time, to spoil? Society, he argued, needed some sort of good that did not spoil and all the better if this good held universal appeal. That way, people would have an incentive to labour beyond their own immediate wants and produce a surplus that others might share in.
What society needed was money. “Find out something that hath the use and value of money amongst his neighbors,” Locke said, “you shall see the same man will begin presently to enlarge his possessions.” xi Certainly, Locke recognized that the spread of money and surplus also allows some to hoard many goods while others have less. But that is just fine, he assures us. In an argument that would make Ronald Reagan proud, Locke asserts, essentially, that a rising tide raises all ships. “He who appropriates land to himself by his labour,” he writes “does not lessen but increases the common stock of mankind… And therefore he that encloses land, and has a greater plenty of the conveniences of life from ten acres than he could have from a hundred left to nature, may truly be said to give ninety acres to mankind.” xii In Locke’s terms, individual wealth results in general wealth. And since the first axiom of Natural Law is the desire for self-preservation, anything to better our chances for survival is welcome.
At the same time, the need for surplus only increases the need for a government that protects property. Locke’s conception of political power, limited by his formulation of the natural right to property, highlights both his agreement and great disagreement with Hobbes. Because Hobbes failed to recognize the role of property in natural law, his system turned over far too much power to the sovereign and left people no real reason for entering into a social contract. After all, as British history taught both men, whether your neighbor steals your horse or the king appropriates it, you still have just as far to walk. Because Hobbes provided a weak argument to join his commonwealth, his government would ultimately fail. xiii
Despite the centuries that have passed, Locke’s argument remains the strongest and most persuasive on behalf of property rights we have today. Moreover, it predicts what we have seen throughout the world: that a government’s failure to recognize our fundamental right to property prophesies its ultimate collapse.
Locke had an enormous influence upon the founding of the United States. Finding themselves suddenly free of British rule but without much of a cohesive government in its place, the thirteen colonies of the American Revolution asked themselves, what now? Given the choice of any existing government, or the creation of a brand new government, what to choose?
They ended up creating a system of mixed government and separation of powers, two of the pillars of U.S. Constitutional theory we do not need to fully investigate today. But that had already been done in ancient Greece and Rome, with mixed results. The Founders wanted something more, and so they did something fully original: they created of a fully (if not purely) democratic republic, but limited it along the lines of Lockean natural rights—all of which they expressed in a written constitution.
As good neoclassicists, the colonial leaders had cut their intellectual teeth on Plato, Aristotle, and other ancient philosophers, all of whom expressed serious doubts about democracy. xiv As Plato put it first—and Aristotle and Polybius later echoed—democracy had always tended to degenerate into, ochlocracy, or mob rule. xv As Locke might point out, the world always holds corrupt, vicious, and degenerate men. Giving this bunch the vote could be worse that anything a king ever did.
One of the overriding concerns answered in the U.S. Constitution was, therefore, how to limit a government of the people from turning into a tyranny of the many. Among other solutions, the constitutional Framers amended the U.S. Constitution with the now famous Bill of Rights, a series of ten amendments that outline those rights they wished to keep outside of the political arena—namely, the rights to life, liberty, and property. To make this point clearer, think of the unamended Constitution as instructions for making a democratic republic work, and the Bill of Rights as a list of everything exempted from those workings. Since these rights are, in essence, the rules that allow democracy to work in the first place, they must remain outside of the whims of a majority, which might, through the designs of clever, ill-intending men, fall out of favour from time to time. In the form of the U.S. Constitution and the Bill of Rights, property rights found their greatest flowering.
Jumping forward several centuries, we can see the enormous success of their thinking. In the West we accept reflexively our equality. Moreover, our conception that we have rights that inhere in us, that are “inalienable,” remains the rhetorical standard in just about all political discourse. But the source of this equality, Natural Law as laid out by Hobbes, Locke, and the Founders of the U.S. Constitution, has generally been forgotten through a long process of co-opting and dilution by philosophies that, at their heart, stand at odds with the very basis of natural rights.
This dilution partly explains why democracy has, in fits and starts, spread across the globe, but property rights remain still unprotected in many countries, largely, I believe, because of all limits placed on a government, the most difficult for it to live under—and therefore the most valuable for the people to obtain—is the right to property. Historically, three distinct but related philosophic developments have led to this development: Marxism, radical democracy, and environmentalism.
Karl Marx, of course, hated private property; but he did so for very specific reasons that do not, at least initially, put him at odds with Locke. Marx, too, believed we have a right in our labour. And he, too, sees surplus production as the result of private property. But he parts ways with Locke once they start talking about money. While money provides Locke with the solution to his philosophic problems, for Marx, money is the root of all evil.
For Marx, Lockean theory worked too well. Suddenly, the means of production had created a situation where whatever right the labourer had to his labour was lost in the pennies he received in compensation. Marx felt that the universality of money was a false universality, a fiction that obscured the true relationship of worker to his labour and left the worker alienated, unable to realize the fruits of his labour. This meant, for Marx, much more than fair compensation. The connection between a labourer and his product had almost metaphysical qualities, and separating these two resulted in a genuine alienation that went beyond simple poverty.
Marx’s greatest tomb, Das Kapital, or simply “Money” in English, is an extended analysis and attempted discrediting of the capitalist system so clearly prescribed by Locke. Get rid of money, destroy Lockean private property, turn everything over to the labourers and allow them the fruits of their labour, Marx argued, and the people will no longer suffer their unbearable alienation.
Marx’s nasty penchant for absolutism forced him to throw the baby out with the bath water with tragic results obvious even to the most obstinate Marxist defender. As it turned out, fair wages tended to make most workers a lot less unhappy. Meanwhile, every nation to embrace Marxism discovered that throwing the baby of property rights out with the bath water of unfair wages had the predictable effect of gutting all other rights, not to mention destroying any incentive to maintain a social contract. As a Russian friend of mine once commented about working in the former Soviet Union: “We pretended to work, and they pretended to pay us.”
The second criticism of property rights comes from the myth of absolute democracy, or in other words, the belief that a democratic system of government should be the highest virtue of any social order. Natural rights, so the theory goes, come after democracy, or even get in the way of the exercise of the community’s will which, under this theory, resides alone as the greatest good.
The origin of this thought goes back a few centuries to Sir William Blackstone and his still important Commentaries on the Laws of England. “The only true and natural foundations of society,” xvi he suggests, reminiscent of Hobbes and Locke, “are the wants of fears of individuals.” This leads to “political or civil liberty” which is the “very end and scope of the constitution.” But having established an agreement in principal with his predecessors, he veers off in practice. He modifies his previous statements by saying that “this liberty, rightly understood, consists in the power of doing whatever the laws permit.” xvii
What we are left with, then, is a circular argument: law maintains individual liberty, and individual liberty is what the law allows. In other words, whatever is legal is good because it is legal, and vice-versa. While Locke may give good reasons for forming a government, Blackstone argues that once a government is formed, its right to do what it wants remains essentially unchecked—as long as it acts under colour of law.
During World War II, the famous economic philosopher Friedrich Von Hayek made an extensive investigation into this belief. He notes the popular belief that any law “duly authorized” by an elected legislative body must respect “the Rule of Law”—his terminology for Natural Law and natural rights. “The fact that someone had full legal authority to act in the way he does,” Hayek continues, “gives no answer to the question whether the law gives him power to act arbitrarily or whether the law prescribes unequivocally how he has to act.” xviii
No better example of this comes to mind than the Weimar Republic of Germany immediately following World War I. While indeed a democracy, the Republic had no constitutional protections for property rights or much by way of respect for Natural Law. In the absence of constitutional guarantees of a strong German tradition respecting these rights, and suffering the further economic aggravation of war reparations and runaway inflation, the success of the radical politics of Hitler seems almost predictable. “It may well be that Hitler has obtained his unlimited powers in a strictly constitutional manner,” Hayek concludes, “and that whatever he does is therefore legal in the juridical sense. But who would suggest for that reason that the Rule of Law still prevails in Germany?” xix
As a matter of historical record, Hitler did in fact obtain his power through essentially legal, democratic means. Of course, once he obtained power, he sacked Germany’s fledgling democracy and assumed total autocratic control. But his early successes came through legitimate democratic exercise. No figure acts as a more powerful symbol of the dangers of an unfettered democracy. While the Framers of the U.S. Constitution clearly could not have had Hitler or Nazism in mind while fearing the “tyranny of the majority,” he nevertheless fits precisely that fear.
Not to belabour the point, but I do not think it a coincidence that the first Nazi regulations directed at Jews focused on confiscating Jewish property. Again going back to Locke, since our private possessions are simply an extension of the property right that inheres in our body, a systematic attempt at violating all of our rights would naturally start the other way around. Government would take first our possessions, then our labour, and lastly our lives. That was exactly the fate of Jews under Nazism.
The third challenger to property rights, and I think the most pertinent to our discussions in this conference, has no single voice or distinct speaker. Rather, it is a still inchoate constellation of views that share, in my estimations, one common thread: namely, we humans are the problem. To quote one extreme example: “To say that the world has cancer, and that the cancer cell is man, has neither experimental proof nor the validation of predictive accuracy; but I see no reason that instantly forbids such a speculation.” xx
For lack of a better term, I call these folks “romantic pessimists.” I barrow the term from Irving Babbitt, the early twentieth century intellectual who originally used the term to describe the disillusion that occurred throughout the nineteenth century as the early Romantics discovered that industrialization was here to stay. xxi The early optimism of the nineteenth century, that the human spirit might triumph over the constraints imposed by an industrialized, compartmentalized world, gave way to a conviction that humanity had degenerated as far as nature could allow. Only immediate, radical reversal of all of our society could possibly save us.
This last point is important because it tends to end most dialogues. Romantic pessimism can, for many, function like a messianic religion in which we are approaching the millennium: the time for discussion has passed and the time for action is now. The fate of the world, after all, hangs in the balance.
Philosophically speaking, the Romantic side of this group follows Rousseau’s argument against Locke. In many ways Rousseau agreed with Locke, even admired him. He agrees that humanity, in a state of nature seeks primarily preservation of self and, in order to do that, enters society through social contract (the title of one of his most influential works). But he thinks Locke remained a little too close to Hobbes in his view of the natural state of man. Nature, Rousseau thinks, has another side to it that argues against socialization. The Hobbesian view, adopted by Locke, that freedom means protection against nature’s abuses ignores the positive things she has to offer—the most positive of which turns out to be virtue, the good in us. Our most natural state shows that life is not brutish or nasty; it is, finally, good. Society turns out to be the bad guy.
Out of this sediment grew many of the Romantic poets of the early nineteenth century: Wordsworth, Cooleridge, Shelley, Schiller, and the early Goethe. These all rebelled against the Enlightenment notion of nature laid out by Locke and Hobbes and attempted to find the wholeness of life by identifying with nature over and against society. A return to our primitive roots, away from society and its “protections” would allow us to rediscover our humanity.
The pessimist side of this group adheres to a version of original sin where humanity fell from divine presence not when Adam partook of the fruit but when he started to tend the garden. Some of the names for this are “biocentrism” and “deep ecology.” xxii This philosophic position is very hostile toward technology and science and maintains that humanity plays in Nature much like a bull plays in a china shop. Evolution reached its pinnacle just before Locke, when we still screwed things up, but at least nature got us back with an occasional plague or flood. Unsurprisingly, this group adamantly supports population control.
In their view, Locke really got the ball rolling in the wrong direction when he gave human labour the emphasis when man and nature meet, thus creating a political order that allowed technologic advance to flourish. Nature, pristine and untouched, stands as the highest value. The greater the human interaction with a natural object, so much less its inherent value.
In any event, the philosophic divide between Lockean natural rights and this group is wider, in my opinion, than either the Marxist or democratic challenges before. While Marx wanted to wipe out all property rights, he at least walked part of the natural rights pathway with Locke. Those who want unchecked democracy may not walk this pathway, but they do not feel hostile towards it. They remain simply neutral to the question of property rights. But romantic pessimists disagree with Locke all the way down.
Which leads to a difficult conclusion of my paper. In the face of such a fundamental challenge, property rights require an almost total reinvigorating of our political tradition. Most importantly, we need to utterly return nature to the standard that gave us property rights, and not the innocent victim that, under the guise of environmentalism, wants those rights back. The circuitous route which has led us to this point must be retraced and reversed if property rights, and by extension all other civil rights, can continue to flourish.
That is why philosophy becomes so important in the context of property rights, because discussing property rights means more than a discussion of policy or regulation, but involves a deeper challenge to our very notions of rights within a state. Property rights have unsurprisingly become the battleground of visions for humanity for the next century and, indeed, millennium, as Western government spreads across the globe. Indeed, the question before us today is what rights will become a part of our human legacy and what we will mean when we say that all people are created equal.
I look forward to all that will be said today and tomorrow because I believe that we are working out the fate of human freedom on a global scale.
i Of course, taking property from someone outside of one’s society is simply war and raises an entirely different set of standards.
ii The Oxford Dictionary of Philosophy, (Oxford: Oxford University Press, 1994) p. 256.
iii Thomas Hobbes, Leviathan, (1651) ch. 12.
iv Richard Epstein, Takings: Private Property and the Power of Eminent Domain. (Cambridge: Harvard University Press, 1985) p. 9.
v John Locke, Of Civil Government, (1690). § 6.
vi Ibid., § 19
vii Ibid., § 27
viii Ibid., § 40.
ix Ibid., §124.
x Ibid., §87.
xi Ibid., §49.
xii Ibid., §37, emphasis added.
xiii In Locke’s terms: “Absolute arbitrary power, or governing without settled standing laws, can neither of them consist with the ends of society and government, which men would not quit the freedom of the state of nature for, and tie themselves up under, were it not to preserve their lives, liberties, and fortunes, and by stated rules of right and property to secure their peace and quiet.” Ibid., § 137.
xiv As one commentator notes: “Although democracy first developed in Greece, no one would have been more astonished by its current worship that the average Greek of the classical period… Democracy was a bold venture. One reason the Athenians were so elated by their victory over the Persians… was that it soothed their apprehension that the gods simply would not allow the overthrow of aristocracy.” Carl J. Richard, The Founders and the Classics: Greece, Rome, and the American Enlightenment, (Cambridge: Harvard University Press, 1994) p. 123.
xv Plato, Laws, 756e-757a, 832c; and Plato Politicus 291d-e, 303c.
xvi Sir William Blackstone, Commentaries on the Laws of England, 8th ed., 1778, vol. I p. 47.
xvii Ibid., vol. I, p. 6. Blackstone’s real difference with Locke centers on the likelihood of a popular uprising against a tyrannical government leading to a just government. Locke felt that the people could legitimately take up arms against a government willing to violate the people’s natural rights. Blackstone felt that such an uprising would simply return a society to the state of nature which, following Hobbes, would be worse than the original tyranny. I can only speculate that had Blackstone the experience of watching the American Revolution do just that, form a functioning social compact more respectful of natural rights than the previous tyranny, he might have leaned more toward Locke. In any event, he remains until the end a very conservative reformer, hoping for gradual changes in government toward the establishment of greater liberty. See Herbert Storing, “William Blackstone,” History of Political Philosophy, ed. Leo Strauss and Joseph Cropsey, 3rd ed. (Chicago: University of Chicago Press, 1987) p. 622-635.
xviii Ibid., vol. I, p. 91.
xix Ibid., vol. I, p. 91
xx Alan Gregg, “A Medical Aspect of the Population Problem,” Science 121, May 13, 1955, p. 682.
xxi Irving Babbitt, “Romantic Morality: The Real,” Criticism: The Major Texts, ed. W. J. Bate (New York: Harcourt, Brace, Javonovich, 1970) p. 548-559. I should point out that for Nietzsche, the most dominant romantic pessimist, this realization meant the triumph of a commercial nihilism, the conquering of the villainous “last man” whose soul is empty and spirit shallow. By his thinking, Lockean natural rights produced a banal, democratic being that, while it may have produced peace and prosperity, has simultaneously stripped humanity of an artistic or spiritual greatness. (See, for example, Thus Spake Zarathustra.)
xxii For a broader discussion of the philosophic views of Deep Ecology, see William Grey, “A Critique of Deep Ecology,” Journal of Applied Philosophy, Vol. 3, No. 2 (1986), p. 211-216.